Florida Statute 39.401 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title V
JUDICIAL BRANCH

Chapter 39
PROCEEDINGS RELATING TO CHILDREN

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F.S. 39.401

39.401 Taking a child alleged to be dependent into custody; law enforcement officers and authorized agents of the department.—

(1) A child may only be taken into custody:

(a) Pursuant to the provisions of this part, based upon sworn testimony, either before or after a petition is filed; or

(b) By a law enforcement officer, or an authorized agent of the department, if the officer or authorized agent has probable cause to support a finding:

1. That the child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment;

2. That the parent or legal custodian of the child has materially violated a condition of placement imposed by the court; or

3. That the child has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care.

(2) If the law enforcement officer takes the child into custody, that officer shall:

(a) Release the child to:

1. The parent or legal custodian of the child;

2. A responsible adult approved by the court when limited to temporary emergency situations;

3. A responsible adult relative or the adoptive parent of the child’s sibling who shall be given priority consideration over a nonrelative placement when this is in the best interests of the child; or

4. A responsible adult approved by the department; or

(b) Deliver the child to an authorized agent of the department, stating the facts by reason of which the child was taken into custody and sufficient information to establish probable cause that the child is abandoned, abused, or neglected, or otherwise dependent. For such a child for whom there is also probable cause to believe he or she has been sexually exploited, the law enforcement officer shall deliver the child to the department.

For cases involving allegations of abandonment, abuse, or neglect, or other dependency cases, within 3 days after such release or within 3 days after delivering the child to an authorized agent of the department, the law enforcement officer who took the child into custody shall make a full written report to the department.

(3) If the child is taken into custody by, or is delivered to, an authorized agent of the department, the agent shall review the facts supporting the removal with an attorney representing the department. The purpose of the review is to determine whether there is probable cause for the filing of a shelter petition.

(a) If the facts are not sufficient, the child shall immediately be returned to the custody of the parent or legal custodian.

(b) If the facts are sufficient and the child has not been returned to the custody of the parent or legal custodian, the department shall file the petition and schedule a hearing, and the attorney representing the department shall request that a shelter hearing be held within 24 hours after the removal of the child.

(c) While awaiting the shelter hearing, the authorized agent of the department may place the child in out-of-home care, and placement shall be determined based on priority of placements as provided in s. 39.4021 and what is in the child’s best interest based on the criteria and factors set out in s. 39.01375.

(d) Placement of a child which is not in a licensed shelter must be preceded by a criminal history records check as required under s. 39.0138.

(e) In addition, the department may authorize placement of a housekeeper/homemaker in the home of a child alleged to be dependent until the parent or legal custodian assumes care of the child.

(4) When a child is taken into custody pursuant to this section, the department shall request that the child’s parent, caregiver, or legal custodian disclose the names, relationships, and addresses of all parents and prospective parents and all next of kin of the child, so far as are known.

(5) Judicial review and approval is required within 24 hours after placement for all nonrelative placements. A nonrelative placement must be for a specific and predetermined period of time, not to exceed 12 months, and shall be reviewed by the court at least every 6 months. If the nonrelative placement continues for longer than 12 months, the department shall request the court to establish permanent guardianship or require that the nonrelative seek licensure as a foster care provider within 30 days after the court decision. Failure to establish permanent guardianship or obtain licensure does not require the court to change a child’s placement unless it is in the best interest of the child to do so.

History.—s. 20, ch. 78-414; s. 4, ch. 87-133; s. 11, ch. 88-337; s. 2, ch. 90-204; s. 226, ch. 95-147; s. 6, ch. 95-228; s. 2, ch. 97-276; s. 57, ch. 98-403; s. 22, ch. 99-193; s. 8, ch. 2008-245; s. 4, ch. 2012-105; s. 4, ch. 2014-161; s. 3, ch. 2021-169.

F.S. 39.401 on Google Scholar

F.S. 39.401 on Casetext

Amendments to 39.401

Arrestable Offenses / Crimes under Fla. Stat. 39.401

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 39.401.

Annotations, Discussions, Cases:

Cases Citing Statute 39.401

Total Results: 20

State of Florida, Department of etc. v. M. A., Father of C.A., Minor Child

Court: District Court of Appeal of Florida | Date Filed: 2017-04-10

Citation: 215 So. 3d 1276, 2017 WL 1322116, 2017 Fla. App. LEXIS 4950

Snippet: order for four children on August 11, 2015. See § 39.401, Fla. Stat.; Fla. R. Juv. P. 8.655. The proceedings

S.M., etc. v. Florida Department of Children and Families

Court: Supreme Court of Florida | Date Filed: 2016-09-01

Citation: 202 So. 3d 769, 41 Fla. L. Weekly Supp. 362, 2016 Fla. LEXIS 1964

Snippet: (section 39.301), the shelter hearing (section 39.401), the adjudication of dependency (section 39.501)

J.B., Etc. v. Florida Department of Children and Families

Court: Supreme Court of Florida | Date Filed: 2015-07-09

Citation: 170 So. 3d 780, 40 Fla. L. Weekly Supp. 416, 2015 Fla. LEXIS 1473, 2015 WL 4112321

Snippet: of parental rights adjudicatory hearings. See §§ 39.401(5) (shelter review hearing if placed with nonrelatives);

D.J.D., a child v. State

Court: District Court of Appeal of Florida | Date Filed: 2014-08-06

Citation: 143 So. 3d 1115, 2014 WL 3843152, 2014 Fla. App. LEXIS 12018

Snippet: 18 and noting that consent is not a defense); § 39.401(l)-(2), Fla. Stat. (2011) (Taking a child alleged

S.M. v. R.M.

