The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Children, Families, and Elder Affairs
BILL: SB 948
INTRODUCER: Senator Book
SUBJECT: Child Welfare
DATE: January 10, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Moody Cox CF Pre-meeting
2. ACJ
3. AP
I. Summary:
SB 948 creates the Statewide Office of Child Representation (OCR) and makes a number of
changes to various provisions related to guardians ad litem (GAL) under ch. 39, F.S., and
regarding attorney representation for the child.
The bill provides that on or after July 1, 2023, a GAL must be appointed in specified
circumstances and may be appointed at the court’s discretion upon a finding that circumstances
exist which require the appointment. If a GAL is appointed and an attorney for the child is
subsequently appointed as required under law, the court may maintain the appointment of the
GAL.
The bill defines a “conflict of interest” with respect to GAL volunteers and requires the Guardian
ad Litem Program (GALP) to develop guidelines to identify when there is reasonable cause to
suspect an assigned GAL has a conflict of interest. The bill prohibits the GALP from appointing
a GAL when a conflict of interest is identified. It also requires the court to order that a new GAL
be assigned or, unless otherwise prohibited by law, discharge the GAL and appoint an attorney
for the child upon request by a child or when a party presents evidence that such circumstances
exist. Further, the GALP must identify any GAL who is experiencing a physical or mental health
issue or who appears to present a danger to any child, and remove him or her from all assigned
cases and terminate his or her volunteer services except for working in the office when certain
circumstances are met.
The GAL Qualifications Committee is redesignated as the Child Well-Being Qualifications
Committee. The bill provides that the executive director of the GALP may be reappointed to
serve more than one term and the reappointment process must be made in accordance with the
initial appointment process.
REVISED: BILL: SB 948 Page 2
The OCR is established within the Justice Administrative Commission (JAC) and is structured
with requirements substantially similar to current law relating to the GALP. The head of the
OCR must meet specified qualifications and will be appointed in accordance with the process
and serve in accordance with the provisions for the head of the GALP. The bill provides
specified duties for the OCR and the Department of Children and Families (DCF) is required to
take any necessary steps to obtain federal Title IV-E funding reimbursement for the OCR. The
OCR may contract with a local nonprofit agency, which must comply with specified
requirements, to provide direct representation for the child. Regional Offices are created within
the area serviced by each of the five district court of appeals. Child Representation Counsel
(CRC) must comply with proscribed duties.
Section 39.831, F.S., is created to make provisions regarding when an “attorney for the child”, as
defined in the bill, must or may be appointed. The bill relocates s. 39.01305(4)(b) and (5), F.S. to
s. 39.831, F.S., but clarifies the scope of attorney representation and that compensation must be
made in accordance with s. 27.5304, F.S. The bill also sets out several other provisions regarding
an attorney for the child, including when the OCR must be appointed, the process that must be
followed when OCR has a conflict of interest in representing a child, when the attorney for the
child may withdraw or be discharged, his or her access to records, and requirement to file all
appropriate motions at least 72 hours before a court hearing.
Several sections are amended to conform cross-references and provisions to changes made by the
act.
The bill will result in an indeterminate negative impact on state expenditures. The GALP reports
an indeterminate fiscal impact of the bill as it is unknown how many children will meet the
criteria in the bill. Further, the JAC states that the bill will likely have a substantial fiscal impact
on the JAC through increased workload. See Section V. Fiscal Impact Statement.
The bill is effective July 1, 2022.
II. Present Situation:
Current law requires any person who knows or suspects that a child has been abused, abandoned,
or neglected to report such knowledge or suspicion to the Florida central abuse hotline (hotline).
1
A child protective investigation begins if the hotline determines the allegations meet the statutory
1
Section 39.201(1), F.S. BILL: SB 948 Page 3
definition of abuse,
2
abandonment,
3
or neglect.
4
A child protective investigator investigates the
situation either immediately, or within 24 hours after the report is received, depending on the
nature of the allegation.
5
After conducting an investigation, if the child protective investigator determines that the child is
in need of protection and supervision that necessitates removal, the investigator may initiate
formal proceedings to remove the child from his or her home. When the Department of Children
and Families (DCF) removes a child from the home, a series of dependency court proceedings
must occur before a child may be adjudicated dependent.
6
The dependency court process is
summarized in the table below.
The Dependency Court Process
Dependency
Proceeding
Description of Process
Controlling
Statute
Removal
A child protective investigation determines the child’s home is
unsafe, and the child is removed.
s. 39.401,
F.S.
Shelter
Hearing
A shelter hearing occurs within 24 hours after removal. The
judge determines whether to keep the child out-of-home.
s. 39.401,
F.S.
Petition for
Dependency
A petition for dependency occurs within 21 days of the shelter
hearing. This petition seeks to find the child dependent.
s. 39.501,
F.S.
Arraignment
Hearing and
Shelter
Review
An arraignment and shelter review occurs within 28 days of the
shelter hearing. This allows the parent to admit, deny, or
consent to the allegations within the petition for dependency
and allows the court to review any shelter placement.
s. 39.506,
F.S.
Adjudicatory
Trial
An adjudicatory trial is held within 30 days of arraignment. The
judge determines whether a child is dependent during trial.
s. 39.507,
F.S.
2
Section 39.01(2), F.S. The term “abuse” means any willful act or threatened act that results in any physical, mental, or
sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be
significantly impaired. Abuse of a child includes the birth of a new child into a family during the course of an open
dependency case when the parent or caregiver has been determined to lack the protective capacity to safely care for the
children in the home and has not substantially complied with the case plan towards successful reunification or met the
conditions for return of the children into the home. Abuse of a child includes acts or omissions. Corporal discipline of a child
by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to
the child.
3
Section 39.01(1), F.S. The term “abandoned” or “abandonment” means a situation in which the parent or legal custodian of
a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution
to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child,
or both.
4
Sections 39.01(50) and 39.201(2)(a), F.S. “Neglect” occurs when a child is deprived of, or is allowed to be deprived of,
necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation
or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of
being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial
inability unless actual services for relief have been offered to and rejected by such person. A parent or legal custodian
legitimately practicing religious beliefs in accordance with a recognized church or religious organization who thereby does
not provide specific medical treatment for a child may not, for that reason alone, be considered a negligent parent or legal
custodian; however, such an exception does not preclude a court from ordering necessary services.
5
Section 39.101(2), F.S.
6
See s. 39.01(14), F.S., for the definition of “child who is found to be dependent”. BILL: SB 948 Page 4
Dependency
Proceeding
Description of Process
Controlling
Statute
Disposition
Hearing
If the child is found dependent, disposition occurs within 15
days of arraignment or 30 days of adjudication. The judge
reviews the case plan and placement of the child. The judge
orders the case plan for the family and the appropriate
placement of the child.
s. 39.506,
F.S.
s. 39.521,
F.S.
Postdisposition
hearing
The court may change temporary placement at a postdisposition
hearing any time after disposition but before the child is
residing in the permanent placement approved at a permanency
hearing.
s. 39.522,
F.S.
Judicial
Review
Hearings
The court must review the case plan and placement every 6
months, or upon motion of a party.
s. 39.701,
F.S.
Petition for
Termination of
Parental
Rights
Once the child has been out-of-home for 12 months, if DCF
determines that reunification is no longer a viable goal,
termination of parental rights is in the best interest of the child,
and other requirements are met, a petition for termination of
parental rights is filed.
s. 39.802,
F.S.
s. 39.8055,
F.S.
s. 39.806,
F.S.
s. 39.810,
F.S.
