ExposingTheTruthOfCPS: Supreme Court of Florida

Supreme Court of Florida

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No. SC14-1990

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J.B., etc.,

Petitioner,

vs.

FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,

Respondent.

[July 9, 2015]

PER CURIAM.

In this case, which involves J.B.’s challenge to an order terminating her

parental rights, we consider two questions of great public importance concerning

an indigent parent’s right to counsel in termination proceedings. The First District

Court of Appeal in J.B. v. Department of Children & Families, 158 So. 3d 653, 659

(Fla. 1st DCA 2014), certified the following questions of great public importance:

I. IS THE CRIMINAL STANDARD OF INEFFECTIVE

ASSISTANCE OF COUNSEL ANNOUNCED IN STRICKLAND V.

WASHINGTON[, 466 U.S. 668 (1984)], APPLICABLE TO

CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL IN

PROCEEDINGS INVOLVING THE TERMINATION OF

PARENTAL RIGHTS?

II. IS ANY PROCEDURE AVAILABLE FOLLOWING THE

TERMINATION OF PARENTAL RIGHTS TO RAISE CLAIMS OF

INEFFECTIVE ASSISTANCE OF COUNSEL THAT ARE NOT

APPARENT ON THE FACE OF THE RECORD?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.; see also J.B. v. Dep’t of

Child. & Fam., 2014 WL 5420898 (Fla. Oct. 21, 2014) (granting review). We

answer question I in the negative and question II in the affirmative.

Although we have previously held that indigent parents have a constitutional

right to counsel in proceedings to terminate parental rights (TPR), we have not

expressly recognized an attendant right to the effective assistance of counsel. For

the reasons we explain here, we hold that the right to counsel in termination of

parental right (TPR) proceedings includes the right to effective assistance and

requires a means of vindicating that right. Accordingly, in response to the first

certified question, we establish the appropriate standard for determining whether

counsel provided constitutionally ineffective assistance in termination of parental

rights proceedings. And regarding the second question, we provide here a

temporary process for bringing such claims of ineffective assistance, and we direct

the development of rules providing the procedure for vindicating that right. In this

specific case, however, we conclude that J.B. has failed to present any basis for

setting aside the order terminating her parental rights and thus we approve the

district court’s decision.

I. BACKGROUND

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Petitioner J.B. (Mother) was seventeen when the child D.L. was born in

2009. In January 2011, the Department of Children and Families (DCF or

Department) investigated allegations of child abuse as to D.L.

On March 14, 2011, the Department of Children and Families

removed the child, D.L., from the mother’s custody based on

allegations the mother was abusing illegal drugs, had been living in a

“crack house” followed by a homeless shelter, and was currently in

jail for violating her probation. On April 1, 2011, the Department

filed a dependency petition alleging the mother violated a safety plan,

was unstable, allowed the child to frequent unsafe locations, and left

the child with strangers at the homeless shelter. On June 22, 2011, the

trial court adjudicated the child dependent based on the mother’s

consent. On July 13, 2011, the trial court accepted a case plan with

the goal of reunification.

On February 10, 2012, the Department filed a petition for

termination of parental rights. The petition alleged the mother

abandoned the child by failing to provide for him financially or

emotionally and failing to exercise her parental duties and

responsibilities. The petition further alleged the mother failed to

substantially comply with the case plan within a nine-month time

period in that she failed to complete an in-patient drug treatment

program, complete a parenting course, follow all recommendations of

a parenting evaluation, follow all recommendations of a psychiatric

evaluation, undergo random urinalysis and a hair follicle test,

participate in a General Equivalency Diploma (GED) program,

maintain stable housing, maintain verifiable income, and maintain

contact with the dependency case manager.

J.B., 158 So. 3d at 654-55.

In June 2013, the Department filed a “Verified Petition for Termination of

Parental Rights and Permanent Commitment for Purposes of Subsequent

Adoption.” The petition contained allegations that the termination of parental

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rights was in the manifest best interests of the child; that the mother and unknown

father had neglected, abused or abandoned D.L.; that D.L. was in the stable home

of a foster parent who cared for D.L. for two years and would like to adopt him;

that the Mother had been represented by counsel since the child was placed in the

Department’s care; and that D.L. would not be harmed by the termination of

parental rights.

