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Amendments to the juvenile procedure and appellate rules

Notices

Amendments to the juvenile procedure and appellate rules

The Select Committee on Claims of Ineffective Assistance of Counsel in Termination of Parental Rights Proceedings and The Florida Bar’s Appellate Court and Juvenile Court Rules Committees have submitted to the Florida Supreme Court a joint out-of-cycle report offering the Court two sets of amendments to the Florida Rules of Juvenile Procedure and Florida Rule of Appellate Procedure. The proposals are in response to the Court’s request for proposed rules for raising claims of ineffective assistance of counsel following the termination of parental rights. See J.B. v. Florida Department of Children and Families, 170 So. 3d 780, 793-795 (Fla. 2015). The first set of rules are narrowly tailored to provide an ineffective assistance of court-appointed counsel claim for indigent parents whose parental rights have been terminated (Narrow Set of Amendments). The second set of rules is broader and would apply to counsel for all parents whose parental rights have been terminated (Broad Set of Amendments). The Court invites all interested persons to comment on the proposals, which are reproduced in full below, as well as online at http://www.floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the Court on or before June 1, 2016, with a certificate of service verifying that a copy has been served on the Committee Chairs, Judge Sandra Sue Robbins, Chair, Select Committee on Claims of Ineffective Assistance of Counsel in Termination of Parental Rights Proceedings, Marion County Judicial Center, 110 NW 1st Avenue, Ocala, Florida 334475-6601 ([email protected]); Judge T. Kent Wetherell, II, Chair, Appellate Court Rules Committee, 2000 Drayton Drive, Tallahassee, Florida 32399-0950 ([email protected]); and Robert William Mason, Chair, Juvenile Court Rules Committee, 407 North Laura Street, Jacksonville, Florida 32202-3109 ([email protected]); and on the Bar Staff Liaisons to the rules committees, Heather Savage Telfer ([email protected]), and Gregory A. Zhelesnik ([email protected]), 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral, which may be scheduled in this case. The Committee Chairs have until June 22, 2016, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA

IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE AND FLORIDA RULE OF APPELLATE PROCEDURE 9.146, CASE NO. SC16-553

nARROW SET OF AMENDMENTS

Rule 8.510. Advisory Hearing and Pretrial Status Conferences

(a) Advisory Hearing.

(1) [No Change]

(2) The court must:

(A) advise the parents of their right to counsel including the right to an effective court-appointed attorney and appoint counselan attorney in accordance with legal requirements;

(B) – (D) [No Change]

(3) – (5) [No Change]

(b) – (c) [No Change]

RULE 8.517. WITHDRAWAL AND APPOINTMENT OF COUNSELATTORNEY

(a) Withdrawal of Attorney after Order Adjudicating Child Dependent or Terminating Parental Rights. After an order of adjudication of dependency, or an order of dependency disposition, or an order terminating parental rights has been entered, the counselattorney of record for a parent or legal custodian in a dependency proceeding or a parent in a termination of parental rights proceeding shall not be permitted to withdraw as counsel of recordthe attorney until the following have occurred:

(1) The attorney certifies that the attorney has discussed appellate remedies with the parent or legal custodian.

(A)(1) The attorney certifies that after discussing appellate remedies with the parent or legal custodian, the parent or legal custodian does not wantelects not to appeal the order; or

(B)(2) The attorney certifies that after discussing appellate remedies with the parent or legal custodian, the parent or legal custodian wantselects to appeal the order, and

(i)(A) a notice of appeal containing the signatures of counselthe attorney and the parent or legal custodian has been filed or a notice of appeal containing the signature only of the attorney has been filed if the parent or legal custodian elects to appeal but is unable to personally timely sign the notice and that an amended notice of appeal containing the parent’s or legal custodian’s signature will be filed;

(ii)(B) directions to clerk, if necessary, have been filed;

(iii)(C) a motion to transcribe the requisite proceedings has been filed;

(iv)(D) a designation to the court reporter specifying the proceedings that must be transcribed in order to obtain review of the issues on appeal and designating the parties to receive a copy of the transcripts has been filed; and

(v)(E) an order appointing appellate counsel, if any, has been entered.

Conformed copies of each of these documents shall be attached to the motion to withdraw.

(2)(3) If the attorney has beenis unable to contact the parent or legal custodian regarding appellate remedies, the attorney certifies and describes the efforts made to contact the parent or legal custodian.

(b) Withdrawal of Attorney after Order Terminating Parental Rights. After an order terminating parental rights has been entered, the attorney of record for a parent in a termination of parental rights proceeding shall not be permitted to withdraw as attorney until the following have occurred:

(1) Discussion of Appeal.

(A) The attorney certifies that after discussing appellate remedies with the parent, the parent elects not to appeal the order terminating parental rights; or

(B) The attorney certifies that after discussing appellate remedies with the parent, the parent elects to appeal the order terminating parental rights; and

(i) a notice of appeal containing the signatures of the attorney and the parent has been filed or a notice of appeal containing the signature only of the attorney has been filed if the parent elects to appeal but is unable to personally timely sign the notice and that an amended notice of appeal containing the parent’s signature will be filed;

(ii) directions to clerk, if necessary, have been filed;

(iii) a motion to transcribe the requisite proceedings has been filed;

(iv) a designation to the court reporter specifying the proceedings that must be transcribed in order to obtain review of the issues on appeal and designating the parties to receive a copy of the transcripts has been filed; and

(v) an order appointing appellate counsel, if any, has been entered.

Conformed copies of each of these documents shall be attached to the motion to withdraw.

(2) Discussion of Ineffective Assistance of Counsel Claim.

(A) The court-appointed attorney certifies that after discussing the right of an indigent parent to file a motion claiming ineffective assistance of court-appointed counsel, the parent elects not to file the motion, or

(B) The court-appointed attorney certifies that after discussing the right of the parent to file a motion claiming ineffective assistance of court-appointed counsel, the parent elects to file a motion. Consequently, the court-appointed attorney must immediately seek to withdraw from representation of the parent.

(3) Inability to Discuss Remedies. If the court-appointed attorney is unable to contact the parent regarding appellate remedies and the right to file a motion claiming ineffective assistance of court-appointed counsel, the attorney certifies and describes the efforts made to contact the parent.

(c) Appointment of Appellate Counsel. If the court permits the attorney to withdraw, the court must expeditiously appoint appellate counsel for indigent parents pursuant to law. The indigent parent is not entitled to a court-appointed attorney in any trial court proceeding regarding a motion claiming ineffective assistance of counsel. However, a parent may independently retain an attorney to assist in any trial court proceeding regarding a motion claiming ineffective assistance of court-appointed counsel.

(d) Service of Order Appointing CounselAttorney. Following rendition of an order appointing appellate counsel, the court shallmust serve a copy of the order on the appointed appellate counsel and the clerk of the appellate court.

Committee Note

Amendment 20__. Significant amendments were made to create a process for claiming ineffective assistance of court-appointed counsel in termination of parental rights proceedings. J.B., etc. v. Florida Department of Children and Families , 170 So. 3d 780 (Fla. 2015). A parent’s right to appointed counsel is governed by sections 39.013(9)a. and 27.511, Florida Statutes.

Rule 8.525. Adjudicatory Hearings

(a) – (h) [No Change]

(i) Advisement of Right to Appeal and File Ineffective Assistance of Counsel Motion. At the conclusion of the adjudicatory hearing, the court must orally inform the parents for whom counsel was appointed of the right to appeal any order terminating parental rights to the district court of appeal and the right to file a motion in the circuit court claiming that court-appointed counsel provided ineffective assistance.

(j) Final JudgmentOrder.

(1) Terminating Parental Rights.

(A) If the court finds after all of the evidence has been presented that the elements and one of the grounds for termination of parental rights have been established by clear and convincing evidence, the court shall enter a final judgmentwritten order terminating parental rights and proceed with dispositional alternatives as provided by law.

(B) The order must contain the findings of fact and conclusions of law on which the decision was based. The court shall include the dates of the adjudicatory hearing in the order.

(C) The order must include a brief statement informing the parents of the right to appeal the order to the district court of appeal and the right to file a motion in the circuit court alleging that court-appointed counsel provided ineffective assistance and a brief explanation of the procedure for filing such a claim.

(D) The parties may stipulate, or the court may order, that parents or relatives of the parent whose rights are terminated be allowed to maintain some contact with the child. If the court orders continued contact, the nature and frequency of this contact must be stated in a written order. The visitation order may be reviewed on motion of any party, including a prospective adoptive parent, and must be reviewed by the court at the time the child is placed for adoption.

(2) – (3) [No Change]

RULE 8.530. PARENT’S MOTION CLAIMING INEFFECTIVE ASSISTANCE OF court-appointed COUNSEL FOLLOWING ORDER TERMINATING PARENTAL RIGHTS

(a) Duty of the Court to Advise. At the conclusion of the termination of parental rights adjudicatory hearing, the court must orally inform the indigent parents who are represented by a court-appointed attorney of the right to appeal an order terminating parental rights to the district court of appeal and the right to file a motion in the circuit court claiming that a court-appointed attorney provided ineffective assistance if the court enters an order terminating parental rights. In addition, the written order terminating parental rights must include a brief statement informing the parents of the right to file a motion claiming ineffective assistance of counsel and a brief explanation of the procedure for filing the motion.

(b) Duty of Court-Appointed Attorney to Advise. After entry of an order terminating parental rights, a court-appointed attorney must discuss appellate remedies with the indigent parent and determine whether the parent elects to appeal the order terminating parental rights. The attorney must also inquire whether the parent intends to file a motion claiming ineffective assistance of counsel. If the parent states an intention to file a motion claiming ineffective assistance of court-appointed counsel, then the court-appointed attorney must immediately seek withdrawal pursuant to these rules.

(c) Motion and Jurisdiction. After the court has entered a written order terminating parental rights, an indigent parent may file a motion in the circuit court claiming that the parent’s court-appointed attorney provided ineffective assistance. If a notice of appeal of the order terminating parental rights is filed, the trial court continues to have jurisdiction to consider a motion claiming ineffective assistance of court-appointed counsel.

(d) Court-Appointed Attorney.

(1) An indigent parent is not entitled to a court-appointed attorney to assist the parent in preparing, filing, or litigating a motion claiming ineffective assistance of court-appointed counsel. However, the parent may independently obtain an attorney to represent the parent in pursuing the motion.

