Ineffective Assistance of Counsel in Termination of Parental Rights Proceedings

1. Ineffective Assistance of Counselin Termination of Parental Rights Proceedings

2. Ineffective Assistance Establishing a Right In J.B. v. Fla. Dep’t of Children & Families, 170 So. 3d 780 (Fla. 2015), the Florida Supreme Court for the first time expressly recognized that along with the right to counsel in proceedings to terminate parental rights, there is an attendant right to effective assistance of counsel.

3. Ineffective Assistance Establishing a Right “We now expressly hold what was only implicit in our prior decisions: the right of indigent parents to counsel under the Florida Constitution in TPR proceedings necessarily includes the constitutional right to the effective assistance of counsel.” J.B. at 790.

4. Ineffective Assistance Establishing a Right In addition to recognizing the right, the Court established a standard for determining whether counsel has provided ineffective assistance, and provided an interim procedure for bringing claims of ineffective assistance until a final rule is developed.

5. Ineffective AssistanceRequired Showing to Grant a Motion There is a strong presumption the attorney provided reasonable, professional assistance and the parent must make a showing of prejudice that goes beyond the criminal standard established by the U.S. Supreme Court in Strickland v. Washington requirement that confidence in the outcome is undermined.

6. Ineffective AssistanceRequired Showing to Grant a Motion If the parent establishes the result of the TPR proceeding would have been different absent the attorney’s deficient performance, the TPR order is vacated and a new adjudicatory hearing is scheduled.

7. Ineffective Assistance The Interim Procedure At the end of the TPR trial the court must orally inform the parent of: 1) the right to appeal the termination of parental rights order and 2) the right to file a pro se motion in circuit court alleging counsel provided ineffective assistance of counsel if the court enters an order terminating parental rights.

8. Ineffective AssistanceSuggested Judicial Colloquy J.B. v. DCF, 170 So. 3d (Fla. 2015) (interim procedure; may be superseded by Juvenile Rules) At the close of evidence in the TPR trial and before entry of a termination order, advise the parent: • You have been represented by a court appointed attorney during this case, and have a right to effective legal assistance from your attorney. Effective legal assistance means your court appointed attorney’s assistance was reasonable and professional. If the court enters an order terminating your parental rights, and you believe your attorney failed to provide reasonable, professional legal services in a way that changed the outcome of the trial, you have a right to file a motion claiming ineffective assistance of counsel. • If you believe your attorney failed to provide reasonable legal services in a way that changed the outcome of the trial and you want to file such a motion, tell your trial attorney. He/she will then withdraw. • Unless you hire an attorney to assist you with the motion, you must prepare and file it yourself. There is no right to a court appointed attorney to help with a motion claiming ineffective assistance. • You have 20 days after the TPR order is entered to file the motion. If you file the motion late, it will be denied. • The motion must contain the case name and number, and the date of the court order granting TPR. [J.B. does not say whether the motion should be under oath, but best practice suggests it should be.] • The motion must contain specific examples of things the attorney did or did not do during the TPR proceedings that show how the attorney's mistakes prejudiced your case to the extent that the result would have different, but for the poor performance. • The original motion must be filed with the clerk of court with copies immediately provided to the parties. The court may set a hearing on the motion if it is legally sufficient. • At the hearing it is your responsibility to prove the claims you made in the motion and that your attorney provided ineffective assistance. You may prove your claims by presenting documentary evidence or witness testimony. • If the court grants your motion, a new trial attorney will be appointed and a new TPR trial will be scheduled. • If the court denies your motion, you will have 30 days from the entry of the order denying the motion to appeal the order terminating parental rights and to appeal the order denying your claim of ineffective assistance. The court will appoint a new attorney to help you with the appeal, if one has not already been appointed.

9. Ineffective AssistanceThe Interim Procedure The final judgment must inform the parent of the right to the effective assistance of appointed counsel and provide a brief explanation for filing a claim.