The day before the adjudicatory hearing on the petition, the mother’s

counsel filed a motion for continuance on the ground that the father of D.L. had not

yet been identified through DNA testing. At the hearing on July 19, 2013, the

judge heard argument on the motion and denied it as untimely, not “proper in

form,” and insufficient to establish “good cause sufficient to override the statutory

mandates regarding the child’s right to permanency.” 158 So. 3d at 655. The

following exchange ensued:

THE COURT: Do you want opening statements?

[MOTHER’S COUNSEL]: No, Your Honor. I’m not prepared to go

forward in that case. I was under the impression that things would

have been different, but something changed.

THE COURT: Well, regardless, we have been scheduled for this trial

for quite a while. And the Court knows that you’re a competent

attorney. Let’s go forward. If at some point, [counsel], after all this

time to prepare for this trial, there’s a particular additional thing or

person that you think you need to have put in evidence or call as a

witness, you can go ahead and identify that for the record. The Court

notes you didn’t file your—or send in your motion for continuance

until—it’s signed on July 18th. Today is July 19th. The Court is

confident that as experienced and competent an attorney as you are,

that you would have been ready to go forward and would have filed a

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motion for continuance a lot sooner if there were any particular

inability on your part to be effective.

Id. The mother’s counsel then explained that he filed the motion for continuance

only after consulting with DCF counsel, but that DCF apparently had changed its

position since then.

Counsel for DCF gave her opening argument, and the court then asked J.B.’s

counsel again if he wanted to make a statement. He responded affirmatively.

After stating that he was “really exhausted” and that “the last few

weeks ha[d] worn [him] down,” the mother’s counsel asserted in his

opening statement that the mother had complied with most of her case

plan and any failures by the mother were attributable to the

Department, which failed to prepare the mother for life as an adult

when the mother herself was a foster child in the Department’s

custody.

Id.

The Department presented a number of witnesses in support of its petition.

A child protective investigator, Ashley Birdshaw, testified regarding the

investigation of the initial abuse report and the determination that J.B. did not have

stable housing and had lived in a crack house for a time. During the direct

examination, counsel objected on grounds of hearsay as to allegations in the abuse

report and later on grounds of best evidence to taking judicial notice of the

mother’s date of birth. Both objections were overruled. However, the Department

later offered the mother’s birth certificate into evidence. During cross-

examination, Birdshaw disagreed that she “ ‘left a minor on the streets with a

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child,’ ” and the trial court took judicial notice that the mother was eighteen at the

time of the investigation. Id.

Bethanie Milford, the dependency case manager, testified regarding the

mother’s noncompliance with the case plan, including failure to complete a

sobriety program and failure to visit the child because she was incarcerated.

Moreover, J.B.’s former foster parents informed Milford that J.B. had been

arrested for prostitution in Georgia, and the trial court took judicial notice, without

objection, of previous judicial reviews. Id. at 655-56. When the child’s foster

mother testified, she reported that the child “became upset and had nightmares

after seeing the mother.” Id. at 656. Counsel objected to a question the

Department asked her, arguing that it required the witness to speculate in a field in

which she lacked qualifications; the objection was sustained.

A child and adolescent psychologist, Dr. Carole Oseroff, testified that she

conducted psychological evaluations of J.B. in 2005 and 2007 and conducted

parenting assessments of her in 2011 and 2012. Id. She opined that J.B. was of

average intelligence but had attention deficit hyperactivity disorder, posttraumatic

stress disorder, and anti-social personality disorder. Further, J.B. continued to

have problems with law enforcement issues, substance abuse, emotional problems,

and basic stability. Dr. Oseroff concluded that J.B. would likely not be able to

change sufficiently to reunify with the child. Accordingly, she recommended

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termination of J.B.’s parental rights. On cross-examination by J.B.’s counsel, the

psychologist conceded that when J.B. was a foster child herself, the Department

failed to treat her effectively. Id.

D.L.’s therapist testified that after the mother visited the child, he stopped

progressing, and the child’s foster mother stated that after J.B. visited, D.L.

experienced nightmares. In addition, the child’s guardian ad litem recommended

termination of parental rights, in part, because the mother could not provide the

child with stability. She also “testified that the child had developed a parent -child

relationship with his foster parents.” Id.

