Florida/Georgia Personal Injury & Workers Compensation

...The dependency court's involvement with a child typically begins when the Department files a petition to place the child in emergency shelter. If the Department removes the child from the home, the petition *102 must be filed within 24 hours after the child is taken into custody. See §§ 39.401(3), 39.402(8)(a), Fla....

...njury or illness from abuse, neglect or abandonment; or (2) child has no parent or responsible adult relative to provide care; or (3) the parent or legal custodian has materially violated a condition of placement imposed by the dependency court. See § 39.402(1)-(2), Fla. Stat. (Supp.1998). A child may not be retained in emergency shelter for more than sixty days without an adjudication of dependency. See § 39.402(13)....

...ncluded that minors should have the protection of a guardian ad litem. See Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Petersen, 920 So.2d 75, 78 (Fla. 1st DCA 2006) (listing circumstances in which trial court may or must appoint a guardian ad litem: § 39.402(8)(c) (shelter hearings); § 39.807(2)(a) (termination of parental rights proceedings); § 73.021(4) (eminent domain proceedings); § 390.01115(4)(a) (termination of pregnancy without parental notification); § 731.303(4) (probate proceedin...

...A hearing on the petition began on October 18, 1990, and was scheduled to conclude on October 31. Upon a motion by HRS at the beginning of the hearing, the trial court held that B.A.H. was dependent and ordered her placed in shelter care. B.A.H. was placed in custody with HRS for the twenty-one-day period permitted by section 39.402(9), Florida Statutes (1991)....

...by section 39.41(1). A common practice seems to be, as in this case and in A.T.P., supra, that the parents (or the child), who are without counsel, are called on to plead to the dependency petition at what is actually a detention hearing held under section 39.402(6)(a), Florida Statutes, and that if the facts alleged in the dependency petition are admitted, the adjudicatory hearing is treated as a mere formality and the proceeding moves on to a disposition hearing....

...institution, or any combination thereof." We find this definition broad enough to encompass emergency shelter facilities. Also, a dependent child may not be held in a shelter more than fourteen days without an adjudication order by the trial court. § 39.402(7), Fla....

...After M.G.'s father was arrested on charges of sexually abusing her, he was released pretrial, on condition that he move out of the home he had shared with M.G. and her mother, and have no further contact with the child, then two and a half years old. Thereafter, the Department filed a shelter petition under section 39.402, Florida Statutes (2000), alleging that, about a month later, the father had entered the former family home at 7:45 a.m., and stayed for approximately ten minutes....

...abuse counseling, had engaged in criminal conduct, and had a history of running away and using drugs. After D.J. was sheltered, the Department obtained repeated continuances of the dependency hearing. This occurred despite the provisions of sections 39.402(13) and 39.402(14)(f), Florida Statutes (2006), which provide that a child may not be held in shelter status under a shelter order for more than 60 days without an adjudication of dependency and that continuances or extensions of time may not exceed a total of 60 days. [2] D.J. was ultimately held under a shelter order for more than seven months, rather than the maximum four months provided for by section 39.402....

...Brockhouse of the Pasco County Sheriff's Office. The Department always has the discretion to, if they feel that the danger is gone, bring that right back and take care of it. They have the discretion to dismiss. They do it often. Counsel for E.P. again stated that section 39.402, Florida Statutes (2003), required an opportunity to present evidence and for the parents to be heard, and the circuit court judge responded: The parents have the right to be heard, but this can be probable cause, based on the four corners of the affidavit, and that's discretionary with the Court, and I am finding that we do not do three-hour shelter hearings. We never have, and I am not going to start. Counsel for G.P. then stated to the court that section 39.402 required a full evidentiary hearing and that case law established that the denial thereof was a violation of due process, particularly if the removal of the children was ordered....

...me with E.P. and not suffer further disruption of their lives. The court entered an order removing G.P. from the home and provided supervised visitation for G.P. The matter was adjourned to March 17, 2003, for full adjudicatory hearing. II. ANALYSIS Section 39.402 sets forth the procedure for conducting shelter hearings after the removal of a child. Section 39.402(5)(b)(1) provides: "The parents or legal custodians shall be given written notice that ......

...able criteria in this case are that "there is probable cause to believe that ... [t]he 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." § 39.402(1)(a)....

...hat no further hearing need be conducted. Had that been the intent of the rule it would provide that shelter of a child could be ordered without a hearing if the written submission established probable cause for shelter of the child. III. CONCLUSION Section 39.402 and rule 8.305 afford parents due process in judicial proceedings in matters involving the State's temporary removal of children from the home....

...iling to extend a "real opportunity" to be heard). Regarding the second prerequisite, an allegation that a trial court has violated a parent's right to be heard at a shelter hearing constitutes a departure from the essential requirements of the law. Section 39.402(8)(c)(3), Florida Statutes (2010), requires trial courts at shelter hearings to provide the parties with an opportunity to be heard and present evidence....

...The State of Florida implements the AACWA through the Florida Juvenile Justice Act, Chapter 39 of the Florida Statutes, and related provisions found in Chapter 409. Under Chapter 39, a child may be placed in foster care only if he or she has been "abused, neglected, or abandoned." See §§ 39.401-39.402, Fla....

...ry constraints when deciding how to allocate its limited funds among a virtually unlimited number of needs), and (2) it is limited by judicial oversight as to the "reasonableness" of the services provided when the state seeks custody of a child, see § 39.402(7)(b)5, Fla....

...In dependency proceedings, the legislature specifically limited the judicial role to (1) determining whether the child has been abused, neglected, or abandoned (i.e. whether it is in the child's best interest to be removed from his or her custodian's custody), see §§ 39.401(1)(b)1, 39.402(1)(a), Fla. Stat. (1997), and (2) determining whether the Department has made reasonable efforts to prevent the need for foster care, see § 39.402(7)(b)5, Fla....

