Florida/Georgia Personal Injury & Workers Compensation

...The record clearly establishes that: (1) there was never a judicial determination of child abuse; (2) HRS was not awarded actual or constructive custody of the child; (3) there was no judicial determination that the child was a dependent child under section 39.401, Florida Statutes (1985); and (4) there was never a performance agreement entered into as permitted by section 409.168, Florida Statutes (1985), upon a finding of dependency....

...Winburn has carried her burden of showing that she acted within her discretionary authority. Florida statutes permit HRS to take children into protective custody if an HRS investigator determines it necessary to protect the child. See Fla.Stat.Ann. § 39.401(1)(c) (West 1988); id....

...orida Department of Children and Family Services (DCF), effected an “emergency” removal of Appellants’ children without Appellants’ permission and without a court order. Appellants brought this action seeking a declaration that Fla. Stat. § 39.401(1), which purportedly authorized the removal of the children, is unconstitutional both facially and as applied to them....

...The district court also dismissed claims for damages against state officials in their official capacities on the basis of Eleventh Amendment immunity. These rulings have not been appealed. 2 herein, we conclude § 39.401(1) is not unconstitutional, and Appellants have not demonstrated a violation of their constitutional rights....

...eir parents, and ordered that all three children be immediately returned to Appellants. Appellants subsequently commenced this action. II. A. Section 39.401(1) governs the state’s emergency removal of children who are believed to be in danger of child abuse....

...O’Brien also testified that she was concerned by Appellants’ refusal to make any statements concerning allegations of child abuse, and that she found Jane Doe to be “very protective of her husband.” 6 Fla. Stat. § 39.401(1).8 Consistent with § 39.401(1), DCF’s policy is to remove a child from a parent or legal guardian without prior judicial authorization when there is probable cause to believe the child has been abused or is in imminent danger of abuse. Appellants maintain that DC...

...O’Brien acknowledges that she did not attempt to determine whether there was time to obtain a court order before she removed the Doe children from their parents. B. Appellants asserted in their complaint that § 39.401(1) violates the Due Process Clause of the Fourteenth Amendment and violates the Fourth Amendment (as made applicable to the states through the Fourteenth) by authorizing the warrantless removal of their children....

...They also asserted that O’Brien violated their constitutional rights when she took their children into custody without prior judicial authorization. 8 In the event the state determines a child needs to be sheltered, a hearing must be held no more than 24 hours after the removal. Fla. Stat. § 39.401(3). 7  On January 22, 2001, Appellants filed a motion for partial summary judgment seeking: (1) a declaration that § 39.401(1) is unconstitutional; (2) a determination that O’Brien violated their Fourteenth and Fourth Amendment rights; and (3) a determination that O’Brien was not entitled to qualified immunity. On April 9, 2001, the district court issued an order denying Appellants’ motion for partial summary judgment. In its order, the court concluded § 39.401(1) comports with due process requirements and comports with the Fourth Amendment.9 As to the § 1983 claim against O’Brien, the court concluded the central issue was whether there were emergency circumstances warranting her removal of...

...On April 4, 2002, this Court dismissed the appeal for lack of jurisdiction because the district court had not actually resolved the claims for injunctive relief. See 28 U.S.C. § 1291. Subsequently, on June 26, 2002, the district court entered an amended order concluding § 39.401(1) is facially constitutional and that O’Brien did not apply the statute in an unconstitutional manner when she removed the Doe children....

...tter of law in favor of O’Brien on the issue of qualified immunity. III. Before turning to the substantive issues raised on appeal, we first consider whether Appellants have standing to challenge § 39.401(1)....

...9 deprivation of that right effects a cognizable injury. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982). Furthermore, the injury in this case is clearly traceable to Florida’s enactment and enforcement of § 39.401(1). The third criterion—redressability—presents a greater hurdle for Appellants....

...DCF has classified John Doe as fitting a “pattern of sexual offenders” and has now investigated him on two separate occasions. Given this classification and history, it seems reasonably likely that Appellants could encounter future state 10 action under § 39.401(1)....