Advisory
Hearing
This hearing is set as soon as possible after all parties have been
served with the petition for termination of parental rights. The
hearing allows the parent to admit, deny, or consent to the
allegations within the petition for termination of parental rights.
s. 39.808,
F.S.
Adjudicatory
Hearing
An adjudicatory trial shall be set within 45 days after the
advisory hearing. The judge determines whether to terminate
parental rights to the child at this trial.
s. 39.809,
F.S.
Attorney Representation in Dependency Cases
An attorney must comply with the Florida Rules of Professional Conduct promulgated by the
Florida Bar. An attorney must zealously advocate for his or her client and must abide by a
client’s decision on how to proceed in a matter.
7
This means the client has authority to decide the
purpose and scope of the attorney’s representation, within the limits imposed by law and the
attorney’s professional obligations, including for instance whether to settle a matter.
8
An attorney
has an obligation to communicate with his or her client about such decisions,
9
and should try to
reach a mutually agreeable resolution with his or her client if a disagreement arises on how to
proceed.
10
7
Rules Regulating the Fla. Bar 4-1.2.
8
Id.
9
Rules Regulating the Fla. Bar 4-1.2 and 4-1.4(a)(1).
10
Rules Regulating the Fla. Bar 4-1.2. BILL: SB 948 Page 5
Attorney Duties and Conflicts of Interest
Attorneys are required to adhere to specified duties within the Rules of Professional Conduct.
For instance, an attorney must be competent to represent his or her client, and must act with
reasonable diligence and promptness in representing a client.
11
An attorney also has duties of
loyalty and confidentiality to his client.
12
However, an attorney must disclose confidential
information if he or she reasonably believes it is necessary to prevent a client from committing a
crime, or to prevent death or substantial bodily harm to another.
13
An attorney may also disclose
confidential information, in part, if the client gives informed consent or the attorney reasonably
believes the disclosure is necessary to serve the client’s interest provided the client does not
specifically require the information not to be disclosed.
14
The Rules of Professional Conduct also contain provisions regarding how an attorney must
handle circumstances in which conflict of interest exists.
15
This includes, in part, when an
attorney has a conflict with a current
16
or former client
17
as well as prohibited transactions.
18
An
attorney must not represent a client whose interests are directly adverse to another client, or there
is a substantial risk that representation of the client would materially limit the attorney’s
representation of another client, a former client or personal interest of the lawyer, except when
the client waives the conflict in specified circumstances.
19
This means an attorney must not
represent opposing parties in litigation.
20
Further, an attorney generally may not use information
to the disadvantage of a client without informed consent, unless otherwise permitted in the
rules.
21
An attorney must not represent a client if his or her representation will result in a violation of the
Rules of Professional Conduct or law, or the attorney’s physical or mental condition materially
impairs his or her ability to represent the client.
22
In such instances, the attorney must not
commence representation or must withdraw as counsel if specified conditions are met.
23
Attorney for the DCF
The DCF must be represented by counsel in dependency and termination of parental rights
proceedings.
24
The DCF, through its counsel, must make recommendations to the court and may
present evidence including testimony from its own employees or employees of its agents,
subcontractors, or other community providers.
25
The DCF may enter into a contract for the
11
Rules Regulating the Fla. Bar 4-1.1 and 4-1.3.
12
Rules Regulating the Fla. Bar 4-1.6 and 4-1.7.
13
Rules Regulating the Fla. Bar 4-1.6(b).
14
Rules Regulating the Fla. Bar 4-1.6(a) and (c).
15
See Rules Regulating the Fla. Bar 4-1.7 to 4-1.11.
16
Rules Regulating the Fla. Bar 4-1.7
17
Rules Regulating the Fla. Bar 4-1.9.
18
Rules Regulating the Fla. Bar 4-1.8.
19
Rules Regulating the Fla. Bar 4-1.7(a).
20
Rules Regulating the Fla. Bar 4-1.7.
21
Rules Regulating the Fla. Bar 4-1.8(b).
22
Rules Regulating the Fla. Bar 4-1.16(a), F.S.
23
Rules Regulating the Fla. Bar 4-1.16(a) and (b), F.S.
24
Section 39.013(12), F.S.
25
Id. BILL: SB 948 Page 6
provision of children legal services, and all counsel included those contracted must adopt the
child welfare practice model as proscribed by the DCF.
26
The State of Florida is represented by Children Legal Services through the DCF.
27
The DCF is
required to contract with the state attorney in the sixth judicial circuit for children legal
services.
28
Attorney for the parents
Parents have the right to be represented by counsel in dependency proceedings, and they must be
informed of this right at each stage of the dependency proceedings.
29
The court must appoint
counsel to represent parents who are indigent.
30
The Office of Criminal Conflict and Civil
Regional Counsel (OCCCRC) has primary responsibility for representing parents in proceedings
under ch. 39, F.S.
31
If OCCCRC has a conflict of interest in representing a parent or parents,
private counsel who must be selected from a registry is appointed on a rotating basis.
32
The
private attorneys contract with the JAC under specified terms to provide such services.
33
Attorney for the child
Attorney representation of children
An attorney should, as far as reasonably practical, maintain a normal attorney-client relationship
when a client’s ability to make an adequately informed decision is impaired, such as in
representation of a minor child.
34
An attorney may seek the appointment of a GAL if he or she
reasonably believes the client is not able to adequately act in his or her own interest.
35
The Rules
of Professional Conduct acknowledge that the law recognizes intermediate degrees of
competence, and explicitly provides that children ages 10 or 12 are regarded as having opinions
which are entitled to be considered in respect of legal proceedings concerning their custody.
36
Child Representation Models
Child representation in dependency proceedings varies but in most instances is based on what is
in the child’s best interest, direct representation, or a hybrid approach.
37
The child’s best interest
may not be consistent with the child’s expressed wishes.
38
Client-directed attorneys represent a
26
Section 409.996(18), F.S.
27
The DCF, Children Legal Services Overview, available at https://www.myflfamilies.com/service-programs/childrens-legal-
services/overview.shtml (last visited Jan. 3, 2022).
28
Section 409.996(20)(a), F.S.
29
Section 39.013(1), F.S.
30
Section 39.013(9)(a), F.S.
31
Section 27.511(6)(a), F.S.
32
Section 27.40(2) and (3), F.S.
33
Section 27.40(3) and (5), F.S.
34
Rules Regulating the Fla. Bar 4-1.14. .
35
Id.
36
Id.
37
OPPAGA, OPPAGA Review of Florida’s Guardian ad Litem Program, Presentation to the Senate Committee on Children,
Families, and Elder Affairs, p. 9, Jan. 26, 2021, available at
https://oppaga.fl.gov/Documents/Presentations/GAL%20Presentation%201-26-21.pdf (last visited Jan. 3, 2022) (hereinafter
cited as “OPPAGA Presentation”).
38
The Office of Program Policy Analysis and Government Accountability (OPPAGA), Literature Review of Studies on the
Effectiveness of Advocacy Models for Children in Dependency, Report 21-07, p. 3, Dec. 2021, available at Literature Review BILL: SB 948 Page 7
child’s expressed wishes and advocate for the child in a traditional attorney-client role.
39
In cases
where the child is unable to speak or direct their attorneys, a substituted judgement model is
used.
40
A summary of the different models and how they operate is set out in the table below.
41
The Legislature directed OPPAGA to conduct a literature review to assess the effectiveness of
children being represented by attorneys versus guardian ad litem volunteers in the dependency
process.