...Birchfield, 718 So.2d at 202; Department of HRS v. Brooke, 573 So.2d at 371. Injunctive relief, therefore, is inappropriate. Furthermore, since a dependency court cannot deprive a parent of custody of his or her child where there is no abuse, neglect, or abandonment, see §§ 39.401(1)(b)1, 39.402(1)(a), Fla....

..., Fla. Stat. (1989) (It is the goal of the legislature that children of the state be provided with an independent, trained advocate when intervention is necessary, as well as a skilled guardian or caretaker when alternative placement is necessary.); § 39.402(11), Fla....

...1978) with 39.01(9), Fla. Stat. (1977). Further, distinguishing between delinquent and dependent acts has important consequences for a child. It is impermissible to detain a runaway child in a cell with a child charged with having committed a crime. See § 39.402(4)....

...ic], which potentially then hampers the investigation. On June 5, 1998, the mother filed a demand for trial on the dependency petition. The judge set trial for July 31, 1998. On July 23, the Department filed an emergency motion for continuance under section 39.402(10)(b)2, Florida Statutes (1997), on the ground that it needed "additional time to prepare the case ......

...lar efforts to provide notice to the parents during such periods of delay. (d) Reasonable periods of delay resulting from a continuance granted at the request of the parent or legal custodian of a subject child. § 39.013(9), Fla. Stat. (Supp.1998); § 39.402(14), Fla....

...8.315(a) (if parent denies allegations of petition, court shall set adjudicatory hearing within period provided by law or grant continuance as provided by law). We reject the Department's argument that this case presents an "exceptional circumstance" under sections 39.013(9)(b)2 and 39.402(14)(b)2....

...The reports sought by the mother and the Department are in existence. The failure of one arm of the government to cooperate with another by providing information is not an exceptional circumstance which can justify delay under the statute. This case is properly analyzed under sections 39.013(9)(b)1 and 39.402(14)(b)1, which provide for a continuance where evidence is unavailable, the attorney for the Department has exercised due diligence to obtain it, and "there are substantial grounds to believe that such evidence will be available within 30 days...

...In any event, the mother's demand for a trial filed on June 5, 1998, resurrected the time requirements of Chapter 39. At best, the waiver at the arraignment amounted to a parent's acquiescence in a continuance, which suspends the running of Chapter 39 time limitations under sections 39.013(9) and 39.402(14)....

...include, or delete any allegations concerning the father. The record of the February 14th hearing shows a stipulated continuance of this matter to March 14, 1989, and a stipulation, inter alia, to the extension of the "twenty-one day" rule found in Section 39.402(9), Florida Statutes (1987), which rule provides that "[n]o child shall be held in a shelter under an order so directing for more than twenty-one days unless an order of adjudication for the case has been entered by the court." At the March 14th hearing the court reset the case to April 13, 1989....

...The court denied the guardian's motion for rehearing, and, when the guardian filed her notice of appeal and moved for supersedeas, the court also denied that motion. This appeal followed. Florida law provides that the twenty-one day time limitation found in Section 39.402(9), does not include "[p]eriods of delay resulting from a continuance granted at the request or with the consent of the child's counsel or the child's guardian ad litem, if one has been appointed by the court," Section 39.402(11)(a), Florida Statutes (1987), or "[p]eriods of delay resulting from a continuance granted at the request of the State Attorney ... if the continuance is granted ... [t]o allow the State Attorney ... additional time to prepare his case and additional time is justified because of the exceptional circumstances of the case." § 39.402(11)(b)(2), Fla....

...ng of her emergency motion for a rehearing of the court's order directing the child's release from the shelter and her return to the father, the court had the means at hand to extend the twenty-one day time period in the interests of the child under Section 39.402(11)(a), Florida Statutes (1987), and to keep her in shelter care, thereby avoiding, for the moment, any potential short-term abuse problem and also making certain that the child would remain within the court's jurisdiction....

...the subject dependency petition and addressed again in the guardian's aforementioned emergency motion for rehearing, clearly constitute "exceptional circumstances" sufficient to satisfy the statute and to justify extending the twenty-one day period. § 39.402(11)(b)(2), Fla....

...der the determinative issue of whether the mother's mental condition, which had been responsible for the dependency proceeding in the first place, had been "remedied" as required by statute *580 safely to permit the children to be returned home. See § 39.402(7), Fla....

...1992); C.B. v. Dep't of Children & Families, 975 So.2d 1158 (Fla. 5th DCA 2008). Common law certiorari, however, is an appropriate remedy under the present circumstances. See E.H. v. Dep't of Children & Family Servs., 979 So.2d 363 (Fla. 2d DCA 2008). [3] Section 39.402(7) provides: A child may not be removed from the home or continued out of the home pending disposition if, with the provision of appropriate and available early intervention or preventive services, including services provided in the home, the child could safely remain at home....

...1978) with 39.01(9), Fla. Stat. (1977). Further, distinguishing between delinquent and dependent acts has important consequences for a child. It is impermissible to detain a runaway child in a cell with a child charged with having committed a crime. See § 39.402(4)....

...the service of exceptions in other given cases. Although we are sympathetic to the arguments raised by the commenters to the proposed amendment to subdivision (h) of rule 8.257, which would prohibit magistrates from conducting shelter hearings under section 39.402, Florida Statutes (2005), and adjudicatory hearings under sections 39.507 or 39.809, Florida Statutes (2005), we nevertheless conclude the proposed amendments are necessary and adopt them....

...If exceptions are filed, they shall be heard on reasonable notice by either party or the court. (g) [No Change] (h) Prohibition on Magistrate Presiding over Certain Hearings. Notwithstanding the provisions of this rule, a general magistrate shall not preside over a shelter hearing under section 39.402, Florida Statutes, an adjudicatory hearing under section 39.507, Florida Statutes, or an adjudicatory hearing under section 39.809, Florida Statutes....

