J.B. v. Department of Children and Families, 2014 WL 4976981 (Fla. 1st DCA)

Mother appealed termination of her parental rights claiming she was denied effective assistance of counsel. The First District Court of Appeal (First DCA) affirmed termination but addressed the current standard for determining ineffective assistance of counsel and the procedure for raising an ineffective claim. The First DCA certified both questions.

Mother asserted a number of concerning issues with her counsel including filing of an untimely motion for a continuance to investigate paternity, stating during opening statements that he was exhausted and unprepared, incorrectly stating the facts of the case, allowing hearsay in without objection, failing to file a witness list, objecting to Mother presenting a witness, failing to cross-examine or object to the guardian ad litem’s testimony or report, failing to address Mother’s claim that a relative placement should have been utilized, misleading the court during closing argument and failing to object to the trial court’s failure to advise Mother of advocacy services.

 The First DCA cited to L.W. v. Department of Children and Families, 812 So. 2d 551 (Fla. 1st DCA 2002), which adopted the criminal standard of ineffective assistance of counsel set forth in  Strickland v. Washington, 446 US 668 (1984). “Thus, in order to establish ineffective assistance of counsel, the parent must establish that counsel’s performance was deficient and prejudiced the parent, i.e., there is a reasonable probability that parental rights would not have been terminated absent counsel’s deficient performance.” Although the First DCA expressed serious concern regarding counsel for Mother’s statements and behavior, the court found that Mother failed to show 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.” Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002).

The First DCA expressed concern for the lack of established procedure for a parent to make a claim of ineffective assistance of counsel in termination proceedings when additional fact finding would be needed. The First DCA urged the Supreme Court to create a rule adopting a new procedural mechanism.

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