FL Dependency & Juvenile Delinquency

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Yaima
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303281
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FL Dependency & Juvenile Delinquency
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2015-05-28 16:59:12
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juv
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Fl Juv.Dep.
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  1. 3 main Welfare Goals of
    • 1. Safety 
    • 2. Permanency
    • 3. Well-Being
  2. Parties in Dependency
    Each Parent

    DCF

    • ☛ Petitioner (if any/anyone)
    • * No general right to Counsel but Court usually appoints one.

    • MUST appoint Counsel if:
    •     ☒ Skilled Nursing Facility (living in or being considered)
    •     ☒ Psychotropic Meds. & Child Refusal
    •     ☒ Developmental Disability Diagnosis
    •     ☒ Residential Placement Facility (in or considered)
    •     ☒ Human Trafficking victim.
  3. Proper Court for Dependency and Delinquent Proceedings
    Circuit Court's Juvenile Division

    ☛  court retains jx over delinquent until 19 yo if on probation, or 21 if committed to some facility.

    ☛ Retains jx over reunified dependent for 6 months.
  4. Dependency Hearings
    • Shelter Hearing--when child is not returned to parents after investigation & petition is filed for dependency. 
    • Arraignment Hearing--after a court orders a child be sheltered and determines whether dependency adjudication is proper.
    • Adjudication Hearing--where the court decides dependency established by preponderance of evidence. 
    • Disposition Hearing--Where the court reviews and possibly accepts the Case Plan prepared by DCF and agreed to by the parties. 
    • Judicial Review Hearings--where the court reviews the child's status every 6 months until child is adopted. (or if the child is returned to the parent for reunification then for one 6 month cycle)
    • Permanency Hearings--12 months from removal or 30 days from deciding reunification not required, to review permanency goals. (x12 months).
    • Termination of Parental Rights--after dcf, guardian ad litem, or any interested party files petition, at any time.
  5. Duty to Report Abuse or Reasonable Suspicion of Abuse
    • ☛ To DCF abuse hotline;
    • Anonymous is ok (unless mandatory reporter) 
    •     ☑ Medical Profs; Mental Health prof; Teacher & Administrators, Social workers/daycare/etc; Law enforcement; College and University Administrators. 
    • No Privilege or Confidentiality applicable,
    • ---Unless, Atty-client seeking legal advice,
    • ---Unless, Clergy-Person seeking spiritual advice,
  6. Investigation
    • ☛ Within 60 days of report (or sooner)
    • ☛ face to face interviews & home visit; 
    • ☛ Referral to Child Protection Team possible; 
    • ☛ DCG may decide to:
    •      ☐ Close Case; 
    •      ☐ Shelter (remove child + need for immediate action; 
    •      ☐ Not remove but open dependency case.
  7. Removal & Shelter
    • ☛ sworn testimony + Probable Cause of:
    •     ☐ Abuse; Neglect; Abandonment
    •     ☐ Material Violation of Court Imposed condition; 
    •     ☐ No Parent, Custodian or Relative available.
  8. Return to Parent after Dependent Adjudication
    ☛ court retains jx over child for a minimum of 6 months after reunification & then determines whether jx will continue or be terminated.
  9. Shelter Hearing
    ☛ must be held when the child is removed from the home. (who is not designated as dependent yet); 

    ☛ DCF must file petition establishing PC for removal & request hearing within 24 hours

    ☛ Not more than 60 days without adjudication of dependency; 

    ☛ Not over 30 days after adjudication (unless disposition has been entered)

    ☛ Parents Right: Notice; Right to be heard; Statutory right to Atty. (inc appointment)

    ☛ Court must appoint guardian ad litem (unless it finds it unecessary)

    • Court Must Find
    •   ☑ PC for removal; 
    •   ☑ Substantial & Immediate danger;
    •   ☑ Services won't eliminate danger;
    •   ☑ DCF= reasonable efforts to prevent removal, OR threat to child excuses DCF from such efforts.