...rescribed by the Florida Rules of Appellate Procedure, which is 30 days from the date this order is rendered (filed). NOTES [1] We correct a typographical error in the proposed form 8.981 by deleting "39.806(1)B(11)" and adding "39.810(1)-(11)." [2] Section 39.402 sets forth the factual circumstances which must exist and the procedures which the Department of Children and Family Services (Department) must follow in order to legally place a child into a protective shelter....

...in which the minor has a gross settlement exceeding $15,000 for a claim for personal injury, property damage or wrongful death. If the gross settlement equals or exceeds $25,000, the court must appoint a guardian ad litem to represent the minor. Id. Section 39.402(8)(c), Florida Statutes (2004), requires the court to appoint a guardian ad litem for a minor child at a shelter hearing unless the court deems the representation unnecessary....

...Reynolds, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for S.M.J. Father of L.A.J. PER CURIAM. L.M.B., the mother, petitions for a writ of certiorari seeking to quash the trial court's shelter order which sheltered her three-year-old child in the father's home. See § 39.402, Fla. Stat. (2009). Before entering the order, the trial court conducted a shelter hearing pursuant to section 39.402(8) but refused to permit the mother to present evidence on the issue of whether the child should be removed. § 39.402(2), Fla....

...15 (Fla. 2d DCA 2004) (holding that a refusal to permit a parent to be heard at a shelter hearing violated the statutory right to be heard). The Florida Legislature has provided parents with a statutory right to present evidence at shelter hearings. § 39.402(8)(c)3., Fla. Stat. (2009) (providing that at a shelter hearing, the court shall "[g]ive the parents or legal custodians an opportunity to be heard and to present evidence"). See also § 39.402(5)(b)1., Fla....

...At a shelter hearing, to continue the child in shelter care, the department "must establish probable cause that reasonable grounds for removal exist and that the provision of appropriate and available services will not eliminate the need for placement." § 39.402(8)(d)1., Fla....

...Stat. (2009). The hearing, however, is not limited to whether the department has established probable cause. To order placement, the court must determine that "placement in shelter care is necessary based on the criteria of subsections (1) and (2)." § 39.402(8)(h)1., Fla. Stat. (2009). The court must also find that "placement in shelter care is in the best interest of the child." § 39.402(8)(h)2., Fla....

...See Fla. R. Juv. P. 8.710(b) (1989). Thus, the language in the rule is longstanding. In 1990, the legislature provided a statutory right for parents to present evidence at shelter hearings. Ch. 90-306, § 5, Laws of Fla. (adding the following language to section 39.402(8)(a): "The parents or legal guardians of the child shall be given an opportunity to be heard and to present evidence at the detention hearing.")....

...the rule. The statutory right to be heard and to present evidence is buttressed by notions of procedural due process: a parent should have a meaningful opportunity to be heard on the key issue of the "need for removal". See J.P., 875 So.2d at 718 ("Section 39.402 and rule 8.305 afford parents due process in judicial proceedings in matters involving the State's temporary removal of children from the home.")....

...A complete program would have to be administered for the contemnor child including eating, play, shower and other phases of living there. All of this assumes that she is a dependent and that she could not have any contact with a delinquent [as under Section 39.402(4), prior Florida Statute]....

...Before RAMIREZ, and SUAREZ, JJ., and SCHWARTZ, Senior Judge. RAMIREZ, J. This is a petition for a writ of certiorari to review an order removing the minor child, D.B., from the custody and care of his mother, the petitioner, and placing the minor child in a shelter, pursuant to section 39.402, Florida Statutes, entered by the Circuit Court on April 30, 2008....

...ld be established. DCF seeks to quash that order. The record shows that the no-contact shelter order was supported by the Child Protective Services affidavit attesting to the child’s injuries, as well as evidence provided by DCF’s investigation. Section 39.402(9)(a), Florida Statutes (2016) provides: At any shelter hearing, the department shall provide to the court a recommendation for scheduled contact between the child and parents, if appropriate. The court shall determine visitation rights absent a clear and convincing showing that visitation is not in the best interest of the child. ... § 39.402, Fla....

...Florida Rule of Juvenile Procedure 8.257(h) prohibits a general magistrate from presiding over an adjudicatory hearing under section 39.507: "Notwithstanding the provisions of this rule, a general magistrate shall not preside over a shelter hearing under section 39.402, Florida Statutes, an adjudicatory hearing under section 39.507, Florida Statutes, or an adjudicatory hearing under section 39.809, Florida Statutes." See also In re Amendments to the Fla....

...The hearing was over in twenty-five minutes, despite the fact that the judge had allotted two hours for the hearing. Immediately after the hearing, the judge entered a form order entitled “Sua Sponte Dependency Shelter Order.” The order contained the written findings required to place a child in shelter care pursuant to section 39.402(8)(h), Florida Statutes (2011). Among other findings, the judge found that “[t]he 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.” § 39.402(l)(a), Fla....

...The judge further found that “continuation of the child in the home is contrary to the welfare of the child because the home situation presents a substantial and immediate danger to the child’s physical, mental, or emotional health or safety which cannot be mitigated by the provision of preventive services.” § 39.402(8)(h)3., Fla....

...Although the judge stated in the order that the mother was “served with [an] oral statement setting forth a summary of procedures involved in dependency cases [in] Palm Beach County,” the order did not include the time, date, and location of any future hearing to occur in Palm Beach County. See § 39.402(8)(h)6., Fla....

...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 89.401, Florida Statutes (2011), and not an order to place the child in a shelter pursuant to section 39.402, Florida Statutes (2011)....

...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....