At the conclusion of the Department’s case, the mother’s

counsel did not move for a judgment of dismissal. During the

mother’s case, the Department objected to the mother presenting

testimony from her former foster parents because the mother’s

counsel never filed a witness list. The mother’s counsel replied that

he had not filed a witness list because he was under the impression

that the Department had consented to continue the case. The court

overruled the objection and allowed both witnesses to testify.

Although the mother submitted her own witness list identifying Cassie

Hemmick and Lorie Asifor as additional witnesses, the mother

indicated that Asifor could be excused. The mother’s counsel then

indicated he advised the mother that it was not in her best interest to

call Hemmick as a witness. After discussing the matter further with

her counsel, the mother agreed not to call Hemmick. The mother’s

counsel then called Sharon Ross-Donaldson, who was the mother’s

therapist. Finally, the mother testified on her own behalf. During

cross-examination, the mother testified she was never asked if any

family members could care for the child and told the case manager

that family members were available. The mother’s counsel did not

pursue this further on redirect examination.

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During closing arguments, the mother’s counsel again argued

the mother’s problems stemmed from the Department’s own failure to

effectively help her while she was a child in foster care. Counsel then

argued the Department did not provide a qualified case manager for

the mother, who had mental health issues, as required by chapter 39,

Florida Statutes. When the court asked counsel for the applicable

statute, counsel responded that he did not have a statute book with

him. The trial court then provided one to counsel, who responded,

“Of course, I may be so—I’m so tired, I may be doing everything,

again, wrong, but I believe that that is—[.]” The Department’s

counsel attempted to assist the mother’s counsel in finding the statute .

After the trial court called a recess so that counsel could review the

statute suggested by the Department’s counsel, the mother’s counsel

stated, “Yes. The statute she has pointed to is not the one I was

thinking of. It may have changed. I’ve been doing this so dadgum

long, I’ve been at this—put in 80 hours this week already, I can’t

think straight, so I withdraw that part of it.”

Id. at 656-57.

Subsequently, the trial court entered a final judgment terminating J.B.’s and

the unknown father’s parental rights. The court found that the child’s parents

failed to comply with the case plan, that J.B. abandoned and neglected the child

within the meaning of the law, that the child was at substantial risk of harm, and

that termination of parental rights was the least restrictive means of protecting the

child from harm. Id. at 657.

J.B. appealed the order to the First District, raising for the first time on

appeal the following ten claims of ineffective assistance of counsel regarding her

counsel’s performance in the TPR proceedings.

[C]ounsel was ineffective for (1) filing an untimely motion for a

continuance to investigate prospective fathers; (2) admitting he was

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exhausted and not prepared to go forward during opening statements;

(3) erroneously believing the mother was still a minor when the child

was sheltered; (4) allowing the introduction of hearsay in the form of

previous judicial reviews and testimony concerning the mother

leaving a sobriety program and being arrested for prostitution in

Georgia, the child not being allowed to live with the mother at a

halfway house, and the child’s behavior changing after he resumed

visitation with the mother; (5) failing to file a witness list and

opposing the mother calling a witness on the ground it was not in the

mother’s best interest; (6) failing to cross-examine the guardian ad

litem or object to the guardian’s report on timeliness and hearsay

grounds; (7) failing to move for a judgment of dismissal at the

conclusion of the Department’s case; (8) failing to pursue on redirect

examination the mother’s claim that a relative placement was

available for the child; (9) misleading the court during closing

argument that the Department did not provide a qualified case

manager for the mother, who had mental health issues; and (10)

failing to object to the trial court’s failure to inform the mother of the

availability of advocacy services under section 39.502, Florida

Statutes (2011).

Id. at 658. The First District applied the Strickland standard to J.B.’s ineffective

assistance of counsel claims and concluded that “the mother . . . failed to establish

that ‘the ineffectiveness is obvious on the face of the appellate record, the

prejudice caused by the conduct is indisputable, and a tactical explanation for the

conduct is inconceivable.’ ” Id. (quoting Corzo v. State, 806 So. 2d 642, 645 (Fla.