    • ☛  Temporary Placement during shelter Hearing:
    • * Home study & background check of every person living in placement over age of 12;

    •  Placement Order of Preference
    • 1. Non-Offending Parent; 
    • 2. Relative; 
    • 3. Non-Relative, Non-License home of some person close to child;
    • 4. License/Foster care.
  10. Petition for Dependency 
    Adjudication (trial of dependency)
    • PETITION For Dependency: 
    • ☛  must be filed 21 days after shelter hearing; (or 7 if any party demands early filing); or (reasonable time after referral to protective investigation)

    • ☛  Notice & Petition to Parents; 
    • [] if parent is unknown + dilligent search/court may find search is not needed= proceeding may continue;
    • [] identified parent = must be noticed; 
    • [] identified & located = opportunity to become party by sworn affidavit of parenthood. 
    • ☛  Diligent Search by DCF of parent; (not publication though)
    • ----0---inquiry of all parent's relatives;
    • ----0---DCF/state/federal agencies likely to have info;
    • ----0--law enforcement agencies;
    • ----0--at least 1 electronic database specifically designed to find people. 

    • ARRAIGNMENT:
    • ☛  28 days after shelter hearing;(or 7 if expedited)
    • ☛  Parents respond; 
    • ☛  Attorney is appointed (if indigent);
    • ☛  Failure to Attend = Consent to dependency order.

    • ADJUDICATORY HEARING
    • ☛ judge (no jury)
    • ☛  Grounds for Dependency:
    • ----☐  Abuse; 
    • ----☐  Abandonment; 
    • ----☐  Neglect;
    • ----☐  No Parent/Custodian/Guardian to provide care; 
    • ----☐  Sexual Exploitation + No parent/custodian/guardian; 
    • ----☐  Voluntary Relinquishment by Parents; 
    • ----☐  Voluntary Placement w/DCF & Failure to comply with Case Plan.
  11. Abuse
    Parent Intentionally or Intends to commit a willful act that results in Physical, Mental, or Sexual abuse, Injury to the child, or harm...or is likely to cause such harm.
  12. Abandonement
    • ☛ Financially Able + No significant contribution; 
    • ☛ No substantial & Positive Relation with child, 
    • ☛ Incarceration + in some circumstances;
  13. Neglect
    ☛ Financially Able + deprivation of food/clothing/shelter/medical treatment; 

    ☛ Financially able + lets child live in environment that will significantly impair child;
  14. CASE PlAN
    ☛ DCF Prepares it; 

    • Binding Contract b/w parents & DCF; 
    • ------Notice to parents that parental rights may be terminated for non-compliance. 
    • ------All parties must sign. (signature is not an admission) [refusal of one party does not prevent court's admission of case plan]

    • ☛  Expires: 12 months after: 
    • ☐ Removal from home; 
    • ☐ Dependency Adjudication; 
    • ☐ Case plan accepted by court 
    • *whichever comes first. 

    • Plan must Addresses
    • ☑ Problems; 
    • ☑ Permanency Goal; 
    • ☑ Services to be provided; 
    • ☑ Parental responsibility for payments; 
    • ☑ Role of Foster parents/caregivers
  15. Permanency Goals (in order of preference)
    • 1. Reunification; 
    • 2. Adoption; 
    • 3. Permanent Guardianship; 
    • 4. Permanent Placement w/Relative; 
    • 5. Foster Care; 
    • 6. Extended Foster care

    • ☛ DCF must always explain why the more preferred goals are
    • not possible before placing a child in any of the lesser preferred ones. 