10. Sample Language MirroringSuggested Judicial Colloquy You have been represented by a court-appointed attorney during this case, and have a right to effective legal assistance from your attorney. Effective legal assistance means your court-appointed attorney’s assistance was reasonable and professional. If you believe your attorney failed to provide reasonable, professional legal services in a way that changed the outcome of the trial, you have a right to file a motion claiming ineffective assistance of counsel. If you want to file such a motion, tell your trial attorney. He/she will then withdraw. Unless you hire an attorney to assist you with the motion, you must prepare and file it yourself. There is no right to a court-appointed attorney to help with a motion claiming ineffective assistance. You have 20 days after the TPR order is entered to file the motion. If you file the motion late, it will be denied. The motion must contain the case name and number, and the date of the court order granting TPR. The motion must contain specific examples of things the attorney did or did not do during the TPR proceedings that show how the attorney's mistakes prejudiced your case to the extent that the result would have different, but for the poor performance. The original motion must be filed with the clerk of court with copies immediately provided to the parties. The court may set a hearing on the motion if it is legally sufficient. At the hearing, it is your responsibility to prove the claims you made in the motion and that your attorney provided ineffective assistance. You may prove your claims by presenting documentary evidence or witness testimony. If the court grants your motion, a new trial attorney will be appointed and a new TPR trial will be scheduled. If the court denies your motion, you will have 30 days from the entry of the order denying the motion to appeal the order terminating parental rights and to appeal the order denying your claim of ineffective assistance. The court will appoint a new attorney to help you with the appeal, if one has not already been appointed. [NOTE: This language should be added to the section of the TPR order either before or after the section notifying the parent of the right to appeal. Best practice would be for both notices to be in the same section of the order and marked off from the rest of the order by a designation marked “NOTICE” or language to a similar effect.]

11. Ineffective Assistance The Interim Procedure Step 1: Pro se parent must file motion alleging the ineffective assistance of appointed counsel within 20 days of entry of the TPR order by an indigent parent. The parent is not entitled to counsel’s assistance in preparing or pursuing the motion.

12. Ineffective AssistanceThe Interim Procedure Step 2: Rendition of the final TPR order is automatically tolled for appellate purposes until the circuit court issues an order on the pro se motion. Step 3: The trial court must “promptly” review the motion and order an expedited record of the TPR proceedings.

13. Ineffective Assistance The Interim Procedure A note about the record: “Record” is defined differently in the Florida Rules of Judicial Administration and the Florida Rules of Appellate Procedure. The proposed rule permits use of an audio record.See, Proposed Rule Of Juvenile Procedure 8.350(n)(3).

14. Ineffective Assistance The Interim Procedure While transcripts of the proceedings are required under the appellate rules, the rules of judicial administration define “record” to include audio recordings. See, Fla. R. Jud. Admin. Part IV

15. Ineffective Assistance The Interim Procedure The proposed rule permits use of an audio record. Cf. Proposed Rule Of Juvenile Procedure 8.350(n)(3).

16. Ineffective Assistance The Interim Procedure Step 4: The trial court must conduct proceedings, including an expedited evidentiary hearing if necessary, to determine whether the motion should be granted or denied.

17. Ineffective AssistanceThe Interim Procedure Step 5: the trial court must enter an order on the claims of ineffective assistance of counsel within 25 days after the motion is filed. If no order is entered, the motion is deemed denied. Step 6: The trial court must appoint new counsel for the appeal.

18. Ineffective Assistance The Interim Procedure Any appeal from an order denying a motion alleging the ineffective assistance of counsel will be raised and addressed within any appeal from the TPR order.

19. Ineffective AssistanceParent’s Counsel Requirements After the court enters a TPR order, appointed counsel of the indigent parent must discuss appellate remedies and determine if the parent wants to appeal. Fla. R. Juv. P. 8.517.

20. Ineffective AssistanceParent’s Counsel Requirements If the parent decides to appeal, appointed counsel must also discuss whether the parent intends to file an IAC motion.

21. Ineffective Assistance – Parent’s Counsel Requirements If the parent indicates an intention to file a motion, the attorney must immediately move to withdraw.

22. Ineffective AssistanceParent’s Counsel Requirements Before withdrawing, if the parent decides to appeal the final judgment, the appointed attorney must certify that the parent chose to appeal and counsel filed all documents required by Rule 8.517.

23. Ineffective AssistanceParent’s Counsel Requirements If a parent files a motion alleging ineffective assistance of appointed counsel after initially indicating that a motion would not be filed, and trial counsel is acting as appellate counsel, appellate counsel must move to withdraw.

24. IF THIS, THEN THATWhat happens after the trial attorney conferswith the client after the TPR order is entered?

25. Ineffective AssistanceSelect Committee’s Joint Report Pursuant to the J.B. opinion, the Supreme Court created a Select Committee to create the permanent process and develop attendant rules for ineffective assistance of counsel claims.

26. Ineffective AssistanceSelect Committee’s Joint Report The committee had members from the Juvenile Court and Appellate Rules Committees, Legal Needs of Children Committee, DCF, the Office of the Attorney General, GAL, FCF and Criminal Conflict and Civil Regional Counsel as well as private practitioners.