2d DCA 2002)). Accordingly, the district court affirmed the order terminating her

parental rights. The First District, however, “express[ed] concern regarding the

lack of any effective procedure for raising ineffective assistance of counsel claims

in termination proceedings where the alleged ineffectiveness is not apparent on the

face of the record.” Id. at 658-59. Accordingly, the district court certified the two

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questions of great public importance regarding the right to effective counsel and

vindication of that right.

II. ANALYSIS

We begin our discussion of the certified questions by (A) outlining the right

of indigent parents to counsel in dependency and termination of parental rights

proceedings. Next, (B) we expressly recognize that indigent parents not only have

a right to counsel, but that under our state constitution, they are afforded the right

to the effective assistance of counsel in TPR proceedings. And (C) we establish a

standard for determining whether counsel has provided ineffective assistance in

such proceedings. Next, (D) we provide a temporary procedure for bringing

claims of ineffective assistance in the circuit court that will remain in place until a

final rule replaces it. Finally, (E) we review the merits of the decision in this case

and approve the result reached by the district court. Our review is de novo. See S.

Baptist Hosp. of Fla., Inc. v. Welker, 908 So. 2d 317, 319 (Fla. 2005).

A. The Right to Counsel in TPR Proceedings

“It is a basic tenet of our society and our law that individuals have the

fundamental constitutionally protected rights to procreate and to be a parent to

their children. These constitutional rights are recognized by both the Florida

Constitution and the United States Constitution.” D.M.T. v. T.M.H., 129 So. 3d

320, 334 (Fla. 2013). Moreover, as the Supreme Court has recognized, “[t]he

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fundamental liberty interest of natural parents in the care, custody, and

management of their child does not evaporate simply because they have not been

model parents or have lost temporary custody of their child to the State.” Santosky

v. Kramer, 455 U.S. 745, 753 (1982). Accordingly, “[w]hen the State moves to

destroy weakened familial bonds, it must provide the parents with fundamentally

fair procedures.” Id. at 753-54.

Under Florida statutory law, parents have a right to counsel in both

dependency and TPR proceedings. §§ 39.013(1), (9)(a), Fla. Stat. (2011). In In re

D.B., 385 So. 2d 83, 87 (Fla. 1980), however, this Court addressed the question of

whether state provision of counsel to indigent parents in dependency and TPR

proceedings was necessary for fundamental fairness. We held that as to

dependency proceedings, appointment of counsel is not required by the

constitution. Id. at 87, 90. On the other hand, we determined that “counsel is

necessarily required under the due process clause of the United States and Florida

Constitutions, in proceedings involving the permanent termination of parental

rights to a child.” Id. at 90. Although the United States Supreme Court

subsequently held in Lassiter v. Department of Social Services, 452 U.S. 18, 31-32

(1981), that appointment of counsel in all TPR proceedings is not a due process

requirement under the United States Constitution, that decision does not impact our

Court’s determination otherwise under the due process clause of Florida’s

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constitution. See M.E.K. v. R.L.K., 921 So. 2d 787, 790 (Fla. 5th DCA 2006) (“In

the area of termination of parental rights, the Florida due process clause provides

higher due process standards than the federal due process clause.”).

B. The Right to Effective Assistance of Counsel

Although we recognized an indigent parent’s state constitutional right to

counsel in TPR proceedings in D.B., we did not expressly recognize an attendant

right to the effective assistance of state-provided counsel. Several district courts,

however, have expressly recognized the right to effective assistance of counsel in

TPR proceedings and the need for a procedure to enforce the right. For example in

In re M.R., 565 So. 2d 371, 372 (Fla. 1st DCA 1990), the First District held that

the right to counsel in TPR proceedings requires “that such counsel must provide

services which are sufficient to provide meaningful assistance” and that

“unexplained failure of the parents’ appointed counsel to even make an ap pearance

at a termination of parental rights adjudicatory hearing fails, as a matter of law, to

satisfy the meaningful assistance of counsel required.” See In re E.K., 33 So. 3d

125, 127 (Fla. 2d DCA 2010) (“Although the supreme court has not explicitly said

so, it appears that a parent who is constitutionally entitled to appointed counsel in a

termination proceeding is implicitly entitled to effective assistance of counsel.”).