    ☛ Dependency case closes after the goal is met. (unless child is in foster care).
  16. Petition for Dependency
    • i) identify parents/legal custodian;
    • ii) acts/omissions on which petition is based & person alleged to have committed them; 
    • iii) whether parent named has previously accepted/rejected services
    • iv) DCF determines voluntary services are not appropriate. (whether)
  17. Disposition Hearing
    • Shelter Hearing
    • -----24 hours.
    • -----petition for dependency must be filed within 21 days (7 if expedited)

    • Arraignment hearing 
    • -----28 days after shelter hearing (or 7 if expedited)

    Adjudication Hearing

    • Disposition Hearing:
    • ☛ 30 days after adjudication hearing; 
    • ☛ Court accepts/denies Case Plan; 
    • ☛ Opportunity to be heard is provided.
  18. JUDICIAL REVIEW HEARING
    • ☒  Shelter Hearing; 
    • ☒  Arraingment Hearing; 
    • ☒  Adjudication Hearing; 
    • ☒  Disposition Hearing; 
    • ☒  Judicial Review Hearing:
    • ☛  90 days after disposition/approval of case plan (every 6 months after);
    • ☛  DCF must provide report on progress & child well-being; 
    •  Judge Decides: 
    • ☒ DCF made reasonable efforts to achieve goals? 
    • ☒ Substantial Compliance of Parents w/plan?
    • ---judge may order DCF file petition to terminate parental rights; 
    • Placement is appropriate? 
    • Permanency goals are still ok?
    • ☒ Any additional services/ obligations to be added to program.
  19. Citizen Review Panel (instead of Judicial Review Hearing by Judge)
    • ☛  instead of judge review;
    • ☛  group of citizens; 
    • ☛  recommendations to judge w/out formal hearing;
    • ☛  all parties must consent.
  20. 17 YO Review
    • ☛  Foster Care + 17 YO.
    • ☛  Hearing to ensure child is being prepared for independent living; 
    • ☛ Option to remain in foster care until 21.
  21. Permanency hearing
    • ☛  12 months in care = must hold hearing to see if permanency goal needs to be changed.
    • ☛  If reunification is not an option = move toward TPR.
  22. TPR (Termination of Parental Rights)
    ☛  may be filed at any time;

    ☛  Notice & Personal Service required; [failure to appear = consent]

    ☛  CLEAR AND CONVINCING EVIDENCE STANDARD.

    • MANDATORY FILING OF TPR Petition:
    • ☛  12 months after shelter/dependent adjudication; 

    ☛  child out of home for 12 out of 22 months;

    ☛  parent's conviction of serious offense against other parent or child of parent; 

    ☛  reunification is not required (by court);
  23. Effect of TPR (terminated parental right)
    ☛ automatic deprives parent of any child to the child. 

    • -0- doesn't affect grandparent rights; (unless court finds not in best interest/interferes w/permanency goals)
    • -0- doesn't affect siblings
    • *court may order family members continued access pending adoption if best interest of child.
  24. GROUNDS for TPR proved By Clear & Convincing evidence.
    • ☛  voluntary surrender of parental right;
    • ☛  child abandonment + parent missing for 60 days
    • ☛  Parent's conduct threatens child well-being and no services will help; 
    • ☛  Adjudication of dependency + Material Breach of Case Plan OR no Substantial Compliance for 12 months
    •  Incarceration for: 
    • ------☐ Significant period of childhood, or
    • ------☐  Violent Career Criminal, or
    • ------☐  Continued Relation will harm child.
    • ☛ aggravated child abuse; sexual abuse; or chronic abuse
    • ☛  Parent murdered or seriously injured other parent or other child; 
    • ☛  Parent's chronic history of alcohol /substance abuse or Child born with exposure to either.
    • ☛   Involuntary TPR of other child or in an out of home 3 or m ore times.
  25. Due Process Rights in Juvenile Delinquency Proceedings
    • ☛  Attorney;
    • ☛  Cross-Examination;
    • ☛   Self-Incrimination protection;
    • ☛   Double Jeapordy; 
    • ☛   Beyond a reasonable doubt standard. 