(2) An indigent parent is otherwise entitled to a court-appointed attorney as provided by law in both the trial and appellate court in a termination of parental rights proceeding, and is entitled to a court-appointed attorney concerning appellate review of the trial court’s order on the motion for ineffective assistance of counsel.

(e) Time Limitations. A motion claiming ineffective assistance of court-appointed counsel must be filed within 20 days of the date the court entered the written order terminating parental rights.

(f) Toll of Time for Appeal. The timely filing of a motion claiming ineffective assistance of court-appointed counsel tolls rendition of the order terminating parental rights for purposes of appeal until the circuit court enters an order on the motion or for 50 days from the date the court entered the written order terminating parental rights, whichever occurs first.

(g) Contents of Motion.

(1) The motion must be in writing and under oath stating that all of the facts stated are true and correct.

(2) The motion must contain the case name and number and identify the date the written order terminating parental rights was entered.

(3) The motion must contain the current mailing address and e-mail address, if any, and the phone number(s) of the parent filing the motion for the purpose of receiving notices and orders.

(4) The motion must identify specific acts or omissions in the court-appointed attorney’s representation of the parent during the termination of parental rights proceedings that constituted a failure to provide reasonable, professional assistance and explain how the acts or omissions prejudiced the parent’s case to such an extent that the result would have been different absent the deficient performance.

(h) Amendments to Motion. If the motion claiming ineffective assistance of court-appointed counsel is timely filed, the parent may file amended motions without permission of the court within 20 days from the date the court entered the written order terminating parental rights. The court may order the moving parent to file an amended motion as provided in this rule.

(i) Delivery of Motion to Judge. On filing of the motion, the clerk of court must immediately provide the motion and court file to the judge who entered the order terminating parental rights.

(j) Response to Motion. No answer or responsive pleading is required from any other party to the termination of parental rights proceeding.

(k) Service of the Motion. The parent claiming ineffective assistance of counsel must serve the motion on all parties to the termination of parental rights proceeding and to the court-appointed attorney the parent claims provided ineffective assistance.

(l) Summary Denial of Motion.

(1) Untimely Motion. The court must enter an order within 5 days from the date the motion or amended motion was filed summarily denying with prejudice any motion filed after the 20-day limitation for filing. The order shall be considered the final order for purposes of appeal.

(2) Insufficient Motion. If the motion or amended motion is legally insufficient as alleged, the court may enter an order summarily denying the motion within 5 days from the date the motion or amended motion was filed. A motion is legally insufficient when the allegations of ineffective assistance of court-appointed counsel during the termination of parental rights proceedings, if taken as true, did not prejudice the parent’s case to such an extent that the result would have been different absent the deficient performance. The order denying a motion as legally insufficient must set forth the basis for the conclusion the motion is legally insufficient. The court must not summarily deny a motion as insufficient for reasons other than legally insufficient allegations claiming ineffective assistance of court-appointed counsel. If the court denies the motion as legally insufficient and does not direct the filing of an amended motion, then the order shall be considered the final order for purposes of appeal.

(m) Order for Amended Motion. If the motion or amended motion is legally insufficient as alleged, the court may enter an order within 5 days from the date the motion, or amended motion, was filed authorizing the moving parent to file an amended motion within 10 days of the date of the written order permitting amendment.

(n) Evidentiary Hearing on Motion.

(1) Scheduling of Hearing. If the motion is timely and, in the court’s opinion, contains sufficient allegations, the court must conduct an evidentiary hearing as expeditiously as possible in light of the other time limitations in this rule.

(2) Notice of Hearing. The court must issue a notice of the hearing on the motion to the parties and participants of the termination of parental rights proceeding and to the court-appointed attorney who the parent claimed provided ineffective assistance. The notice must state the issues to be determined and that the moving parent is required to present evidence at the hearing on the motion.

(3) Record of Termination of Parental Rights Adjudicatory Hearing. If necessary, the court may order an expedited record for review, which may include an electronic recording in lieu of a transcript, of the termination of the parental rights adjudicatory hearing. If the judge conducting the motion hearing is different from the judge who presided at the termination of parental rights adjudicatory hearing, the court must order an expedited record for review, which may include an electronic recording in lieu of a transcript, of the termination of parental rights adjudicatory hearing.

(4) Burden to Present Evidence and Proof. At the evidentiary hearing, the moving parent has the burden of presenting evidence and the burden of proving specific acts or omissions of a court-appointed attorney’s representation of the parent during the termination of parental rights proceedings that constituted a failure to provide reasonable, professional assistance, and how the errors or omissions prejudiced the parent’s case to such an extent that the result would have been different absent the deficient performance. All other parties may present evidence regarding the claims raised.

(5) Order from Evidentiary Hearing. At the conclusion of the hearing on the motion, the court must enter an order granting or denying the motion within 5 days from the evidentiary hearing.

(A) Grant of Motion. If the court determines that the court-appointed attorney during the termination of parental rights proceedings failed to provide reasonable, professional assistance and that the errors or omissions prejudiced the parent’s case to such an extent that the result would have been different absent the deficient performance, the court must enter an order granting the motion stating the reasons for granting the motion and vacating the order terminating parental rights without prejudice. In the order, the court must schedule an adjudicatory hearing on the petition for termination of parental rights to take place no later than 45 days from the order granting the motion. The court must then appoint an attorney to represent the parent in further proceedings, as provided by law.

(B) Denial of Motion. If the court determines that the court-appointed attorney during the termination of parental rights proceedings provided reasonable, professional assistance or determines that no errors or omissions prejudiced the parent’s case in the termination proceedings to such an extent that the result would have been different absent the deficient performance, the court must enter an order denying the motion, stating the reasons for denial. The order resolves all the claims raised in the motion and shall be considered the final order for purposes of appeal.

(o) Failure to Enter Order. If the court does not enter an order granting or denying the motion within 50 days from the date the court entered the written order terminating parental rights, the motion shall be deemed denied with prejudice.

(p) Service of Order. The clerk of the court must serve any order entered under this rule on the parties, including to the moving parent at the parent’s address on file with the clerk, within 48 hours from the rendition of the order indicating the date of service by an appropriate certificate of service.

(q) Successive Motions. No second or successive motion claiming ineffective assistance of court-appointed counsel shall be allowed except as provided in this rule. No motion for rehearing shall be allowed in response to the court’s ruling on the motion claiming ineffective assistance of court-appointed counsel.

(r) Appeals. Florida Rule of Appellate Procedure 9.146 applies to the appeal of an order on a motion claiming ineffective assistance of court-appointed counsel in termination of parental rights proceedings.

Form 8.983. Adjudication Order and Judgment of Involuntary Termination ofORDER INVOLUNTARILY TERMINATING Parental Rights


ORDER OF ADJUDICATION AND JUDGMENT OF INVOLUNTARY TERMINATION OF INVOLUNTARILY TERMINATING PARENTAL RIGHTS


THIS CAUSE came before this court on. …. ….. (all dates of the adjudicatory hearing) …... …. for an adjudicatory hearing on the Petition for Termination of Parental Rights filed by. …. ….. (name) . ….. ….. Present before the court were:

…... ….…..(Name). ….….., Petitioner
…... ….…..(Name). ….….., Attorney for the petitioner
…... ….…..(Name). ….….., Attorney for the department
…... ….…..(Name). ….….., Department caseworker
…... ….…..(Name). ….….., Child
…... ….…..(Name). ….….., Attorney for Child
…... ….…..(Name). ….….., Mother
…... ….…..(Name). ….….., Attorney for mother
…... ….…..(Name). ….….., Father of. ….….. (child). ….…..
…... ….…..(Name). ….….., Attorney for father
…... ….…..(Name). ….….., Guardian ad litem
…... ….…..(Name). ….….., Attorney for guardian ad litem
…... ….…..(Name). ….….., Legal custodian
…... ….…..(Name). ….….., Attorney for legal custodian
…... ….…..(Name). ….….., Other:. ………

The court has carefully considered and weighed the testimony of all witnesses. The court has received and reviewed all exhibits.

COMMENT: Add the following only if necessary.

The petitioner has sought termination of the parental rights of. ….….. (parent(s)) who is/are subject of petition)……….

The court finds that the parent(s),. ….….. (name(s)). ….….., has/have. ….….. (list grounds proved). ….….., under chapter 39, Florida Statutes. The grounds were proved by clear and convincing evidence. Further, the court finds that termination of parental rights of the parent(s),. ….….. (name(s)). ….….., is clearly in the manifest best interests of the child(ren). The findings of fact and conclusions of law supporting this decision are as follows:

1. At all stages of these proceedings the parent(s) was/were advised of his/her/their right to legal counsel, or was/were in fact represented by counsel.

2. On or about. ….….. (date(s)). ….….., the following occurred:. ….….. (acts which were basis for dependency or TPR, if filed directly)……….

3. The mother has. ….….. (grounds for TPR). ….….. the minor child(ren) within the meaning and intent of section 39.806, Florida Statutes, in that:. ….….. (findings that form the statutory basis for grounds)……….

4. The father has. ….….. (grounds for TPR). ….….. the minor child(ren) within the meaning and intent of section 39.806, Florida Statutes, in that:. ….….. (findings that form the statutory basis for grounds)……….

5. The minor child(ren) to whom. ….….. (parent’s(s’) name(s)). ….….. parental rights are being terminated are at substantial risk of significant harm. Termination of parental rights is the least restrictive means to protect the child(ren) from harm.

6. Under the provisions of sections 39.810(1)–(11), Florida Statutes, it is in the manifest best interests of the child(ren) for parental rights of. ….….. (name(s)). ….….. to be terminated for the reasons below. The court has considered all relevant factors and finds as follows:

(a) Regarding any suitable permanent custody arrangement with a relative of the child(ren), the court finds. ……….

(b) Regarding the ability and disposition of the parent or parents to provide the child(ren) with food, clothing, medical care, or other remedial care recognized and permitted under state law instead of medical care, and other material needs of the child(ren), the court finds. ……….

(c) Regarding the capacity of the parent or parents to care for the child(ren) to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child(ren)’s return home, the court finds. ……….

(d) Regarding the present mental and physical health needs of the child(ren) and such future needs of the child(ren) to the extent that such future needs can be ascertained based on the present condition of the child(ren), the court finds. ……….