42
In December 2021, OPPAGA published a report (“OPPAGA Report”) that noted early
studies focused on the efficacy of volunteer representation but over time the focus has shifted to
assessing attorney representation.
43
Of the literature OPPAGA reviewed, approximately half of
the studies discussed child well-being with most of them reporting that cases with volunteer
involvement received more services, and several reporting that children with volunteers
experienced improved family functioning and performed better in school.
44
Slightly over fifty
percent of the studies discussed legal factors and impact of court processes and found that
of Studies (fl.gov) (last visited Jan. 9, 2022) (hereinafter cited as “OPPAGA December 2021 Report”). OPPAGA contacted
61 stakeholders from various professional, legal, and child welfare organizations and prominent researchers in the field.
OPPAGA requested original research, relevant research of others, and recommendations for any additional stakeholders that
OPPAGA should contact. Eighty-four percent of those contacted responded, and 36% provided OPPAGA with information.
Stakeholders submitted 39 studies, 10 of which had not been identified by OPPAGA but 8 of them were not within the scope
of this project.
39
Id.
40
Id.
41
OPPAGA, OPPAGA Review of Florida’s Guardian ad Litem Program, p. 5 and 34, Dec. 2020 (on file with the Committee
on Children, Families, and Elder Affairs) (hereinafter cited as “The OPPAGA Memo”).
42
OPPAGA December 2021 Report at p. i.
43
Id.
44
Id. at p. ii. BILL: SB 948 Page 8
children represented by attorneys are more likely to be present in court and that the type of
advocacy model may impact the case length in a variety of ways.
45
There is widespread consensus amongst professionals favoring legal representation for children
in dependency cases.
46
Since 1995, national experts in children’s law have recommended that
children in dependency proceedings be represented by a client-directed attorney, however, best
interest advocates are not excluded from recommendations.
47
Further, in 2002, the Florida Bar’s
Commission on the Legal Needs of Children recommended that Florida fully fund independent
advocacy, including attorneys and GALs for children in certain proceedings, and create a
statewide office to oversee and provide best interest and client-directed representation.
48
Several studies favoring the appointment of attorneys for client-direct representation of children.
Reports published in 2011 and 2021 suggest that parents and children who do not have legal
representation early in the dependency process delays permanency and found that effective
representation would speed up reunification or placement in a permanent home.
49
Further, a 2009
study of attorney GALs in Nebraska found that GALs were not zealously advocating for
appropriate permanency, and there was a variation in the average length of foster care stay
among children who were reunified or adopted.
50
In contrast, a 2015 study of the Legal Aid
Society of Palm Beach (LAS Palm Beach) Foster Children’s Project (FCP) in Palm Beach
County, Florida, found that children who were represented by the FCP exited to permanency
1.59 times faster than children who were not.
51
Finally, a study of Oregon’s practices in 2016-17
found that children in counties with parent and child representation programs were reunified five
months faster than the statewide average, and that time to reunification had improved since the
inception of the program.
52
The OPPAGA Report concluded that several of the more recent studies focused on benefits from
a multidisciplinary team approach, including better child outcomes, better family preservation,
improved information to the court, and increased rates of case dismissals for some children.
53
Literature from professional organizations and government entities was consistent with these
findings and focused on high quality legal representation as well as recommended
multidisciplinary team models.
54
45
OPPAGA December 2021 Report at p. ii.
46
Id. at p. i. The OPPAGA December 2021 Report identified only one study that compared legal to volunteer advocacy,
while the others examined the efficacy of one advocacy model or compared multiple models. The studies report mixed results
and numerous authors have identified research limitations of the studies that were conducted.
47
Id. at p. 3.
48
OPPAGA December 2021 Report.
49
Id. at 9.
50
Id.
51
OPPAGA December 2021 Report.
52
Id.
53
Id. at p. ii.
54
OPPAGA December 2021 Report at p. ii. The Washington State Center for Court Research (WSCCR) conducted an
evaluation of the state’s Dependent Child Legal Representation (DCLR) Program and published a final report in November
2021, but the OPPAGA Report relied upon the interim report published in March 2020. Two counties that participated in the
DCLR Program where all dependent youth received legal representation were compared with two other counties that did not
participate in it. The WSCCR concluded that the children who were served by the DCLR Program experienced (a) forty-five
percent higher reunification rate with their biological parents; (b) thirty percent reduction in the rate of placement moves; and
(c) sixty-five percent reduction in the rate of non-normative school moves that would not occur as a result of graduation. BILL: SB 948 Page 9
Representation under current Florida law
Section 39.01305, F.S., provides that an attorney must be appointed to represent a dependent
child
55
who has the following special needs:
Resides in or is being considered for placement in a skilled nursing home;
Is prescribed psychotropic medication but does not agree to take it;
Has a diagnosis of a developmental disability;
56
Is being placed or is being considered for placement in a residential treatment center; or
Is a victim of human trafficking.
57
A court is not restricted to appointing an attorney to represent a child for the reasons listed
above.
58
The court must request a recommendation from the GALP for an attorney who is willing to
represent a child without additional compensation before a court may appoint one under s.
39.01305(4)(a), F.S. If the GAL recommends an attorney who is available within 15 days from
the date of the court’s request, the court must appoint that attorney.
59
The court may appoint an
attorney who will receive additional compensation within 15 days if the GALP notifies the court
that it will not be able to make a recommendation within the specified time.
60
An attorney who is appointed to represent a child continues to be appointed until the attorney is
allowed to withdraw or is discharged by the court or until the case is dismissed.
61
An attorney
who is appointed must provide a range of legal services including from removal or appointment
through any appellate proceedings.
62
The appointment must be in writing and the attorney must
be adequately compensated unless he or she was agreed to provide pro bono services.
63
Unless
an attorney has agreed to represent a child pro bono, the JAC must contract with attorneys
appointed by the court and their fees may not exceed $1,000 per child per year.
64
All appointed
attorneys must also be provided with access to funding for due process costs of litigation subject
to appropriations.
65
WSCCR, Evaluation of the Washington State Dependent Child Legal Representation Program, p. 1, 2021, available at
DCLR Report 2021.pdf (wa.gov) (last visited Jan. 4, 2022).
55
Section 39.01305(2), F.S., defines “dependent child” as a child who is subject to any proceeding under ch. 39, F.S. The
term does not require that a child be adjudicated dependent for purposes of this section.
56
Section 393.063(12), F.S., defines “developmental disability” as a disorder or syndrome that is attributable to intellectual
disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome; that
manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue
indefinitely. See s. 393.063, F.S., for other definitions related to developmental disability.
57
Section 787.06(2)(d), F.S., defines “human trafficking” as transporting, soliciting, recruiting, harboring, providing,
enticing, maintaining, or obtaining another person for the purpose of exploitation of that person.
58
Section 39.01305(8), F.S.
59
Section 39.01305(4)(a), F.S.
60
Id.
61
Section 39.01305(4)(b), F.S.
62
Id.
63
Section 39.01305(4)(b) and (5), F.S.
64
Section 39.01305(5), F.S.
65
Id. BILL: SB 948 Page 10
Several counties in Florida currently operate offices that provide child representation, including
Palm Beach, Broward, and Hillsborough counties.
66
For instance, the FCP is appointed to every
child 0 to 12 years old who is in out-of-home care.
67
The Legal Aid Society of Broward County
(LAS Broward) represents children in dependency cases and provides free legal services for
eligible relative and nonrelative caregivers.
68
Similarly, the L. David Shear Children’s Law
Center of Bay Area Legal Services provides representation to children who have been abused,
abandoned, or neglected.
