It is an unfortunate part of my practice that I sometimes have to assist families in dealing with Florida’s Department of Children and Families (DCF). Generally, those situations will involve the state taking children, where a dependency action is initiated by the state where there are allegations that children have been, or are in imminent danger of becoming, abused, abandoned or neglected by their legal caregivers, many times the accusations being leveled against the mother and/or father.
When I have parents dealing with these cases, they generally have two immediate questions: (1) What is the process from here? and (2) How long will it be until I can get my kids back? In answering those questions, it’s useful to give a brief overview of Florida Dependency Law pursuant to Chapter 39 of the Florida Statutes.
Why is the State Taking My Children & How Can I Protect My Family?
When it comes to the state taking children and removing them from their homes, there must be allegations of abuse, abandonment, or neglect, or the imminent threat therein. The most common forms of these allegations would include physical abuse of a child, severe drug or alcohol abuse by a parent, domestic violence between the parents such that it jeopardizes the wellbeing of their child, failure to provide necessary medical care, or sometimes something a little more ambiguous, such as a failure to protect a child from another’s abuse or neglect. If DCF believes the children are suffering from any of the above, then they will remove the children from the home and place them with the nearest willing and available blood relative, or in foster care.
Once a child is removed from a parent’s custody, the Court is required to hold a shelter hearing within 24 hours of removal. At this hearing the Court will determine if there is probable cause to sustain the initial findings of abuse, abandonment, or neglect made by DCF. The parents do have the ability to contest the findings of probable cause at this shelter hearing, and if necessary, the Court will appoint an attorney to represent them in these matters. If the Court finds there is probable cause, then the case will be set for an arraignment within 30 days of the children’s initial removal from the home.
At the arraignment, the parents will have an opportunity to enter a formal plea as to the dependency allegations. The parents can either: (1) Admit to the allegations, meaning they agree with the allegations and underling finding of dependency; (2) Deny the allegations and request a formal hearing or trial on the dependency allegations; or (3) Consent to a finding of dependency for the children, while neither admitting to nor denying the underlying allegations made by DCF. If the allegations are denied, then a trial, or adjudicatory hearing, will be set within 30 days of the arraignment. If the allegations are either admitted to or if a consent is entered, then the Court will review the case plan for each parent and approve as appropriate, which will have the effect of ordering the parents to complete specific tasks before their children can be reunified with them. Also addressed at the arraignment will be issues related to a parent’s visitation with their children. In most cases, the Court will order some level of visitation, determining whether the visitation should be supervision and where such visitation should take place.
Case Plan Conference
Prior to the arraignment, DCF will generally present and file with the Court a proposed case plan that would detail the goals of the case. In most cases the goal would be to reunify the children with their parents, upon the completion of specific case plan tasks by the offending parent.
Depending on the specifics of the allegations, case plans can involve the following tasks: showing proof of stable housing, employment, and income; psychological evaluations and engaging in any recommended treatment, therapy, or prescribed medications; drug and/or alcohol evaluations and engaging in any recommended treatment or therapy; parenting classes; self-improvement classes; and random drug testing, to name a few common tasks. At this conference, the parents will review the case plan and make a determination if they want to accept the plan and its related tasks. If parents deny the allegations, and do not submit to the case plan tasks, then the case will proceed to the adjudicatory hearing.
At the adjudicatory hearing, the Court will hear testimony and review evidence related to the allegations of abuse, neglect, or abandonment from all parties who have relevant information to provide, including the parents, law enforcement, DCF case investigators, and potentially even the children. The standard of proof in a dependency action is a “preponderance of the evidence,” requiring the courts to apply a “greater weight of the evidence” standard, meaning, more likely than not, the evidence supports the allegations of dependency. In order to terminate a parent’s rights, however, the Court would have to apply the much greater standard of “clear and convincing evidence.”
Within 30 days of the adjudicatory hearing, the Court will be required to set a disposition hearing in which a final disposition of the case will be entered. If the findings of dependency are upheld, then the Court can adjudicate the children dependent and order the parents to comply with a case plan, and complete all case plan tasks, before the Court will reunify them with their children. If the findings of dependency are not upheld, then the case will be dismissed and the children returned to their homes.
Following the disposition hearing, the Court will set a judicial review hearing within 90 days, at which the Court will review the case plan progress of each parent and determine how the case should proceed based on that progress. If the parents have not completed their case plan tasks, then the case plan can be continued until the parties complete all required tasks and the Court will review that progress every six months.
When it comes to the state taking children, in most cases the children will be reunified with the parents (once the parents complete all case plan tasks) at the next court-scheduled court hearing, which can be expedited based on the progress completion of the parents. If, however, the parents do not complete their case plan tasks, then it is possible for the Court to place the children into a permanent guardianship and into the care and custody of another family member or foster family, or in more serious cases, can even entertain an adoption of the child.
Attorney Russell J. Frank is a partner at CPLS. P.A. and focuses his practice areas on family and marital law.
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