(e) Regarding the love, affection, and other emotional ties existing between the child(ren) and the child(ren)’s parent or parents, siblings, and other relatives, and the degree of harm to the child(ren) that would arise from the termination of parental rights and duties, the court finds. ……….

(f) Regarding the likelihood of an older child remaining in long-term foster care upon termination of parental rights, due to emotional or behavioral problems or any special needs of the child(ren), the court finds. ……….

(g) Regarding the child(ren)’s ability to form a significant relationship with a parental substitute and the likelihood that the child(ren) will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties, the court finds. ……….

(h) Regarding the length of time that the child(ren) has lived in a stable, satisfactory environment and the desirability of maintaining continuity, the court finds. ……….

(i) Regarding the depth of the relationship existing between the child(ren) and present custodian, the court finds. ………..

(j) Regarding the reasonable preferences and wishes of the child(ren), if the court deems the child(ren) to be of sufficient intelligence, understanding, and experience to express a preference, the court finds. ……….

(k) Regarding the recommendations for the child(ren) provided by the child(ren)’s guardian ad litem or the legal representative, the court finds. ……….

(l) Regarding other relevant factors including. ………, the court finds. ……….

COMMENT: Add items 7, 8, and 9 as applicable.

7. Under section 39.811(6)(. ……… ), Florida Statutes, the court terminates the parental rights of only. ….….. (parent whose rights are being terminated). ….….. as to the minor child(ren),. ….….. (child(ren)’s name(s)). ……… Specifically, the court finds that. ….….. (specific findings of fact under section 39.811(6), Florida Statutes)……….

8. Under sections 39.509(5) and 39.811(7)(a), Florida Statutes, the court finds that continued grandparental visitation is not in the best interests of the child(ren) or that such visitation would interfere with the permanency goals for the child(ren) for the following reasons. ……….

9. Under section 39.811(7)(b), Florida Statutes, the court finds that although parental rights are being terminated, the best interests of. ….….. (names of child(ren) to which this provision applies). ….….. support continued communication or contact by. ….….. (names of parents, siblings, or relatives of the parent whose rights are terminated and to which this provision applies). ….….. except as provided above. The nature and frequency of the communication or contact shall be as follows. ………. It may be reviewed on motion of any party or an identified prospective adoptive parent.

THEREFORE, after weighing the credibility of the witnesses, weighing all statutory factors, and based on the findings of fact and conclusions of law above, the court hereby ORDERS AND ADJUDGES THAT:

1. The petition filed by. ….….. (name). ….….. is granted as to the parent(s),. ….….. (name(s))……….

2. The parental rights of the father,. ….….. (name). ….….., and of the mother,. ….….. (name). ….….., to the child,. ….….. (name). ….….., are hereby terminated under section 39.806(. ……… ), Florida Statutes.

COMMENT: Repeat the above for each child and parent, as necessary.

3. Under sections 39.811(2) and (5), Florida Statutes, the child(ren),. ….….. (name(s)). ….….., are placed in the custody of. ….….. (agency). ….….. for the purpose of subsequent adoption.

4. The 30-day permanency plan required by section 39.811(8), Florida Statutes, shall be filed and heard at. ….….. (time). ….….. on. ….….. (date). ….….. in. ….….. (location)……….

DONE AND ORDERED on. ….….. (date). ….….., in. ….….. (city and county). ….….., Florida.


                              Circuit Judge
NOTICE

Under section 39.815, Florida Statutes , any child, any parent, guardian ad litem, or legal custodian of any child, any other party to the proceeding who is affected by an order of the court, or the department may appeal to the appropriate District Court of Appeal within the time and in the manner prescribed by the Florida Rules of Appellate Procedure, which is 30 days from the date this order is rendered ( signed and filed). A parent may have the right to a court-appointed attorney as provided by law.

Under Florida Rule of Juvenile Procedure 8.530, a parent, who had a court-appointed attorney in the termination of parental rights proceeding, shall have 20 days after this order terminating parental rights is entered to file a motion in the trial court claiming ineffective assistance of court-appointed counsel. A parent does not have the right to a court-appointed attorney to assist the parent with a motion claiming ineffective assistance of court-appointed counsel, but the parent may independently obtain an attorney to represent the parent in the motion. The motion must contain the case name, case number, and identify the date the written order terminating parental rights was entered. The motion must also contain the current mailing address and e-mail address, if any, and the phone number(s) of the parent filing the motion for the purpose of receiving notices and orders. In the motion, the parent must identify specific acts or omissions in the court-appointed attorney’s representation of the parent during the termination proceedings that the parent claims constituted a failure to provide reasonable, professional assistance, and the parent must explain how the errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance.

Copies to: __________
Form 8.9831. Motion Claiming Ineffective Assistance of court-appointed Counsel after Order Terminating Parental Rights

MOTION CLAIMING INEFFECTIVE ASSISTANCE OF COURT-APPOINTED COUNSEL AFTER ORDER TERMINATING PARENTAL RIGHTS

Moving parent,. ….(name)…..,. ….(address)…..,. ….(e-mail address)…..,. ….(phone number)….. requests this court to vacate the order terminating parental rights pursuant to Florida Rule of Juvenile Procedure 8.530.

1. I was the parent of. ….(name(s) of child(ren))….. at the time the court entered an order terminating my parental rights on. ….(date)….. in. ….(case number and case name)……

2. My court-appointed attorney failed to provide me with reasonable, professional assistance by doing or not doing the following actions during the termination of parental rights proceedings: (use whatever space is necessary to explain your claims)

Comment: The phrase “termination of parental rights proceedings” is not limited to the termination of parental rights trial.

3. My court-appointed attorney’s actions or inactions prejudiced my case to such an extent that my parental rights would not have been terminated because: (use whatever space is necessary to explain your claims)

WHEREFORE, I request that the court enter an order granting this motion, vacating the order terminating parental rights, and providing any other relief the court deems proper.

I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this verified motion and that punishment for knowingly making a false statement includes fines and/or imprisonment.

                              (Your signature)

I certify that a copy of this document was. ….(mailed, faxed and mailed, hand delivered or e-mailed)….. to the person(s) listed below on. ….(date)….. or was not delivered to the person(s) listed below because. ……….

List each party or the party’s attorney who you served:

Name:. ………
Address:. ………
Telephone Number:. ………
Fax Number:. ………
E-mail Address:. ………

                              (Your signature)

Form 8.9832. Order on Motion Claiming Ineffective Assistance of court-appointed Counsel after Order terminating Parental Rights

ORDER ON MOTION CLAIMING INEFFECTIVE ASSISTANCE OF COURT-APPOINTED COUNSEL AFTER ORDER TERMINATING PARENTAL RIGHTS

THIS CAUSE came before this court on. ….(date)….. on the Motion Claiming Ineffective Assistance of Court-Appointed Counsel after Order Terminating Parental Rights filed by. ….(name)…… Present before the court were:

…… ….(Name)….., Moving Parent
…… ….(Name)….., Attorney for Moving Parent
…… ….(Name)….., Court-appointed Trial Attorney for Moving Parent
…… ….(Name)….., Attorney for the department
…… ….(Name)….., Department caseworker
…… ….(Name)….., Child
…… ….(Name)….., Attorney for Child
…… ….(Name)….., Mother
…… ….(Name)….., Attorney for mother
…… ….(Name)….., Father of. ….(child)…..
…… ….(Name)….., Attorney for father
…… ….(Name)….., Guardian ad litem
…… ….(Name)….., Attorney for guardian ad litem
…… ….(Name)….., Legal custodian
…… ….(Name)….., Attorney for legal custodian
…… ….(Name)….., Other. ………

Comment: Complete the following section if the court denies the motion without a hearing.

The court has carefully considered the motion and reviewed all necessary documents. The court finds that the motion should be denied without a hearing because:

….. The motion is untimely.

1. The order terminating parental rights was entered on. ….(date)……

2. The moving parent filed the motion claiming ineffective assistance of court-appointed counsel on. ….(date)……

3. Therefore, the moving parent filed the motion past the 20-day time limitation.

….. The motion is insufficient as alleged. The court finds that the moving parent failed to allege specific facts that, if taken as true, would support a finding that the court-appointed attorney during the termination of parental rights proceedings failed to provide reasonable, professional assistance, and that any errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance. Specifically the court finds:. ….(findings)……

Comment: Complete the following section if the court finds that the motion is insufficient and directs the moving parent to file an amended motion.

The court has carefully considered the motion and reviewed all necessary documents.

….. The motion is insufficient as alleged. The court finds that the moving parent failed to allege specific facts that would support a finding that the court-appointed attorney during the termination of parental rights proceedings failed to provide reasonable, professional assistance, and that any errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance. Specifically the court finds:. ….(findings)….. However, the court finds that the moving parent should be provided the opportunity to file an amended motion.

Comment: Complete the following section if the court previously found that the motion was insufficient, directed the moving parent to file an amended motion, and the parent failed to file an amended motion within the time permitted.

The court previously carefully considered the motion and reviewed all necessary documents.

….. On. ….(date)….., the court found the motion is insufficient as alleged. The court found that the moving parent failed to allege specific facts that would support a finding that the court-appointedattorney during the termination of parental rights proceedings failed to provide reasonable, professional assistance, and that any errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance. Specifically the court found:. ….(findings)……

….. On. ….(date)….., the court entered a written order providing the parent an opportunity to file an amended motion. The parent did not file an amended motion within 10 days of the date of the written order permitting amendment.

Comment: Complete the following section if the court hearing was conducted:

The court has carefully considered the motion, reviewed all necessary documents, and having heard argument of counsel and testimony, the court finds:

….. The motion is granted because the court-appointed attorney during the termination of parental rights proceedings failed to provide reasonable, professional assistance, and the errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance. Specifically the court finds:. ….(findings)……

….. The motion is denied because the court-appointed attorney during the termination of parental rights proceedings did not fail to provide reasonable, professional assistance, or any errors or omissions that were made did not prejudice the moving parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance. Specifically, the court finds:. ….(findings)……

THEREFORE, the court hereby ORDERS AND ADJUDGES THAT:

….. The motion claiming ineffective assistance of court-appointed counsel is denied with prejudice.

….. The motion claiming ineffective assistance of court-appointed counsel is insufficient as alleged. The moving parent may file an amended motion. Any amended motion shall be filed within 10 days of the date of this order or the court may summarily deny the motion.