...(3) the order which the judge signed is entitled “Sua Sponte Dependency Shelter Order”; (4) the order’s body, including the judge’s handwritten interlineations, contains the written findings required to place a child in a shelter pursuant to section 39.402(8)(h), Florida Statutes (2011), and Florida Rule of Civil Procedure 8.305(c) (2011); (5) the family court judge apparently transferred the case to the Palm Beach County juvenile court judge pursuant to section 39.402(12), Florida Statutes (2011) (“In the event the shelter hearing is conducted by a judge other than the juvenile court judge, the juvenile court judge shall hold a shelter review on the status of the child within 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....

...Dep’t of Children & Families, 66 So.3d 366, 368 (Fla. 1st DCA 2011). Here, the mother has met both requirements. The judge’s denial of the mother’s request to be heard during the shelter hearing was a departure from the essential requirements of the law. See § 39.402(8)(c)3., Fla....

...Subdivision (b)(3) provides: “The issue of probable cause shall be determined in a nonadversarial manner, applying the standard of proof necessary for an arrest warrant.” (emphasis added). However, as we held in L.M.B., the right to be heard as provided in section 39.402(8)(c)3....

...First, although the record indicates that the family court judge notified the mother that the shelter review hearing would occur before a juvenile court judge “within twenty-four hours,” the record does not indicate that the family court judge notified the mother of the time and location of the shelter review hearing. § 39.402(8)(h)6., Fla....

...child should remain in her current placement pending the shelter hearing.”). At the new shelter hearing, the juvenile court judge retains the discretion to continue the child in a shelter, which may continue to include the father’s custody, if the evidence presented meets one or more of the criteria stated in section 39.402(1), Florida Statutes (2011). See § 39.402(2), Fla. Stat. (2011). If the evidence presented does not meet one or more of the criteria stated in section 39.402(1), then the judge shall order the father to return the child to the mother’s custody....

...Nothing in this opinion should be construed as suggesting that a judge conducting a shelter hearing cannot proceed without hearing from a parent who does not appear after having been "given such notice as best ensures their actual knowledge of the date, time, *172 and location of the shelter hearing.” § 39.402(5)(a), Fla....

...The hearing was over in twenty-five minutes, despite the fact that the judge had allotted two hours for the hearing. Immediately after the hearing, the judge entered a form order entitled "Sua Sponte Dependency Shelter Order." The order contained the written findings required to place a child in shelter care pursuant to section 39.402(8)(h), Florida Statutes (2011). Among other findings, the judge found that "[t]he 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." § 39.402(1)(a), Fla....

...The judge further found that "continuation of the child in the home is contrary to the welfare of the child because the home situation presents a substantial and immediate danger to the child's physical, mental, or emotional health or safety which cannot be mitigated by the provision of preventive services." § 39.402(8)(h)3., Fla....

...Although the judge stated in the order that the mother was "served with [an] oral statement setting forth a summary of procedures involved in dependency cases [in] Palm Beach County," the order did not include the time, date, and location of any future hearing to occur in Palm Beach County. See § 39.402(8)(h)6., Fla....

...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)....

...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....

...elter"; (3) the order which the judge signed is entitled "Sua Sponte Dependency Shelter Order"; (4) the order's body, including the judge's handwritten interlineations, contains the written findings required to place a child in a shelter pursuant to section 39.402(8)(h), Florida Statutes (2011), and Florida Rule of Civil Procedure 8.305(c) (2011); (5) the family court judge apparently transferred the case to the Palm Beach County juvenile court judge pursuant to section 39.402(12), Florida Statutes (2011) ("In the event the shelter hearing is conducted by a judge other than the juvenile court judge, the juvenile court judge shall hold a shelter review on the status of the child within 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....

...Dep't of Children & Families, 66 So.3d 366, 368 (Fla. 1st DCA 2011). Here, the mother has met both requirements. The judge's denial of the mother's request to be heard during the shelter hearing was a departure from the essential requirements of the law. See § 39.402(8)(c)3., Fla....

...Subdivision (b)(3) provides: "The issue of probable cause shall be determined in a nonadversarial manner, applying the standard of proof necessary for an arrest warrant." (emphasis added). However, as we held in L.M.B., the right to be heard as provided in section 39.402(8)(c)3....

...First, although the record indicates that the family court judge notified the mother that the shelter review hearing would occur before a juvenile court judge "within twenty-four hours," the record does not indicate that the family court judge notified the mother of the time and location of the shelter review hearing. § 39.402(8)(h)6., Fla....

...child should remain in her current placement pending the shelter hearing."). At the new shelter hearing, the juvenile court judge retains the discretion to continue the child in a shelter, which may continue to include the father's custody, if the evidence presented meets one or more of the criteria stated in section 39.402(1), Florida Statutes (2011). See § 39.402(2), Fla. Stat. (2011). If the evidence presented does not meet one or more of the criteria stated in section 39.402(1), then the judge shall order the father to return the child to the mother's custody....

...and placement of the child. I respectfully dissent from the majority's conclusion that the family court judge 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....

...to initiate such a proceeding by issuing an order to take the child into custody. Section 39.01(68), Florida Statutes (2011), defines "shelter" as " placement with a relative or a nonrelative, or in a licensed home or facility ..." (Emphasis added.) Section 39.402(1), Florida Statutes (2011) states: Unless ordered by the court under this chapter, a child taken into custody shall not be placed in a shelter prior to a court hearing unless there is probable cause to believe that: (a) the child has...

...s or injury as a result of abuse, neglect, or abandonment. (Emphasis added.) This statute specifically authorizes, in appropriate situations, a court to place a child in shelter (with a parent) prior to affording a court hearing to the other parent. Section 39.402(2) further provides: A child taken into custody may be placed or continued in a shelter only if one or more of the criteria in subsection (1) applies and the court has made a specific finding of fact regarding the necessity for removal...

