Procedures for Ineffective Assistance of Counsel Claims

This Supreme Court decision establishes new procedures for ineffective assistance of counsel claims for termination of parental rights proceedings.

In Re: Amendments to Florida Rules of Juvenile Procedure and Florida Rule of Appellate Procedure 9.146, 2017 WL 1090564 (Fla.)
In 2015, the Supreme Court established interim procedures for bringing ineffective assistance of counsel claims following termination of parental rights hearings.  J.B. V. Florida Department of Children and Families, 170 So. 3d 780, 794-95 (Fla. 2015).  The Chief Justice then created the Select Committee on Claims of Ineffective Assistance of Counsel in Termination of Parental Rights Proceedings, which included a number of agencies that work in child projection including the Guardian ad Litem program.  This committee worked with the Appellate Court Rules Committee and the Juvenile Court Rules Committee to create a permanent process for ineffective assistance of counsel claims and create proposed rules.  Two versions of the rules were proposed: one applies only to court appointed counsel for indigent parents, the second for all counsel for all parents.  The Juvenile Court Rules Committee favored the latter, which was adopted by the Supreme Court with some modifications.

Rule of Juvenile Procedure  8.510 (Advisory Hearings and Pretrial Status Conferences), 8.517 (Withdrawal and Appointment of Attorney), and 8.525 (Adjudicatory hearings) are all amended to include provisions for parents to be advised of their right to effective counsel and their right to make a claim of ineffective assistance of counsel.

Rule 8.530 (Parents Motion Claiming Ineffective Assistance of Counsel Following Order Terminating Parental Rights) is the new Rule of Juvenile Procedure which sets forth procedures for parents to file a claim of ineffective assistance of counsel.  The new rule provides for the following:

  • Court must advise a parent of his/her right to appeal and file a claim of ineffective assistance of counsel.
  • An indigent parent is not entitled to a court appointed attorney to assist with filing a motion claiming ineffective assistance of counsel but is entitled to counsel in both the trial and appellate court proceedings.
  • A motion for ineffective assistance of counsel must be filed within twenty days of the date the court entered the written order terminating parental rights.
  • A timely filed motion claiming ineffective assistance of counsel tolls rendition of the termination order until the court issues an order on the matter or for fifty days, whichever comes first.
  • A movant must identify in the motion specifics acts or omissions in the attorneys representation “that constituted a failure to provide reasonable, professional assistance and explain how those acts or omissions prejudiced the parents case to such an extent that the result would have been different . . . “
  • No answer or response is required from any other party.
  • The court is required to hold an evidentiary hearing is the motion is timely and sufficient.
  • The moving parent has the burden of proof.
  • The court must issue an order on the motion within five days of the evidentiary hearing.
  • If the motion is granted, the court must issue a written order detailing the reasons for granting the motion and schedule an adjudication hearing within forty-five days from the date of the order granting the motion.
  • An attorney must be appointed for the parent.
  • If the motion is denied, the court must issue a written order detailing the reasons for the denial.
  • If a written order is not issued within fifty days of the termination order, the motion is deemed denied with prejudice

New forms were created to effectuate the rules.  Finally, the Supreme Court modified Rule of Appellate Procedure 9.146 (Appeal Proceedings in Juvenile Dependency and Termination of Parental Rights Cases and Cases Involving Families and Children and Need of Services) to include provisions for appeals from orders involving claims of ineffective assistance of counsel in line with the new Juvenile Procedure Rule.

Look for Training Video on this subject to be posted soon on the GAL website.

Read the Opinion