Parents have a right to effective assistance of counsel in TPR cases
Parents have a right to effective assistance of counsel in TPR cases
Senior Editor
The former foster child was now a 21-year-old mother, standing before the judge who weighed whether she should lose parental rights of her 4-year-old child.
She faced allegations of abusing drugs, living in a “crack house” and a homeless shelter where she left the child alone with strangers. She was jailed for violating her probation. A psychologist testified the mother had attention deficit hyperactivity disorder, post-traumatic stress disorder, and anti-social personality disorder.
Standing at the mother’s side was her lawyer, who admitted during opening statement that he was “really exhausted,” was not prepared to go forward with the trial, and had put in 80 hours already that week. The day before this trial, he had filed a motion for a continuance, which the judge denied.
At one point during the trial, when the judge asked the lawyer for an applicable statute, the lawyer answered he didn’t have his statute book with him. When the judge gave him one, the lawyer said, “I’m so tired, I may be doing everything, again, wrong.. . . ”
Springing from this case — J.B., etc. v. Florida Department of Children and Families — the Florida Supreme Court considered two questions of great public importance certified by the First District Court of Appeal about an indigent’s parent’s right to counsel in termination proceedings:
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?
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?
On July 9, in Case No. SC 14-1990, the Florida Supreme Court answered “no” to the first question, and “yes” to the second.
“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,” the court said in its per curiam opinion (in which Justice Ricky Polston recused himself).
“.. . [W]e hold that the right to counsel in termination of parental rights proceedings includes the right to effective assistance and requires a means of vindicating that right.”
The court went on to establish the appropriate standard for determining whether counsel provided “constitutionally ineffective assistance” in termination of parental rights proceedings. And the court provided a temporary process for bringing such claims until a special committee, with members selected by Chief Justice Jorge Labarga, creates a permanent process.
In a separate concurring opinion, Justice Barbara Pariente stressed members of the Chief Justice’s Select Committee advising the court on permanent rules should consist of judges and lawyers with expertise in this area of the law. She suggested members should include judges on the Dependency Court Improvement Panel, under the aegis of the Family Court Steering Committee, as well as members of The Florida Bar’s Standing Committee on the Legal Needs of Children, the Guardian ad Litem Program, Florida’s Children First, and DCF.
“I concur in the court’s opinion but with trepidation because providing a mechanism to vindicate ineffective assistance of counsel claims in termination of parental rights proceedings should not unintentionally cause negative consequences in the life of a child as a result of further delay,” Justice Pariente wrote.
“My chief concern, which has been echoed by the Office of the Statewide Guardian ad Litem, is that despite our best efforts, the obvious danger in establishing a procedure for parents to file a claim of ineffective assistance of counsel in TPR proceedings is that we may delay permanency for the child.
“Even if that delay is ‘only’ a matter of 45 days at the trial level — 20 days to file the motion and 25 days for the trial court to issue a ruling — the ability of a parent to raise this issue and appeal a denial undoubtedly will complicate the process. So too will the requirement that different counsel be appointed — a necessary procedure but one that nevertheless carries the risk of further delaying the finality of the termination of parental rights because new counsel will be unfamiliar with what may at that point be a long and complicated record.
“And, with any delay, we increase the risk of thwarting adopting of the child into a loving family.”
Pariente pointed out that this case “provides a telling example of delay,” even though there were efforts to expedite the case along the way. The child was born on November 29, 2009; an order of termination of parental rights was entered on August 13, 2013; and an appellate decision issued on October 7, 2014, was still in legal limbo.
In the court’s per curiam opinion, the justices concluded that the mother in this case “failed to present any basis for setting aside the order terminating her parental rights,” and the Supreme Court approved the First DCA decision to terminate her parental rights.