...he criteria in subdivision (a)." Rule 8.300(c) outlines the legal requirements for an order to take into custody. It appears the family court judge's order meets all of the requirements of the rule. Once a child is placed in shelter (with a parent), section 39.402(8)(a) requires a shelter hearing within 24 hours. Sections 39.402(3), (5), and (8) and rule 8.305 set forth all the notices and rights to a hearing for a parent affected by the order to take in custody....

...NOTES [1] Nothing in this opinion should be construed as suggesting that a judge conducting a shelter hearing cannot proceed without hearing from a parent who does not appear after having been "given such notice as best ensures their actual knowledge of the date, time, and location of the shelter hearing." § 39.402(5)(a), Fla....

...artment of Children and Families did not seek the order to take into custody, and the venue for the dependency proceeding was an adjoining county. Although the Department was not a party to the proceedings at the time the order was entered, sections 39.402(3) and (5)(a), Florida Statutes, require the Department to notify the parents of their rights and the date, time, and location of the shelter hearing.

...ld should be placed. This is based, in part, on a lack of symmetry between provisions of the shelter statute and the rules of juvenile procedure. The relevant statute gives parents the right to appear and "present evidence" at a shelter hearing. See § 39.402(5)(b)1, Fla. Stat. (2005) ("The parents or legal custodians shall be given written notice that: 1. They will be given an opportunity to be heard and to present evidence at the shelter hearing."); § 39.402(8)(c), Fla....

...a matter for hearing or the taking of evidence. If probable cause is not found by the court, there is no hearing; if probable cause is found, a hearing must be conducted on the "criteria" established to determine whether shelter is appropriate. See § 39.402(8)(h), Fla....

...ding under Chapter 39 to (1) advise parents of their right to counsel; (2) appoint counsel for indigent parents; (3) ascertain whether the right to counsel is understood; and (4) determine whether any waiver of counsel is knowing and intelligent • Section 39.402(8)(c)(2), Florida Statutes (2010) — requiring the trial court at a shelter hearing to “[i]nform the parents or legal custodians of their right to counsel to represent them at the shelter hearing [and] the right of the parents to ap...

...2d DCA 1986), the Second District held that a finding of dependency by a court under Chapter 39 is not a necessary prerequisite to entry of a child support order at least in an action brought pursuant to Chapter 409, Florida Statutes. More importantly, section 39.402(11), Florida Statutes, provides: If a child is placed in a shelter pursuant to a court order following a shelter hearing, the court shall require in the shelter hearing order that the parents of the child or the guardian of the child's...

...The September 16, 2003 shelter order does not mention monies payable to DCF, nor does it require the parents to provide DCF with the requisite financial information relating to child support. Thus, while DCF claims the father had notice of the possible imposition of temporary child support by virtue of subsection 39.402(11), the shelter order failed to invoke the provisions of the subsection....

...rary Child Support Payments to Third Party." DCF asserts that because the father has not provided a transcript of the shelter hearing, he cannot show reversible error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Under subsection 39.402(11), the shelter *800 hearing is not the hearing at which the amount of temporary child support is litigated and adjudicated....

...riate stages. See § 39.013(1), Fla. Stat. (2005) (requiring the trial court to inform parents of their right to counsel in dependency proceedings at each stage of the proceedings and to appoint counsel for parents who are unable to afford counsel); § 39.402(5)(b)(2) (requiring that parents or legal custodians be given written notice of their right to be represented by counsel at the shelter hearing and at subsequent hearings or proceedings and that if they are indigent they have the right to a...

...itioner-parents’ motion for release of their child from shelter care. Since the order, rendered upon a hearing on September 14, 1989, is supported neither by findings nor evidence of the criteria required for the continuation of shelter care under section 39.402(8)(a), the order is reversed....

...(Supp.1978) with 39.01(9), Fla.Stat. (1977). Further, distinguishing between delinquent and dependent acts has important consequences for a child. It is impermissible to detain a runaway child in a cell with a child charged with having committed a crime. See § 39.402(4)....

...judgment for that of the trier of fact. Dep’t of Child. & Fams. v. A.L., 307 So. 3d 978, 982–83 (Fla. 1st DCA 2020). Proceedings and Evidence in Common By order entered in June 2018, all four children were taken into DCF custody (sheltered), as allowed by section 39.402(1)(a), 3 Florida Statutes (2018)....

...fare of the child will be determined jointly”); § 61.046(17) (defining “time-sharing schedule” as the time “that a minor child will spend with each parent”). There are various ways non-parents can have “custody” of a child. See, e.g., § 39.402, Fla....

...of the subsequent dependency proceedings, including scheduled hearings, and of the importance of the active participation of the parents or legal custodians in those subsequent proceedings and hearings. See ch. 98^103, § 58, Laws of Fla. (amending section 39.402(7)(b), Florida Statutes (1997), to appear as section 39.402(8)©)....

...Department of Children and Families, 877 So.2d 797 (Fla. 5th DCA 2004), this court rejected the contention that chapter 39 does not permit an award of temporary child support prior to an adjudication of dependency. Instead, this court found that such an award was authorized by section 39.402(11), Florida Statutes, which provides that in its shelter hearing order the trial court “shall require” parents who are possessed of sufficient assets to pay “fees” as established by the Department for the “care, support, and maintenance” of a child who has been placed in shelter care....

chapter 2024-70, Laws of Florida, revised section 39.402(8)(c)1., Florida Statutes (2023), to delete

...(Supp.1978) with 39.-01(9), Fla.Stat. (1977). Further, distinguishing between delinquent and dependent acts has important consequences for a child. It is impermissible to detain a runaway child in a cell with a child charged with having committed a crime. See § 39.402(4)....