In an earlier case, E.T. v. State, 930 So. 2d 721, 722 (Fla. 4th DCA 2006), a

father whose parental rights in his two young children were terminated following a

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hearing, raised claims of ineffective assistance of counsel on appeal and in a

subsequent habeas petition. Citing D.B.’s holding that a parent has a constitutional

right to counsel in TPR proceedings, the Fourth District stated “the obvious—a

constitutional right to counsel means effective counsel; otherwise, the right is

meaningless.” Id. at 726. Accordingly, the Fourth District certified two questions

to this Court asking whether Florida recognizes the claim of ineffective assistance

in TPR proceedings and what procedure should be followed to vindicate the right.

E.T., 930 So. 2d at 729. See L.H. v. Dep’t of Child. & Fam., 995 So. 2d 583, 585

(Fla. 5th DCA 2008) (employing Strickland regarding ineffective assistance of

counsel claim in dependency case in which TPR was possible because of criminal

charges and certifying same questions as E.T.). Although we dismissed the review

in E.T. v. State, 957 So. 2d 559, 559-60 (Fla. 2007), we referred the “issue of

ineffective assistance of counsel claims in termination of parental rights cases ” to

two court rules committees. The committees, however, declined to address the

issue absent a clear recognition by this Court of a right to the effective assistance

of counsel. Consistent with our holding in D.B., 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.

C. The Standard for Ineffective Assistance in TPR Cases

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As we explained above, the constitutional right to counsel afforded indigent

parents in termination of parental right proceedings is not derived from the Sixth

Amendment to the United States Constitution, nor from article I, section 16 of the

Florida Constitution, both of which guarantee counsel to criminal defendants.

Instead, as this Court held in D.B., the right to counsel in TPR proceedings under

the state constitution stems from article I, section 9, which in turn provides in part

that “[n]o person shall be deprived of life, liberty, or property without due process

of law . . . .” 385 So. 2d at 90. Having recognized that the constitutional right to

counsel in termination of parental rights proceedings includes the right to effective

counsel, we now turn to the question of what standard applies to a determination of

counsel’s effectiveness.

The certified question asks whether the standard of Strickland, which applies

to ineffective assistance of counsel claims in criminal cases, should apply to such

claims made by indigent parents in civil TPR proceedings. Under Strickland, to

establish that counsel provided constitutionally ineffective assistance, the

defendant must establish that (a) counsel’s performance was deficient by showing

counsel “made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment,” and (b) that as a result of

those errors the defense was so prejudiced that the defendant was deprived of a fair

trial. 466 U.S. at 687. Prejudice under the Strickland standard is established if

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“confidence in the outcome is undermined.” Maxwell v. Wainwright, 490 So. 2d

927, 932 (Fla. 1986). The Department urges us to adopt this standard, pointing out

that of the States that have recognized a constitutional right to counsel in TPR

cases, many have adopted the Strickland standard for determining the effectiveness

of counsel. See, e.g., K.C. v. Jefferson Cnty. Dep’t of Human Res., 54 So. 3d 407,

412 (Ala. Civ. App. 2010); In Interest of A.H.P., 500 S.E.2d 418, 422 (Ga. Ct.

App. 1998); In re Adoption/Guardianship of Chaden M., 984 A.2d 420, 432-33 &

n.12. (Md. Ct. Spec. App. 2009) (“observ[ing] that the Strickland analysis is

generally familiar to both the bench and bar, including public defenders who are

called upon to represent parents in TPR proceedings at both the trial and appellate

level”).

Petitioner, on the other hand, argues that Strickland is inappropriate for TPR

cases, in part because that standard includes a strong presumption that counsel’s

performance was not deficient. Instead, Petitioner urges the adoption of the

fundamental fairness standard employed by the Oregon Supreme Court in State ex

rel. Juvenile Department of Multnomah County v. Geist, 796 P.2d 1193, 1203 (Or.

1990). Under Geist, “[a] particular tactical decision [by counsel] will constitute

inadequate assistance of counsel only if a court affirmatively finds that no adequate

counsel would have followed that tactic under the circumstances and, therefore,

that following that tactic reflected an absence or suspension of professional skill

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and judgment.” 796 P.2d at 1203 (emphasis in original). However, a reviewing

court’s finding that counsel provided inadequate assistance is insufficient for

reversal if the court also finds “that the proceeding was fundamentally fair and that

even with adequate counsel, the result inevitably, would have been the same.” Id.

at 1204. Hawai’i also adopted the fundamental fairness standard, because the

“constitutional bases of the respective rights to counsel are different [in TPR and

criminal cases],” and because of the “substantial differences in the purposes of

criminal as opposed to termination of parental rights proceedings.” In re RGB, 229

P.3d 1066, 1090 (Haw. 2010).

