CONDUCTING A SHELTER HEARING

SHELTER BASICS
Judge Sue Robbins
Circuit Judge, Fifth Circuit, Marion County
INTRODUCTION TO APPLICABLE
STATE AND FEDERAL LAW
 ASFA (42 USC Secs. 620-632, 670-679) – the Adoption
and Safe Families Act
 45 CFR Secs 1355, 1356, and 1357 – Title IV-E
 Contrary to the welfare findings must be continued in
the first order that removes the child from the home
 Reasonable efforts to prevent removal
 Written findings
INTRODUCTION TO APPLICABLE
STATE AND FEDERAL LAW
 Sec. 39.401, Fla. Stat. – taking a child into custody
 Sec. 39.402, Fla. Stat. – placement in shelter,
conducting shelter hearing, written order
 65C-30.009-30.012 Services to prevent removal;
removal and shelter; services following removal
When Does Shelter Occur?
 Case Begins With Shelter
Shelter petition filed before
removal
Hearing must take place within
24 hours of removal. Sec.
39.401(3) and Sec. 39.402(8)
Shelter petition filed after
removal
 Dependency petition filed
within 21 days (7 days)
 Arraignment hearing within
28 days (7 days from DP)
 “Direct File” Dependency
Dependency petition filed
Shelter petition filed in existing
case – before or after
adjudication of dependency,
before or after removal
Hearing must take place
within 24 hours of removal.
Sec. 39.401(3) and Sec.
39.402(8)
 Arraignment within
reasonable time if child not
removed first
 Closed case?
Sec. 39.401 – A child may be taken
into custody by DCF or LEO
 On sworn testimony before or after petition
 Only if PC that child has been
 Abused abandoned or neglected –OR Suffering from or imminent danger of illness or injury
from same –OR Parent or legal custodian materially violated a condition
of placement – OR No parent, LC, or responsible adult relative immediately
known and available
Sec. 39.401 – If a child is taken into custody by
LEO, LEO “shall” release child to:
 Parent or LC
 Responsible adult approved by court (?)
 Responsible adult relative or adoptive parent of child’s
sibling (given priority when in BI’s)
 Responsible adult approved by the DCF
 DCF – Give sufficient info to establish “PC that child
has been abandoned, abused or neglected or otherwise
dependent”
Sec. 39.401 – If a child is taken into
custody by or delivered to DCF:
 DCF agent (CPI) must review the facts supporting
removal with DCF attorney, to determine “PC for filing
a shelter petition”
 If facts not sufficient, immediately return child
 If sufficient, file petition, schedule hearing, request
hearing within 24 hours
 Make placement in meantime – if not licensed shelter
then “must be preceded by criminal records check”
Contrast Sec. 39.401(3) and
39.402(8)
 Sec. 39.401(3) requires review with attorney to
determine PC
 Sec. 39.402(8) expressly provides that “in the interval
until the shelter hearing is held, the decision to place
the child in a shelter or release the child from a shelter
lies with the protective investigator.”
Contrast Sec. 39.401(5) and
39.402(8)
 Sec. 39.401(5) requires that judicial review and
approval of the decision to take a child into custody “is
required within 24 hours after placement for all
nonrelative placements”
 Sec. 39.402(8)(a) requires that “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”
Sec. 39.402(1) A child who has
been taken into custody:
 May not be placed into a shelter prior to a court
hearing unless there is PC
 Child is abused abandoned or neglected –OR Child is suffering from or imminent danger of illness or
injury from same –OR Parent or legal custodian materially violated a condition
of placement – OR No parent, LC, or responsible adult relative immediately
known and available
What’s a “shelter”?
Sec. 39.01(68) “Shelter” means a placement with a
relative or a nonrelative, or in a licensed home or
facility, for the temporary care of a child who is alleged
to be or who has been found to be dependent, pending
court disposition before or after adjudication.
What is “PC” as used in Sec.
39.402?
