What is Florida's qualifying statute for the federal Rape Survivor Child Custody Act, and is it still in force?
Plain-English summary
This is a procedural certification letter, not a substantive legal analysis. The U.S. Department of Justice administers the Rape Survivor Child Custody Act (RSCCA), a federal statute that provides supplemental funding to states with qualifying laws permitting termination of a rapist's parental rights to a child conceived through rape. The supplemental funds attach to two existing programs the Florida Department of Health administers: the Sexual Assault Services Formula Grant Program (SASP) and the Services-Training-Officers-Prosecutors program (STOP).
To keep receiving the supplement, Florida had to certify that its qualifying statute remained in force. Senior Assistant Attorney General Teresa L. Mussetto, on behalf of the Florida Department of Legal Affairs, certified in January 2019 that section 39.806(1)(m), Florida Statutes, enacted in 2013, had not been amended and remained "in full force and effect."
The statute itself, section 39.806(1)(m), allows a court to terminate parental rights when clear and convincing evidence shows that the child was conceived as a result of sexual battery as defined in section 794.011 (or a similar law of another jurisdiction). Termination is presumed to be in the child's best interests. A petition for termination on this ground may be filed at any time, with no statute of limitations. The provision applies retroactively to all sexual batteries occurring before, on, or after July 1, 2013, the effective date.
Currency note
This opinion was issued in 2019. 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.
The certification is a snapshot of Florida law as of January 29, 2019. Anyone relying on the substantive provisions of section 39.806(1)(m) for litigation should pull the current version of the statute and check for amendments after 2019. The federal RSCCA framework and grant procedures may also have changed.
Background and statutory framework
The federal Rape Survivor Child Custody Act was enacted in 2015 to encourage states to allow survivors to seek termination of the rapist's parental rights without first obtaining a criminal conviction (which often was unrealistic given low prosecution rates and statute-of-limitations issues). States that meet the federal eligibility criteria receive a 10% bonus on top of their SASP and STOP allocations.
Florida's qualifying statute, section 39.806(1)(m), was added to the dependency-law termination grounds in chapter 39 by Chapter 2013-132, Laws of Florida. The Legislature designed it to function with a clear-and-convincing standard of proof and a rebuttable presumption that termination serves the child's best interests, two features that match the federal RSCCA's preferred design.
The provision sits among the other termination-of-parental-rights grounds in section 39.806(1) and is enforced through Florida's standard dependency procedures. A petitioner who establishes that a child was conceived through unlawful sexual battery does not have to wait for a criminal conviction; the dependency court can act on the same standard of proof used for other (m)-paragraph grounds. The retroactivity clause in Chapter 2013-132 ensures that survivors with older children, born before 2013, can still pursue termination on this ground.
Common questions
Q: Does Florida require a criminal rape conviction before parental rights can be terminated under section 39.806(1)(m)?
A: No. The statute requires clear and convincing evidence in the dependency proceeding that the child was conceived through a sexual battery as defined in section 794.011. A criminal conviction is not a prerequisite. This was a deliberate design choice and one of the reasons Florida qualified under the federal RSCCA.
Q: How long after the assault can a petition under (1)(m) be filed?
A: The 2013 certification recited that the statute lets such a petition be filed "at any time." There is no statute of limitations on a (1)(m) termination petition, and the retroactivity clause covers acts predating the 2013 effective date.
Q: Who has standing to file?
A: Standing under section 39.806 generally lies with the Department of Children and Families, the guardian ad litem, or any other person with knowledge of the relevant facts (subject to the procedures in chapter 39). The 2019 certification did not address standing in detail; that is governed by the surrounding chapter-39 framework.
Q: Is this opinion useful for terminating parental rights in a specific case?
A: Only as background. The 2019 letter is a federal-grant certification. It does not create new rights or modify the substantive procedural requirements of section 39.806(1)(m). A practitioner litigating a (1)(m) case should rely on the current statute, the chapter-39 procedural rules, and Florida case law interpreting the provision.
Q: What were the SASP and STOP programs?
A: Both are federally administered programs targeted at sexual-violence services. SASP (Sexual Assault Services Formula Grant Program) and STOP (Services-Training-Officers-Prosecutors) are administered by the U.S. DOJ Office on Violence Against Women. The Florida Department of Health's Violence and Injury Prevention Program received the funds and distributed them within the state.
Citations
Statutes:
- § 39.806(1)(m), Fla. Stat. (TPR ground for child conceived through sexual battery)
- § 794.011, Fla. Stat. (sexual battery)
- § 3, Ch. 2013-132, Laws of Fla. (retroactivity provision)
Federal authorities:
- Rape Survivor Child Custody Act, 34 U.S.C. § 21301 et seq.
Source
- Landing page: https://www.myfloridalegal.com/ag-opinions/rape-survivor-child-custody-act
- Original PDF: https://www.myfloridalegal.com/print/pdf/node/8016
Original opinion text
Katharine Sullivan
Acting Director
Office on Violence Against Women
U.S. Department of Justice
145 N Street, NE, Suite 10W.121
Washington, DC 20530
Dear Director Sullivan:
This letter is written in conjunction with the Florida Department of Health’s application to receive a federal grant from the Department of Justice providing supplemental funding for sexual violence recovery programs in this state.
The Florida Department of Health’s Violence and Injury Prevention Program administers federal funds awarded by the U.S. Department of Justice (DOJ) for several programs, including the Sexual Assault Services Formula Grant Program (SASP) and the Services-Training-Officers-Prosecutors (STOP) program. The federal Rape Survivor Child Custody Act (RSCCA) authorizes the Office on Violence Against Women to supplement SASP and STOP program funding in states which have qualifying laws regarding termination of parental rights of rapists for children conceived through rape.[1] In connection with the Florida Department of Health’s application to receive such funds, this office has been asked to certify that the state’s qualifying statute has not been amended since Florida received federal funds to supplement funding for these programs in fiscal year 2018.
Section 39.806(1)(m), Florida Statutes, enacted in 2013, is Florida’s qualifying statute regarding the termination of a rapist’s parental rights when a child is conceived through rape. As a Senior Assistant Attorney General representing the Florida Department of Legal Affairs, I certify both that the statute’s provisions have not been changed since enactment of section 39.806(1)(m), Florida Statutes, and that such provisions remain in full force and effect. In pertinent part, the statute continues to provide that:
§ parental rights may be terminated upon the court’s determination that clear and convincing evidence exists that the child was conceived as a result of a sexual battery as defined in section 794.011, Florida Statutes, 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 section 39.806(1)(m), Florida Statutes, may be filed at any time; and
§ the provisions of the statute apply retroactively to “all unlawful acts of sexual battery occurring before, on, or after [July 1, 2013].”[2]
Sincerely,
Teresa L. Mussetto
Senior Assistant Attorney General
Opinions Division
Florida Department of Legal Affairs
TLM/tsh
cc: Michele Tallent
[1] See Op. Letter to Ms. Katharine Sullivan, Principal Deputy Director, February 22, 2018; Op. Letter to Ms. Nadine M. Neufville, Acting Director, February 28, 2017; Op. Letter to Ms. Bea Hanson, Deputy Director, May 4, 2016.
[2] See § 3, Ch. 2013-132, Laws of Fla.