...Furthermore, there was no consideration or even testimony regarding any efforts which HRS had made to demonstrate to the court that it had made a reasonable effort to prevent or eliminate the need for removal of the child from her home, as required by section 39.402, Florida Statutes....

...raised in the exceptions or cross-exceptions. (4) [No Change] (h) Prohibition on Magistrate Presiding over Certain Hearings. Notwithstanding the provisions of this rule, a general magistrate shallmust not preside over a shelter hearing under section 39.402, Florida Statutes, an adjudicatory hearing under section 39.507, Florida Statutes, or an adjudicatory hearing under section 39.507, Florida Statutes, or an adjudicatory hearing under section 39.809, Florida Statutes. RULE 8.260....

...r Authorizing Access to Child's Medical and Educational Records); and amendments to rule 8.305 (Shelter Hearing, Petition, and Order) and existing form 8.961 (Shelter Order). The proposals are in response to recent amendments to sections 39.0016 and 39.402, Florida Statutes, which went into effect July 1, 2009. See ch. 2009-35, §§ 1, 3, 8, Laws of Fla. (amending § 39.0016(3), Fla. Stat.; creating §§ 39.402(11)(b)-(11)(d), Fla. Stat.; providing effective date); ch. 2009-43, § 7, 18, Laws of Fla. (adding § 39.402(8)(h), Fla....

...educational disabilities. New form 8.958 (Order Appointing Surrogate Parent) provides an order for the court's use in appointing a surrogate parent. The amendments to rule 8.305 (Shelter Hearing, Petition, and Order) implement newly created sections 39.402(11)(b), (11)(c), and (11)(d), Florida Statutes, by adding to the list of the court's responsibilities at the shelter hearing....

...lity. New form 8.961(a) (Order Authorizing Access to Child's Medical and Educational Records), provides a form order authorizing the release of a child's medical and educational records. The amendments to form 8.961 (Shelter Order) track newly added section 39.402(8)(h)8., Florida Statutes....

...County, Florida on ......(date)...., at.... a.m./p.m. ___________________ Circuit Judge FORM 8.961(a). ORDER AUTHORIZING ACCESS TO CHILD'S MEDICAL AND EDUCATIONAL RECORDS ORDER AUTHORIZING ACCESS TO CHILD'S MEDICAL AND EDUCATIONAL RECORDS THIS CAUSE came on to be heard under sec. 39.402, Florida Statutes, concerning access to the medical and educational records of...................., a child....

...Nonetheless, DCF argued that a shelter order making the grandmother C.G.'s "legal custodian" was needed to ensure that the mother could not remove C.G. from the grandmother's home without a court order. The trial court agreed and granted DCF's shelter petition. Section 39.402, Florida Statutes, states (1) ....

...applies and the court has made a specific finding of fact regarding the necessity for removal of the child from the home and has made a determination that the provision of appropriate and available services will not eliminate the need for placement. 39.402(1)(a), (2), Fla....

...Dep't of Children & Families, 189 So. 3d 134, 137 (Fla. 2016) ("An appeal from a final order is appropriate when judicial labor has ended." (citing S.L.T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974))). II. Merits Section 39.402(1)(a), Florida Statutes (2018), provides for the placement of a child in shelter care prior to a court hearing, unless ordered by the court under chapter 39, if "there is probable cause to believe that ....

..."[I]n order to continue the child in shelter care[,] . . . [t]he [D]epartment must establish probable cause that reasonable grounds for removal exist and that the provision of appropriate and available services will not eliminate the need for placement . . . ." § 39.402(8)(d)(1)....

...abuse counseling, had engaged in criminal conduct, and had a history of running away and using drugs. After D.J. was sheltered, the Department obtained repeated continuances of the dependency hearing. This occurred despite the provisions of sections 39.402(13) and 39.402(14)(f), Florida Statutes (2006), which provide that a child may not be held in shelter status under a shelter order for more than 60 days without an adjudication of dependency and that continuances or extensions of time may not exceed a total of 60 days. 2 D.J. was ultimately held under a shelter order for more than seven months, rather than the maximum four months provided for by section 39.402....

See In re B.F., 283 So. 3d at 993. Section 39.402(1)(a), Florida Statutes (2022), provides for

..."[A] petitioner can demonstrate a departure from the essential requirements of the law by showing that 'the trial court made an error so serious that it amounts to a miscarriage of justice.' " Id. at 888 (quoting K.G. v. Dep’t of Children & Families, 66 So. 3d 366, 368 (Fla. 1st DCA 2011)). Under section 39.402(1)(a), Florida Statutes (2015), the trial court may shelter a child if probable cause exists to believe that the child has been abused, neglected, abandoned, or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment....

...In K.D., one twin suffered fractures to the left leg, skull, and ribs during his first seventeen days of life. Id. at 980. We recognize that K.D. is a termination of parental rights case subject to a higher standard of proof and other factors not involved in a shelter hearing. Compare § 39.402 (shelter placement), with § 39.806 (termination of parental rights); see also Dep't of Children & Families v....

...See H.M.R., 161 So. 3d at 479 ("At this stage, [the GAL] is not required to produce clear and convincing evidence to terminate . . . parental rights, but merely is required to show the probability that [the sibling] is in imminent danger . . . ."); see also § 39.402(8)(d)(1), (h)(3) (stating burden in shelter context)....

...A physician has testified that Le.H.'s injuries are the result of abuse. The DCF and the GAL certainly have a reasonable concern for the safety and welfare of the equally susceptible siblings. There was evidence sufficient to meet the -5- probable cause requirements of section 39.402 based on testimony of the CPI that, unfortunately, there was no adequate way to safeguard the children without sheltering them from their parents. See § 39.001(1)(f). The record reflects the needed probable cause to shelter Le.H.'s two siblings. See § 39.402(h)(4)....

