Third DCA Sends Ineffective Assistance Case Back to Trial Court

The case is T.H. v. DCF. From the opinion, it appears that one Al Guffanti, Esq., appellate attorney for the father, raised ineffective assistance of counsel in the direct appeal. It’s not clear from the opinion what the grounds for that were. There must have been something there, though, because instead of ignoring it outright, the Third kicked the issue back down for proceedings before the lower court judge, Senior Judge Steven D. Robinson. You could not ask for a more thoughtful judge to handle it.

Ineffective assistance claims in TPR cases are controversial, to say the least. (Some Florida cases have suggested/held/emphatically hoped that there is no such thing.) Proponents say that it’s the best way to guarantee the procedural and constitutional rights of parents. It probably is. Opponents say that it will drag out TPR cases and delay permanency (i.e., one form of permanency, which is adoption). It probably will. The tension in dependency has always been better outcomes versus faster ones. The trick will be balancing those two competing interests in a constitutionally comfortable way.

I was the GAL Program’s TPR attorney in Miami for a while. I saw a wide range of attorneys sitting across the table from me. In almost every case, I was impressed by their zeal and competence. There were a few times, however, when I scratched my head at what I was seeing. I cannot say that any case would have come out differently if a different attorney had tried it, but I can say that I sometimes had my concerns.

Where the constitution mandates counsel, it has always mandated minimally competent counsel. It’s not outside the realm of imagination to craft a procedure that allows a parent to challenge their attorney’s performance in limited contexts. And it’s certainly possible to expedite that procedure within the current framework. Appeals already add 3-7 months to TPR cases–so build a cut-off into that: an extra few weeks to preserve an IAC claim is not that much overhead. Perhaps this will result in better outcomes. Our outcomes certainly aren’t fast as it stands.

2 Replies to “Third DCA Sends Ineffective Assistance Case Back to Trial Court”

  1. Florida needs to create a procedure to provide a mechanism for addressing ineffective assistance of counsel in dependency proceedings. The Supreme Court asked Juvenile Rules and Appellate Rules to propose a rule and they both punted. (If I recall correctly, Appellate punted to Juvenile Rules and Juvenile Rules said it was substantive not procedural.) In the absence of a specific process each case that raises a substantive issue gets mired down in a procedural morass.

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