27. Ineffective AssistanceSelect Committee’s Joint Report The committee provided draft rule amendments to both the Rules of Juvenile Procedure and the Rules of Appellate Procedure for approval by those committees.

28. Ineffective Assistance – Select Committee’s Joint Report The Narrow v. Broad Rule

29. Ineffective AssistanceSelect Committee’s Joint Report The Select Committee concluded that a rule allowing for an ineffective assistance of court-appointed counsel claims for indigent parents was most consistent with J.B.

30. Ineffective AssistanceSelect Committee’s Joint Report Some members noted that the Court in J.B. specifically used the phrases “court-appointed” and “indigent” when laying out the details of the temporary procedure to vindicate ineffective assistance of counsel claims in termination of parental rights cases.

31. Ineffective AssistanceSelect Committee’s Joint Report Other members of the Select Committee offered five alternative reasons to support the narrow approach.

32. Ineffective AssistanceSelect Committee’s Joint Report First, the limitation to indigent parents with court appointed counsel is sound, due to the different geneses of the rights to effective counsel in criminal and termination of parental rights cases.

33. Ineffective AssistanceSelect Committee’s Joint Report Second, the difference between termination of parental rights proceedings and criminal proceedings mean the rights may not apply to everyone the same. TPR implicates the rights of the children as well.

34. Ineffective AssistanceSelect Committee’s Joint Report Third, dependency court proceedings have built in safeguards which provide opportunity for the trial court to review and remedy any issues regarding ineffective assistance of privately –retained counsel without formally establishing the right as a means to set aside a termination order.

35. Ineffective AssistanceSelect Committee’s Joint Report Fourth, J.B. did not establish an independent right to raise an ineffective assistance of counsel claim.

36. Ineffective AssistanceSelect Committee’s Joint Report Fifth, the absence of a limitation on the parent’s right to effective counsel threatens to expand that right to other areas of the law potentially interposing additional delays to permanency for children.

37. Ineffective AssistanceSelect Committee’s Joint Report The rule proposed by the Select Committee has been referred to as the “narrow” rule.

38. Ineffective AssistanceSelect Committee’s Joint Report The rules created by the Select Committee were submitted to the Appellate Court Rules Committee and the Juvenile Rules Committee.

39. Ineffective AssistanceSelect Committee’s Joint Report The JCRC debated the draft rules amendments and agreed on the substantive language of the rules, but not on the scope of the rule’s application.

40. Ineffective Assistance Select Committee’s Joint Report In support of the broad rule, the JCRC concluded that the J.B. case recognized the right to an attorney all parents have in termination of parental rights cases.

41. Ineffective AssistanceSelect Committee’s Joint Report The JCRC further argued there is no distinction made based upon whether a parent retained or was appointed their attorney.

42. Ineffective AssistanceSelect Committee’s Joint Report The JCRC felt J.B. was unclear as to whether it only provided relief to indigent parents and that such a rule would violate due process and equal protection.

43. Ineffective AssistanceSelect Committee’s Joint Report The JCRC agreed with the minority of the Select Committee that all parents have a constitutional right to a fair proceeding. A rule that prevents all parents from challenging the effectiveness of counsel does not provide due process.

44. Ineffective Assistance Select Committee’s Joint Report Further, the JCRC felt Select Committee proposed rule violates equal protection.

45. Ineffective Assistance Select Committee’s Joint Report Finally, the JCRC concluded that including all parents would not cause any additional delays.

46. Ineffective Assistance Select Committee’s Joint Report The rule proposed by the JCRC has been referred to as the “broad” rule.

47. Ineffective Assistance Select Committee’s Joint Report The ACRC approved the amendments recommended by the Select Committee, which took the narrow approach.

48. Ineffective Assistance Comments to the Proposed Rule Comments to the proposed rules were filed by the GAL, PILS, jointly by FCF and UM’s Children and Youth Law Clinic, as well as private practitioners.

49. Ineffective Assistance Comments to the Proposed Rule Issues addressed in the comments included: • Narrow v. Broad Rule. • Whether the motion should be “deemed denied.” • An internal inconsistency with proposed Rule 9.146(i)(2).

50. Ineffective Assistance Comments to the Proposed Rule Issues addressed, cont’d • Procedural issues including whether parents should proceed pro se, the time provided for filing a motion and the evidentiary standard for ruling on it. • A request for the Court to study parent’s representation overall.