 Probable cause is “a reasonable ground for suspicion,
or knowledge of facts and circumstances which would
warrant an individual of reasonable caution in
believing that an offense had been committed.” Cross
v. State, 432 So.2d 780, 782 (Fla. 3d DCA 1983), cited in
In re BB, 820 So.2d 409, 413 n. 5 (Fla. 3rd DCA 2002)
(emphasis added)
Juv. Rule 8.305
 The court shall conduct an informal hearing within
the time period required by law
 The court shall determine at the hearing the existence
of PC to believe the child is dependent and the other
criteria
 PC shall be determined in a non-adversarial manner
applying the standard necessary for an arrest warrant
 At the hearing all interested persons shall have the
right to be heard and present evidence “on the criteria
for placement”
Reversible error not to allow parent to present
evidence at shelter on PC of dependency
 Parent has statutory right to contest PC at shelter.
AMT v. State, 883 So. 2d 302 (Fla. 1st DCA 2004)
 Error to deny request of parent to present evidence on
the issue of PC LMC v. DCF, 935 So. 2d 47 (Fla. 5th DCA
2006)
 No matter what you call it, parents have the right to
put on evidence and to argue not only placement
issues but PC at shelter. JB v. DCF, 936 So. 2d 665 (Fla.
5th DCA 2006)
PC must be based on law and must be
based on credible facts – not automatic
 Child’s allegations that mother pushed child on bed,
pulled hair, made a motion to hit child, and called
child a name NOT sufficient for PC (an individual of
reasonable caution would not have believed). Spano v.
DCF, 820 So. 2d 409 (Fla. 3d DCA 2002)
 Substance exposed infant not PC as to older sibling.
ML v. DCF, 942 So. 2d 977 (Fla. 4th DCA 2006)
 Homeless mom, living with friend, child sexually
abused by neighbor. No PC. PU v. DCF, 24 So. 3d 706
(Fla. 4th DCA 2009)
PC/Shelter Procedures
At shelter hearing, to continue child in shelter care, DCF
must:
 Establish PC that reasonable grounds for removal exist
 And that appropriate and available services will not
eliminate the need for placement
Sec. 39.402(8)(d). The parents have the right to be heard
on these issues. LMB v. DCF, 28 So. 3d 217 (Fla. 4th
DCA 2010).
PC/Shelter Procedures
To order placement, the Court must
 Determine that placement in shelter is necessary
based on the criteria of Secs. (1) and (2) of Sec. 39.402.
Sec. 39.402(8)(h)1.
 And also find that placement in shelter care is in the
best interest of the child. Sec. 39.402(8)(h)2. The
parents have the right to be heard on all these issues.
LMB v. DCF, 28 So. 3d 217 (Fla. 4th DCA 2010).
Even if the judge really wants to…
It is reversible error for the judge to sua sponte order
placing the child in shelter care without proper notice
to the parents and opportunity to be heard on the
matters required to be addressed at shelter. LT v. DCF,
28 So. 3d 978 (Fla. 3d DCA 2010).
The petition for shelter must
contain:
(1) name, address, date of birth, and sex of the child or, if unknown, a
description
(2) name and address, if known, of the child's parents or legal custodian
and how each was notified of the shelter hearing;
(3) if the child has been removed from the home, the date and time of the
removal;
(4) that the child is of an age subject to the jurisdiction of the court;
(5) the reasons the child needs to be placed in a shelter;
(6) the reasonable efforts, if any, that were made by the DCF to prevent or
eliminate the need for the removal of the child from the home or, if no
such efforts were made, a description of the emergency that prevented
these efforts;
(7) recommend where the child is to be placed or the agency to be
responsible for placement; and
(8) be signed by the petitioner and, if represented by counsel, by the
petitioner's attorney.
Required Notice to Parents
 Notice as best ensures their actual knowledge of the
date, time and place of the shelter hrg
 Even if outside of jurisdiction or if unknown or if
unlocatable – notice as best ensures actual knowledge
 Person giving notice must advise the court
 Parents get written notice of opportunity to be heard
and present evidence; right to counsel
Right to Counsel
 Applies at shelter and at each subsequent hearing
under Sec. 39.013
 Court may continue shelter for 72 hours to allow
parents to consult with counsel if parents request
 Kids stay in shelter placement if continuance is
granted
At the shelter hearing, the DCF must also
provide the Court:
 Copies of any available law enforcement, medical, or other professional
reports, and shall also provide copies of abuse hotline reports pursuant
to state and federal confidentiality requirements.