There are, of course, similarities between the interests at stake in TPR and

criminal proceedings. Both the criminal defendant and the indigent parent have the

right to a fair proceeding, appointment of counsel, and the attendant right to

effective assistance of counsel. Although derived from different constitutional

sources, these rights are inherently similar and are constitutionally guaranteed.

Moreover, the consequences of both a guilty verdict and an order terminating

parental rights are weighty. The right to effective assistance in either proceeding is

the right to reasonable, professional assistance. And in both contexts, not every

instance of deficient performance by counsel justifies setting aside a judgment.

There must ordinarily be a showing of prejudice based on an evaluation of the

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impact of counsel’s specific deficiencies on the result.1 So there necessarily are

similarities between the Strickland standard and the standard applicable in the TPR

context.

But there are important differences between the criminal context within

which the Strickland standard for ineffective assistance was developed and the

termination of parental rights context that we address here. As the Fourth District

explained,

a challenge to counsel’s effectiveness in a TPR differs significantly

from the traditional collateral attack on criminal judgments. It does

not involve the same rights; it does not involve the same liberty

interest; it does not involve the same standard of proof; it does not

involve the judge in the same role; it does not involve the same time

frames; and it does not involve the same parties.

E.T. v. State, 930 So. 2d 721, 726 (Fla 4th DCA 2006). Although the State has a

significant interest in the finality of both criminal and TPR judgments, the interest

in finality is substantially heightened in the TPR context by the very important

1. In U.S. v. Cronic, 466 U.S. 648, 658-60 (1984), however, the Supreme

Court recognized a narrow exception to Strickland’s two-pronged ineffective

assistance analysis of deficiency and prejudice under circumstances as to which

prejudice can be presumed. That is, the Court found it unnecessary to require a

defendant to demonstrate prejudice under “circumstances that are so likely to

prejudice the accused that the cost of litigating their effect in a particular case is

unjustified.” Id. at 658. Such instances include the denial of counsel at trial or at

any critical stage of trial and where “[c]ircumstances [are of such] magnitude [that]

the likelihood that any lawyer, even a fully competent one, could provide effective

assistance is so small that a presumption of prejudice is appropriate without inquiry

into the actual conduct of the trial.” Id. at 659-60.

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consideration that must be given to the child’s interest in reaching permanency and

to the harm that results when permanency is unduly delayed. We therefore

conclude that it is not appropriate simply to transplant Strickland and the body of

case law that it has spawned into the TPR context.

Given the various interests involved in TPR cases, we conclude that the

standard for determining ineffective assistance of counsel claims includes the

following elements. There is a strong presumption that the attorney representing a

parent, as a professional subject to the standards of the legal profession, has

provided reasonable, professional assistance. Accordingly, to overcome that

presumption and obtain relief from a TPR order, a parent must identify specific

errors of commission or of omission made by the parent’s counsel that under the

totality of the circumstances evidence a deficiency in the exercise of reasonable,

professional judgment in the case. Moreover, the parent must establish that,

cumulatively, this deficient representation so prejudiced the outcome of the TPR

proceeding that but for counsel’s deficient representation the parent’s rights would

not have been terminated. If the parent establishes that the result of the TPR

proceeding would have been different absent the attorney’s deficient performance,

the order terminating parental rights should be vacated, and the case returned to the

circuit court for further proceedings. This requires a showing of prejudice that

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goes beyond the Strickland requirement that confidence in the outcome is

undermined.

D. A Temporary Procedure for Ineffective Assistance Claims in TPR Cases

Having recognized an indigent parent’s right to effective assistance and set

forth the standard for determining ineffective assistance of counsel, we now turn to

the issue of procedure. Here we direct rulemaking to develop a procedure for

addressing such claims in cases in which parental rights are terminated. We also

recognize an interim procedure for bringing claims of ineffective assistance which

will become effective upon this opinion becoming final until such time as the

formal process of rulemaking is completed and a rule of procedure is approved by

this Court.

