Florida Statute 39.401 - Full Text and Legal Analysis

The 2025 Florida Statutes

Title V
JUDICIAL BRANCH

Chapter 39
PROCEEDINGS RELATING TO CHILDREN

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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 CourtListener

Amendments to 39.401

Annotations, Discussions, Cases:

Cases Citing Statute 39.401

Total Results: 25

Dept. of Health & Rehab. Servs. v. Yamuni

529 So. 2d 258, 1988 WL 55622

Supreme Court of Florida | Filed: Jun 2, 1988 | Docket: 432294

Cited 47 times | Published

that the child was a dependent child under section 39.401, Florida Statutes (1985); and (4) there was

Lenz v. Winburn

51 F.3d 1540, 1995 WL 243813

Court of Appeals for the Eleventh Circuit | Filed: May 12, 1995 | Docket: 64020531

Cited 32 times | Published

necessary to protect the child. See Fla.Stat.Ann. § 39.401(1)(c) (West 1988); id. § 415.505(f)(3) (West 1993)

John Doe, Jane Doe v. Kathleen A. Kearney

329 F.3d 1286, 2003 U.S. App. LEXIS 8724, 2003 WL 21027249

Court of Appeals for the Eleventh Circuit | Filed: May 8, 2003 | Docket: 212905

Cited 25 times | Published

this action seeking a declaration that Fla. Stat. § 39.401(1), which purportedly authorized the removal of

In Interest of AB

444 So. 2d 981

District Court of Appeal of Florida | Filed: Dec 30, 1983 | Docket: 1510730

Cited 13 times | Published

other manifestations of momentary dependency, § 39.401(1)(b), (c), (d) and (e), presumably are of less

In Interest of KAB

483 So. 2d 898, 11 Fla. L. Weekly 575

District Court of Appeal of Florida | Filed: Mar 6, 1986 | Docket: 455650

Cited 12 times | Published

can be instituted by any knowledgeable person (§ 39.401(1), Fla. Stat.). The State has no right of appeal

S.M., etc. v. Florida Department of Children and Families

202 So. 3d 769, 41 Fla. L. Weekly Supp. 362, 2016 Fla. LEXIS 1964

Supreme Court of Florida | Filed: Sep 1, 2016 | Docket: 4418542

Cited 6 times | Published

investigation (section 39.301), the shelter hearing (section 39.401), the adjudication of dependency (section 39

JB v. Department of Children and Family Services

734 So. 2d 498, 1999 Fla. App. LEXIS 6330, 1999 WL 303399

District Court of Appeal of Florida | Filed: May 14, 1999 | Docket: 1731041

Cited 5 times | Published

was not acting in response to an emergency. Cf. § 39.401, Fla. Stat. (1997). The father did not have custody

JB v. Department of Children and Family Services

734 So. 2d 498, 1999 Fla. App. LEXIS 6330, 1999 WL 303399

District Court of Appeal of Florida | Filed: May 14, 1999 | Docket: 1731041

Cited 5 times | Published

was not acting in response to an emergency. Cf. § 39.401, Fla. Stat. (1997). The father did not have custody

DEPT. OF HLT. & REHAB. SERV v. Zeigler

587 So. 2d 602

District Court of Appeal of Florida | Filed: Oct 10, 1991 | Docket: 1406015

Cited 5 times | Published

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

In Re BB

820 So. 2d 409, 2002 WL 1371097

District Court of Appeal of Florida | Filed: Jun 26, 2002 | Docket: 1362679

Cited 4 times | Published

daughter was a "dependent child" pursuant to section 39.401(1)(a)(1), Fla. Stat. (1999).[3] The court below

D.J.D., a child v. State

143 So. 3d 1115, 2014 WL 3843152, 2014 Fla. App. LEXIS 12018

District Court of Appeal of Florida | Filed: Aug 6, 2014 | Docket: 844248

Cited 1 times | Published

18 and noting that consent is not a defense); § 39.401(l)-(2), Fla. Stat. (2011) (Taking a child alleged

S.M. v. R.M.

