Does Florida law let a court terminate a rapist's parental rights to a child conceived through sexual battery?

Plain-English summary

The Florida Department of Health's Sexual Violence Prevention Program administers federal funds awarded to states for sexual assault services. In 2015, Congress passed the Rape Survivor Child Custody Act, which authorized the U.S. Department of Justice's Office on Violence Against Women to give extra grant funding to states that have a "qualifying law" allowing termination of the rapist's parental rights when a child was conceived through sexual battery. To apply for the supplemental funds, Florida needed a certification from the AG's office that section 39.806(1)(m), Florida Statutes, met the federal definition of a qualifying law.

Senior Assistant Attorney General Gerry Hammond signed the certification. The letter laid out what section 39.806(1)(m) does: a court may terminate parental rights upon a finding by clear and convincing evidence that the child was conceived through an unlawful act of sexual battery under section 794.011, Florida Statutes, or under a similar law in another state, territory, possession, or Native American tribe where the offense occurred. The statute creates a presumption that termination is in the child's best interest, allows a petition to be filed at any time, and treats a guilty plea or conviction under section 794.011 as conclusive proof of the underlying battery. The certification also confirmed the statute was adopted in 2013 (Chapter 2013-132, Laws of Florida), was effective July 1, 2013, and applied retroactively to all unlawful acts of sexual battery occurring before, on, or after that effective date.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 39.806 has been amended several times since 2016. The basic structure of paragraph (1)(m) has held up, but specific procedural details, such as service requirements, who can petition, and the relationship to criminal proceedings, have shifted. Practitioners should check the current statute and reported case law before relying on the 2016 certification.

Common questions

Q: What does section 39.806(1)(m) actually authorize?
A: It is a freestanding ground for termination of parental rights in dependency court. A court may terminate the father's parental rights upon proof, by clear and convincing evidence, that the child was conceived through an act of unlawful sexual battery under section 794.011, Florida Statutes, or a similar law of another state, territory, possession, or Native American tribe.

Q: Does the mother have to be willing to participate?
A: The statute does not require the mother's participation. A petition can be filed at any time. In practice, the petition is typically filed by the child's parent, guardian, the Department of Children and Families, or a guardian ad litem, depending on the case posture.

Q: What's the burden of proof?
A: Clear and convincing evidence, the standard for termination of parental rights generally. A guilty plea or criminal conviction under section 794.011 is conclusive proof of the underlying sexual battery for purposes of this ground.

Q: Does the rapist have to have been criminally convicted first?
A: No. The certification described the conviction as "conclusive proof" if it exists, but the statute does not require a criminal conviction. A clear-and-convincing finding in the dependency proceeding suffices. The statute is forward-looking on this point because rape prosecutions face many practical obstacles that should not prevent the child from having the father's parental rights terminated.

Q: Is the law retroactive?
A: Yes. Section 3 of Chapter 2013-132, Laws of Florida, expressly applied the new ground to "all unlawful acts of sexual battery occurring before, on, or after (July 1, 2013)." This means an older child, whose conception predated the law, can still be the subject of a termination petition under section 39.806(1)(m).

Q: What does the Rape Survivor Child Custody Act do?
A: The federal Act, codified at 34 U.S.C. § 21301 et seq., authorizes the U.S. DOJ's Office on Violence Against Women to award supplemental grants to states with qualifying state laws under the Services-Training-Officers-Prosecutors (STOP) program and the Sexual Assault Services Program (SASP). The supplemental funds are meant to support state implementation of these laws, including legal services for survivors seeking termination of the rapist's parental rights.

Background and statutory framework

Florida added section 39.806(1)(m) in 2013 as part of a broader effort to give survivors of sexual battery more control over their children's relationships with the rapist. Before 2013, a rapist's parental rights could still be terminated under Florida's general termination grounds, but the statute did not single out conception-through-rape as an independent ground. The 2013 amendment did so, created a presumption in favor of termination, and made the law retroactive. Florida joined a growing number of states with similar standalone statutes.

In 2015, Congress passed the Rape Survivor Child Custody Act after years of advocacy by survivor groups and state attorneys general. The Act ties federal funding to state law: if a state has a qualifying law, it can apply for supplemental STOP and SASP funds. The AG's certification, signed by a Senior Assistant Attorney General as legal counsel to the Florida Department of Health, was the documentary requirement for Florida's grant application.

The opinion's statutory-authority footnotes (sections 16.01(2), 16.01(3), and 16.015) confirm that the AG's office has the authority to issue this kind of certification on behalf of state agencies. Article IV, section 4 of the Florida Constitution makes the AG the chief legal officer of the state.