    • DUE Process NOT given to Juveniles:
    • 1--NO Bail;
    • 2--NO Jury

    ☛   search & Seizure: the same as an adult--EXCEPT school officials on school property may search w/reasonable suspicion. 

    ☛   take age into consideration when determining voluntariness of confessions.
  26. Parties
    ☛ Entitled to Counsel at ALL Stages of delinquency proceedings (note, adults are entitled only after formal charge)

    • ☛ State Attorney prosecutes. 
    • Department of Juvenile Justice: 
    • ☛ Intake: Recommends case to go forward;
    • ☛ Scores child to see whether release or detainment;
    • ☛ Recommends disposition; 
    • ☛ Runs Assessment Centers and Detention centers.
  27. Overview
    • ☛-Custody = arrest
    • ☛-Detention Hearing
    •  24 hours from custody/arrest.
    • *DJJ conducts risk assessment to determine whether child should be detained. judge can ignore but must give reasons. 
    • * Judge: explains charges; appoints counsel; decides if PC exists that child committed offense; 
    • * decides what level of detention is necessary, 
    • -Arraignment (plea or trial)
    • * 48 hours after detention. 
    • * summons must be served on *parents/guardians etc;
    • * counsel is appointed
    • * Judge Determines: voluntariness of plea; factual basis for plea; that child understands consequences of plea etc. 
    • ☛Adjudication (trial)
    •  21 days from detention. 
    • * Charges must be proved beyond a reasonable doubt
    • * public hearing but may be closed;
    • * rules of evidence apply;
    • * order must be in writing. 
    • ☛-Disposition (sentencing) 
    • 15 days from adjudication.
  28. Non-Secure Detention
    Child is in physical custody of parent, guardian etc. while under DJJ supervision. 

    [electronic monitoring; checking in; school attendance; curfew etc]
  29. Secure Detention
    Secure Residential Facility operated by DJJ.
  30. Methods of Transfer to Adult Court
    • 1) Waiver (by judge)  
    • ☛ mandatory waiver
    • ☛ discretionary waiver

    2) Indictment = only for offenses punishable by death/life imprisonment. 

    • 3) Direct File by Prosecutor
    • ☛ mandatory direct file
    • ☛ discretionary direct file
  31. Mandatory Waiver
    ☛ 14/older + Violent Offense charge + prior adjudication for serious violent offense; 

    ☛ 14/older +Felony charge + 3 prior felony adjudications. 

    The prosecutor MUST request transfer or provide written reasons why they do not.
  32. Discretionary Waiver
    ☛ for any reasonable common sense factor, aggravated circs etc. 

    ☛ Child may request transfer.
  33. Mandatory Direct File
    ☛ any age + stolen car + serious injury/death to another. (this includes all fellow willing passengers)

    ☛ 16/17 + violent offense + prior violent offense adjudication; 

    ☛ 16/17 + forcible felony charge + 3 prior felony adjudications, 45 days apart.

    ☛ 16/17 + possessed/discharged firearm + serious crime.
  34. Discretionary Direct File
    ☛ 14/15 + serious crime 

    ☛ 16/17 + public interest requires treatment as adult.

    ☛ 16/17 + misdemeanor + ONLY if 2 prior adjudications and one a felony.
  35. Consequence of Adult Court Plea/Conviction
    ☛ forever loses juvenile status (charged as adult for all subsequent offenses.)
  36. Sentencing Options
    • 1) Probation & Community Service--may include restitution child can be reasonably expected to pay. 
    • 2) Commitment 
    • Minimum Risk Non-Residential = unsupervised community access; day treatment center; usually 5 days a week.
    • Non Secure Residential = Supervised community access only; overnight residential program.
    • High Risk Residential = up to 72 hours of supervised community access for a specific reason only.  
    • Maximum Risk Residential = no community access; jail.