69
At least some of these organizations receive government funding.
70
For instance, the LAS Palm
Beach County receives public grants, such as the U.S. Department of Justice under the Violence
against Women Act and Children’s Services Council of Palm Beach County, and private grants,
such as William and Helen Thomas Charitable Foundation.
71
LAS Broward receives funding
from the Children’s Services Council of Broward County (CSCBC).
72
In many instances, these
organizations rely on donations and pro bono attorneys who donate their services to provide
representation to children who are the subject of a dependency case.
73
The Legal Aid Society of Palm Beach County provides representation to all children in the foster
care system who are between birth and 12 years old, and their siblings under a program referred
to as the FCP.
74
Four studies found that children who were represented by the FCP had a
significantly higher rate of exit to permanency than children not served by the FCP due to higher
rates of adoption and long-term custody, but legal representation did not result in significantly
lower rates of reunification.
75
Additionally, it has been reported that children who were
66
See Legal Aid Society Palm Beach (“LAS Palm Beach”), children, available at https://legalaidpbc.org/children/
(hereinafter cited as “LAS Palm Beach Children”); Legal Aid Service of Broward County (“LAS Broward”), Children &
Education, available at https://www.browardlegalaid.org/what-we-do/areas-of-legal-service/children-education/ (hereinafter
cited as “LAS Broward Children”); Bay Area Legal Services, Family & Children, available at https://bals.org/help/family-
children (all sites last visited Jan. 3, 2022).
67
LAS Palm Beach Children.
68
LAS Broward Children.
69
Id.
70
See LAS Broward Children.
71
LAS Palm Beach, Funding, available at https://legalaidpbc.org/funding/ (last visited Jan. 4, 2022).
72
See LAS Broward Children. The CSCBC is an independent taxing authority created by voters in 2000 and reauthorized in
2014, and its purpose is to provide advocacy and resources to children of Broward County. The CSCBC, About Us, available
at https://www.cscbroward.org/about (last visited Jan. 4, 2022).
73
See LAS Broward County, Get Involved with Legal Aid, available at https://www.browardlegalaid.org/get-involved/; Dade
Legal Aid, Pro Bono Enrollment (Attorney), available at http://www.dadelegalaid.org/psb-enrollment-form-attorneys/; Dade
Legal Aid, Donations through The Miami Foundation, available at http://www.dadelegalaid.org/donations-through-the-
miami-foundation/; Bay Area Legal Services, Justice Works! The Campaign for Bay Area Legal Services, available at
https://bals.org/support; and Bay Area Legal Services, Volunteer Lawyers Program, available at https://bals.org/volunteer (all
sites last visited Jan. 4, 2022).
74
LAS Palm Beach Children.
75
OPPAGA December 2021 Report at pp. 8-9 [citing Zinn, A.E. & Slowriver, J. (2008) Expediting Permanency: Legal
Representation for Foster Children in Palm Beach County, Chicago: Chapin Hall Center for Children at the University of
Chicago, p. 1.; Zinn, A., & Peters, C. “Expressed Interest Legal Representation for Children in Substitute Care: Evaluation of
the Impact of Representation on Children’s Permanency Outcomes.” Family Court Review 589 (2015): 1-13, available at
https://doi.org/0.1111/fcre.12175; Gueinzius, A. T. & Eikoku I.. “Legal Representation for Abused and Neglected Youth.”
Mitchell Hamline Law Review 45, no. 4 (2019): 1234-1333, available at http://open.mitchellhamline.edu/mhlr/vol45/iss4/7/;
Peters, C., and Walsh, J. “Fiscal Returns on Improved Representation of Children in Dependency court: The State of the
Evidence.” Nova Law Review 36 (2012): 1-11, available at SYMPOSIUM: FISCAL RETURNS ON IMPROVED BILL: SB 948 Page 11
represented by counsel, including those served by the FCP, exited foster care 88.3 days quicker
on average.
76
Office of Child Representation (OCR) (Section 7)
Florida law does not currently provide for an OCR. Colorado and Travis County, Texas,
however, do have offices of child representation. The Colorado Office of Child’s Representative
(COCR) is a state agency that was established in 2000 to provide representation to children.
77
The COCR represent children in several types of cases, including:
Dependency and Neglect;
Juvenile Delinquency;
Domestic Relations; and
Adoption, Truancy, Probation, Mental Health, and Paternity.
78
All COCR attorneys are trained on the law, social science research, child development, mental
health and education issues, and best practices in court proceedings.
79
A Colorado court must
appoint a GAL in dependency and neglect cases to represent the child’s best interest, and must
appoint an OCR attorney to act as the child’s counsel when the child faces contempt citations or
the court has determined that the child holds his or her own patient-therapist privilege.
80, 81
The
COCR is responsible for overseeing both roles as a GAL and as counsel for the children, if
applicable.
82
When COCR is appointed as counsel for the child, the attorney has a traditional
attorney-client role in which he or she represents the child’s wishes in court proceedings.
83
In Colorado, a GAL is a COCR attorney who is appointed to represent the best interest of the
child which means that the COCR attorney does not advocate for the child’s express wishes in a
traditional attorney-client role.
84
Instead, the GAL must advocate for the child’s health, safety,
and well-being, and his or her advocacy must align with the interests and needs of the child.
85
The GAL has specified requirements that must be met, including attending all court hearings and
REPRESENTATION OF CHILDREN IN DEPENDENCY COURT: THE STATE OF THE EVIDENCE
(improvechildrep.org)].
76
See Florida Times-Union, Guest Column: Legal Representation for Foster Youth can Make a Difference, available at
https://www.jacksonville.com/story/opinion/2021/03/28/guest-column-legal-representation-foster-youth-can-make-
difference/6997135002/; Tallahassee, Democrat, Kids in Florida Foster Care Need Legal Representation – and the
Legislature can Help \ Opinion, March 31, 2021, available at Florida Legislature: State's foster children need legal help
(tallahassee.com) (all sites visited Jan. 5, 2022).
77
The COCR, What We Do, available at https://coloradochildrep.org/about-ocr/ (last visited Jan. 4, 2022).
78
Id.
79
The COCR, Case Types Covered by OCR Attorneys, available at https://coloradochildrep.org/about-ocr/ocr-cases/ (last
visited Jan. 4, 2022).
80
L.A.N. et al. v. L.M.B., 11 SC 529 (Jan. 22, 2013) (finding that a GAL holds a child’s psychotherapist-patient privilege
when: (1) the child is too young or incompetent to hold the privilege; (2) the child’s interests are adverse to those of his or her
parent(s); and (3) section 19-3-311, C.R.S. (2012) does not abrogate the privilege).
81
The COCR, Dependency & Neglect Cases, available at https://coloradochildrep.org/about-ocr/ocr-cases/dependency-and-
neglect/ (last visited Jan. 4, 2022) (hereinafter cited as “D&N Cases”).
82
Id.
83
Id.
84
D&N Cases.
85
Id. BILL: SB 948 Page 12
conducting an independent investigation which must continue throughout the duration of the
case.
86
The Travis County, Texas Office of Children Representation (TOCR), however, provides legal
representation to children who are the subject of dependency cases only.
87
The TOCR counsel
act in a traditional attorney-client role and represent children’s legal interests.
88
Guardian ad Litem
Appointment and Discharge
Federal and Florida law provide that a GAL must be appointed to represent the child in every
case.
89
The Child Abuse Prevention and Treatment Act makes the approval of grants contingent
on a eligible state plans which must include provisions and procedures to appoint a GAL in every
case.
