Did Florida's rape-conceived-child parental-rights termination law qualify the state for federal Rape Survivor Child Custody Act funding in 2018?

Plain-English summary

This document is not a typical legal opinion answering a question of law. It is a certification letter from the Florida AG's office to the U.S. Department of Justice's Office on Violence Against Women (OVW), submitted as part of the Florida Department of Health's application for federal grant funding under the Rape Survivor Child Custody Act (RSCCA).

Federal law lets OVW supplement a state's Sexual Assault Services Formula Grant Program (SASP) and STOP Program funding when the state has a qualifying law allowing termination of a rapist's parental rights for a child conceived through rape. The AG certified two facts: that Florida's qualifying statute, § 39.806(1)(m), had not changed since the state received fiscal-year 2017 RSCCA funds, and that the statute remained in full force.

The letter recapped the substance of § 39.806(1)(m), which the Florida Legislature enacted in 2013 (Ch. 2013-132). The statute allows a court to terminate parental rights on clear and convincing evidence that the child was conceived as a result of sexual battery (defined in § 794.011) or under a similar law of another state, territory, possession, or Native American tribe. The statute also presumes termination is in the child's best interest if the child was so conceived, allows a petition to be filed at any time, and applies retroactively to all unlawful sexual battery acts (whether before, on, or after July 1, 2013).

Currency note

This opinion was issued in 2018. 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.

Common questions

Q: What is the federal Rape Survivor Child Custody Act?
A: It is a federal program that authorizes the U.S. Department of Justice's Office on Violence Against Women to supplement state grant funding (SASP and STOP) in states that have qualifying laws allowing termination of a rapist's parental rights when a child was conceived through rape.

Q: What was Florida's qualifying statute?
A: Section 39.806(1)(m), enacted in 2013. The statute lists conception by sexual battery (as defined in § 794.011) as a ground for terminating parental rights upon clear and convincing evidence.

Q: Did Florida require a criminal conviction before terminating parental rights on this ground?
A: No. The statute referenced "the unlawful sexual battery" as the predicate fact. Termination required clear and convincing evidence that the child was conceived as a result of sexual battery; the statute did not impose a separate conviction requirement, and the dependency court applied its own evidentiary standard.

Q: Did the statute apply to acts of sexual battery committed before its 2013 effective date?
A: Yes. Chapter 2013-132 expressly provided that § 39.806(1)(m) applied retroactively to "all unlawful acts of sexual battery occurring before, on, or after [July 1, 2013]."

Q: Was termination presumed to be in the child's best interest?
A: The statute presumed termination was in the child's best interest if the child was conceived as a result of unlawful sexual battery. That presumption could still be addressed in the termination proceeding under the broader best-interest framework chapter 39 establishes.

Background and statutory framework

Florida's chapter 39 is the dependency code, governing termination of parental rights ("TPR") and the placement and protection of children. Section 39.806 lists the grounds on which TPR may be ordered. Subsection (1)(m), enacted by Chapter 2013-132, Laws of Florida, was added expressly to address children conceived through sexual battery, harmonizing Florida's law with the federal Rape Survivor Child Custody Act and similar state statutes.

The federal RSCCA, codified at 34 U.S.C. § 21301 et seq., conditions supplemental SASP and STOP funding on a state having a qualifying law. OVW periodically requires the state to certify that the qualifying law remains in effect. AG certification letters like this one are routine administrative documents that confirm a state-law fact for the federal grantor.

Citations and references

Statutes:
- § 39.806, Fla. Stat. (Termination of parental rights; grounds)
- § 794.011, Fla. Stat. (Sexual battery)
- Ch. 2013-132, Laws of Fla. (enacting § 39.806(1)(m))
- 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-letter
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8028

Original opinion text

Ms. Katharine Sullivan

Principal Deputy 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 2017.

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: Ms. Celeste Philip, MD, MPH

[1] See 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.