….. The motion claiming ineffective assistance of court-appointed counsel is granted. The order terminating parental rights entered on. ….(date)….. is hereby vacated and set aside as to. ….(name of moving parent)…… An adjudicatory hearing is hereby scheduled for. ….(date (no later than 45 days from this order))….., and, as the court finds the parent is indigent,. ….(name of counsel)….. is hereby appointed to represent. ….(name of moving parent)….. in the termination of parental rights proceedings.

DONE AND ORDERED on. ….(date)….., in. ….(city and county)….., Florida.

                              Circuit Judge

Copies to:

Form 8.984. Judgment of Voluntary Termination oforder terminating Parental Rights (voluntary)

ADJUDICATORY ORDER AND FINAL JUDGMENT OF TERMINATION OF ORDER TERMINATING PARENTAL RIGHTS AND GUARDIANSHIP (VOLUNTARY)


THIS CAUSE came before this court on. …. ….. (all dates of the adjudicatory hearing) . ….. …. for an adjudicatory hearing on the petition for termination of parental rights filed by. …. ….. (name) . ….. ….. Present before the court were:

…... ….….. (Name). ….….., Petitioner
…... ….….. (Name). ….….., Attorney for the petitioner
…... ….….. (Name). ….….., Attorney for the department
…... ….….. (Name). ….….., Department/agency caseworker
…... ….….. (Name). ….….., Child
…... ….….. (Name). ….….., Attorney/Attorney ad litem for Child
…... ….….. (Name). ….….., Mother
…... ….….. (Name). ….….., Attorney for mother
…... ….….. (Name). ….….., Father of. ….….. (child). ….…..
…... ….….. (Name). ….….., Attorney for father
…... ….….. (Name). ….….., Guardian ad litem
…... ….….. (Name). ….….., Attorney for guardian ad litem
…... ….….. (Name). ….….., Legal custodian
…... ….….. (Name). ….….., Attorney for legal custodian
…... ….….. (Name). ….….., Other:. ………

__….. The mother,. ….….. (name). ….….., executed a voluntary surrender of her parental rights for the minor child(ren),. ….….. (name(s)). ….….., which is accepted by the court without objection.

COMMENT: Repeat the following as necessary.

__….. The father,. ….….. (name). ….….., executed a voluntary surrender of his parental rights for the minor child(ren),. ….….. (name(s)). ….….., which is accepted by the court without objection.

The court has carefully considered the testimony of witnesses, reviewed the exhibits, reviewed the file, heard argument of counsel, and considered recommendations and arguments of all parties. The court finds by clear and convincing evidence that the parents,. ….….. (names). ….….., have surrendered their parental rights to the minor child(ren) under section 39.806(1)(a), Florida Statutes, and that termination of parental rights is in the manifest best interests of the child(ren). The specific facts and findings supporting this decision are as follows:

1. That the mother,. ….….. (name). ….…..,. ….….. was. ….….. was not personally served with the summons and the petition.

COMMENT: Service is not required if surrender was signed before filing of petition.

2. That the father,. ….….. (name). ….…..,. ….….. was. ….….. was not personally served with the summons and the petition.

COMMENT: Service is not required if surrender was signed before filing of petition.

3. That the parents were advised of their right to counsel in all prior dependency court proceedings which they attended. The mother has been represented by legal counsel,. ….….. (name). ….….., starting on or about. ….….. (date). ….…… The father has been represented by legal counsel,. ….….. (name). ….….., starting on or about. ….….. (date)……….

4. The mother,. ….….. (name). ….….., freely, knowingly, voluntarily, and. ….….. with. ….….. without advice of legal counsel executed an affidavit and acknowledgment of surrender, consent, and waiver of notice on. ….….. (date). ….….., for termination of her parental rights to the minor child(ren), under section 39.806(1)(a), Florida Statutes.

5. The father,. ….….. (name). ….….., freely, knowingly, voluntarily, and. ….….. with. ….….. without advice of legal counsel executed an affidavit and acknowledgment of surrender, consent, and waiver of notice on. ….….. (date). ….….., for termination of his parental rights to the minor child(ren), under section 39.806(1)(a), Florida Statutes.

6. That at all times relevant to this action the interests of this/these child(ren) has/have been represented by a guardian ad litem. The guardian ad litem,. ….….. (name). ….…..,. ….….. agrees. ….….. does not agree that it is in the best interests of the child(ren) for parental rights to be terminated in this cause.

COMMENT: Guardian ad litem not required in voluntary surrender.

7. Under the provisions of sections 39.810(1)–(11), Florida Statutes, it is in the manifest best interests of the child(ren) for parental rights to be terminated for the following reasons:

(a) Regarding any suitable permanency custody arrangement with a relative of the child(ren), the court finds. ……….

(b) Regarding the ability and disposition of the parent or parents to provide the child(ren) with food, clothing, medical care or other remedial care recognized and permitted under state law instead of medical care, and other materials needs of the child(ren), the court finds. ……….

(c) Regarding the capacity of the parent or parents to care for the child(ren) to the extent that the child(ren)’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child(ren)’s return home, the court finds. ……….

(d) Regarding the present mental and physical health needs of the child(ren) and such future needs of the child(ren) to the extent that such future needs can be ascertained based on the present condition of the child(ren), the court finds. ……….

(e) Regarding the love, affection, and other emotional ties existing between the child(ren) and the child(ren)’s parent or parents, siblings, and other relatives, and the degree of harm to the child(ren) that would arise from the termination of parental rights and duties, the court finds. ……….

(f) Regarding the likelihood of an older child remaining in long-term foster care upon termination of parental rights, due to emotional or behavioral problems or any special needs of the child(ren), the court finds. ……….

(g) Regarding the child(ren)’s ability to form a significant relationship with a parental substitute and the likelihood that the child(ren) will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties, the court finds. ……….

(h) Regarding the length of time that the child(ren) has lived in a stable, satisfactory environment and the desirability of maintaining continuity, the court finds. ……….

(i) Regarding the depth of the relationship existing between the child(ren) and present custodian, the court finds. ……….

(j) Regarding the reasonable preferences and wishes of the child(ren), if the court deems the child(ren) to be of sufficient intelligence, understanding, and experience to express a preference, the court finds. ……….

(k) Regarding the recommendations for the child(ren) provided by the child(ren)’s guardian ad litem or the legal representative, the court finds. ……….

(l) Regarding other relevant factors including. ………, the court finds. ……….

THEREFORE, it is ORDERED AND ADJUDGED that:

1. The petition for termination of parental rights is GRANTED.

2. The parental rights of the father,. ….….. (name). ….….., and of the mother,. ….….. (name). ….….., to the child(ren),. ….….. (name(s)). ….….., are hereby terminated under section 39.806(. ……… ), Florida Statutes.

COMMENT: Repeat the above for each child and parent on petition.

3. The child(ren),. ….….. (name(s)). ….….., is/are hereby placed in the permanent care and custody of. ….….. (agency name). ….….. for subsequent adoption.

4. A hearing for the department to provide a plan for permanency for the child(ren) shall be held on. ….….. (date). ….….., within 30 days of rendering of order, at. ….….. (time). ….……

DONE AND ORDERED on. ….….. (date). ….….., in. ……… County, Florida.

Circuit Judge

Copies furnished to: ______

NOTICE

Under section 39.815, Florida Statutes , any child, any parent, guardian ad litem, or legal custodian of any child, any other party to the proceeding who is affected by an order of the court, or the department may appeal to the appropriate District Court of Appeal within the time and in the manner prescribed by the Florida Rules of Appellate Procedure, which is 30 days from the date this order is rendered ( signed and filed). A parent may have the right to a court-appointed attorney as provided by law.

Under Florida Rule of Juvenile Procedure 8.530, a parent, who had a court-appointed attorney in the termination of parental rights proceeding, shall have 20 days after this order terminating parental rights is entered to file a motion in the trial court claiming ineffective assistance of court-appointed counsel. A parent does not have the right to a court-appointed attorney to assist the parent with a motion claiming ineffective assistance of court-appointed counsel, but the parent may independently obtain an attorney to represent the parent in the motion. The motion must contain the case name, case number, and identify the date the written order terminating parental rights was entered. The motion must also contain the current mailing address and e-mail address, if any, and the phone number(s) of the parent filing the motion for the purpose of receiving notices and orders. In the motion, the parent must identify specific acts or omissions in the court-appointed attorney’s representation of the parent during the termination proceedings that the parent claims constituted a failure to provide reasonable, professional assistance, and the parent must explain how the errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance.

RULE 9.146. APPEAL PROCEEDINGS IN JUVENILE DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS CASES AND CASES INVOLVING FAMILIES AND CHILDREN IN NEED OF SERVICES

(a) – (b) [No Change]

(c) Stay of Proceedings.

(1) Application. Except as provided by general law and in subdivision (c)(2) of this rule, a party seeking to stay a final or non-finalnonfinal order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief, after considering the welfare and best interest of the child.

(2) [No Change]

(d) – (h) [No Change]

(i) Ineffective Assistance of Court-Appointed Counsel for Indigent Parents Claims—Special Procedures and Time Limitations Applicable to Appeals of Orders in Termination of Parental Rights Proceedings Involving Ineffective Assistance of Court-Appointed Counsel Claims.

(1) Applicability. Subdivision (i) applies only to appeals to the district courts of appeal of orders in termination of parental rights proceedings involving an indigent parent’s claims of ineffective assistance of court-appointed counsel.

(2) Rendition. A motion claiming ineffective assistance of court-appointed counsel filed in accordance with Florida Rule of Juvenile Procedure 8.530 shall toll rendition of the order terminating parental rights under Florida Rule of Appellate Procedure 9.020 until the lower tribunal enters a written order on the motion, except as provided by Florida Rule of Juvenile Procedure 8.530.

(3) Scope of Review. Any appeal from an order denying a motion alleging the ineffective assistance of court-appointed counsel must be raised and addressed within an appeal from the order terminating parental rights.

(4) Ineffective Assistance of Court-Appointed Counsel Motion Filed After Commencement of Appeal. If an appeal is pending, a parent may file a motion claiming ineffective assistance of court-appointed counsel pursuant to Florida Rule of Juvenile Procedure 8.530 if the filing occurs within 20 days of rendition of the order terminating parental rights.