...at 110 n.11, 95 S. Ct. at 861 n.11. The removal of Appellants’ children—though not a criminal detention as in Gerstein—is nevertheless a form of pretrial detention that will typically have ended by the time a legal challenge can be mounted. See Fla. Stat. § 39.401(3) (requiring a hearing within 24 hours of state’s removal of children). Consequently, any constitutional injury will likely be too fleeting to be redressed and hence qualifies as being capable of repetition yet evading review. We therefore conclude Appellants have standing to challenge § 39.401(1), and we turn our attention to the merits of that challenge. IV. Appellants maintain that § 39.401(1), both facially and as applied, violates their right to due process under the Fourteenth Amendment and their Fourth Amendment right to be free from unlawful search and seizure....

...By limiting warrantless removals to true emergencies, the law “seeks to strike a balance among the rights and interests of parents, children, and the State.” Tenenbaum, 193 F.3d at 594. 1. Appellants first contend that § 39.401(1) is facially unconstitutional. In order to prevail on their facial challenge, Appellants must establish that there is no set of circumstances under which § 39.401(1) may be constitutionally applied. Williams v....

...Pryor, 240 F.3d 944, 953 (11th Cir. 2001). “This ‘heavy burden’ makes such an attack ‘the most difficult challenge to mount successfully’ against an enactment.” Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1329 (11th Cir. 2001) (citation omitted). Section 39.401(1) authorizes state officials to remove a child without a prior court order only where there is probable cause to believe the child has been abused, neglected, or abandoned, or if there is probable cause to believe the child is in imminent danger of abuse....

...effect of this practice, according to Appellants, is the de facto elimination of the warrant requirement in derogation of due process. The problem with this argument—as far as Appellants’ facial challenge is concerned—is that it is aimed at DCF’s application of § 39.401(1). Section 39.401(1) authorizes the state’s warrantless removal of children in cases where the child is believed to be in imminent danger of abuse....

...Although Appellants contend that DCF has artificially inflated the meaning of “imminent danger,” the face of the statute is silent as to what circumstances may reasonably be considered to constitute “imminent danger.” As Appellants have themselves acknowledged, it is possible to apply § 39.401(1) in a manner that does not offend due process. By definition, then, § 39.401(1) is not facially unconstitutional. 2. a. Appellants’ as-applied challenge—like their facial challenge—hinges on their argument t...

...actions in this case were nearly unassailable. We therefore hold O’Brien’s warrantless removal of the children did not violate Appellants’ right to due process. B. Appellants also contend that § 39.401(1) and O’Brien’s application of it violated their Fourth Amendment right to be free from unreasonable searches and 24 seizures....

...25 of the qualified immunity analysis, and we affirm the district court’s judgment in favor of O’Brien. VI. In conclusion, we hold Appellants have standing to challenge § 39.401(1) because they are reasonably likely to suffer another removal under the statute, and the conduct at issue is capable of repetition yet evading review. As to the merits of that challenge, we hold that § 39.401(1) is not facially unconstitutional because it permits the removal of children without a court order only in an emergency. Nor was § 39.401(1) applied to Appellants in this case in an unconstitutional manner. In light of all the relevant circumstances, O’Brien had probable cause to believe the Doe children were in imminent danger of abuse....

...o make provision for the child's support or to communicate. § 39.01(1). "Abuse" contains another reference to volition: "abuse" is a "willful" act having a specified detrimental result. § 39.01(2). The other manifestations of momentary dependency, § 39.401(1)(b), (c), (d) and (e), presumably are of less consequence in long term "temporary" committals.

...asserting its independence as a separate branch of government? The State is a party in delinquency cases in that only the State can initiate delinquency proceedings (§ 39.05(1), Fla. Stat.) but this is not so in dependency cases which can be instituted by any knowledgeable person (§ 39.401(1), Fla....

...ed under the facts of the case. Specifically, the Florida Statutes lay out the process in great detail, from the -8- initial child protective services investigation (section 39.301), the shelter hearing (section 39.401), the adjudication of dependency (section 39.501), the case plan (section 39.6011), and finally the permanency determination (section 39.621) and the termination of parental rights (section 39.801). The Florida Rules of Juveni...

...If, for any reason, there is no valid and subsisting order adjudicating dependency and committing the child to foster care, HRS, upon the denial of its petition for permanent termination of parental rights, is free to immediately take the child into custody under section 39.401, Florida Statutes, and to institute proceedings to have the child declared dependent or "in need of services" and its custody temporarily committed to HRS for foster care under section 39.41(1)(d) or section 39.442(2)(a)4, Florida Statutes....