Court: District Court of Appeal of Florida | Date Filed: 2012-03-07

Citation: 82 So. 3d 163, 2012 WL 716142, 2012 Fla. App. LEXIS 3723

Snippet: take the child into custody pursuant to section 39.401, Florida Statutes. I concede the printed form order

Sm v. Rm

Court: District Court of Appeal of Florida | Date Filed: 2012-03-07

Citation: 82 So. 3d 163, 2012 WL 716142

Snippet: take the child into custody pursuant to section 39.401, Florida Statutes (2011), and not an order to place

Department of Children & Families v. P.F.

Court: District Court of Appeal of Florida | Date Filed: 2012-02-18

Citation: 107 So. 3d 1123, 2013 WL 645321

Snippet: hearing, but chapter 39 suggests otherwise. See §§ 39.401(1), § 39.402(1), 39.402(8)(d), Fla. Stat. (2011)

JB v. Department of Children and Families

Court: District Court of Appeal of Florida | Date Filed: 2006-07-07

Citation: 936 So. 2d 665, 2006 WL 1864480

Snippet: to do at the shelter hearing mandated by section 39.401, Florida Statutes (2005). In this and several other

B.B. v. P.J.M.

Court: District Court of Appeal of Florida | Date Filed: 2006-05-22

Citation: 933 So. 2d 57, 2006 Fla. App. LEXIS 8011

Snippet: so far as [they] are known.” See §§ 39.301(15) & 39.401(4), Fla. Stat. (emphasis added). If the identity

Bb v. Pjm

Court: District Court of Appeal of Florida | Date Filed: 2006-05-22

Citation: 933 So. 2d 57, 2006 WL 1373243

Snippet: so far as [they] are known." See §§ 39.301(15) & 39.401(4), Fla. Stat. (emphasis added). If the identity

In Re Amendments to Rules of Juvenile Proc.

Court: Supreme Court of Florida | Date Filed: 2005-11-17

Citation: 915 So. 2d 592, 30 Fla. L. Weekly Supp. 799, 2005 Fla. LEXIS 2284, 2005 WL 3072028

Snippet: from the home and taken into custody under section 39.401, Florida Statutes, and the department continues

A.M.T. v. State

Court: District Court of Appeal of Florida | Date Filed: 2004-08-25

Citation: 883 So. 2d 302, 2004 Fla. App. LEXIS 12480

Snippet: shelter orders, the trial court erred. Sections 39.401(1) and 39.402(1), Florida Statutes, require that

AMT v. State

Court: District Court of Appeal of Florida | Date Filed: 2004-08-25

Citation: 883 So. 2d 302, 2004 WL 1881750

Snippet: shelter orders, the trial court erred. Sections 39.401(1) and 39.402(1), Florida Statutes, require that

B.M. v. Department of Children & Families

Court: District Court of Appeal of Florida | Date Filed: 2003-03-18

Citation: 842 So. 2d 936, 2003 Fla. App. LEXIS 3486, 2003 WL 1203660

Snippet: specific context of dependency proceedings. See § 39.401(1)(b)(2) & (3), Fla. Stat. (2000). Additionally

In Re BB

Court: District Court of Appeal of Florida | Date Filed: 2002-06-26

Citation: 820 So. 2d 409, 2002 WL 1371097

Snippet: daughter was a "dependent child" pursuant to section 39.401(1)(a)(1), Fla. Stat. (1999).[3] The court below

Johnson v. Sackett

Court: District Court of Appeal of Florida | Date Filed: 2001-03-28

Citation: 793 So. 2d 20, 2001 WL 293233

Snippet: two older children in protective custody. See § 39.401(c), Fla. Stat. (1987). Ms. Johnson had custody

MW v. Davis

Court: Supreme Court of Florida | Date Filed: 2000-05-04

Citation: 756 So. 2d 90, 2000 WL 551038

Snippet: hours after the child is taken into custody. See §§ 39.401(3), 39.402(8)(a), Fla. Stat. (Supp. 1998). The

JB v. Department of Children and Family Services

Court: District Court of Appeal of Florida | Date Filed: 1999-05-14

Citation: 734 So. 2d 498, 1999 Fla. App. LEXIS 6330, 1999 WL 303399

Snippet: was not acting in response to an emergency. Cf. § 39.401, Fla. Stat. (1997). The father did not have custody

Brown v. Feaver

Court: District Court of Appeal of Florida | Date Filed: 1999-01-13

Citation: 726 So. 2d 322, 1999 Fla. App. LEXIS 196, 1999 WL 9840

Snippet: been "abused, neglected, or abandoned." See §§ 39.401-39.402, Fla. Stat. (1997). Homelessness, derived

Ago

Court: Florida Attorney General Reports | Date Filed: 1998-08-14

Snippet: twenty-four hours a day, seven days a week.1 Section 39.401(1)(b), Florida Statutes, authorizes a law enforcement