(A) Stay of Appellate Proceeding. An indigent parent or counsel appointed pursuant to Florida Rule of Juvenile Procedure 8.530 shall file a notice of a timely-filed, pending motion claiming ineffective assistance of court-appointed counsel. The notice automatically stays the appeal until the lower tribunal renders an order disposing of the motion.

(B) Supplemental Record; Transcripts of Proceedings. The appellant shall file a second designation to the court reporter, including the name(s) of the individual court reporter(s). The appellant shall serve the designation on the court reporter on the date of filing and shall state that the appeal is from an order of termination of parental rights, and that the court reporter shall provide the transcript of the hearing on the motion claiming ineffective assistance of court-appointed counsel within 20 days of the date of service. Within 20 days of the date of service of the designation, the court reporter shall transcribe and file with the clerk of the lower tribunal the transcript and sufficient copies for all parties exempt from service by e-mail as set forth in the Florida Rules of Judicial Administration. If extraordinary reasons prevent the reporter from preparing the transcript within the 20 days, the reporter shall request an extension of time, state the number of additional days requested, and state the extraordinary reasons that would justify the extension.

(C) Duties of the Clerk, Preparation and Transmittal of Supplemental Record. If the clerk of circuit court has already transmitted the record on appeal of the order terminating parental rights, the clerk shall automatically supplement the record on appeal with any motion pursuant to Florida Rule of Juvenile Procedure 8.518, the resulting order, and the transcript from the hearing on the motion. The clerk shall electronically transmit the supplement to the court and serve the parties within 5 days of the filing of the order ruling on the motion, or within 5 days of filing of the transcript from the hearing on the motion by the designated court reporter, whichever is later.

Committee Notes
[No Change]

BROAD SET OF AMENDMENTS

Rule 8.510. Advisory Hearing and Pretrial Status Conferences

(a) Advisory Hearing.

(1) [No Change]

(2) The court must:

(A) advise the parents of their right to counsel including the right to an effective attorney and appoint counselan attorney in accordance with legal requirements;

(B) – (D) [No Change]

(3) – (5) [No Change]

(b) – (c) [No Change]

RULE 8.517. WITHDRAWAL AND APPOINTMENT OF COUNSELATTORNEY

(a) Withdrawal of Attorney after Order Adjudicating Child Dependent or Terminating Parental Rights. After an order of adjudication of dependency, or an order of dependency disposition, or an order terminating parental rights has been entered, the counselattorney of record for a parent or legal custodian in a dependency proceeding or a parent in a termination of parental rights proceeding shall not be permitted to withdraw as counsel of recordthe attorney until the following have occurred:

(1) The attorney certifies that the attorney has discussed appellate remedies with the parent or legal custodian.

(A)(1) The attorney certifies that after discussing appellate remedies with the parent or legal custodian, the parent or legal custodian does not wantelects not to appeal the order; or

(B)(2) The attorney certifies that after discussing appellate remedies with the parent or legal custodian, the parent or legal custodian wantselects to appeal the order, and

(i)(A) a notice of appeal containing the signatures of counselthe attorney and the parent or legal custodian has been filed or a notice of appeal containing the signature only of the attorney has been filed if the parent or legal custodian elects to appeal but is unable to personally timely sign the notice and that an amended notice of appeal containing the parent’s or legal custodian’s signature will be filed;

(ii)(B) directions to clerk, if necessary, have been filed;

(iii)(C) a motion to transcribe the requisite proceedings has been filed;

(iv)(D) a designation to the court reporter specifying the proceedings that must be transcribed in order to obtain review of the issues on appeal and designating the parties to receive a copy of the transcripts has been filed; and

(v)(E) an order appointing appellate counsel, if any, has been entered.

Conformed copies of each of these documents shall be attached to the motion to withdraw.

(2)(3) If the attorney has beenis unable to contact the parent or legal custodian regarding appellate remedies, the attorney certifies and describes the efforts made to contact the parent or legal custodian.

(b) Withdrawal of Attorney after Order Terminating Parental Rights. After an order terminating parental rights has been entered, the attorney of record for a parent in a termination of parental rights proceeding shall not be permitted to withdraw as attorney until the following have occurred:

(1) Discussion of Appeal.

(A) The attorney certifies that after discussing appellate remedies with the parent, the parent elects not to appeal the order terminating parental rights; or

(B) The attorney certifies that after discussing appellate remedies with the parent, the parent elects to appeal the order terminating parental rights; and

(i) a notice of appeal containing the signatures of the attorney and the parent has been filed or a notice of appeal containing the signature only of the attorney has been filed if the parent elects to appeal but is unable to personally timely sign the notice and that an amended notice of appeal containing the parent’s signature will be filed;

(ii) directions to clerk, if necessary, have been filed;

(iii) a motion to transcribe the requisite proceedings has been filed;

(iv) a designation to the court reporter specifying the proceedings that must be transcribed in order to obtain review of the issues on appeal and designating the parties to receive a copy of the transcripts has been filed; and

(v) an order appointing appellate counsel, if any, has been entered.

Conformed copies of each of these documents shall be attached to the motion to withdraw.

(2) Discussion of Ineffective Assistance of Counsel Claim.

(A) The attorney certifies that after discussing the right of a parent to file a motion claiming ineffective assistance of counsel, the parent elects not to file the motion, or

(B) The attorney certifies that after discussing the right of the parent to file a motion claiming ineffective assistance of counsel, the parent elects to file a motion. Consequently, the attorney must immediately seek to withdraw from representation of the parent.

(3) Inability to Discuss Remedies. If the attorney is unable to contact the parent regarding appellate remedies and the right to file a motion claiming ineffective assistance of counsel, the attorney certifies and describes the efforts made to contact the parent.

(c) Appointment of Appellate Counsel. If the court permits the attorney to withdraw, the court must expeditiously appoint appellate counsel for indigent parents pursuant to law. The indigent parent is not entitled to a court-appointed attorney in any trial court proceeding regarding a motion claiming ineffective assistance of counsel. However, a parent may independently retain an attorney to assist in any trial court proceeding regarding a motion claiming ineffective assistance of counsel.

(d) Service of Order Appointing CounselAttorney. Following rendition of an order appointing appellate counsel, the court shallmust serve a copy of the order on the appointed appellate counsel and the clerk of the appellate court.

Committee Note

Amendment 20__. Significant amendments were made to create a process for claiming ineffective assistance of counsel in termination of parental rights proceedings. J.B. , etc. v. Florida Department of Children and Families , 170 So. 3d 780 (Fla. 2015). A parent’s right to appointed counsel is governed by sections 39.013(9)a. and 27.511, Florida Statutes.

Rule 8.525. Adjudicatory Hearings

(a) – (h) [No Change]

(i) Advisement of Right to Appeal and File Ineffective Assistance of Counsel Motion. At the conclusion of the adjudicatory hearing, the court must orally inform the parents of the right to appeal any order terminating parental rights to the district court of appeal and the right to file a motion in the circuit court claiming that counsel provided ineffective assistance.

(j) Final JudgmentOrder.

(1) Terminating Parental Rights.

(A) If the court finds after all of the evidence has been presented that the elements and one of the grounds for termination of parental rights have been established by clear and convincing evidence, the court shall enter a final judgmentwritten order terminating parental rights and proceed with dispositional alternatives as provided by law.

(B) The order must contain the findings of fact and conclusions of law on which the decision was based. The court shall include the dates of the adjudicatory hearing in the order.

(C) The order must include a brief statement informing the parents of the right to appeal the order to the district court of appeal and the right to file a motion in the circuit court alleging that counsel provided ineffective assistance and a brief explanation of the procedure for filing such a claim.

(D) The parties may stipulate, or the court may order, that parents or relatives of the parent whose rights are terminated be allowed to maintain some contact with the child. If the court orders continued contact, the nature and frequency of this contact must be stated in a written order. The visitation order may be reviewed on motion of any party, including a prospective adoptive parent, and must be reviewed by the court at the time the child is placed for adoption.

(2) – (3) [No Change]

RULE 8.530. PARENT’S MOTION CLAIMING INEFFECTIVE ASSISTANCE OF COUNSEL FOLLOWING ORDER TERMINATING PARENTAL RIGHTS

(a) Duty of the Court to Advise. At the conclusion of the termination of parental rights adjudicatory hearing, the court must orally inform the parents who are represented by an attorney of the right to appeal an order terminating parental rights to the district court of appeal and the right to file a motion in the circuit court claiming that an attorney provided ineffective assistance if the court enters an order terminating parental rights. In addition, the written order terminating parental rights must include a brief statement informing the parents of the right to file a motion claiming ineffective assistance of counsel and a brief explanation of the procedure for filing the motion.

(b) Duty of Attorney to Advise. After entry of an order terminating parental rights, an attorney must discuss appellate remedies with the parent and determine whether the parent elects to appeal the order terminating parental rights. The attorney must also inquire whether the parent intends to file a motion claiming ineffective assistance of counsel. If the parent states an intention to file a motion claiming ineffective assistance of counsel, then the attorney must immediately seek withdrawal pursuant to these rules.

(c) Motion and Jurisdiction. After the court has entered a written order terminating parental rights, a parent may file a motion in the circuit court claiming that the parent’s attorney provided ineffective assistance. If a notice of appeal of the order terminating parental rights is filed, the trial court continues to have jurisdiction to consider a motion claiming ineffective assistance of counsel.

(d) Court-Appointed Attorney.

(1) An indigent parent is not entitled to a court-appointed attorney to assist the parent in preparing, filing, or litigating a motion claiming ineffective assistance of counsel. However, the parent may independently obtain an attorney to represent the parent in pursuing the motion.

(2) An indigent parent is otherwise entitled to a court-appointed attorney as provided by law in both the trial and appellate court in a termination of parental rights proceeding, and is entitled to a court-appointed attorney concerning appellate review of the trial court’s order on the motion for ineffective assistance of counsel.

(e) Time Limitations. A motion claiming ineffective assistance of counsel must be filed within 20 days of the date the court entered the written order terminating parental rights.

(f) Toll of Time for Appeal. The timely filing of a motion claiming ineffective assistance of counsel tolls rendition of the order terminating parental rights for purposes of appeal until the circuit court enters an order on the motion or for 50 days from the date the court entered the written order terminating parental rights, whichever occurs first.

(g) Contents of Motion.

(1) The motion must be in writing and under oath stating that all of the facts stated are true and correct.

(2) The motion must contain the case name and number and identify the date the written order terminating parental rights was entered.