...CONCESSION OF ERROR Upon the DCF's appropriate concession of error [1] in the trial court's sua sponte order placing the minor child, R.O., in shelter care without proper notice to the petitioner mother, contrary to both the due process requirements of § 39.402(8)(b)(c) Fla....

...24-2141) seeking a stay of the modification order pending certiorari review. GAL argued that modifying N.S.B.’s shelter placement to return N.S.B. to Y.B., prior to the TPR hearing and without home study evidence, was a departure from the essential requirements of law, citing section 39.402(7), Florida Statutes (2024) (“If the child’s safety and well-being are in danger, the child shall be removed from danger and continue to be removed until the danger has passed....

...been taken into custody by the department comes into contact with the court system, the court is required to "[a]ppoint a guardian ad litem to represent the best interest of the child, unless the court finds that such representation is unnecessary." § 39.402(8)(c)(1), Fla....

...5th DCA 2023). Florida law permits the sheltering of a child when “there is probable cause to believe that . . . [t]he 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.” See § 39.402(1)(a), Fla. Stat. (2024); see also D.H.C., 360 So. 3d at 456 (quoting § 39.402(1)(a))....

...ief that” a child has been abused or is in imminent danger of illness or injury resulting from abuse, abandonment, or neglect. See D.H.C., 360 So. 3d at 457 n.3 (citations omitted). In this case, as in D.H.C., the plain language 4 of sections 39.402 and 39.01 dictates the conclusion that probable cause exists 4 As has been well articulated in Florida courts, when interpreting Florida Statutes, we “follow the ‘supremacy-of-text 4 as a matter of law that A.S. was in imminent danger of illness or injury resulting from abuse as contemplated by section 39.402(1)(a)....

...the home, Florida law requires the conclusion that probable cause exists to find that the Child is at imminent risk of illness or injury resulting from abuse, abandonment, or neglect sufficient to warrant sheltering of the Child. See §§ 39.01(2), 39.402(1)(a), Fla. Stat....

...e children are in immediate peril. In that circumstance, the trial court has the authority to take emergency action to place the children in a shelter, even though the pending petition did not request such relief. The court’s authority arises from section 39.402, Florida Statutes (2007). Under the statute, “A child may not be held in a shelter longer than 24 hours unless an order so directing is entered by the court after a shelter hearing.” Id. § 39.402(8)(a)....

...ter petition be filed. The Department may file a new shelter petition, or the Department may amend the already-pending petition for court ordered services. See Fla. R. Juv. P. 8.660(c). A shelter hearing must be held within the time specified by the section 39.402 and Florida Rule of Juvenile Procedure 8.655....

...there a shelter hearing. We therefore grant the petition as follows. The Department shall amend the petition to include a request for shelter care within seven days of the date of this opinion. A prompt shelter hearing shall be conducted pursuant to section 39.402, Florida Statutes (2007), and rule 8.665....

...Broekhouse of the Pasco County Sheriffs Office. The Department always has the discretion to, if they feel that the danger is gone, bring that right back and take care of it. They have the discretion to dismiss. They do it often. Counsel for E.P. again stated that section 39.402, Florida Statutes (2003), required an opportunity to present evidence and for the parents to be heard, and the circuit court judge responded: The parents have the right to be heard, but this can be probable cause, based on the four corners of the affidavit, and that’s discretionary with the Court, and I am finding that we do not do three-hour shelter hearings. We never have, and I am not going to start. Counsel for G.P. then stated to the court that section 39.402 required a full eviden-tiary hearing and that case law established that the denial thereof was a violation of due process, particularly if the removal of the children was ordered....

...me with E.P. and not suffer further disruption of their lives. The court entered an order removing G.P. from the home and provided supervised visitation for G.P. The matter was adjourned to March 17, 2003, for full adjudicatory hearing. II. ANALYSIS Section 39.402 sets forth the procedure for conducting shelter hearings after the removal of a child. Section 39.402(5)(b)(l) provides: “The parents or- legal custodians shall be given written notice that ......

...criteria in this case are that “there is probable cause to believe that ... [tjhe 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.” § 39.402(l)(a)....

...hat no further hearing need be conducted. Had that been the intent of the rule it would provide that shelter of a child could be ordered without a hearing if the written submission established probable cause for shelter of the child. III. CONCLUSION Section 39.402 and rule 8.305 afford parents due process in judicial proceedings in matters involving the State’s temporary removal of children from the home....

...We grant the petition for writ of certio-rari and quash the trial court’s order as to visitation dated May 16, 2006. We direct that the trial court conduct a hearing regarding the parents’ request for supervised visitation where the parents are given an opportunity to be heard. See § 39.402(5)(b)1, Fla....

...Department of Children and Families (“DCF”) appeals the trial court’s order denying its second petition to shelter E.R., the three-week-old child of H.M.R. (“Mother”). DCF argues that the trial court applied an incorrect standard in finding that there is no probable cause to shelter E.R. We agree and reverse. 1 Section 39.402(l)(a), Florida Statutes (2014), permits the removal and placement of a child in shelter care if there is probable cause to believe that the child has been “abused, neglected, or abandoned, or is suffering from or is in imminent dange...

...4th DCA 2009). In order to continue a child in shelter care, “[DCF] must establish probable cause that reasonable grounds for removal exist and that the provision of appropriate and available services will not eliminate the need for placement.” § 39.402(8)(d)1., Fla....

...amended to add the child’s child care records and early education program records to the list of records that the court, at the shelter hearing, must request the parents to consent to provide access to. See ch. 2018-108, § 2, Laws of Fla. (amending 39.402(11)(c), Fla....

