Florida Statute s. 39.0139: limiting the risk of serious harm to children.

• Author: Robbins, Sue

F.S. [section] 39.0139, Florida's "Keeping Children Safe Act" (KCSA), became law July 1, 2007. The KCSA's declared purpose is to protect children "who have been sexually abused or exploited by a parent or other caregiver" (1) and concludes that such children are at risk of suffering from further harm during visitation or other contact, and that visitation or contact may be used to influence their testimony. (2) Therefore, the KCSA creates a "presumption of detriment" (3) to a child under certain circumstances, and places "additional requirements on judicial determinations related to visitation and other contact." (4)

In a recently published Florida Bar Journal article, "F.S. [section] 39.0139: Protecting Children from Sexual Abuse from Those Entrusted with Their Care," (5) the authors, Alex Caballero and Ingrid Anderson, assert that the legislature did not intend to limit application of the KCSA only to children under Ch. 39. Rather, the authors maintain the KCSA should apply to all judicial determinations relating to visitation and contact with children. This author respectfully disagrees. Because the KCSA has not yet been the subject of any published appellate decisions, the publication of commentary may be of assistance to practitioners, and responsive arguments may encourage debate and improvement, whether in the statute itself or in the practice of law affected by it. (6)

By its own terms, the KCSA applies only to children with cases under Ch. 39. Any ambiguity concerning the application of the KCSA to cases other than Ch. 39 cases is eliminated by reference to the legislative history. Even if limited to Ch. 39 cases, the KCSA is too broad, including in an umbrella of sexually abused children those who may not be at risk of sexual abuse at all, while also providing sexual abuse services to children who have been victimized by abuse, or are at risk of abuse, that is not sexual. The KCSA must be revised substantially before it can be utilized appropriately to protect children who have been sexually abused. Once amended, it should apply to children under Ch. 39. To assure consistency, and in furtherance of the goals of the unified family court, it should also apply to any "related cases," as those are defined in Florida Rule of Judicial Administration 2.545.

How the KCSA Operates Now: The Rebuttable Presumption of Detriment

In its effort to protect children who have been subjected to sexual abuse, the KCSA creates a rebuttable presumption of detriment to a child when a parent or caregiver has "been found guilty, regardless of adjudication, or has entered a plea of guilty or nolo contendere to" certain specified crimes (7) or has been determined by a court to be a sexual predator. (8) Some of the crimes that give rise to the presumption are crimes that always involve child victims. For example, the crime of removing a minor from the state or concealing a minor contrary to state agency order or court order under F.S. [section] 787.04 is a crime that always involves a child victim. Most of the other crimes giving rise to the presumption of detriment under F.S. [section] 39.0139(3)(a) may involve a child victim, but are not limited to crimes involving child victims. Thus, sexual battery under F.S. [section] 794.011 may be perpetrated against a victim of any age. The crimes addressed in Ch. 800 and in F.S. [section] 826.04 may involve child victims, but are not limited to crimes involving child victims.

Lewd and lascivious behavior under F.S. [section] 798.02 is the crime which occurs when "a man and a woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior." That crime may not involve any particular "victim" at all. On the other hand, the conduct prohibited by Ch. 827 always involves a child victim or victims, but is not limited to sexual abuse, exploitation, or to sexual conduct of any kind.

It is not clear from F.S. [section] 39.0139(3)(a) exactly how commission of one of the enumerated sexual crimes, whether or not the victim is a child, identifies the subject child as one who has "been sexually abused or exploited." Likewise, the commission of a crime involving abuse of a child, whether or not the abuse is sexual, may logically place the subject child "at risk of suffering from further harm during visitation or other contact," but it is not clear that the harm is the type targeted by the KCSA.

Under Ch. 39, sexual abuse of one child may be highly relevant to a determination that a sibling of that child is dependent or that parental rights for a sibling may be terminated. (9) However, sexual abuse is not automatically dispositive of the issue of dependency of the sibling or of termination of parental rights. (10) The Florida Supreme Court has said that in cases involving a parent's prior sexual act on a different child a court may...