90
The GAL must be appointed to:
Obtain first-hand knowledge of the child’s situation and needs; and
Make recommendations to the court regarding the best interest of the child.
91
Under Florida law, a court must appoint a GAL at the earliest possible time to represent the child
in a dependency proceeding.
92
The GALP publishes monthly representation reports which
summarize, in part, the number of reported dependent children, the GALPs appointments in
those cases, and the number of certified volunteer GALs.
93
The December 2020 Representation
Report details the following statistics:
The Office of State Courts Administrator reports there are 31,288 children who are the
subject of a dependency case.
94
The GALP reports that 22,960 children are appointed to the program, and there are 11,116
certified case volunteers including pro bono attorneys.
95
The GALP reports 98 newly certified case volunteers in its December 2020 report.
96
In some cases, the GALP may discharge from a case when a child’s permanency goal has been
established and the child is in a stable placement.
97
A summary of the reasons the GALP has
been discharged from dependency cases from 2016 to 2020 by Fiscal Year is summarized in the
table below.
98
86
Id.
87
Travis County, Tx Gov, The Office of Child Representation, available at https://www.traviscountytx.gov/criminal-
justice/child-representation (last visited Jan. 4, 2021) (hereinafter cited as “TOCR website”).
88
Id.
89
42 U.S.C. 67 §5106a.(b)(2)(xiii); Section 39.822(1), F.S.
90
42 U.S.C. 67 §5106a.(b)(2)(xiii).
91
Id.
92
Section 39.822(1), F.S.
93
See the GAL for Children, Florida Guardian ad Litem Program, Monthly Representation Report: December 2020,
available at https://guardianadlitem.org/wp-content/uploads/2021/01/Representation-Report-December-2020.pdf (last visited
Jan. 4, 2022) (hereinafter cited as “December 2020 Representation Report”).
94
Id.
95
December 2020 Representation Report.
96
Id.
97
The OPPAGA Memo at p. 15.
98
Id. at p. 16. BILL: SB 948 Page 13
Role of the GALP and GAL
“Guardian ad litem” is defined as the Statewide Guardian Ad Litem Office, which includes
circuit guardian ad litem programs, a duly certified volunteer, a staff member, a staff attorney, a
contract attorney, pro bono attorney working on behalf of a GAL; court-appointed attorney; or
responsible adult who is appointed by the court to represent the best interest of a child
99
in a
proceeding as provided by law including ch. 39, F.S., until discharged by the court.
100
The Florida Supreme Court has recognized that a GAL is appointed to serve as the child’s
representative in court to present what is in the child’s best interest.
101
The GALP reports that the
adult representing the child’s best interest will ordinarily be represented by counsel in the
judicial proceedings, and suggests such attorney owes a duty of care to both the guardian ad
litem and the child with whom the GAL is appointed to represent.
102
The GALP acknowledges
that there is no attorney-client relationship between the GALP attorney and the child, and
suggests that independent legal representation is provided through the GAL.
103
The GAL or GALP representative must review all disposition recommendations or changes in
placements, and must be present at all critical stages of the proceeding or submit a written report,
99
The term “Best interest of the child” generally refers to deliberations undertaken by courts in making decisions about the
services, actions, and orders that will best serve a child and who is best suited to care for that child. OPPAGA December
2021 Report at p. 3.
100
Section 39.820(1), F.S.
101
D.H. v. Adept Cmty. Servs., 271 So. 3d 870, 879 (Fla. 2018) (citing C.M. v Dep’t of Children & Family Servs., 854 So.2d
777, 779 (Fla. 4
th
DCA 2003).
102
The GALP, Agency Analysis for SB 948 (2022), p. 3, January 8, 2021 (on file with the Senate Committee on Children,
Families, and Elder Affairs) (hereinafter cited as “The GALP Analysis”) [citing Op. Att’y Gen. Fla. 96-94 (1996)].
103
Id. at p. 4. BILL: SB 948 Page 14
which must be filed and served on all parties whose whereabouts are known at least 72 hours
prior to the hearing.
104
Performance Advocacy Snapshot (PASS) summarizes the individual GAL circuit program
performance and GAL influence on child welfare outcomes by circuit.
105
The December 2020
PASS report states that a GAL has been appointed to 73.4% of children who are the subject of
dependency proceedings, with some exceptions.
106
It also reports 67.5% active certified
volunteers statewide.
107
Children achieving permanency within 12 months of entering care totals
18 percent and 40.6 percent of adoptions occur within 24 months according to the PASS
report.
108
Activities of GAL
The GALP reports that GAL are involved in a number of activities related to the child, including,
in part:
Attending school events;
Guiding children through changes of placement;
Creating community awareness about children who are abused, abandoned, or neglected;
Being a safe and stable adult in the child’s life; or
Reporting quality information to judges.
109
Conflicts of Interest
Under current law, there is no statutory provision under ch. 39, F.S., which requires the GALP to
identify any conflict of interest a GAL may have. The GALP Standards of Operation, however,
provide that the GALP “shall not accept appointment to a case where the Program has an
impermissible conflict of interest and shall seek discharge if an impermissible conflict of interest
arises after appointment. An impermissible conflict of interest between the GAL Program and a
child or children will be found if the GAL Program has a duty, or the appearance of a duty, to
another that may prevent the GAL Program from being fully able to represent the child to whom
the Program is appointed. If an individual GAL Volunteer or staff member has a conflict, this
may be resolved by assigning another individual from the Program in the discretion of the
Circuit Director.”
110
Standard 7.D. further states that GALs have an obligation to notify the GAL
Program Attorney if they are aware of a possible conflict of interest, which could include prior
involvement with individuals involved in the case, any personal reasons that may not allow them
to provide best interests advocacy for a child, and situations when the GALP is appointed to
represent multiple related children whose interests conflict with one another.
104
Section 39.822(4), F.S.
105
See The GALP, Statewide Guardian ad Litem Program – Performance Advocacy Snapshot (PASS), Dec. 2020, available
at https://guardianadlitem.org/wp-content/uploads/2021/01/Performance-Advocacy-SnapShot-December-2020-Revised.pdf
(last visited Jan. 4, 2022) (hereinafter cited as “December 2020 PASS”).
106
Id.
107
December 2020 PASS.
108
Id.
109
The GALP Analysis at p. 5.
110
Id. at p. 9-10 (citing GAL’s Standard 7.D.). BILL: SB 948 Page 15
Further, Standard 7.D. states that an impermissible conflict will not be found simply because the
GAL is advocating in good faith for the child’s best interests and the child conveys a position
that may be opposed to the position taken by the GAL.
111
The GAL’s Standards of Operation 3, Code of Conduct, prohibit GALs from practicing,
condoning, facilitating, or participating in any form of discrimination, including in part,
discrimination based on race, color, gender, sexual orientation, sexual identity, age, religion, or
ethnicity.
112
Finally, the GALP reports that the Standards of Operation prohibit a GAL from
receiving a fee for their services as a GAL or accepting a gift for personal benefit.
113
GAL Executive Director Appointment and Reappointment
The GALP’s executive director is appointed by the Governor from a list of at least three
nominees of eligible applicants selected by the Guardian Ad Litem Qualifications Committee
(GALQC).
114
The executive director must meet minimum qualifications, serve a term of 3 years,
and has specified duties.
115
The executive director is permitted to serve more than one term, but
current law is unclear on whether any additional terms are subject to the appointment process.
Funding
GAL Funding
The OPPAGA reports that state funding for the GALP has increased by 21% over the past five
years from $43.6 million in Fiscal Year 2015-16 to $52.9 million in Fiscal Year 2019-20.
