CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 572, 2009 WL 187807
...Christopher Chopin of Law Office of Christopher Chopin, West Palm Beach, for respondent. GROSS, C.J. In this petition for writ of certiorari, the wife in a pending dissolution of marriage proceeding seeks review of a non-final order denying her motion for a hearing under section 39.0139, Florida Statutes (2008), in which she sought to prohibit the husband's visitation pending the hearing....
...On the same day, the husband filed an emergency motion for civil contempt based on the missed visitation. The trial court set both motions for hearing for October 31. On October 21, the wife filed within the dissolution proceeding her motion for a hearing under section 39.0139, which sought (1) the appointment of a guardian ad litem, (2) the prohibition of visitation until the section 39.0139 hearing, and (3) cancellation of the scheduled October 31 hearing....
...The detective who prepared the report reclassified the incident with the 17 year old as being unfounded, because the child reported that his father did not touch him and the earlier touching was without criminal intent. The wife noticed her motion for a section 39.0139 hearing on October 31, at the same time as the previously scheduled emergency motions. The circuit judge refused to entertain the motion for a section 39.0139 hearing due to inadequate notice....
...The husband's two cousins also denied the allegations against them. With regard to visitation, the detective thought that the teenage boys were capable of defending themselves, having taken Tae Kwan-Do. At this point in the hearing, the wife moved the court to consider her section 39.0139 motion....
...She wanted the trial court to appoint a guardian and suspend visitation. As to the Chapter 61 motions, the court found that the wife did not do all she could have done to carry out the trial court's visitation provisions. The court decided that the section 39.0139 hearing was unnecessary, since it had already conducted hearings under Chapter 61....
...erially injure the petitioner throughout the remainder of the proceedings, which cannot be remedied adequately on appeal. See Martin-Johnson, Inc. v. Savage,
509 So.2d 1097 (Fla.1987); Bared & Co., Inc. v. McGuire,
670 So.2d 153 (Fla. 4th DCA 1996). Section
39.0139 is designed to protect children. A court's failure to apply the statute to protect a child from abuse is reviewable by certiorari, since the situation presents the possibility of irreparable harm to the child. Section
39.0139, the "Keeping Children Safe Act," is designed to protect children "who have been sexually abused or exploited by a parent or other caregiver." §
39.0139(2)(b), Fla. Stat. (2008). The Act creates a "presumption of detriment" to a child under enumerated circumstances, §
39.0139(3), Fla....
...r contact." § 39.0130(2)(b), Fla. Stat. (2008). One of the circumstances creating a presumption of detriment is that a parent "[h]as been the subject of a report to the child abuse hotline alleging sexual abuse of any child as defined in s.
39.01." §
39.0139(3)(a)1, Fla....
...In this case, the wife contends that her report to a *4 hotline [1] triggered the presumption under this section, so that the husband may be allowed visitation with the teenagers "only after a hearing and an order by the court that allows the visitation or other contact." § 39.0139(4), Fla....
...been appointed" and may allow visitation only if the accused parent "proves by clear and convincing evidence that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by such visitation or other contact." § 39.0139(4)(b) & (c), Fla. Stat. (2008). Certiorari does not lie in this case because section 39.0139 did not apply in this Chapter 61 dissolution of marriage proceeding. The focus of section 39.0139 is to protect children "who are abused, abandoned, or neglected." § 39.0139(2)(a)1, Fla....
...(2008). These are defined terms in section
39.01 which have a meaning specific to Chapter 39 proceedings. See §
39.01(1), (2), & (44), Fla. Stat. (2008). Chapter 39 thus provides an entry mechanism into the court system for children who need protection. Section
39.0139(4) requires an order by "the court" that allows visitation....
...urisdiction under this chapter," "unless otherwise expressly stated." §
39.01(20), Fla. Stat. (2008) (emphasis supplied). Chapter 39 primarily involves dependency and termination of parental rights proceedings. Thus, a "court" within the meaning of section
39.0139 is a court "assigned" to hear dependency and parental termination cases, not the circuit court in general or a family division of the circuit court primarily assigned to hear Chapter 61 dissolution of marriage cases. The court in this case was a family division of the circuit court, not the division in the Fifteenth Judicial Circuit established to hear a docket of dependency and parental termination cases. This reading of section
39.0139 makes sense in light of the broad powers given to a court under Chapter 61 to protect children embroiled in a dissolution proceeding....
