THE BILL ITSELF
SB 438
Child Welfare
Florida Senate - 2026 SB 438 By Senator Leek 7-00204-26 2026438__
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A bill to be entitled
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An act relating to child welfare; amending s. 39.01,
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F.S.; defining the term “incapacitated”; amending s.
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39.0139, F.S.; revising legislative findings and
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intent; providing a rebuttable presumption of
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detriment to a child under certain circumstances;
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requiring that certain visitation or contact be
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supervised by a person who has received certain
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training; amending s. 39.402, F.S.; requiring that a
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shelter hearing take place within a specified period
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under certain circumstances; requiring that certain
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children placed in a shelter be referred to a provider
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of trauma-informed therapeutic services; amending ss.
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39.302, 394.495, 934.255, 960.065, and 984.03, F.S.;
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conforming cross-references; providing an effective
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date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Present subsections (39) through (91) of section
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39.01, Florida Statutes, are redesignated as subsections (40)
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through (92), respectively, a new subsection (39) is added to
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that section, and subsection (10) and present subsection (39) of
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that section are amended, to read:
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39.01 Definitions.—When used in this chapter, unless the
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context otherwise requires:
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(10) “Caregiver” means the parent, legal custodian,
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permanent guardian, adult household member, or other person
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responsible for a child’s welfare as defined in subsection (58)
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(57) .
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(39) “Incapacitated” means a person determined by a
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licensed physician or other qualified professional to be unable
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to care for his or her child because of mental, physical, or
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other incapacity that prevents him or her from making informed
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decisions regarding the child’s welfare, including, but not
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limited to, the child’s health and safety.
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(40) (39) “Institutional child abuse or neglect” means
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situations of known or suspected child abuse or neglect in which
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the person allegedly perpetrating the child abuse or neglect is
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an employee of a public or private school, public or private day
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care center, residential home, institution, facility, or agency
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or any other person at such institution responsible for the
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child’s welfare as defined in subsection (58) (57) .
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Section 2. Subsection (2), paragraph (a) of subsection (3),
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and subsection (5) of section 39.0139, Florida Statutes, are
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amended to read:
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39.0139 Visitation or other contact; restrictions.—
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(2) LEGISLATIVE FINDINGS AND INTENT.—
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(a) The Legislature finds that:
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1. For some children who are abused, abandoned, or
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neglected by a parent or other caregiver, abuse may include
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sexual abuse , parricide, or attempted parricide .
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2. These same children are at risk of suffering from
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further harm during visitation or other contact.
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3. Visitation or other contact with the child may be used
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to influence the child’s testimony.
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(b) It is the intent of the Legislature to protect children
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and reduce the risk of further harm to children who have been
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sexually abused or exploited by a parent or other caregiver , or
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whose parent or legal custodian has been killed or incapacitated
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by a parent or other caregiver, by placing additional
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requirements on judicial determinations related to contact
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between a parent or caregiver who meets the criteria under
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paragraph (3)(a) and a child victim in any proceeding pursuant
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to this chapter.
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(3) PRESUMPTION OF DETRIMENT.—
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(a) A rebuttable presumption of detriment to a child is
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created when:
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1. A court of competent jurisdiction has found probable
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cause exists that a parent or caregiver has sexually abused a
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child as defined in s. 39.01;
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2. A parent or caregiver has been found guilty of,
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regardless of adjudication, or has entered a plea of guilty or
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nolo contendere to, charges under the following statutes or
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substantially similar statutes of other jurisdictions:
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a. Section 787.04, relating to removing minors from the
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state or concealing minors contrary to court order;
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b. Section 794.011, relating to sexual battery;
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c. Section 798.02, relating to lewd and lascivious
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behavior;
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d. Chapter 800, relating to lewdness and indecent exposure;
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e. Section 826.04, relating to incest; or
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f. Chapter 827, relating to the abuse of children; or
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3. A court of competent jurisdiction has determined a
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parent or caregiver to be a sexual predator as defined in s.
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775.21 or a parent or caregiver has received a substantially
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similar designation under laws of another jurisdiction.
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4. A parent or caregiver is arrested for an offense under
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s. 782.04 or s. 782.07 when the victim of the offense is the
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child’s other parent or legal custodian.
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5. A parent or caregiver is arrested for an offense under
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ss. 782.04 and 777.04, relating to attempted murder; ss. 782.051
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and 777.04, relating to attempted felony murder; or ss. 782.07
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and 777.04, relating to attempted manslaughter, when the victim
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of the offense is the child’s other parent or legal custodian
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and the offense has rendered the victim incapacitated.
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(5) CONDITIONS.—Any visitation or other contact ordered
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under paragraph (4)(d) must shall be:
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(a) Supervised by a person who has previously received
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special training in the dynamics of child sexual abuse or
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parricide, as applicable ; or
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(b) Conducted in a supervised visitation program, provided
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that the program has an agreement with the court and a current
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affidavit of compliance on file with the chief judge of the
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circuit in which the program is located affirming that the
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program has agreed to comply with the minimum standards
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contained in the administrative order issued by the Chief
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Justice of the Supreme Court on November 17, 1999, and provided
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the program has a written agreement with the court and with the
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department as described in s. 753.05 containing policies and
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guidelines specifically related to referrals involving child
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sexual abuse.
