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Florida Statute 39.401 | Lawyer Caselaw & Research
F.S. 39.401 Case Law from Google Scholar
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The 2023 Florida Statutes (including Special Session C)

Title V
JUDICIAL BRANCH
Chapter 39
PROCEEDINGS RELATING TO CHILDREN
View Entire Chapter
F.S. 39.401
39.401 Taking a child alleged to be dependent into custody; law enforcement officers and authorized agents of the department.
(1) A child may only be taken into custody:
(a) Pursuant to the provisions of this part, based upon sworn testimony, either before or after a petition is filed; or
(b) By a law enforcement officer, or an authorized agent of the department, if the officer or authorized agent has probable cause to support a finding:
1. That the child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment;
2. That the parent or legal custodian of the child has materially violated a condition of placement imposed by the court; or
3. That the child has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care.
(2) If the law enforcement officer takes the child into custody, that officer shall:
(a) Release the child to:
1. The parent or legal custodian of the child;
2. A responsible adult approved by the court when limited to temporary emergency situations;
3. A responsible adult relative or the adoptive parent of the child’s sibling who shall be given priority consideration over a nonrelative placement when this is in the best interests of the child; or
4. A responsible adult approved by the department; or
(b) Deliver the child to an authorized agent of the department, stating the facts by reason of which the child was taken into custody and sufficient information to establish probable cause that the child is abandoned, abused, or neglected, or otherwise dependent. For such a child for whom there is also probable cause to believe he or she has been sexually exploited, the law enforcement officer shall deliver the child to the department.

For cases involving allegations of abandonment, abuse, or neglect, or other dependency cases, within 3 days after such release or within 3 days after delivering the child to an authorized agent of the department, the law enforcement officer who took the child into custody shall make a full written report to the department.

(3) If the child is taken into custody by, or is delivered to, an authorized agent of the department, the agent shall review the facts supporting the removal with an attorney representing the department. The purpose of the review is to determine whether there is probable cause for the filing of a shelter petition.
(a) If the facts are not sufficient, the child shall immediately be returned to the custody of the parent or legal custodian.
(b) If the facts are sufficient and the child has not been returned to the custody of the parent or legal custodian, the department shall file the petition and schedule a hearing, and the attorney representing the department shall request that a shelter hearing be held within 24 hours after the removal of the child.
(c) While awaiting the shelter hearing, the authorized agent of the department may place the child in out-of-home care, and placement shall be determined based on priority of placements as provided in s. 39.4021 and what is in the child’s best interest based on the criteria and factors set out in s. 39.01375.
(d) Placement of a child which is not in a licensed shelter must be preceded by a criminal history records check as required under s. 39.0138.
(e) In addition, the department may authorize placement of a housekeeper/homemaker in the home of a child alleged to be dependent until the parent or legal custodian assumes care of the child.
(4) When a child is taken into custody pursuant to this section, the department shall request that the child’s parent, caregiver, or legal custodian disclose the names, relationships, and addresses of all parents and prospective parents and all next of kin of the child, so far as are known.
(5) Judicial review and approval is required within 24 hours after placement for all nonrelative placements. A nonrelative placement must be for a specific and predetermined period of time, not to exceed 12 months, and shall be reviewed by the court at least every 6 months. If the nonrelative placement continues for longer than 12 months, the department shall request the court to establish permanent guardianship or require that the nonrelative seek licensure as a foster care provider within 30 days after the court decision. Failure to establish permanent guardianship or obtain licensure does not require the court to change a child’s placement unless it is in the best interest of the child to do so.
History.s. 20, ch. 78-414; s. 4, ch. 87-133; s. 11, ch. 88-337; s. 2, ch. 90-204; s. 226, ch. 95-147; s. 6, ch. 95-228; s. 2, ch. 97-276; s. 57, ch. 98-403; s. 22, ch. 99-193; s. 8, ch. 2008-245; s. 4, ch. 2012-105; s. 4, ch. 2014-161; s. 3, ch. 2021-169.

F.S. 39.401 on Google Scholar

F.S. 39.401 on Casetext

Amendments to 39.401


Arrestable Offenses / Crimes under Fla. Stat. 39.401
Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 39.401.