Citations and references

Statutes:

• § 39.806(1)(m), Fla. Stat. (termination of parental rights, sexual battery)
• § 794.011, Fla. Stat. (sexual battery)
• § 16.01, Fla. Stat. (Attorney General duties)
• § 16.015, Fla. Stat. (Department of Legal Affairs)
• Chapter 2013-132, Laws of Florida (the original 2013 enactment)

Federal reference: Rape Survivor Child Custody Act of 2015, 34 U.S.C. § 21301 et seq.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/dept-of-health-sexual-violence-prevention
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8063

Original opinion text

Ms. Bea Hanson

Principle Deputy Director

Office on Violence Against Women

U.S. Department of Justice

145 N. Street, NE Suite 10W.121

Washington, D.C. 20530

Dear Director:

This office writes in support of the Florida Department of Health's application for a federal grant from the Department of Justice related to supplemental funding for sexual violence prevention programs.

The Florida Department of Health's Sexual Violence Prevention Program (SVPP) administers federal funds awarded by the U. S. Department of Justice (DOJ) to states and territories for several programs including the Sexual Assault Services Program (SASP), and the Services-Training-Officers-Prosecutors (STOP) program.

We are advised that last year Congress enacted the Rape Survivor Child Custody Act (RSCCA) which authorized the U. S. Department of Justice, Office on Violence Against Women, to supplement STOP and SASP programs in states that have qualifying laws regarding termination of the parental rights of an offender when a court determines that a child was conceived as a result of an act of sexual battery. Michelle A. Brickley, the Associate Director of the Office on Violence Against Women, has contacted the SVPP administrator regarding the opportunity to apply for these additional funds. As a component of the packet of application documents the Florida Department of Health is preparing, they have requested that this office provide you with a legal opinion relating to the provisions of Florida's qualifying statute, section 39.806(1)(m), Florida Statutes.

Florida's Attorney General is statutorily authorized to "perform the duties prescribed by the Constitution of this state and also perform such other duties appropriate to his or her office as may . . . be . . . required . . . by law or by resolution of the Legislature."[1] It is the responsibility of the Florida Attorney General to give her "official opinion and legal advice in writing on any question of law relating to the official duties of the requesting officer."[2] Further, it is the responsibility of the Department of Legal Affairs to provide "all legal services required by any department" of state government.[3] As a Senior Assistant Attorney General representing the Florida Department of Legal Affairs, I certify the following:

Florida's qualifying statute, adopted in 2013, provides:

"39.806 Grounds for termination of parental rights.—

(1) Grounds for the termination of parental rights may be established under any of the following circumstances:

• • *

(m) The court determines by clear and convincing evidence that the child was conceived as a result of an act of sexual battery made unlawful pursuant to s. 794.011, or pursuant to a similar law of another state, territory, possession, or Native American tribe where the offense occurred. It is presumed that termination of parental rights is in the best interest of the child if the child was conceived as a result of the unlawful sexual battery. A petition for termination of parental rights under this paragraph may be filed at any time. The court must accept a guilty plea or conviction of unlawful sexual battery pursuant to s. 794.011 as conclusive proof that the child was conceived by a violation of criminal law as set forth in this subsection."

This qualifying law was enacted by the Legislature and designated Chapter 2013-132, Laws of Florida. The bill was approved by the Governor on June 7, 2013, and became effective on July 1, 2013.

The statute provides that:

· a father's parental rights may be terminated upon a finding by the court that clear and convincing evidence exists that the child was conceived as a result of an act of sexual battery pursuant to section 794.011, Florida Statutes,[4] or pursuant to a similar law of another state, territory, possession, or Native American tribe where the offense of may have occurred.

· Chapter 2013-132, Laws of Florida, includes a provision authorizing retroactive application of the act to "all unlawful acts of sexual battery occurring before, on, or after (July 1, 2013)."[5]

· The standard of proof required for a termination of parental rights under the statute is "clear and convincing" evidence.

· Finally, section 39.806(1)(m), Florida Statutes, presumes that termination of parental rights is in the best interest of the child under the terms of the statute and a petition for termination using the provisions of section 39.806(1)(m), may be filed at any time.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

Florida Department of Legal Affairs

GH/t

[1] Section 16.01(2), Fla. Stat. See also Art. IV, s. 4, Fla. Const.

[2] Section 16.01(3), Fla. Stat.

[3] Section 16.015, Fla. Stat.

[4] Section 794.011, Fla. Stat., defines "sexual battery" for purposes of that chapter.

[5] See s. 3, Ch. 2013-132, Laws of Fla.