116
In
Fiscal Year 2020-21, the GALP was appropriated $56.2 million.
117
Other sources of funding,
including local governments, federal Victims of Crime Act (VOCA) funds, and non-profit
sources, have also increased over the past five years from $4.6 million in Calendar Year (CY)
2015 to $9.7 million in CY 2019.
118
With this increase, the number of staff increased, the number
of volunteers remained stable, and the number of children served has decreased from 40,032 in
Fiscal Year (FY) 2016-17 to 36,506 in FY 2019-20.
119
Family First Prevention Services Act
The Bipartisan Budget Act of 2018 (HR 1892) was signed into law on February 9, 2018, which
included the Family First Prevention Services Act (FFPSA). The legislation aims at providing
financial assistance with a focus on prevention services and reducing funds to residential group
111
The GALP, Standards of Operation, Revised April 2020, p. 18, available at https://guardianadlitem.org/wp-
content/uploads/2020/05/GAL-Standards-Rev.-4.30.2020-FINAL.pdf (last visited Jan. 4, 2022) (hereinafter cited as “GALP
SOP 2020”).
112
Id. at p. 10.
113
The GALP Analysis at p. 11.
114
Section 39.8296(2)(a), F.S.
115
Id.
116
OPPAGA Presentation at p. 7.
117
See Transparency Florida, 2021-22 Operating Budget in Agency Format, Justice Administration, available at
http://www.transparencyflorida.gov/OperatingBudget/Agency.aspx?FY=22&BE=21000000&SC=F&OB=Y (last visited
January 10, 2022).
118
Id.
119
Id. BILL: SB 948 Page 16
care.
120
It also has the potential to dramatically change child welfare systems by expanding the
way in which Title IV-E funding may be spent.
121
The FFPSA requirements include:
Option to use funds for up to 12 months for evidence-based services, such as substance abuse
treatment;
Eligible candidates include children who can remain safely in the home with the provision of
services, children in foster care who are parents, or parents or caregivers who require services
to prevent a child’s entry into foster care;
States must prepare a prevention plan for the child to safely remain at home with services;
and
Services must be trauma-informed and pre-approved on the Health and Human Services
website.
122
Title IV-E funds previously were restricted to being used for the costs of eligible children’s
foster care maintenance; administrative expenses to manage the foster care program; training for
specified persons; and kinship guardianship assistance. Title IV-E federal funding is now
available for direct legal representation and advocacy for eligible children in foster care and their
parents.
123
As the GALP attorney does not have a direct attorney-client relationship with the
child
124
and directly represent the children in Florida dependency proceedings, it is unclear
whether the GALP is eligible for Title IV-E funding under the new federal standards. However,
the GALP has not begun to be reimbursed for legal representation and advocacy under the
FFPSA standards.
III. Effect of Proposed Changes:
Office of Child Representation (Section 7)
The bill establishes a new Office of Child Representation (OCR) to provide direct legal
representation to specified children during dependency proceedings. Similar to the GALP, the
bill creates the OCR within the JAC which provides administrative support and services but does
not control, supervisor, or direct the OCR in the performance of its duties. However, employees
are governed by plans, including salary and benefits, approved by the JAC.
The bill provides for an executive director to be appointed to the OCR with the same
appointment process, term, and requirements as the executive of the GALP provided for in s.
39.8296(2)(a), F.S. The OCR executive director must be a member of The Florida Bar in good
standing for at least 5 years and have knowledge of dependency law and social service delivery
systems to meet the needs of children who are abused, abandoned and neglected. The bill
requires the appointment of the initial executive director to be completed by January 1, 2023.
120
The DCF, The Florida Center for Child Welfare FFPSA Updates, available at
http://centerforchildwelfare.fmhi.usf.edu/FFPSA.shtml (last visited Jan. 4, 2022).
121
National Conference of State Legislatures, Family First Prevention Services Act Update, available at
https://www.ncsl.org/research/human-services/family-first-prevention-services-act-ffpsa.aspx (last visited Jan. 4, 2022).
122
The DCF, Family First Prevention Services Act, p. 26, Aug. 28, 2020, available at
http://centerforchildwelfare.fmhi.usf.edu/kb/prevplans/FFPSA-StatewideWebinar8_28_2020.pdf (last visited Jan. 4, 2022).
123
U.S. Department of Health and Human Services, Administration for Children and Families, High Quality Memo, p. 10-11,
Jan. 14, 2021, available at https://www.courts.ca.gov/documents/ffdrp_acf2021_high_quality_memo.pdf (last visited Jan. 4,
2022).
124
The GALP SOP 2020, p. 7. BILL: SB 948 Page 17
The OCR, within the resources of the JAC, must provide oversight and technical assistance, in
part, as follows:
Identify the resources required to implement methods of collecting, reporting, and tracking
case data;
Review and collect information relating to offices of child representation and other models of
attorney representation in other states;
Develop statewide performance measures and standards in collaboration with the regional
offices of OCR;
Develop a training program for each attorney for the child, and create a curriculum
committee composed of specified professionals
125
for such purpose;
Develop protocols that must be implemented to assist children in meeting eligibility
requirements to receive all federal funding;
126
Review methods of funding, maximum the use of those funds, and review the kinds of
services being provided by the regional offices;
Determine the feasibility or desirability of new concepts regarding the operation and scope of
services provided by the OCR;
Establish standards and protocols to represent children who have diminished capacity;
Retain responsibility for the quality of contracted services and ensure that services are
delivered in accordance with applicable laws; and
Submit a report to the Governor, the President of the Senate, the Speaker of the House of
Representatives, and the Chief Justice of the Supreme Court, including:
o An interim report describing the progress of the statewide office in meeting the
responsibilities described in this paragraph.
o A proposed plan that includes alternatives for meeting the representation needs of
children in this state. The plan may include recommendations for implementation in only
a portion of this state or phased-in statewide implementation and must include an
estimate of the cost of each such alternative.
o An annual status report that includes any additional recommendations for addressing the
representation needs of children in this state and related issues.
The DCF or community-based care lead agency must take any steps necessary to obtain and
maintain eligible federal funding.
The bill provides that OCR may contract with local nonprofit agencies to provide direct
representation to a child if it is the most efficient method to satisfy its duties and if federal
funding has been approved for reimbursement. Such contract must contain the following
provisions:
The distribution of funds and method of payment by the OCR to the local nonprofit agency;
125
Members must include, but not limited to, a dependency judge, a director of circuit guardian ad litem programs, an active
certified guardian ad litem, a mental health professional who specializes in the treatment of children, a member of a child
advocacy group, a representative of a domestic violence advocacy group, an individual with at least a Master of Social Work
degree, and a social worker experienced in working with victims and perpetrators of child abuse.
126
This may not be construed to mean that the protocols may interfere with zealous and effective representation of the
children. BILL: SB 948 Page 18
Funding for the provision or services and payment of a reasonable administrative cost by the
DCF to the local nonprofit agency.
A local nonprofit agency that is contracted with OCR must comply with the following
requirements:
Provide competent representation to all children to whom the agency is appointed;
Ensure that any documentation required for Title IV-E funds reimbursement is provided to
the OCR on a monthly basis;
Provide accurate and timely information to the OCR;
Ensure that all staff comply with mandatory training as required by the OCR; and
Comply with relevant statutory requirements and provisions under the contract.
The bill provides for regional offices to be established within each of the five district court of
appeals which must commence fulfilling their purpose and duties on July 1, 2023.