Annotations, Discussions, Cases:

Cases from cite.case.law:

STATE DEPARTMENT OF CHILDREN AND FAMILIES, v. M. A. M. R. A. C. A., 215 So. 3d 1276 (Fla. Dist. Ct. App. 2017)

. . . See § 39.401, Fla. Stat.; Fla. R. Juv. P. 8.655. . . .

S. M. v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,, 202 So. 3d 769 (Fla. 2016)

. . . the initial child protective services investigation (section 39.301), the shelter hearing (section 39.401 . . .

J. B. v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,, 170 So. 3d 780 (Fla. 2015)

. . . See §§ 39.401(5) (shelter review hearing if placed with nonrelatives); 39.402 (shelter and shelter review . . .

D. J. D. a v. STATE, 143 So. 3d 1115 (Fla. Dist. Ct. App. 2014)

. . . sexual battery of a child between the ages of 12 and 18 and noting that consent is not a defense); § 39.401 . . . or [was] in imminent danger of illness or injury as a result of abuse, neglect, or abandonment.” § 39.401 . . .

S. M. v. R. M., 82 So. 3d 163 (Fla. Dist. Ct. App. 2012)

. . . I view the order as an order to take the child into custody pursuant to section 39.401, Florida Statutes . . . Section 39.401, Florida Statutes deals with taking a child into custody. . . . in the decision of a trial judge to issue an order to take a child into custody pursuant to section 39.401 . . . intent at the October 5th hearing may have been to take the child into custody pursuant to section 39.401 . . . and has not suggested that the order was an order to take the child into custody pursuant to section 39.401 . . . a hearing at which the parent is present, considers taking a child into custody pursuant to section 39.401 . . .

DEPARTMENT OF CHILDREN AND FAMILIES, v. P. F. K. A. a, 107 So. 3d 1123 (Fla. Dist. Ct. App. 2012)

. . . See §§ 39.401(1), § 39.402(1), 39.402(8)(d), Fla. Stat. (2011). . . .

A. P. BAZERMAN, R. K. N. M. R. M. v. FEAVER,, 293 F. App'x 635 (11th Cir. 2008)

. . . . § 39.401(1)0)) (1997). . . . Stat. § 39.401(3). . . . Stat. §§ 39.401(3), 39.402(5)(a). . . . Stat. § 39.401(l)(b) (1997). . . . Stat. § 39.401(l)(b)(l) (1997). . Broward County is in the Seventeenth Judicial Circuit of Florida. . . .

J. B. D. P. J. P. a v. DEPARTMENT OF CHILDREN AND FAMILIES,, 936 So. 2d 665 (Fla. Dist. Ct. App. 2006)

. . . issue presented is exactly what parents are entitled to do at the shelter hearing mandated by section 39.401 . . .

B. B. J. M. a v. P. J. M. K. M., 933 So. 2d 57 (Fla. Dist. Ct. App. 2006)

. . . See §§ 39.301(15) & 39.401(4), Fla. Stat. (emphasis added). . . .

In AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE, 915 So. 2d 592 (Fla. 2005)

. . . When a child is initially removed from the home and taken into custody under section 39.401, Florida . . .

A. M. T. A. D. T. A. D. T. A. M. T. v. STATE, 883 So. 2d 302 (Fla. Dist. Ct. App. 2004)

. . . Sections 39.401(1) and 39.402(1), Florida Statutes, require that, before a court may order a child taken . . .

DOE, D. M. N. O. B. O. a v. A. KEARNEY, O, 329 F.3d 1286 (11th Cir. 2003)

. . . Stat. § 39.401(3) (requiring a hearing within 24 hours of state’s removal of children). . . . Appellants first contend that § 39.401(1) is facially unconstitutional. . . . By definition, then, § 39.401(1) is not facially unconstitutional. 2. a. . . . Nor was § 39.401(1) applied to Appellants in this case in an unconstitutional manner. . . . Stat. § 39.401(3). . . . .

B. M. D. M. N. M. v. DEPARTMENT OF CHILDREN AND FAMILIES,, 842 So. 2d 936 (Fla. Dist. Ct. App. 2003)

. . . See § 39.401(1)(b)(2) & (3), Fla. Stat. (2000). . . . I therefore conclude that section 39.502(15), when read in pari materia with sections 39.01 and 39.401 . . .