Before we outline the temporary process for bringing ineffective assistance

claims after the termination of parental rights, we first address an underlying

concern as to any process developed for such claims. In discussing the appropriate

standard for TPR ineffective assistance of counsel claims, we highlighted the

important interest that the child has in reaching permanency. Timely disposition of

TPR ineffective assistance of counsel claims is essential in light of the harm to the

child that results when permanency is unduly delayed. In Lehman v. Lycoming

County Children’s Services Agency, 458 U.S. 502 (1982), the Supreme Court was

similarly concerned with time when it rejected a parent’s use of the federal habeas

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corpus provision, 28 U.S.C. § 2254, to obtain collateral review of a state court

order involuntarily terminating parental rights. The Court commented as follows:

The State’s interest in finality is unusually strong in child -

custody disputes. The grant of federal habeas would prolong

uncertainty for children . . . , possibly lessening their chances of

adoption. It is undisputed that children require secure, stable, long-

term, continuous relationships with their parents or foster parents.

There is little that can be as detrimental to a child’s sound

development as uncertainty over whether he is to remain in his current

“home,” under the care of his parents or foster parents, especially

when such uncertainty is prolonged. Extended uncertainty would be

inevitable in many cases if federal courts had jurisdiction to relitigate

state custody decisions.

458 U.S. at 513-14.

For this reason, the process providing parents whose rights to their children

have been terminated with the means to enforce their right to the effective

assistance of counsel must proceed to resolution within a strictly limited

timeframe. See E.T., 930 So. 2d at 728 (discussing the “perils inherent in the use

of habeas corpus petitions” for ineffective assistance claims in TPR cases, “such as

unlimited time to file the petition”); In re E.H., 609 So. 2d 1289, 1291 (Fla. 1992)

(limiting use of habeas corpus petition in TPR cases to claims of entitlement to

belated appeal where counsel failed to file timely notice of appeal); see also E.K.,

33 So. 3d at 126 (holding that motion for relief from judgment under Florida Rule

of Juvenile Procedure 8.270 “was not a proper mechanism through which to raise a

claim of ineffective assistance of counsel in a termination proceeding”).

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Subsection 39.815(1), Florida Statutes (2007), already requires that the district

courts “shall give an appeal from an order terminating parental rights priority in

docketing” and further requires that they “shall render a decision on the appeal as

expeditiously as possible.” And Florida Rule of Appellate Procedure 9.146

specifies the special procedures and time limitations applicable to appeals from

final orders in dependency and TPR proceedings. Accordingly, the post-TPR

proceedings developed must assure a prompt, short-lived process for adjudicating

ineffective assistance claims regarding TPR orders.

In the interim, we provide the following procedure to be followed in

bringing claims of ineffective assistance of counsel following the termination of

parental rights. Because our temporary plan requires that claims of ineffective

assistance first must be raised by the parent and ruled on by the trial court, it will

be necessary for the trial judge to ensure that the parents whose rights are at issue

are informed of their rights. At the conclusion of each TPR adjudicatory hearing,

the circuit court shall orally inform the parents for whom counsel was appointed in

accordance with the law of (1) the right to appeal the order entered at the

conclusion of the TPR proceedings to the district court, and (2) the right to file a

motion in the circuit court alleging that appointed counsel provided

constitutionally ineffective assistance if the court enters a judgment terminating

parental rights. In addition, a written order terminating parental rights shall

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include a brief statement informing the parents of the right to effective assistance

and a brief explanation of the procedure for filing such a claim.

Just as the majority of criminal defendants have no right to appointed

postconviction counsel and must file claims of ineffective assistance of counsel pro

se in the circuit court under Florida Rule of Criminal Procedure 3.850, indigent

parents—likewise without the assistance of appointed counsel—must file a motion

in the circuit court claiming ineffective assistance of trial counsel in the TPR

proceeding. However, because of the importance of timely processing of such

claims, any appeal from an order denying a motion alleging the ineffective

assistance of counsel will be raised and addressed within any appeal from the order

terminating parental rights.

