August 01, 2015

Parents Entitled to Effective, Enforceable Assistance of Counsel in Termination Proceedings

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

J.B. v. Dep’t of Children & Fam., 2015 WL 4112321 (Fla.).

In appeal of termination of her parental rights, mother claimed ineffective assistance of counsel. The right to counsel in termination of parental right proceedings includes right to effective assistance and requires means of enforcing that right. To overcome the presumption of effective counsel, parent must identify specific errors made by counsel that show deficiency of reasonable, professional judgment. Claims of ineffective assistance must be raised by the parent and ruled on by the trial court.

The trial court adjudicated teenaged mother’s child dependent based on petition alleging she violated a safety plan, was unstable, allowed the child to frequent unsafe locations, and left the child with strangers at a homeless shelter. The court set the goal as reunification.

The child welfare agency eventually filed a petition to terminate parental rights, alleging the mother, J.B., abandoned her child by failing to provide for him financially or emotionally and failing to exercise her parental duties and responsibilities. 

The day before the adjudicatory hearing on the termination petition, mother’s counsel filed a motion for continuance, which the judge denied as untimely and insufficient. Subsequently, the trial court entered a final judgment terminating both parents’ rights. J.B. appealed, raising for the first time 10 claims of ineffective assistance of counsel regarding her counsel’s performance in the termination proceedings. 

In a case of first impression, the Florida Supreme Court expressly held the right of indigent parents to counsel under the Florida Constitution in termination of parental rights proceedings includes the right to effective assistance of counsel. An indigent parent is entitled to appointed counsel in termination cases in the trial and appellate court, but the parent is not entitled to appointed counsel in any trial court proceeding regarding a motion alleging ineffective assistance of counsel.

The court determined a challenge to counsel’s effectiveness in a termination proceeding differs significantly from that in criminal cases. The interest in finality is substantially heightened by the child’s interest in reaching permanency and the harm that results when permanency is unduly delayed. The parent must establish that the ineffective representation so prejudiced the outcome of the termination proceeding that but for counsel’s deficient representation, the parent’s rights would not have been terminated. This requires a showing of prejudice beyond the requirement that confidence in the outcome is undermined.

The Florida Supreme Court established an interim procedure for claims of ineffective assistance of counsel until a special committee creates a permanent process and issues rules. In this case, J.B.’s allegations of ineffective assistance are stated in conclusory fashion, with no showing of how she was prejudiced by counsel’s deficient performance, and the court affirmed the termination of her parental rights.