Finally, the CRCs who are the heads of the regional offices must serve on a full-time basis and
may not engage in private practice. Assistant child representation counsel (ACRC) must give
priority to his or her duties in that position but part-time ACRC may practice dependency law for
private payment provided the representation does not result in a legal or ethical conflict of
interest with a case that OCR is providing representation.
Attorney for the Child (Sections 1-3 and 8)
Appointment
Section 39.013(13), F.S. is amended to provide that an attorney for the child must be appointed
pursuant to s. 39.831, F.S. The bill defines “attorney for the child” as an attorney providing
direct representation to the child, which may include the appointment of the Office of the Child
Representation, an attorney provided by an entity contracted through the Office of the Child
Representation to provide direct representation, any privately court-appointed counsel who is
compensated pursuant to s. 27.5304, F.S., any privately retained counsel or pro bono counsel, or
any other attorney who represents the child under ch. 39, F.S.
The bill creates s. 39.831, F.S., which provides that an attorney for the child:
Must be appointed when the child has special needs as provided in s. 39.01305(3), F.S.;
Must be appointed by the court for any child who is subject to a dependency proceeding and
who is placed in out-of-home licensed care on or after July 1, 2023; and
May be appointed upon a finding by the court that circumstances exist which necessitate the
appointment.
The bill modifies s. 39.01305(4)(a), F.S., to provide that an attorney must be appointed as
provided for in s. 39.831, F.S.
Scope of Representation and Compensation
The bill clarifies that the scope of the appointment of an attorney for the child is limited to
representation of the child in the dependency proceedings, which may include representation in
fair hearings and appellate proceedings that are directly related to matters needing resolution for BILL: SB 948 Page 19
the child to achieve permanency. Further, representation in fair hearings must be provided within
the resources allotted for representation in the dependency proceedings. Trained staff of the OCR
or local nonprofit agency, which may include social workers, case workers, education advocates,
or health care advocates, may attend the fair hearings rather than the appointed attorney when
appropriate.
The bill relocates s. 39.01305(4)(b),F.S., to s. 39.831, F.S., which specifies that the appointment
continues in effect until the attorney is allowed to withdraw, the attorney is discharged by the
court, or the case is dismissed. The attorney for the child must provide all legal services required
from the time the child is removed or the initial appointment through appellate proceedings.
With court permission, the attorney for the child may arrange for supplemental or separate
counsel to represent the child in appellate proceedings. An order appointing an attorney for the
child must be in writing.
The bill clarifies that the attorney must be adequately compensated as provided in
s. 27.5304, F.S. The bill also relocates s. 39.01305(5), F.S., to s. 39.831, F.S., in regards to
payment required to be made to an attorney for his or her representation which may not exceed
$1,000 unless the attorney agrees to represent the child pro bono, and the requirement to provide
access to funding for due process costs of litigation which is subject to appropriations.
The court must appoint the OCR unless the child is otherwise represented. Similar to the GALP,
parents who are financially able must reimburse the court for the costs of the OCR
representation, but reimbursement for the attorney’s services may not be contingent upon
successful collection by the court of reimbursement from the parent.
Conflicts of Interest
If the OCR determines that the interests of clients are so adverse or hostile that they cannot all be
counseled by child representation counsel or his or her staff because of a conflict of interest, the
OCR must file a motion to withdraw and move the court to appoint alternative counsel. The bill
provides that the OCR must not automatically determine the appointment to represent siblings as
a conflict of interest. If requested, the OCR must provide the JAC with a copy of the motion at
the time it is filed. The court must consider the OCR’s submission regarding the conflict without
requiring the disclosure of any confidential communications. The court must deny the motion if
there are insufficient grounds for the request. If the motion is granted, the court must appoint an
attorney as provided in s. 27.40, F.S.
Access to Records
Upon presentation of a court order by an attorney for the child, an agency, person, or
organization must allow the attorney to inspect and copy records related to the child who is the
subject of the appointment, including records that are made confidential. An agency must also
allow an attorney for the child to inspect and copy records that are exempt from
s. 119.07(1), F.S., or s. 24(a), Art. I of the Florida Constitution, but he or she must maintain the
confidential or exempt
127
status of any records shared.
127
When creating a public records exemption, the Legislature may provide that a record is “exempt” or “confidential and
exempt.” Custodians of records designated as “exempt” are not prohibited from disclosing the record; rather, the exemption
means that the custodian cannot be compelled to disclose the record.
See Williams v. City of Minneola, 575 So. 2d 683, 687 BILL: SB 948 Page 20
The attorney for the child must review all disposition recommendations and changes in
placement and file any appropriate motions at least 72 hours in advance of the hearing. The DCF
must develop procedures to request that a court appoint an attorney for the child, and may adopt
rules to implement the section.
Guardian ad Litem (Section 4 to 7)
Part XI is retitled to state “GUARDIAN AD LITEM, GUARDIAN ADVOCATES, AND
ATTORNEY FOR THE CHILD.”
Appointment
The bill amends s. 39.822, F.S., providing that a GAL will continue to be appointed as
proscribed under current law before July 1, 2023. On or after that date:
The GAL must be appointed at the earliest possible time to represent a child who is:
o Placed in nonlicensed care or remains in-home under the protective supervision of the
DCF;
o The subject of a dependency proceeding and the subject of a criminal proceeding;
o The subject of a termination of parental rights proceeding under Part X; or
o A dependent child as described in s. 39.01305(3), F.S.
128
The GAL may be appointed at the court’s discretion upon a finding that circumstances exist
which require the appointment.
If a guardian ad litem is appointed, the court may maintain the appointment even if an attorney
for the child is later appointed because the child subsequently meets the above-mentioned criteria
requiring the appointment of an attorney, such as he or she was placed in out-of-home care.
Conflicts of Interest
The GALP must develop guidelines to identify any possible conflicts of interest of a GAL when
he or she is being considered for assignment to a child’s case, and prohibits the GALP from
appointing such GALs when a conflict is identified. “Conflict of interest” is defined as a GAL
who:
Has a personal relationship that could influence a recommendation regarding a child whom
he or she is serving as a GAL;
Is in a position to derive a personal benefit from his or her role as a GAL; or
Has a personal factor or circumstance, including a bias or prejudice, which impairs the GALs
ability to fully and fairly discharge his or her duties.
The bill permits the court to order that a new GAL be assigned or, unless otherwise provided by
law, that the GAL be discharged and an attorney for the child be appointed upon:
Consent of a child who is the subject of a dependency proceeding; or
(Fla. 5th DCA 1991). Custodians of records designated as “confidential and exempt” may not disclose the record except
under circumstances specifically defined by the Legislature. WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48
(Fla. 5th DCA 2004).
128
See below for further discussion on this section. BILL: SB 948 Page 21
Any party presenting evidence that there is reasonable cause to suspect the assigned GAL has
a conflict of interest.
The bill also requires the GALP to identify any GAL who is experiencing any physical or mental
health issues and who appears to present a danger to any child, remove such GAL from all
assigned cases, and terminate his or her direct contact voluntary services with the GALP. This
action must be disclosed to the court. A GAL who has a physical or mental issue may work at the
GALP office without direct child contact provided such issue does not negatively affect his or
her ability to perform any required work duties or pose a risk of harm to any children represented
by the program. A GAL who has caused harm to any child during the course of his or her
appointment must not be employed or permitted to volunteer for the program.