(3) The motion must contain the current mailing address and e-mail address, if any, and the phone number(s) of the parent filing the motion for the purpose of receiving notices and orders.

(4) The motion must identify specific acts or omissions in the attorney’s representation of the parent during the termination of parental rights proceedings that constituted a failure to provide reasonable, professional assistance and explain how the acts or omissions prejudiced the parent’s case to such an extent that the result would have been different absent the deficient performance.

(h) Amendments to Motion. If the motion claiming ineffective assistance of counsel is timely filed, the parent may file amended motions without permission of the court within 20 days from the date the court entered the written order terminating parental rights. The court may order the moving parent to file an amended motion as provided in this rule.

(i) Delivery of Motion to Judge. On filing of the motion, the clerk of court must immediately provide the motion and court file to the judge who entered the order terminating parental rights.

(j) Response to Motion. No answer or responsive pleading is required from any other party to the termination of parental rights proceeding.

(k) Service of the Motion. The parent claiming ineffective assistance of counsel must serve the motion on all parties to the termination of parental rights proceeding and to the attorney the parent claims provided ineffective assistance.

(l) Summary Denial of Motion.

(1) Untimely Motion. The court must enter an order within 5 days from the date the motion or amended motion was filed summarily denying with prejudice any motion filed after the 20-day limitation for filing. The order shall be considered the final order for purposes of appeal.

(2) Insufficient Motion. If the motion or amended motion is legally insufficient as alleged, the court may enter an order summarily denying the motion within 5 days from the date the motion or amended motion was filed. A motion is legally insufficient when the allegations of ineffective assistance of counsel during the termination of parental rights proceedings, if taken as true, did not prejudice the parent’s case to such an extent that the result would have been different absent the deficient performance. The order denying a motion as legally insufficient must set forth the basis for the conclusion the motion is legally insufficient. The court must not summarily deny a motion as insufficient for reasons other than legally insufficient allegations claiming ineffective assistance of counsel. If the court denies the motion as legally insufficient and does not direct the filing of an amended motion, then the order shall be considered the final order for purposes of appeal.

(m) Order for Amended Motion. If the motion or amended motion is legally insufficient as alleged, the court may enter an order within 5 days from the date the motion, or amended motion, was filed authorizing the moving parent to file an amended motion within 10 days of the date of the written order permitting amendment.

(n) Evidentiary Hearing on Motion.

(1) Scheduling of Hearing. If the motion is timely and, in the court’s opinion, contains sufficient allegations, the court must conduct an evidentiary hearing as expeditiously as possible in light of the other time limitations in this rule.

(2) Notice of Hearing. The court must issue a notice of the hearing on the motion to the parties and participants of the termination of parental rights proceeding and to the attorney who the parent claimed provided ineffective assistance. The notice must state the issues to be determined and that the moving parent is required to present evidence at the hearing on the motion.

(3) Record of Termination of Parental Rights Adjudicatory Hearing. If necessary, the court may order an expedited record for review, which may include an electronic recording in lieu of a transcript, of the termination of parental rights adjudicatory hearing. If the judge conducting the motion hearing is different from the judge who presided at the termination of parental rights adjudicatory hearing, the court must order an expedited record for review, which may include an electronic recording in lieu of a transcript, of the termination of parental rights adjudicatory hearing.

(4) Burden to Present Evidence and Proof. At the evidentiary hearing, the moving parent has the burden of presenting evidence and the burden of proving specific acts or omissions of an attorney’s representation of the parent during the termination of parental rights proceedings that constituted a failure to provide reasonable, professional assistance, and how the errors or omissions prejudiced the parent’s case to such an extent that the result would have been different absent the deficient performance. All other parties may present evidence regarding the claims raised.

(5) Order from Evidentiary Hearing. At the conclusion of the hearing on the motion, the court must enter an order granting or denying the motion within 5 days from the evidentiary hearing.

(A) Grant of Motion. If the court determines that the attorney during the termination of parental rights proceedings failed to provide reasonable, professional assistance and that the errors or omissions prejudiced the parent’s case to such an extent that the result would have been different absent the deficient performance, the court must enter an order granting the motion stating the reasons for granting the motion and vacating the order terminating parental rights without prejudice. In the order, the court must schedule an adjudicatory hearing on the petition for termination of parental rights to take place no later than 45 days from the order granting the motion. The court must then appoint an attorney to represent the parent in further proceedings, as provided by law.

(B) Denial of Motion. If the court determines that the attorney during the termination of parental rights proceedings provided reasonable, professional assistance or determines that no errors or omissions prejudiced the parent’s case in the termination proceedings to such an extent that the result would have been different absent the deficient performance, the court must enter an order denying the motion, stating the reasons for denial. The order resolves all the claims raised in the motion and shall be considered the final order for purposes of appeal.

(o) Failure to Enter Order. If the court does not enter an order granting or denying the motion within 50 days from the date the court entered the written order terminating parental rights, the motion shall be deemed denied with prejudice.

(p) Service of Order. The clerk of the court must serve any order entered under this rule on the parties, including to the moving parent at the parent’s address on file with the clerk, within 48 hours from the rendition of the order indicating the date of service by an appropriate certificate of service.

(q) Successive Motions. No second or successive motion claiming ineffective assistance of counsel shall be allowed except as provided in this rule. No motion for rehearing shall be allowed in response to the court’s ruling on the motion claiming ineffective assistance of counsel.

(r) Appeals. Florida Rule of Appellate Procedure 9.146 applies to the appeal of an order on a motion claiming ineffective assistance of counsel in termination of parental rights proceedings.

Form 8.983. Adjudication Order and Judgment of Involuntary Termination ofORDER INVOLUNTARILY TERMINATING Parental Rights


ORDER OF ADJUDICATION AND JUDGMENT OF INVOLUNTARY TERMINATION OF INVOLUNTARILY TERMINATING PARENTAL RIGHTS


THIS CAUSE came before this court on. …. ….. (all dates of the adjudicatory hearing) . ….. …. for an adjudicatory hearing on the Petition for Termination of Parental Rights filed by. …. ….. (name) . …. ….. Present before the court were:

…... ….…..(Name). ….….., Petitioner
…... ….…..(Name). ….….., Attorney for the petitioner
…... ….…..(Name). ….….., Attorney for the department
…... ….…..(Name). ….….., Department caseworker
…... ….…..(Name). ….….., Child
…... ….…..(Name). ….….., Attorney for Child
…... ….…..(Name). ….….., Mother
…... ….…..(Name). ….….., Attorney for mother
…... ….…..(Name). ….….., Father of. ….….. (child)…..…..
…... ….…..(Name). ….….., Attorney for father
…... ….…..(Name). ….….., Guardian ad litem
…... ….…..(Name). ….….., Attorney for guardian ad litem
…... ….…..(Name). ….….., Legal custodian
…... ….…..(Name). ….….., Attorney for legal custodian
…... ….…..(Name). ….….., Other:. ………

The court has carefully considered and weighed the testimony of all witnesses. The court has received and reviewed all exhibits.

COMMENT: Add the following only if necessary.

The petitioner has sought termination of the parental rights of. ….….. (parent(s)) who is/are subject of petition)……….

The court finds that the parent(s),. ….….. (name(s)). ….….., has/have. ….….. (list grounds proved). ….….., under chapter 39, Florida Statutes. The grounds were proved by clear and convincing evidence. Further, the court finds that termination of parental rights of the parent(s),. ….….. (name(s)). ….….., is clearly in the manifest best interests of the child(ren). The findings of fact and conclusions of law supporting this decision are as follows:

1. At all stages of these proceedings the parent(s) was/were advised of his/her/their right to legal counsel, or was/were in fact represented by counsel.

2. On or about. ….….. (date(s)). ….….., the following occurred:. ….….. (acts which were basis for dependency or TPR, if filed directly)……….

3. The mother has. ….….. (grounds for TPR). ….….. the minor child(ren) within the meaning and intent of section 39.806, Florida Statutes, in that:. ….….. (findings that form the statutory basis for grounds)……….

4. The father has. ….….. (grounds for TPR). ….….. the minor child(ren) within the meaning and intent of section 39.806, Florida Statutes, in that:. ….….. (findings that form the statutory basis for grounds)……….

5. The minor child(ren) to whom. ….….. (parent’s(s’) name(s)). ….….. parental rights are being terminated are at substantial risk of significant harm. Termination of parental rights is the least restrictive means to protect the child(ren) from harm.

6. Under the provisions of sections 39.810(1)–(11), Florida Statutes, it is in the manifest best interests of the child(ren) for parental rights of. ….….. (name(s)). ….….. to be terminated for the reasons below. The court has considered all relevant factors and finds as follows:

(a) Regarding any suitable permanent custody arrangement with a relative of the child(ren), the court finds. ……….

(b) Regarding the ability and disposition of the parent or parents to provide the child(ren) with food, clothing, medical care, or other remedial care recognized and permitted under state law instead of medical care, and other material needs of the child(ren), the court finds. ……….

(c) Regarding the capacity of the parent or parents to care for the child(ren) to the extent that the child(ren)’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child(ren)’s return home, the court finds. ……….

(d) Regarding the present mental and physical health needs of the child(ren) and such future needs of the child(ren) to the extent that such future needs can be ascertained based on the present condition of the child(ren), the court finds. ……….

(e) Regarding the love, affection, and other emotional ties existing between the child(ren) and the child(ren)’s parent or parents, siblings, and other relatives, and the degree of harm to the child(ren) that would arise from the termination of parental rights and duties, the court finds. ……….

(f) Regarding the likelihood of an older child remaining in long-term foster care upon termination of parental rights, due to emotional or behavioral problems or any special needs of the child(ren), the court finds. ……….

(g) Regarding the child(ren)’s ability to form a significant relationship with a parental substitute and the likelihood that the child(ren) will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties, the court finds. ……….

(h) Regarding the length of time that the child(ren) has lived in a stable, satisfactory environment and the desirability of maintaining continuity, the court finds. ……….

(i) Regarding the depth of the relationship existing between the child(ren) and present custodian, the court finds. ……….

(j) Regarding the reasonable preferences and wishes of the child(ren), if the court deems the child(ren) to be of sufficient intelligence, understanding, and experience to express a preference, the court finds. ……….

(k) Regarding the recommendations for the child(ren) provided by the child(ren)’s guardian ad litem or the legal representative, the court finds. ……….

(l) Regarding other relevant factors including. ………, the court finds. ……….