    Indeterminate Period of Time Only--the goal is to keep em until rehabilitated, but can't be longer than an adult could have been sentenced.
  37. What is a valid reason that the Department of Children and Family Services ("DCF") may exceed 60 days from receiving the initial report of abuse to complete its protective investigation?
    • i) active concurrent criminal investigation continuing beyond this period; 
    • ii) child death case (where med.report is needed and hasn't been received yet);
    • iii) missing child is needed for investigation.
  38. Situations where child may be taken into custody (Shelter)
    • i) Sworn testimony, or 
    • ii) by law enforcement or authorized DCF + That Probable Cause Exists that:
    • ☐ abuse, neglect, abandonment
    • ☐  material violation of court placed condition, (by parent/custodian)
    • ☐  child has no parent/custodian etc.
  39. Right of parent at shelter hearing
    • ☛ Notice; 
    • ☛ right to be heard (present evidence)

    court must appoint guardian ad litem (reps best interest of child)
  40. Services & Immigration
    • Services must be provided without regard to citizenship, unless status is explicitly set forth as a statutory condition of the coverage/eligibility of service. 
    • ☛ abused, neglected or abandoned children.
  41. Permanency Goals ( by order of pref)
    • i) Reunification
    • ii) Adoption
    • iii) Permanent Guardianship
    • iv) Fit & Willing Relative (permanent placement)
    • v) Another planned permanent living arrangement (foster care)

    any one chose, DCF must explain why the previous ones are not possible. 
  42. 17 Year Old Judicial Review
    • TRANSITION PLAN:
    • ☛ 180 days before reaching 18;
    • ☛ specific options available to get services; 
    • ☛ maintaining naturally ocurring mentor relations; 
    • ☛ plan must be approved before child leaves care (if she's leaving at 18).

    • DCF STUDY REPORT: Showing child received training in the following: 
    • ☛ medicaid/social security; 
    • ☛ budgeting/interview/parenting skills training;
    • ☛ residency at 18 & how bills will be paid; 


    • HEARING ISSUES:
    • ☛ address whether child wants to remain in extended foster can (eligibility reqs)
    • ☛ supervised living arrangement (must be in transition plan);
    • ☛ inform child of her rights (services etc)
    • ☛ informed of benefits of foster care services if she requests to terminate dependency.
  43. Right to Visitation (dependency)
    ☛ Placement in state or other. + parent has right to visit, UNLESS Clear & Convincing evidence that it's not in best interest of child. 

    ☛ Grandparents= reasonable visitation, Unless (1) not in best interest or (2) would interfere w/goals of case plan.
  44. Petition Hearing
    If facts are sufficient to establish PC for filing shelter petition = file petition requesting shelter hearing to be held within 24 hours.
  45. Shelter Hearing Order
    • ☛ can't be in shelter longer than 24hrs (unless shelter order)
    • ☛ can't be in shelter over 60days (w/out adjudication of dependency);
    • ☛ can't be in shelter more than 30days after adjudication, unless disposition has been entered by court. 

    * MUST require parents pay cost of shelter (if financially able).
  46. Disposition
    • ☛ court approves case plan;
    • ☛ 30 days after adjudication;
  47. Guardian Ad Litem
    • ☛ statutory right of child (must be appointed at dependency hearing)
    • ☛ reps best interest of child.
  48. Rebuttable Presumption that Visitation is not in best interest
    • A rebuttable presumption of detriment to a child is created when:
    • i) a court finds probable cause exists that a parent or caregiver has sexually abused a child, or
    • ii) when a parent or caregiver has been found guilty of sexual crimes, or
    • iii) has been determined to be a sexual predator.

     Failure to Rebut by Clear & Convincing evidence = visitation must be supervised by person trained in child abuse;

    • ☛ if detriment of child = person can't visit until Hearing + Order of Court + allowing visitation & specifying conditions 
  49. Foster or Pre-Adoptive Parents
    ("DCF") has the duty to give 72 hours notice to all participants and parties of all hearings subsequent to the initial hearing, unless notice is contained in prior court orders which were provided to the participant or party.
  50. Parental Consent or Admission to Dependency Petition
    • ☛ disposition hearing is held within 15 days.
    • ☛ if the child is in the custody of the parent, the arraignment hearing must be held within a reasonable time after the date of the filing of the petition.