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Section 3. Present subsections (3) through (18) of section
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39.402, Florida Statutes, are redesignated as subsections (4)
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through (19), respectively, a new subsection (3) is added to
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that section, paragraph (e) is added to present subsection (11)
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of that section, and paragraph (b) of present subsection (6) of
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that section is amended, to read:
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39.402 Placement in a shelter.—
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(3) A shelter hearing must take place within 24 hours after
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a child is taken into custody if:
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(a) The child’s parent or legal custodian has been arrested
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for an offense under s. 782.04 or s. 782.07 when the victim of
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the offense is the child’s other parent or legal custodian; or
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(b) The child’s parent or legal custodian has been arrested
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for an offense under ss. 782.04 and 777.04, relating to
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attempted murder; ss. 782.051 and 777.04, relating to attempted
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felony murder; or ss. 782.07 and 777.04, relating to attempted
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manslaughter, when the victim of the offense is the child’s
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other parent or legal custodian and the offense has rendered the
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victim incapacitated.
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(6)
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(b) The shelter petition filed with the court must address
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each condition required to be determined by the court in
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paragraphs (9)(a), (b), (d), and (h) (8)(a), (b), (d), and (h) .
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(12) (11)
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(e) If a child is placed in a shelter pursuant to a court
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order following a shelter hearing under subsection (3), the
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child must be referred to a provider of trauma-informed
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therapeutic services, which may be:
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1. A licensed private provider selected by the child’s
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legal custodian or guardian ad litem; or
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2. A state-funded program administered by the department or
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a contracted community-based care provider through a child
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victim advocacy program.
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Section 4. Subsection (1) of section 39.302, Florida
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Statutes, is amended to read:
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39.302 Protective investigations of institutional child
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abuse, abandonment, or neglect.—
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(1) The department shall conduct a child protective
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investigation of each report of institutional child abuse,
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abandonment, or neglect. Upon receipt of a report that alleges
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that an employee or agent of the department, or any other entity
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or person covered by s. 39.01(40) or (58) s. 39.01(39) or (57) ,
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acting in an official capacity, has committed an act of child
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abuse, abandonment, or neglect, the department shall initiate a
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child protective investigation within the timeframe established
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under s. 39.101(2) and notify the appropriate state attorney,
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law enforcement agency, and licensing agency, which shall
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immediately conduct a joint investigation, unless independent
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investigations are more feasible. When conducting investigations
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or having face-to-face interviews with the child, investigation
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visits shall be unannounced unless it is determined by the
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department or its agent that unannounced visits threaten the
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safety of the child. If a facility is exempt from licensing, the
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department shall inform the owner or operator of the facility of
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the report. Each agency conducting a joint investigation is
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entitled to full access to the information gathered by the
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department in the course of the investigation. A protective
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investigation must include an interview with the child’s parent
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or legal guardian. The department shall make a full written
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report to the state attorney within 3 business days after making
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the oral report. A criminal investigation shall be coordinated,
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whenever possible, with the child protective investigation of
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the department. Any interested person who has information
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regarding the offenses described in this subsection may forward
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a statement to the state attorney as to whether prosecution is
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warranted and appropriate. Within 15 days after the completion
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of the investigation, the state attorney shall report the
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findings to the department and shall include in the report a
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determination of whether or not prosecution is justified and
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appropriate in view of the circumstances of the specific case.
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Section 5. Paragraph (p) of subsection (4) of section
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394.495, Florida Statutes, is amended to read:
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394.495 Child and adolescent mental health system of care;
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programs and services.—
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(4) The array of services may include, but is not limited
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to:
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(p) Trauma-informed services for children who have suffered
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sexual exploitation as defined in s. 39.01(81)(g) s.
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39.01(80)(g) .
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Section 6. Paragraph (c) of subsection (1) of section
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934.255, Florida Statutes, is amended to read:
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934.255 Subpoenas in investigations of sexual offenses.—
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(1) As used in this section, the term:
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(c) “Sexual abuse of a child” means a criminal offense
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based on any conduct described in s. 39.01(81) s. 39.01(80) .
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Section 7. Subsection (5) of section 960.065, Florida
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Statutes, is amended to read:
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960.065 Eligibility for awards.—
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(5) A person is not ineligible for an award pursuant to
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paragraph (2)(a), paragraph (2)(b), or paragraph (2)(c) if that
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person is a victim of sexual exploitation of a child as defined
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in s. 39.01(81)(g) s. 39.01(80)(g) .
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Section 8. Subsection (24) of section 984.03, Florida
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Statutes, is amended to read:
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984.03 Definitions.—When used in this chapter, the term:
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(24) “Neglect” has the same meaning as in s. 39.01 s.
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39.01(53) .
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Section 9. This act shall take effect July 1, 2026.