COMMENT: Add items 7, 8, and 9 as applicable.

7. Under section 39.811(6)(. ……… ), Florida Statutes, the court terminates the parental rights of only. ….….. (parent whose rights are being terminated). ….….. as to the minor child(ren),. ….….. (child(ren)’s name(s)). ……… Specifically, the court finds that. ….….. (specific findings of fact under section 39.811(6), Florida Statutes)……….

8. Under sections 39.509(5) and 39.811(7)(a), Florida Statutes, the court finds that continued grandparental visitation is not in the best interests of the child(ren) or that such visitation would interfere with the permanency goals for the child(ren) for the following reasons. ……….

9. Under section 39.811(7)(b), Florida Statutes, the court finds that although parental rights are being terminated, the best interests of. ….….. (names of child(ren) to which this provision applies). ….….. support continued communication or contact by. ….….. (names of parents, siblings, or relatives of the parent whose rights are terminated and to which this provision applies). ….….. except as provided above. The nature and frequency of the communication or contact shall be as follows. ………. It may be reviewed on motion of any party or an identified prospective adoptive parent.

THEREFORE, after weighing the credibility of the witnesses, weighing all statutory factors, and based on the findings of fact and conclusions of law above, the court hereby ORDERS AND ADJUDGES THAT:

1. The petition filed by. ….….. (name). ….….. is granted as to the parent(s),. ….….. (name(s))……….

2. The parental rights of the father,. ….….. (name). ….….., and of the mother,. ….….. (name). ….….., to the child,. ….….. (name). ….….., are hereby terminated under section 39.806(. ……… ), Florida Statutes.

COMMENT: Repeat the above for each child and parent, as necessary.

3. Under sections 39.811(2) and (5), Florida Statutes, the child(ren),. ….….. (name(s)). ….….., are placed in the custody of. ….….. (agency). ….….. for the purpose of subsequent adoption.

4. The 30-day permanency plan required by section 39.811(8), Florida Statutes, shall be filed and heard at. ….….. (time). ….….. on. ….….. (date). ….….. in. ….….. (location)……….

DONE AND ORDERED on. ….….. (date). ….….., in. ….….. (city and county). ….….., Florida.


                              Circuit Judge
NOTICE

Under section 39.815, Florida Statutes , any child, any parent, guardian ad litem, or legal custodian of any child, any other party to the proceeding who is affected by an order of the court, or the department may appeal to the appropriate District Court of Appeal within the time and in the manner prescribed by the Florida Rules of Appellate Procedure, which is 30 days from the date this order is rendered ( signed and filed). A parent may have the right to a court-appointed attorney as provided by law.

Under Florida Rule of Juvenile Procedure 8.530, a parent, who had an attorney in the termination of parental rights proceeding, shall have 20 days after this order terminating parental rights is entered to file a motion in the trial court claiming ineffective assistance of counsel. A parent does not have the right to a court-appointed attorney to assist the parent with a motion claiming ineffective assistance of counsel, but the parent may independently obtain an attorney to represent the parent in the motion. The motion must contain the case name, case number, and identify the date the written order terminating parental rights was entered. The motion must also contain the current mailing address and e-mail address, if any, and the phone number(s) of the parent filing the motion for the purpose of receiving notices and orders. In the motion, the parent must identify specific acts or omissions in the attorney’s representation of the parent during the termination proceedings that the parent claims constituted a failure to provide reasonable, professional assistance, and the parent must explain how the errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance.

Copies to: __________

Form 8.9831. Motion Claiming Ineffective Assistance of Counsel after Order Terminating Parental Rights

MOTION CLAIMING INEFFECTIVE ASSISTANCE OF COUNSEL AFTER ORDER TERMINATING PARENTAL RIGHTS

Moving parent,. ….(name)…..,. ….(address)…..,. ….(e-mail address)…..,. ….(phone number)….., requests this court to vacate the order terminating parental rights pursuant to Florida Rule of Juvenile Procedure 8.530.

1. I was the parent of. ….(name(s) of child(ren))….. at the time the court entered an order terminating my parental rights on. ….(date)….. in. ….(case number and case name)……

2. My attorney failed to provide me with reasonable, professional assistance by doing or not doing the following actions during the termination of parental rights proceedings: (use whatever space is necessary to explain your claims)

Comment: The phrase “termination of parental rights proceedings” is not limited to the termination of parental rights trial.

3. My attorney’s actions or inactions prejudiced my case to such an extent that my parental rights would not have been terminated because: (use whatever space is necessary to explain your claims)

WHEREFORE, I request that the court enter an order granting this motion, vacating the order terminating parental rights, and providing any other relief the court deems proper.

I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this verified motion and that punishment for knowingly making a false statement includes fines and/or imprisonment.

                              (Your signature)

I certify that a copy of this document was. ….(mailed, faxed and mailed, hand delivered, or e-mailed)….. to the person(s) listed below on. ….(date)….. or was not delivered to the person(s) listed below because. ……….

List each party or the party’s attorney who you served:

Name:. ………
Address:. ………
Telephone Number:. ………
Fax Number:. ………
E-mail Address:. ………

                              (Your signature)

Form 8.9832. Order on Motion Claiming Ineffective Assistance of Counsel after Order terminating Parental Rights

ORDER ON MOTION CLAIMING INEFFECTIVE ASSISTANCE OF COUNSEL AFTER ORDER TERMINATING PARENTAL RIGHTS

THIS CAUSE came before this court on. ….(date)….. on the Motion Claiming Ineffective Assistance of Counsel after Order Terminating Parental Rights filed by. ….(name)…… Present before the court were:

…… ….(Name)….., Moving Parent
…… ….(Name)….., Attorney for Moving Parent
…… ….(Name)….., Trial Attorney for Moving Parent
…… ….(Name)….., Attorney for the department
…… ….(Name)….., Department caseworker
…… ….(Name)….., Child
…… ….(Name)….., Attorney for Child
…… ….(Name)….., Mother
…… ….(Name)….., Attorney for mother
…… ….(Name)….., Father of. ….(child)…..
…… ….(Name)….., Attorney for father
…… ….(Name)….., Guardian ad litem
…… ….(Name)….., Attorney for guardian ad litem
…… ….(Name)….., Legal custodian
…… ….(Name)….., Attorney for legal custodian
…… ….(Name)….., Other. ………

Comment: Complete the following section if the court denies the motion without a hearing.

The court has carefully considered the motion and reviewed all necessary documents. The court finds that the motion should be denied without a hearing because:

….. The motion is untimely.

1. The order terminating parental rights was entered on. ….(date)……

2. The moving parent filed the motion claiming ineffective assistance of counsel on. ….(date)……

3. Therefore, the moving parent filed the motion past the 20-day time limitation.

….. The motion is insufficient as alleged. The court finds that the moving parent failed to allege specific facts that, if taken as true, would support a finding that the attorney during the termination of parental rights proceedings failed to provide reasonable, professional assistance, and that any errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance. Specifically the court finds:. ….(findings)……

Comment: Complete the following section if the court finds that the motion is insufficient and directs the moving parent to file an amended motion.

The court has carefully considered the motion and reviewed all necessary documents.

….. The motion is insufficient as alleged. The court finds that the moving parent failed to allege specific facts that would support a finding that the attorney during the termination of parental rights proceedings failed to provide reasonable, professional assistance, and that any errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance. Specifically the court finds:. ….(findings)….. However, the court finds that the moving parent should be provided the opportunity to file an amended motion.

Comment: Complete the following section if the court previously found that the motion was insufficient, directed the moving parent to file an amended motion, and the parent failed to file an amended motion within the time permitted.

The court previously carefully considered the motion and reviewed all necessary documents.

….. On. ….(date)….., the court found the motion is insufficient as alleged. The court found that the moving parent failed to allege specific facts that would support a finding that the attorney during the termination of parental rights proceedings failed to provide reasonable, professional assistance, and that any errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance. Specifically the court found:. ….(findings)……

….. On. ….(date)….., the court entered a written order providing the parent an opportunity to file an amended motion. The parent did not file an amended motion within 10 days of the date of the written order permitting amendment.

Comment: Complete the following section if the court hearing was conducted:

The court has carefully considered the motion, reviewed all necessary documents, and having heard argument of counsel and testimony, the court finds:

….. The motion is granted because the attorney during the termination of parental rights proceedings failed to provide reasonable, professional assistance, and the errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance. Specifically the court finds:. ….(findings)……

….. The motion is denied because the attorney during the termination of parental rights proceedings did not fail to provide reasonable, professional assistance, or any errors or omissions that were made did not prejudice the moving parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance. Specifically, the court finds:. ….(findings)……

THEREFORE, the court hereby ORDERS AND ADJUDGES THAT:

….. The motion claiming ineffective assistance of counsel is denied with prejudice.

….. The motion claiming ineffective assistance of counsel is insufficient as alleged. The moving parent may file an amended motion. Any amended motion shall be filed within 10 days of the date of this order or the court may summarily deny the motion.

….. The motion claiming ineffective assistance of counsel is granted. The order terminating parental rights entered on. ….(date)….. is hereby vacated and set aside as to. ….(name of moving parent)…… An adjudicatory hearing is hereby scheduled for. ….(date (no later than 45 days from this order))….., and, as the court finds the parent is indigent,. ….(name of counsel)….. is hereby appointed to represent. ….(name of moving parent)….. in the termination of parental rights proceedings.

DONE AND ORDERED on. ….(date)….., in. ….(city and county)….., Florida.

                              Circuit Judge

Copies to:

Form 8.984. Judgment of Voluntary Termination oforder terminating Parental Rights (voluntary)

ADJUDICATORY ORDER AND FINAL JUDGMENT OF TERMINATION OF ORDER TERMINATING PARENTAL RIGHTS AND GUARDIANSHIP (VOLUNTARY)


THIS CAUSE came before this court on. …. ….. (all dates of the adjudicatory hearing) …... …. for an adjudicatory hearing on the petition for termination of parental rights filed by. …. ….. (name)…… …. Present before the court were:

…... ….….. (Name). ….….., Petitioner
…... ….….. (Name). ….….., Attorney for the petitioner
…... ….….. (Name). ….….., Attorney for the department
…... ….….. (Name). ….….., Department/agency caseworker
…... ….….. (Name). ….….., Child
…... ….….. (Name). ….….., Attorney/Attorney ad litem for Child
…... ….….. (Name). ….….., Mother
…... ….….. (Name). ….….., Attorney for mother
…... ….….. (Name). ….….., Father of. ….….. (child). ….…..
…... ….….. (Name). ….….., Attorney for father
…... ….….. (Name). ….….., Guardian ad litem
…... ….….. (Name). ….….., Attorney for guardian ad litem
…... ….….. (Name). ….….., Legal custodian
…... ….….. (Name). ….….., Attorney for legal custodian
…... ….….. (Name). ….….., Other:. ………

__….. The mother,. ….….. (name). ….….., executed a voluntary surrender of her parental rights for the minor child(ren),. ….….. (name(s)). ….….., which is accepted by the court without objection.