...Under Family Law Rule 12.610, a court may enter an ex parte temporary injunction to protect children from the fallout from domestic, repeat, or sexual violence. Given these broad powers to protect children under Chapter 61 and the Family Law Rules, section 39.0139 should not be read to supplant a due process oriented, comprehensive, balanced approach with provisions that change case dynamics based on a phone call to an abuse hotline....
...There is no requirement that the report be found to have been true, or even that it be subject to a finding of probable cause before the rebuttable presumption arises. A report that was made in the distant past and closed following an investigation with no indicators of abuse nevertheless triggers the application of [section 39.0139]. Sue Robbins, Florida Statute § 39.0139: Limiting the Risk of Serious Harm to Children, 82 Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2012 WL 246466, 2012 Fla. App. LEXIS 1089
...w by showing ‘that the trial court made an error so serious that it amounts to a miscarriage of justice.’ ” K.G.,
66 So.3d at 368 (quoting State v. Smith,
951 So.2d 954, 958 (Fla. 1st DCA 2007)). At issue here is the Keeping Children Safe Act, section
39.0139, Florida Statutes (2010) (the Act). There has been no suggestion that S.C., a two-year-old boy, has ever been sexually abused. Our review of the Act leads us to conclude that it applies only to sexually abused or exploited children. Section
39.0139(2) provides as follows: (2) Legislative findings and intent.— (a) The Legislature finds that: 1....
...(b) It is the intent of the Legislature to protect children and reduce the risk of further harm to children who have been sexually abused or exploited by a parent or other caregiver by placing additional requirements on judicial determinations related to visitation and other contact. (Emphasis added.) Section 39.0139(3) provides for a rebuttal presumption of detriment to a child when a parent or caregiver has been found guilty of certain crimes that include the child molestation conviction at issue here. Section 39.0139(4) provides that “[a] person who meets any of the criteria set forth in paragraph (3)(a) may visit or have other contact with a child only after a hearing and an order by the court that allows the visitation or other contact.” Aft...
...vidence that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by such visitation or other contact, the presumption in subsection (3) is rebutted and the court may allow visitation or other contact.” § 39.0139(4)(e). Reading subsection (2) on legislative intent as a whole with the remainder of section 39.0139 supports the conclusion that the Act is intended to apply to children who have been sexually abused or exploited....
...vidence could rebut the presumption of harm to the child. This is an error so serious that it amounts to a manifest injustice. Thus, even if the Act applies to S.C., the trial court departed from the essential requirements of the law in not applying section 39.0139(3) which provides for a re-buttable presumption....
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 645321
...The court noted that “a rebuttable presumption of detriment to a child is created when ... a court of competent jurisdiction has found probable cause exists that a parent or caregiver has sexually abused a child as defined in
39.01.” The court correctly explained that in a KCSA hearing pursuant to section
39.0139, Florida Statutes, a person seeking contact must present clear and convincing evidence that the safety, wellbeing, physical, mental, or emotional health of the child is not endangered....
...at the child actually said, I found that there was not probable cause to believe the child was at risk or that Mr. Flanagan [maternal grandfather] had ever abused that child. [[Image here]] Okay. Now, according to — we’ll just go through it then 39.0139....
...On appeal, DCF contends that the trial court departed from the essential requirements of law in two respects: 1) the trial court incorrectly interpreted the probable cause determination that triggers the re-buttable presumption of detriment to the child pursuant to section 39.0139(3)(a)l., Florida Statutes; and 2) the grandfather did not meet his burden to rebut the presumption or to support the court’s findings and grant of custody....
...The legislature amended the statute, effective July 2011, to read “A rebuttable presumption of detriment to a child is created when: 1. A court of competent jurisdiction has found probable cause exists that a parent or caregiver has sexually abused a child as defined in s.
39.01.” See §
39.0139(3)(a)l., Fla....
...Why a court with this statutory mandate would not expect to hear this man testify, explore all the available facts and listen to any available witness is a mystery. We grant the petition, quash the order of the trial court, and remand for a new KCSA hearing that meets the requirements of section 39.0139, Florida Statutes. Petition GRANTED; Order QUASHED and REMANDED. PALMER and COHEN, JJ„ concur. . The pertinent portions of the KCSA, § 39.0139, Florida Statutes (2011), are as follows: (3) Presumption of detriment.— (a) A rebuttable presumption of detriment to a child is created when: 1....