 And inform the court of:
1. Any identified current or previous case plans negotiated in any
district with the parents or caregivers under this chapter and problems
associated with compliance;
2. Any adjudication of the parents or caregivers of delinquency;
3. Any past or current injunction for protection from domestic violence;
and
4. All of the child's places of residence during the prior 12 months.
The shelter judge must:
 Appoint a GAL unless “such representation is
unnecessary”
 Inform parents of right to counsel at shelter and at
each subsequent hearing
 Obtain permanent mailing address from each party
and advise each party that the address will be used by
the court and the petitioner for notice purposes until a
written change of address is filed
In an order granting shelter the
judge must
 Identify the parties who are present
 Find that placement in shelter is necessary
 Child has been abused, abandoned, etc.
 Necessity of removal/provision of appropriate services
will not eliminate the need for removal
 Placement is in child’s best interests
 Continuation in home is contrary to child’s welfare,
substantial and immediate danger, cannot be mitigated
by provision of appropriate services
In an order granting shelter the
judge must also
 Find PC to believe that child is dependent or court
needs additional time (not more than 72 hours) to
obtain and review documents to appropriate
determine risk to child
 Reasonable efforts –OR Deemed (excused) reasonable efforts
Reasonable efforts excused when
 Emergency
 Home presents a substantial and immediate danger
which cannot be mitigated by preventive services
 Child cannot safely remain at home (either there are
no preventive services or even with available services
child’s health and safety cannot be ensured)
 Parent has committed an act under Sec. 39.806(1)(f)
through (i) for “expedited TPR”
Order granting shelter must also
state:
 That the court notified the parents, relatives providing
care, of the importance to appear and participate in
every hearing and the date time and place of the next
hearing
 That the court told the parents that they have a right to
be represented by counsel at every hearing
 That the court notified relatives who are providing
out-of-home care for a child that they have the right to
attend all subsequent hearings, to submit reports to
the court, and to speak to the court regarding the
child, if they so desire.
Visitation
 DCF must provide the court a recommendation for
scheduled contact
 Court must determine visitation rights absent a clear
and convincing showing that visitation is not in the
child’s best interests
 But to the contrary if Sec. 39.0139 applies
 Visitation must begin with 72 hours unless DCF
provides “justification” and court should make written
findings
Court must also
 Require parents to provide financial information
within 28 days for purposes of child support
 If child has guardianship estate, then guardianship
estate may in some situations be required to support
Medical and educational records
 Court must ask the parents to provide consent and
produce information or make records available in the
absence of parents’ consent if appropriate
 May appoint a surrogate for a child who has a disability
The order granting shelter must
also contain
 A written determination as to whether the DCF has
made a reasonable effort to prevent or eliminate the
need for removal or continued removal of the child
from the home. -AND A description of which specific services, if available,
could prevent or eliminate the need for removal or
continued removal from the home and the date by
which the services are expected to become available.
If services are not available:
 The written determination must also
contain an explanation describing why
the services are not available for the
child.
At the end of the shelter hearing if
shelter has been granted:
 DCF must provide referral information to parents. Participation in the services
shall not be considered an admission or other acknowledgment of the
allegations in the shelter petition.

The court shall notify all parties in writing of the next scheduled hearing to
review the shelter placement. No later than 30 days after placement of the child
in shelter status, in conjunction with the arraignment hearing. Can be sooner,
and can be more.

The court shall inquire of the parent whether the parent has relatives who
might be considered as a placement for the child, and the parent must provide
identification and location information regarding relatives. The court shall
advise the parent that the parent has a continuing duty to inform the DCF of
any relative who should be considered for placement of the child.

The court shall advise the parents that, if the parents fail to substantially
comply with the case plan, their parental rights may be terminated and that the
child's out-of-home placement may become permanent.
Additional good practices
 Paternity inquiry under Sec. 39.503, and written order
regarding results
 Begin appropriate concurrent case planning from the
beginning (identify relatives, order home studies,
ICPC compliance, obtain substance abuse evaluations
as provided in Sec. 39.407)
 Address service needs of child
 Redirect existing child support
 Include child in copies and notices if appropriate
 Ensure compliance with deadlines, time limits
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