COMMENT: Repeat the following as necessary.

__….. The father,. ….….. (name). ….….., executed a voluntary surrender of his parental rights for the minor child(ren),. ….….. (name(s)). ….….., which is accepted by the court without objection.

The court has carefully considered the testimony of witnesses, reviewed the exhibits, reviewed the file, heard argument of counsel, and considered recommendations and arguments of all parties. The court finds by clear and convincing evidence that the parents,. ….….. (names). ….….., have surrendered their parental rights to the minor child(ren) under section 39.806(1)(a), Florida Statutes, and that termination of parental rights is in the manifest best interests of the child(ren). The specific facts and findings supporting this decision are as follows:

1. That the mother,. ….….. (name). ….…..,. ….….. was. ….….. was not personally served with the summons and the petition.

COMMENT: Service is not required if surrender was signed before filing of petition.

2. That the father,. ….….. (name). ….…..,. ….….. was. ….….. was not personally served with the summons and the petition.

COMMENT: Service is not required if surrender was signed before filing of petition.

3. That the parents were advised of their right to counsel in all prior dependency court proceedings which they attended. The mother has been represented by legal counsel,. ….….. (name). ….….., starting on or about. ….….. (date)………. The father has been represented by legal counsel,. ….….. (name). ….….., starting on or about. ….….. (date)……….

4. The mother,. ….….. (name). ….….., freely, knowingly, voluntarily, and. ….….. with. ….….. without advice of legal counsel executed an affidavit and acknowledgment of surrender, consent, and waiver of notice on. ….….. (date). ….….., for termination of her parental rights to the minor child(ren), under section 39.806(1)(a), Florida Statutes.

5. The father,. ….….. (name). ….….., freely, knowingly, voluntarily, and. ….….. with. ….….. without advice of legal counsel executed an affidavit and acknowledgment of surrender, consent, and waiver of notice on. ….….. (date). ….….., for termination of his parental rights to the minor child(ren), under section 39.806(1)(a), Florida Statutes.

6. That at all times relevant to this action the interests of this/these child(ren) has/have been represented by a guardian ad litem. The guardian ad litem,. ….….. (name). ….…..,. ….….. agrees. ….….. does not agree that it is in the best interests of the child(ren) for parental rights to be terminated in this cause.

COMMENT: Guardian ad litem not required in voluntary surrender.

7. Under the provisions of sections 39.810(1)–(11), Florida Statutes, it is in the manifest best interests of the child(ren) for parental rights to be terminated for the following reasons:

(a) Regarding any suitable permanency custody arrangement with a relative of the child(ren), the court finds. ……….

(b) Regarding the ability and disposition of the parent or parents to provide the child(ren) with food, clothing, medical care or other remedial care recognized and permitted under state law instead of medical care, and other materials needs of the child(ren), the court finds. ……….

(c) Regarding the capacity of the parent or parents to care for the child(ren) to the extent that the child(ren)’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child(ren)’s return home, the court finds. ……….

(d) Regarding the present mental and physical health needs of the child(ren) and such future needs of the child(ren) to the extent that such future needs can be ascertained based on the present condition of the child(ren), the court finds. ……….

(e) Regarding the love, affection, and other emotional ties existing between the child(ren) and the child(ren)’s parent or parents, siblings, and other relatives, and the degree of harm to the child(ren) that would arise from the termination of parental rights and duties, the court finds. ……….

(f) Regarding the likelihood of an older child remaining in long-term foster care upon termination of parental rights, due to emotional or behavioral problems or any special needs of the child(ren), the court finds. ……….

(g) Regarding the child(ren)’s ability to form a significant relationship with a parental substitute and the likelihood that the child(ren) will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties, the court finds. ……….

(h) Regarding the length of time that the child(ren) has lived in a stable, satisfactory environment and the desirability of maintaining continuity, the court finds. ……….

(i) Regarding the depth of the relationship existing between the child(ren) and present custodian, the court finds. ……….

(j) Regarding the reasonable preferences and wishes of the child(ren), if the court deems the child(ren) to be of sufficient intelligence, understanding, and experience to express a preference, the court finds. ……….

(k) Regarding the recommendations for the child(ren) provided by the child(ren)’s guardian ad litem or the legal representative, the court finds. ……….

(l) Regarding other relevant factors including. ………, the court finds. ……….

THEREFORE, it is ORDERED AND ADJUDGED that:

1. The petition for termination of parental rights is GRANTED.

2. The parental rights of the father,. ….….. (name). ….….., and of the mother,. ….…. (name). ….….., to the child(ren),. ….….. (name(s)). ….….., are hereby terminated under section 39.806(. ……… ), Florida Statutes.

COMMENT: Repeat the above for each child and parent on petition.

3. The child(ren),. ….….. (name(s)). ….….., is/are hereby placed in the permanent care and custody of. ….….. (agency name). ….….. for subsequent adoption.

4. A hearing for the department to provide a plan for permanency for the child(ren) shall be held on. ….….. (date). ….….., within 30 days of rendering of order, at. ….….. (time)……….

DONE AND ORDERED on. ….….. (date). ….….., in. ……… County, Florida.

Circuit Judge

Copies furnished to: ______

NOTICE

Under section 39.815, Florida Statutes , any child, any parent, guardian ad litem, or legal custodian of any child, any other party to the proceeding who is affected by an order of the court, or the department may appeal to the appropriate District Court of Appeal within the time and in the manner prescribed by the Florida Rules of Appellate Procedure, which is 30 days from the date this order is rendered ( signed and filed). A parent may have the right to a court-appointed attorney as provided by law.

Under Florida Rule of Juvenile Procedure 8.530, a parent, who had an attorney in the termination of parental rights proceeding, shall have 20 days after this order terminating parental rights is entered to file a motion in the trial court claiming ineffective assistance of counsel. A parent does not have the right to a court-appointed attorney to assist the parent with a motion claiming ineffective assistance of counsel, but the parent may independently obtain an attorney to represent the parent in the motion. The motion must contain the case name, case number, and identify the date the written order terminating parental rights was entered. The motion must also contain the current mailing address and e-mail address, if any, and the phone number(s) of the parent filing the motion for the purpose of receiving notices and orders. In the motion, the parent must identify specific acts or omissions in the attorney’s representation of the parent during the termination proceedings that the parent claims constituted a failure to provide reasonable, professional assistance, and the parent must explain how the errors or omissions prejudiced the parent’s case to such an extent that the result of the termination of parental rights proceedings would have been different absent the deficient performance.

RULE 9.146. APPEAL PROCEEDINGS IN JUVENILE DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS CASES AND CASES INVOLVING FAMILIES AND CHILDREN IN NEED OF SERVICES

(a) – (b) [No Change]

(c) Stay of Proceedings.

(1) Application. Except as provided by general law and in subdivision (c)(2) of this rule, a party seeking to stay a final or non-finalnonfinal order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief, after considering the welfare and best interest of the child.

(2) [No Change]

(d) – (h) [No Change]

(i) Ineffective Assistance of Counsel for Parents Claims—Special Procedures and Time Limitations Applicable to Appeals of Orders in Termination of Parental Rights Proceedings Involving Ineffective Assistance of Counsel Claims.

(1) Applicability. Subdivision (i) applies only to appeals to the district courts of appeal of orders in termination of parental rights proceedings involving a parent’s claims of ineffective assistance of counsel.

(2) Rendition. A motion claiming ineffective assistance of counsel filed in accordance with Florida Rule of Juvenile Procedure 8.530 shall toll rendition of the order terminating parental rights under Florida Rule of Appellate Procedure 9.020 until the lower tribunal enters a written order on the motion.

(3) Scope of Review. Any appeal from an order denying a motion alleging the ineffective assistance of counsel must be raised and addressed within an appeal from the order terminating parental rights.

(4) Ineffective Assistance of Counsel Motion Filed After Commencement of Appeal. If an appeal is pending, a parent may file a motion claiming ineffective assistance of counsel pursuant to Florida Rule of Juvenile Procedure 8.530 if the filing occurs within 20 days of rendition of the order terminating parental rights.

(A) Stay of Appellate Proceeding. A parent or counsel appointed pursuant to Florida Rule of Juvenile Procedure 8.530 shall file a notice of a timely-filed, pending motion claiming ineffective assistance of counsel. The notice automatically stays the appeal until the lower tribunal renders an order disposing of the motion.

(B) Supplemental Record; Transcripts of Proceedings. The appellant shall file a second designation to the court reporter, including the name(s) of the individual court reporter(s). The appellant shall serve the designation on the court reporter on the date of filing and shall state that the appeal is from an order of termination of parental rights, and that the court reporter shall provide the transcript of the hearing on the motion claiming ineffective assistance of counsel within 20 days of the date of service. Within 20 days of the date of service of the designation, the court reporter shall transcribe and file with the clerk of the lower tribunal the transcript and sufficient copies for all parties exempt from service by e-mail as set forth in the Florida Rules of Judicial Administration. If extraordinary reasons prevent the reporter from preparing the transcript within the 20 days, the reporter shall request an extension of time, state the number of additional days requested, and state the extraordinary reasons that would justify the extension.

(C) Duties of the Clerk, Preparation and Transmittal of Supplemental Record. If the clerk of circuit court has already transmitted the record on appeal of the order terminating parental rights, the clerk shall automatically supplement the record on appeal with any motion pursuant to Florida Rule of Juvenile Procedure 8.518, the resulting order, and the transcript from the hearing on the motion. The clerk shall electronically transmit the supplement to the court and serve the parties within 5 days of the filing of the order ruling on the motion, or within 5 days of filing of the transcript from the hearing on the motion by the designated court reporter, whichever is later.

Committee Notes

[No Change]

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