..."The manner in which due process protections apply var[ies] with the character of the interests and the nature of the process involved." Department of Law Enforcement v. Real Property, 588 So.2d 957, 960 (Fla.1991). The Department was not acting in response to an emergency. Cf. § 39.401, Fla....

...And the child's supposed to spend the summer with the mother. So we need this Court to step in. Bottom line. (emphasis added). At the conclusion of this hearing, the juvenile court found that there was probable cause to believe that the minor daughter was a "dependent child" pursuant to section 39.401(1)(a)(1), Fla....

...false report, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083. Anyone making a report who is acting in good faith is immune from any liability under this subsection. § 39.205(6), Fla. Stat. (2000). [3] Section 39.401 provides in pertinent part that: (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 a...

...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. § 39.401(1)(a)(1), Fla....

...provide the proposed psychotropic medication to the child, on a determination that it is in the child's best interest to do so. (c) Emergency Situations. (1) Shelter Care. When a child is initially removed from the home and taken into custody under section 39.401, Florida Statutes, and the department continues to administer a current prescription of psychotropic medication to the child, the department shall request court authorization for the continued administration of the medication at the shelter hearing....

...custody, and not a shelter order. We respectfully disagree with our colleague’s conclusion. Although it is possible that the family court judge’s initial intent at the October 5th hearing may have been to take the child into custody pursuant to section 39.401, the outcome of that hearing was a shelter order pursuant to section 39.402....

...2 working days after the shelter hearing.”); and (6) the father always has characterized the order on appeal as a “Shelter Order” under section 39.402 and has not suggested that the order was an order to take the child into custody pursuant to section 39.401....

...Also, this opinion does not address a question which our colleague's partial dissent appears to raise, that is, whether a parent has a due process right to be heard when a family court judge, at a hearing at which the parent is present, considers taking a child into custody pursuant to section 39.401, Florida Statutes (2011), and: (1) the parent requests to be heard; (2) time is available on the court’s calendar at which the parent can be heard; and (3) no harm can come to the child while the parent is being heard.

...es: (1) the nature of the order on appeal; and (2) the basis of our jurisdiction. Regarding the nature of the order on appeal, our colleague in partial dissent concludes that the order on appeal is an order to take the child into custody pursuant to section 39.401, Florida Statutes (2011), and not an order to place the child in a shelter pursuant to section 39.402, Florida Statutes (2011)....

...into custody, and not a shelter order. We respectfully disagree with our colleague's conclusion. Although it is possible that the family court judge's initial intent at the October 5th hearing may have been to take the child into custody pursuant to section 39.401, the outcome of that hearing was a shelter order pursuant to section 39.402....

...ithin 2 working days after the shelter hearing."); and (6) the father always has characterized the order on appeal as a "Shelter Order" under section 39.402 and has not suggested that the order was an order to take the child into custody pursuant to section 39.401....

...dge conducted a shelter hearing and entered a shelter order. The majority analyzes the order under review as a shelter order issued pursuant to section 39.402, Florida Statutes. I view the order as an order to take the child into custody pursuant to section 39.401, Florida Statutes....

...ld from the home and has made a determination that the provision of appropriate and available services will not eliminate the need for placement. (Emphasis added.) The family court judge's order in this case complies with these statutory provisions. Section 39.401, Florida Statutes deals with taking a child into custody....

...*174 The law grants parents the due process right to participate in a shelter hearing after an order to take into custody has been issued. I find nothing in the law that gives parents a due process right to participate in the decision of a trial judge to issue an order to take a child into custody pursuant to section 39.401, Florida Statutes, even if that decision occurs during a hearing with the parents present....

...Also, this opinion does not address a question which our colleague's partial dissent appears to raise, that is, whether a parent has a due process right to be heard when a family court judge, at a hearing at which the parent is present, considers taking a child into custody pursuant to section 39.401, Florida Statutes (2011), and: (1) the parent requests to be heard; (2) time is available on the court's calendar at which the parent can be heard; and (3) no harm can come to the child while the parent is being heard....

...REVERSED and REMANDED. ORFINGER and LAWSON, JJ., concur. GRIFFIN, J., concurs and concurs specially, with opinion. GRIFFIN, J., concurring and concurring specially. The issue presented is exactly what parents are entitled to do at the shelter hearing mandated by section 39.401, Florida Statutes (2005)....