...(creating § 39.6021(1), (5), Fla. Stat. effective July 1, 2018); ch. 2018-103, §§ 7-8, 9, 12, 33, Laws of Fla. (amending §§ 39.6013, 39.621(5), 39.6221(1), 39.701(2)(d), Fla. Stat. (2017) effective July 1, 2018); ch. 2018-108, §§ 2, 7, Laws of Fla. (amending § 39.402(11)(c), Fla....

...However, the Department is not recommending that the children be placed with him at this time. The father has not yet been drug tested. Additionally, he resides with the mother, who finally admitted after the children were removed, that [M.W.] has been living with her in Key Largo. Section 39.402(5)(b)2 of the Florida Statutes (2012) makes it clear that “if indigent, ......

...2 The Executive Committee of the Board of Governors of The Florida Bar unanimously approved the Committee’s proposals. The Committee did not publish the proposals before filing them with the Court. After considering the 2. See ch. 2019-142, §§ 5-6, 9-10, Laws of Fla. (amending §§ 39.402(8)(h), 39.407(3)(d)1., 39.407(6)(g)2., 39.6251(2)(e), 39.6251(6), 39.701(2)(d), and 39.701(4), Fla. Stat., effective July 1, 2019); ch. 2019-128, §§ 1-4, 6-7, 10, 12, Laws of Fla. (amending §§ 39.001(3), 39.0136, 39.402(18), 39.507(7)(c), 39.522(1), 39.6011(2)(e), 39.6011(4), 39.621(10)(a), and 39.811(5), Fla....

...plain language what is expected of them to achieve reunification with their child. New subdivisions (b)(11)(A)-(D) are added to include three new advisements that the court must tell the parent at the shelter hearing. See ch. 2019-128, § 3, Laws of Fla. (amending § 39.402(18), Fla....

...of an advisory hearing on a petition for termination of parental rights was insufficient to guarantee a parent’s due process rights. The seventy-two-hour time period corresponds to existing provisions in the juvenile statutes and rules, including section 39.402(5)(b)2, Florida Statutes (2001), shelter placement hearing; section 39.501(4), Florida Statutes (2001), hearing on petition for dependency; section 39.521(l)(a), Florida Statutes (2001), disposition hearing; section 39.601(2), Florida...

...As currently written, the rule refers to the “juvenile court judge,” and this language could include a judge that hears delinquency cases. In addition, we amend subdivision (c), Shelter Order, of rule 8.305 to clarify that findings need to be made only in an order granting shelter care, pursuant to section 39.402(8)(h), Florida Statutes (2004)....

the child is to remain in a shelter. Fla.Stat. § 39.402(9)(a) and 10. At the detention hearing, the court

...n s. 39.01.” See § 39.0139(3)(a)l., Fla. Stat. (2011). The KCSA does not define probable cause. The trial court suggests it only means “probable cause” found after an evidentiary hearing, but chapter 39 suggests otherwise. See §§ 39.401(1), § 39.402(1), 39.402(8)(d), Fla....

for the twenty-one-day period permitted by section 39.402(9), Florida Statutes (1991). On October 31

...P.U., the mother, has filed a petition for writ of certiorari seeking to quash a shelter order. We grant the petition, concluding that the evidence was insufficient to justify removing the mother's child from her care and custody and placing the child in shelter care. *707 Section 39.402(1)(a), Florida Statutes (2009), permits the removal of a child and placement of the child in shelter care if there is probable cause to believe 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." Section 39.402(8)(d), Florida Statutes (2009), provides that, to continue the placement in shelter care, the Department of Children and Families must establish probable cause that reasonable grounds for removal exist, and that the provision of appropriate and available services will not eliminate the need for placement. Here, the Department did not establish probable cause under either subsection 39.402(1)(a) or (8)(d)....

...in a civil case tests the sufficiency of the pleadings. Here, the allegations supporting dependency were sufficient. Finally, an adverse ruling on a shelter petition does not govern the disposition of a motion to dismiss a dependency proceeding. See § 39.402, Fla....

...We affirm the shelter order, but remand to the trial court for a hearing within 48 hours to consider whether the children may safely be returned to their mother’s custody and, if so, under what conditions pending a final determination of the dependency petition. See § 39.402(6), Fla....

...HRS. On April 4, 1995, the mother’s Legal Aid attorney filed a motion for an emergency hearing and an amended motion for immediate return of custody. The motion for emergency hearing alleged numerous violations of the time constraints of sections 39.402 and 39.408, Florida Statutes, and further alleged the violations were apparent on the face of the record. Among other things, the amended motion for immediate return of custody alleged that D.W. had been held in emergency shelter care for seventy-three days, and *726 T.W. had been held in emergency shelter care for sixty-seven days, in violation of section 39.402(9), which prohibits such shelter for more than twenty-one days, unless an order of adjudication has been entered....

for parents who are unable to afford counsel); § 39.402(5)(b)(2) (requiring that parents or legal custodians

...Those services, sadly, did not meet their objectives. On April 11, 2006, the sheriffs office removed the twins from the mother’s custody, and a petition to shelter them based on allegations of abandonment, abuse, and neglect was filed in dependency court. See § 39.402(l)(a), Fla....

...STONE, J. We treat this non-final appeal as a petition for certiorari, grant the petition, and quash the trial court's order allowing a guardian ad litem unrestricted access to the records of the minor/petitioner's treating therapist. [1] Pursuant to section 39.402, Florida Statutes, the Department of Children and Family Services ("the department") filed a shelter petition for Petitioner, alleging several reported acts of abuse and alleging that Petitioner's parents were unable to control or provide a safe environment for Petitioner, age fourteen....

...The resulting agreement of the parents and the child for placement and treatment will hopefully be helpful to both parents and child. The court stressed that R.S. had been detained at the HRS emergency shelter from October 28, 1983, to November 22, 1983, pointing out that § 39.402(7), Florida Statutes, provides that no child may be held in shelter care for more than fourteen days unless an order of adjudication has been entered....