Reappointment Process
The GAL Qualifications Committee who nominates at least three eligible applicants for the
executive director position of the GALP to the Governor is renamed to the Child Well-Being
Qualifications Committee. The bill provides that the executive director may be reappointed to
serve more than one term pursuant to the appointment process. Every term is for a 3 year period.
Conforming Sections (Sections 9-40)
The bill amends ss. 39.00145, 39.0139, 39.402, 39.407, and 39.4085 in part, to change the term
“attorney ad litem” or other term used to refer to an attorney appointed to represent a child to the
term “attorney for the child.”
The bill also amends ss. 28.345, 29.007, 39.001, 39.00145, 39.0132, 39.0139, 39.202, 39.302,
39.402, 39.407, 39.4085, 39.502, 39.521, 39.6011, 39.6012, 39.6251, 39.701, 39.702, 39.801,
39.802, 39.808, 39.810, 39.811, 39.812, 43.16, 63.085, 322.09, 394.495, 627.746, 768.28,
934.255, and 960.065 to update reference to the attorney for the child as counsel for a party that
is applicable to these sections as contemplated in the provisions in this bill.
The bill is effective July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None. BILL: SB 948 Page 22
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
The bill permits the attorney for the child to file a termination of parental rights petition
which the GALP reports could raise constitutional issues with respect to the fundamental
rights of parents.
129
However, s. 39.802, F.S., currently authorizes any party who has
knowledge of the facts alleged or is informed of them and believes that they are true may
file a termination of parental rights.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
To the extent a parent is financially able, he or she may have to reimburse the cost of the
attorney for the child pursuant to s. 39.831(1)(c), F.S.
C. Government Sector Impact:
Statewide Guardian ad Litem Office Fiscal Impact
The bill’s provisions would clearly reduce the demand for services provided by the
GALP, though the impact is indeterminate. The GALP reports an indeterminate fiscal
impact of the bill as it is unknown how many children will meet the criteria under s.
39.822(1)(b), F.S.
130
As of September 30, 2021, there were 10,282 receiving in-home
care and 22,450 were in out-of-home care for a total of 34,881 children receiving child
welfare services as of that date.
131
The GAL reports, therefore, that the GALP would
have to represent a minimum of 10,282 children and, based on this data, it can be
estimated that a minimum of 22,450 children would be appointed attorneys through the
OCR.
132
Further, the number of GALs appointed to represent children will vary
depending on how many termination of parental rights petitions are filed, how many
children have special needs, and whether the children have pending delinquency
proceedings. The GALP did not offer an opinion on the potential fiscal impact of the
provision for the creation of OCR.
133
129
The GALP Analysis at p. 17.
130
Id. at p. 18.
131
Id.
132
Id.
133
The 2021 GALP Analysis at p. 15. BILL: SB 948 Page 23
Justice Administrative Commission Fiscal Impact
The bill will have an indeterminate, but significant, negative fiscal impact on the Justice
Administrative Commission. The bill’s provisions require the JAC to provide
administrative support and services to the Statewide Office of Child Representation.
Additional funding would be necessary for new administrative and infrastructure costs
inherent in establishing and serving the new Offices of Child Representation, including
employee training on the legal requirements of the OCR and incorporating the OCR into
the existing state budgeting, finance, and IT systems. The JAC provided estimates of the
fiscal impact in its agency analysis for SB 1920 (2021),
134
which is substantially similar
to SB 948. In the 2021 Agency Analysis, the JAC estimated that FTE costs for these
functions would total $594,183 as follows:
One-half FTE in Executive
One FTE in Human Resources
One FTE in Accounting
One-half FTE in Financial Services
One FTE in Information Technology
One 3/4 FTE in Budget
Additionally, the JAC estimated that between $1.1 million to $5.5 million will be needed
beginning in FY 2022-2023 for private court-appointed attorneys where the Offices of
Child Representation have a conflict precluding representation. These costs are likely to
be higher in the first year of appointments while the offices are beginning implementation
of this initiative.
135
The JAC’s updated agency analysis for SB 948 refers to the JAC 2021 Agency Analysis
and suggests that the potential fiscal impact for SB 948 may be greater because the scope
of children’s right to counsel under SB 948 may increase the number of appointments of
private court-appointed counsel due to conflicts of interest.
136
The JAC 2022 Agency
Analysis also suggests that the fiscal impact for expenditures relating to attorney fees and
due process services will be increased for SB 948.
137
Regional Office of the Child Representation Fiscal Impact
The bill requires the creation of five regional offices of child representation, which would
have a significant negative fiscal impact on state resources. The estimated costs for the
regional offices are difficult to quantify due to the multiple cost drivers, including
expected caseload and conflict rate of the offices. In addition to operating costs, each
office would also incur start-up costs and ongoing overhead costs. The example below
projects annual recurring costs of $20.9 million based on the assumptions below;
however, funding scenarios could easily range from $10 to $30 million.
134
JAC, 2021 Legislative Session Bill Analysis for SB 1920, Apr. 2, 2021 (on file with the Senate Appropriations
Subcommittee on Criminal and Civil Justice) (hereinafter cited as “JAC 2021 Agency Analysis”).
135
Id.
136
JAC, 2022 Legislative Session Bill Analysis for SB 948, p. 12, Dec. 17, 2021 (on file with the Senate Committee on
Children, Families, and Elder Affairs) (hereinafter cited as “JAC 2022 Agency Analysis”).
137
Id. BILL: SB 948 Page 24
ASSUMPTIONS
Number of Children Eligible 6,500
Caseload Per Attorney 60
Length of Appointment (In Months) 12
Cost Per Case Paid to Registry Attorney $1,000
Conflict Rate 10%
As discussed in the “Present Situation,” state funding for these services could be partially
offset by Title IV-E federal funds.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 28.345, 29.007,
39.001, 39.00145, 39.01, 39.013, 39.01305, 39.00145, 39.0132, 39.0139, 39.202, 39.302, 39.402, FTE
Total Recurring
Need
Total
Nonrecurring
Need
6.00
Ssalaries and Benefits for Director Positions
(1 Per Region + Executive Director) 1,078,152$ -$
Operations Costs for Directors (Standard # 3 w/ Law Library)63,600$ 23,370$
5.00 Salaries and Benefits for Regional "Chiefs" 718,365$ -$
Operations Costs for Chiefs (Standard # 3 w/ Law Library)53,000$ 19,475$
109.00
Salaries and Benefits for Attorneys
(Estimated at $50,000 starting salary) 7,995,695$ -$
120.00 Operations Costs for Attorneys (Standard # 3 w/ Law Library)726,375$ 421,958$
58.00 S&B Support / Other 3,754,050$ -$
Operations for Support Positions (Standard # 3) 501,584$ 202,478$
178.00 Human Resource Outsourcing Costs 41,830$ -$
Risk Management Insurance Costs 42,768$ -$
Overhead Costs
(Rent / IT Costs / Travel / Utilities / Supplies / Training)1,989,995$ -$
Due Process Costs Per Case 2,925,000$ -$
Private Registry Attorney Fees (JAC HQ) 650,000$ -$
Private Registry Due Proccess Conflict Costs (JAC HQ) 325,000$ -$
178.00 20,865,414$ 667,281$ BILL: SB 948 Page 25
39.407, 39.4085, 39.502, 39.521, 39.6011, 39.6012, 39.6251, 39.701, 39.702, 39.801, 39.802,
39.808, 39.810, 39.811, 39.812, 39.822, 39.8296, 43.16, 63.085, 322.09, 394.495, 627.746,
768.28, 934.255, and 960.065.
This bill creates the following sections of the Florida Statutes: 39.83 and 39.831.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.