...nvestigation that he was under the age of 18 and he was having a sexual relationship with [the woman], an adult. See § 794.011(8), Fla. Stat. (2011) (sexual battery of a child between the ages of 12 and 18 and noting that consent is not a defense); § 39.401(1)-(2), Fla....

...As for the relationship between the juvenile and his mother, the officers had no information to form a probable cause finding that he had been “abused, neglected, or abandoned, or [was] suffering from or [was] in imminent danger of illness or injury as a result of abuse, neglect, or abandonment.” § 39.401(1)(b)1., Fla....

immediately take the child into custody under section 39.401, Florida Statutes, and to institute proceedings

...police from the juvenile’s person because: (a) the arresting officer properly stopped the automobile in which the juvenile was riding based on a reasonable belief that the juvenile and his companions were absent from school without authorization, § 39.401(l)(e), Fla.Stat....

...a and that he, the plaintiff father, was adamantly opposed to the children being taken from his custody and being placed in the custody of the mother by defendants." (Dkt. 40 paras. 21 and 23). Vila and Mitchell "did not comply with Florida Statutes Section 39.401 when they failed to determine whether the minor plaintiffs had been abused, neglected, or abandoned, or were suffering from, or were in imminent danger of illness or injury as a result of abuse, neglect, or abandonment while in the custody and possession of the plaintiff father." (Dkt....

...Claims for Relief Defendants assert four grounds for dismissal of the counts against Vila and Mitchell: 1) Plaintiffs failed to allege that the father was entitled to sole custody or that the mother was not entitled to custody (in other words, the mother was not entitled to equal custody); 2) a violation of section 39.401, Florida Statutes, does not give rise to section 1983 claims unless a separate and independent violation of a constitutional right is also alleged; 3) section 39.401 does not apply to this case because the facts do not indicate that the minor children were taken into state custody and deprived of any right to be with a custodial parent; and 4) government officials cannot be held liable for failure...

...As to procedural due process, Plaintiffs contend that the state interfered with a liberty interest and that the procedures attendant upon the deprivation of their liberty interest were not constitutionally sufficient, citing Farina v. City of Tampa, 874 F.Supp. 383, 385 (M.D.Fla.1994). Specifically, Plaintiffs, citing section 39.401(1)(b), Florida Statutes, assert that the state agent failed to base the removal of the children on a finding of reasonable grounds that lead to a determination of probable cause....

...The issue is whether Plaintiffs met the second part of the procedural due process analysis — whether the procedures attendant upon the liberty deprivation were constitutionally sufficient. Plaintiffs alleged that Vila and Mitchell failed to follow the mandates of section 39.401, Florida Statutes....

...and was allowing Ms. Johnson more contact with the children than the circuit court's oral order had authorized. After discussing the matter with the Department's counsel, Ms. Sackett decided to place the two older children in protective custody. See § 39.401(c), Fla....

specific context of dependency proceedings. See § 39.401(1)(b)(2) & (3), Fla. Stat. (2000). Additionally

is necessary to protect the child.” Fla.Stat. § 39.401(l)(b). Under those circumstances, a detention

...to suppress. The state concedes that the detectives had no probable cause to arrest appellant as a delinquent child. However, the state *111 argues that the detectives were justified in taking appellant into custody as a dependent child pursuant to section 39.401, Florida Statutes (1985)....

...glected by their parents, legal custodians or caregivers. Section 415.505, Florida Statutes, requires DCF to be capable of receiving and investigating reports of known or suspected child abuse or neglect twenty-four hours a day, seven days a week. 1 Section 39.401 (1)(b), Florida Statutes, authorizes a law enforcement officer or an authorized agent of DCF to take a child into custody if the officer or agent has reasonable grounds to believe that the child has been abandoned, abused, or neglected...

...39.301 and 39.302 , Fla. Stat., created by ss. 38 and 39, Ch. 98-403, Laws of Florida, which respectively provide for the initiation of protective investigations and protective investigations of institutional child abuse, abandonment, or neglect. 2 Section 39.401 (3), Fla....

(1968); Doerr v. State, 383 So.2d 905 (Fla.1980); § 39.-401(1)(e), Fla.Stat. (1981).

...The order dismissing the dependency proceeding is reversed and this matter remanded for further proceedings. Upon the Department’s dependency shelter petition, the circuit court entered its shelter order for four children on August 11, 2015. See § 39.401, Fla....