    * note--failure to attend arraignment hearing = consent to dependency adjudication.
  51. Predisposition Report by DJJ must address:
    • ☛ seriousness of offense;
    • ☛ protection for community requires adjudication & commitment to DJJ; 
    • ☛ Aggressive or premeditation of offense; 
    • ☛ against person or property; 
    • ☛ maturity of child; 
    • ☛ prior criminal history;
    • ☛ likelihood of reasonable rehab if committed to program or facility.
    • ☛ substance abuse evaluation.
  52. Incompetency (dismissal of delinquency petition)
    ☛ May Dismiss = any time judge determines child will never be competent.

    ☛ Must Dismiss = 2 years since entry of incompetency + NO evidence child will become competent within one year.
  53. Incompetent Commitment
    • ☒ Incompetent, (mental illness/disability only) +
    • ☒ delinquent act/felony if committed by adult, +
    • ☒ must be committed to DCF for treatment or training.
  54. Incompetency Determination
    • ☒ Must be at hearing; 
    • ☒ Sufficient present ability to consult with counsel with a reasonable degree of rational understanding, and 
    • ☒ rational and factual understanding of the present proceedings.

    • Court MAY order Evaluation: 
    • ☒ findings of fact by 2 or 3 experts appointed by court;
    • ☒ child's appreciation of charges & possible penalties;
    • ☒ Understands adversarial nature of proceedings; 
    • ☒ able to disclose facts to counsel pertinent;
    • ☒ Appropriate courtroom behavior;
    • ☒ able to testify relevantly.
  55. Possible Court Orders to parents of Delinquent
    • ☛ may order a parent or legal guardian of a child adjudicated either dependent, in need of services, or delinquent :
    • i) to attend a parenting skills class,
    • ii) to accept counseling, or
    • iii) to receive other assistance from an agency.

    • ☛ If court finds the adult did not make a diligent and good faith effort to prevent the child from engaging in delinquent acts, the court may order :
    • i) the adult to participate in community service or a community work project along with the child, or
    • ii) to make restitution for damage caused by the child’s offense.

    ☛  The court may also order parents to pay fees to DJJ for the child’s placement under certain circumstances.
  56. Adjudication of Delinquency
    Must articulate specific findings as to the suitability of adjudication and commitment to the Department of Juvenile Justice ("DJJ").

    Must commit the child to DJJ at the restrictiveness level found most appropriate by the probation officer, or else state reasons for ordering placement at a different restrictiveness level.

    Note that during this stage of the proceedings, the court may rely on evidence that would not have been permissible during the adjudicatory hearing stage.
  57. Possible Options to Court when finding of Delinquency:
    • ☛ Adjudicate the child delinquent only, or
    • ☛  Withhold adjudication and order restitution.

    • ☛  Withhold adjudication and order the child to:
    • ----(a) participate in a probation program,
    • ----(b) make restitution,
    • ----(c) engage in community service,
    • ----(d) participate in a substance abuse program, or
    • ----(e) enroll in an educational program.

    ☛  Court may enter an adjudication of delinquency if the child subsequently fails to abide by the court’s order.
  58. Grounds for Placing Child in Detention:
    • Requesting protection from imminent bodily harm,
    • ☛ presenting a substantial risk of inflicting bodily harm on others,
    • ☛ committing contempt of court by intentionally disrupting the proceedings, disobeying a court order, or engaging in a punishable act or speech in the court’s presence.
    • ☛ A substantial risk of not appearing at a subsequent hearing, and
    • ☛ presenting a history of committing a property offense prior to adjudication, disposition, or placement.

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