Under the interim procedure for ineffective assistance of counsel claims, a

parent—without assistance of appointed counsel—shall have twenty (20) days

after the termination judgment issues within which to file a motion in the trial court

alleging claims of ineffective assistance of counsel. The motion must contain the

case name and number, and identify the date the order of termination of parental

rights issued. In the motion, the parent shall identify specific acts or omissions in

trial counsel’s representation of the parent during the TPR proceedings that the

parent alleges constituted a failure to provide reasonable, professional assistance.

The parent must explain how the errors or omissions prejudiced the parent’s case

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in the termination proceeding to such an extent that the result would have been

different absent the deficient performance. If a parent files an ineffective

assistance of counsel motion, rendition of the order in the TPR proceeding will be

tolled for purposes of appeal until the circuit court issues an order on the pro se

ineffective assistance motion.

If a parent chooses to file a motion claiming ineffective assistance of

counsel, counsel of record cannot continue representation. Under the current rules,

after entry of the order terminating parental rights, counsel of record for the parent

is not permitted to withdraw from representation of the parent until the “attorney

certifies that the attorney has discussed appellate remedies with the parent” and the

parent has chosen not to appeal. Fla. R. Juv. P. 8.517(a)(1). If the parent chooses

to appeal, the attorney must certify, among other things, that the parent so chose,

that a notice of appeal signed by counsel and the parent has been filed, and that an

order appointing appellate counsel, if any, has been entered. Id.

In light of our decision here, the appointed attorney representing an indigent

parent, must—after issuance of an order terminating parental rights—discuss

appellate remedies and determine whether the parent wants to appeal the TPR

order. If the answer is affirmative, regardless of the parent’s prior contrary

representation to the circuit judge, counsel must also inquire whether the parent

intends to file a motion claiming ineffective assistance of counsel. If the parent

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responds affirmatively, then counsel must immediately seek withdrawal on this

basis. In addition, if the parent subsequently files a motion alleging ineffective

assistance despite the parent’s prior expression of a contrary intent, if counsel of

record is also appellate counsel withdrawal is required at that time, and new

counsel will be appointed for any appeal from the TPR order and from the

disposition of the ineffective assistance of counsel motion. As stated above, the

parent is entitled to appointed counsel with regard to the termination in both the

trial and appellate court, but the parent is not entitled to appointed counsel in any

trial court proceeding regarding a motion alleging ineffective assistance of counsel.

When a parent files a motion alleging ineffective assistance of counsel,

rendition of the trial court’s TPR order will be tolled for purposes of appeal until

the trial court rules on any claim of ineffective assistance of counsel. The trial

court shall promptly review the ineffective assistance motion and order

compilation of the record regarding the termination of parental rights proceedings

on an expedited basis. Further, the trial court shall conduct proceedings, including

an evidentiary hearing if necessary, to determine whether the motion should be

granted or denied. The circuit court shall render an order within twenty-five (25)

days after the motion alleging ineffective assistance was filed or the motion shall

be deemed denied. On appeal, the district court will review claims regarding the

parent’s appeal from the trial court’s TPR order and from the disposition of the

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ineffective assistance motion. This process will apply to any case in which a

judgment terminating parental rights is entered after this case becomes final.

The above process will remain in place until the rules governing such a

process become effective upon approval by this Court. Creation of the permanent

process and development of the attendant rules will be the task of a special

committee, the members of which will be selected by the Chief Justice of this

Court. The members will be chosen from the Juvenile Court Rules Committee, the

Appellate Court Rules Committee, and others with relevant expertise from related

areas. The proposed rules developed by the Chief Justice’s Select Committee shall

be submitted to this Court by or on November 30, 2015.

E. Petitioner Is Not Entitled to Relief

Finally, we turn to the merits of the specific claims of ineffective assistance

presented by J.B. in this case. Petitioner argues in conclusory fashion that she did

not receive constitutionally effective assistance of counsel in the TPR proceedings

under the standards of either Strickland or Geist and that she was prejudiced by

counsel’s performance. Although Petitioner did not raise any claims of ineffective

assistance in the trial court, she raised the following ten claims on appeal to the

First District.

[H]er counsel was ineffective for (1) filing an untimely motion for a

continuance to investigate prospective fathers; (2) admitting he was

exhausted and not prepared to go forward during opening statements;

(3) erroneously believing the mother was still a minor when the child

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was sheltered; (4) allowing the introduction of hearsay in the form ofly