82 So. 3d 163, 2012 WL 716142, 2012 Fla. App. LEXIS 3723

District Court of Appeal of Florida | Filed: Mar 7, 2012 | Docket: 60306104

Cited 1 times | Published

to take the child into custody pursuant to section 39.401, Florida Statutes. I concede the printed form

Sm v. Rm

82 So. 3d 163, 2012 WL 716142

District Court of Appeal of Florida | Filed: Mar 7, 2012 | Docket: 2415742

Cited 1 times | Published

to take the child into custody pursuant to section 39.401, Florida Statutes (2011), and not an order

JB v. Department of Children and Families

936 So. 2d 665, 2006 WL 1864480

District Court of Appeal of Florida | Filed: Jul 7, 2006 | Docket: 1650937

Cited 1 times | Published

entitled to do at the shelter hearing mandated by section 39.401, Florida Statutes (2005). In this and several

In Re Amendments to Rules of Juvenile Proc.

915 So. 2d 592, 30 Fla. L. Weekly Supp. 799, 2005 Fla. LEXIS 2284, 2005 WL 3072028

Supreme Court of Florida | Filed: Nov 17, 2005 | Docket: 1311012

Cited 1 times | Published

from the home and taken into custody under section 39.401, Florida Statutes, and the department continues

State of Florida, Department of etc. v. M. A., Father of C.A., Minor Child

215 So. 3d 1276, 2017 WL 1322116, 2017 Fla. App. LEXIS 4950

District Court of Appeal of Florida | Filed: Apr 10, 2017 | Docket: 4670601

Published

order for four children on August 11, 2015. See § 39.401, Fla. Stat.; Fla. R. Juv. P. 8.655. The proceedings

B.M. v. Department of Children & Families

842 So. 2d 936, 2003 Fla. App. LEXIS 3486, 2003 WL 1203660

District Court of Appeal of Florida | Filed: Mar 18, 2003 | Docket: 64822177

Published

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

Johnson v. Sackett

793 So. 2d 20, 2001 WL 293233

District Court of Appeal of Florida | Filed: Mar 28, 2001 | Docket: 1677950

Published

two older children in protective custody. See § 39.401(c), Fla. Stat. (1987). Ms. Johnson had custody

Wimer v. Vila

37 F. Supp. 2d 1351, 1999 U.S. Dist. LEXIS 9694, 1999 WL 133054

District Court, M.D. Florida | Filed: Mar 3, 1999 | Docket: 2287808

Published

Mitchell "did not comply with Florida Statutes Section 39.401 when they failed to determine whether the minor

Ago

Florida Attorney General Reports | Filed: Aug 14, 1998 | Docket: 3258862

Published

twenty-four hours a day, seven days a week.1 Section 39.401(1)(b), Florida Statutes, authorizes a law enforcement

Department of Health & Rehabilitative Services v. Zeigler

587 So. 2d 602, 1991 Fla. App. LEXIS 9993

District Court of Appeal of Florida | Filed: Oct 10, 1991 | Docket: 64662300

Published

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

Florida Bar re Advisory Opinion Hrs Nonlawyer Counselor

518 So. 2d 1270, 13 Fla. L. Weekly 68, 1988 Fla. LEXIS 158, 1988 WL 9838

Supreme Court of Florida | Filed: Feb 4, 1988 | Docket: 64632147

Published

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

S.A.F. v. State

483 So. 2d 110, 11 Fla. L. Weekly 419, 1986 Fla. App. LEXIS 6391

District Court of Appeal of Florida | Filed: Feb 14, 1986 | Docket: 64617389

Published

into custody as a dependent child pursuant to section 39.401, Florida Statutes (1985). Under subsection

B.C. v. State

449 So. 2d 955, 1984 Fla. App. LEXIS 12970

District Court of Appeal of Florida | Filed: May 8, 1984 | Docket: 64604559

Published

were absent from school without authorization, § 39.401(l)(e), Fla.Stat. (1983), (b) the juvenile and

R.B.F. v. State

429 So. 2d 836, 1983 Fla. App. LEXIS 28943

District Court of Appeal of Florida | Filed: Apr 19, 1983 | Docket: 64596396

Published

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