In BB. v., 820 So. 2d 409 (Fla. Dist. Ct. App. 2002)

. . . there was probable cause to believe that the minor daughter was a “dependent child” pursuant to section 39.401 . . . Section 39.401 provides in pertinent part that: (1) a child may only be taken into custody: (a) Pursuant . . . from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment. § 39.401 . . .

W. DEBELLIS, III, v. KULP,, 166 F. Supp. 2d 255 (E.D. Pa. 2001)

. . . . § 39.401 (2001); Ga.Code § 15-11-^15 (2001); Iowa Code Ann. § 232.19 (2001); Neb.Rev.Stat. § 43-248 . . .

JOHNSON, v. SACKETT, n k a St. L. A., 793 So. 2d 20 (Fla. Dist. Ct. App. 2001)

. . . See § 39.401(c), Fla. Stat. (1987). Ms. Johnson had custody of the children when Ms. . . .

M. W. a v. DAVIS,, 756 So. 2d 90 (Fla. 2000)

. . . See §§ 39.401(3), 39.402(8)(a), Fla. Stat. (Supp. 1998). . . .

J. B. J. B. JR. J. B. P. B. B. B. v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES,, 734 So. 2d 498 (Fla. Dist. Ct. App. 1999)

. . . . § 39.401, Fla. Stat. (1997). The father did not have custody of the children at the time. . . .

WIMER, v. VILA,, 37 F. Supp. 2d 1351 (M.D. Fla. 1999)

. . . Vila and Mitchell “did not comply with Florida Statutes Section 39.401 when they failed to determine . . . to custody (in other words, the mother was not entitled to equal custody); 2) a violation of section 39.401 . . . claims unless a separate and independent violation of a constitutional right is also alleged; 3) section 39.401 . . . Specifically, Plaintiffs, citing section 39.401(l)(b), Florida Statutes, assert that the state agent . . . Plaintiffs alleged that Vila and Mitchell failed to follow the mandates of section 39.401, Florida Statutes . . .

BROWN, v. Ed FEAVER,, 726 So. 2d 322 (Fla. Dist. Ct. App. 1999)

. . . whether it is in the child’s best interest to be removed from his or her custodian’s custody), see §§ 39.401 . . . deprive a parent of custody of his or her child where there is no abuse, neglect, or abandonment, see §§ 39.401 . . .

LENZ, v. WINBURN, Ad a L. Jr. W. M. Ad, 51 F.3d 1540 (11th Cir. 1995)

. . . . § 39.401(1)(c) (West 1988); id. § 415.505(f)(3) (West 1993) (current version at id. § 415.505(e)(3) . . .

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, v. ZEIGLER, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, v. ZEIGLER,, 587 So. 2d 602 (Fla. Dist. Ct. App. 1991)

. . . permanent termination of parental rights, is free to immediately take the child into custody under section 39.401 . . .

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, v. YAMUNI, a, 529 So. 2d 258 (Fla. 1988)

. . . the child; (3) there was no judicial determination that the child was a dependent child under section 39.401 . . .

THE FLORIDA BAR ADVISORY OPINION HRS NONLAWYER COUNSELOR, 518 So. 2d 1270 (Fla. 1988)

. . . . § 39.401(l)(b). . . .

In K. A. B. a DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, v. HYSON,, 483 So. 2d 898 (Fla. Dist. Ct. App. 1986)

. . . Fla.Stat.) but this is not so in dependency cases which can be instituted by any knowledgeable person (§ 39.401 . . .

S. A. F. a v. STATE, 483 So. 2d 110 (Fla. Dist. Ct. App. 1986)

. . . detectives were justified in taking appellant into custody as a dependent child pursuant to section 39.401 . . .

B. C. a v. STATE, 449 So. 2d 955 (Fla. Dist. Ct. App. 1984)

. . . reasonable belief that the juvenile and his companions were absent from school without authorization, § 39.401 . . .

In A. B. a BROWN, v. STATE, 444 So. 2d 981 (Fla. Dist. Ct. App. 1983)

. . . The other manifestations of momentary dependency, § 39.401(l)(b), (c), (d) and (e), presumably are of . . .

Dr. R. RAMEY P. A. d b a v. FASSOULAS, 414 So. 2d 198 (Fla. Dist. Ct. App. 1982)

. . . See e.g., §§ 39.01(1), (2), (9)(a), (27), 39.401 et seq (1979). . . .