Defense attorney starts opening argument with “I’m tired and not prepared to do this trial,” courts still uphold TPR

Let’s say you’re a parent facing termination of your parental rights in Florida. The following cumulative acts by your attorney would not be considered ineffective assistance of counsel:

  1. filing an untimely motion for a continuance to investigate prospective fathers; [actually the sin here was probably assuming that a judge would grant an unopposed motion for continuance]
  2. admitting he was exhausted and not prepared to go forward during opening statements;
  3. erroneously believing the mother was still a minor when the child was sheltered;
  4. allowing the introduction of hearsay in the form of previous judicial reviews and testimony concerning the mother leaving a sobriety program and being arrested for prostitution in Georgia, the child not being allowed to live with the mother at a halfway house, and the child’s behavior changing after he resumed visitation with the mother;
  5. failing to file a witness list and opposing the mother calling a witness on the ground it was not in the mother’s best interest;
  6. failure to cross-examine the guardian ad litem or object to the guardian’s report on timeliness and hearsay grounds;
  7. failing to move for a judgment of dismissal at the conclusion of the Department’s case;
  8. failing to pursue on redirect examination the mother’s claim that a relative placement was available for the child;
  9. misleading the court during closing argument that the Department did not provide a qualified case manager for the mother, who had mental health issues; and
  10. failing to object to the trial court’s failure to inform the mother of the availability of advocacy services under section 39.502, Florida Statutes (2011).
J.B. v. Dep’t of Children And Families, 1D13-4346, 2014 WL 4976981 (Fla. 1st DCA 2014).

A lot is made about how ineffective assistance of counsel claims would delay permanency for a child, would be vulnerable to strategic manipulation by clever defense attorneys, and aren’t “authorized by the rules.” Let’s put those to rest:

First, dependency and TPR cases take years to resolve. The state doesn’t start talking “right to permanency” until it is strategically advantageous for them to do so. How many resets happen because DCF didn’t prepare the JRSSR or case plan, or didn’t follow up on a referral, or didn’t serve someone they had to serve? And how much faster could cases go if DCF invested in service providers that weren’t hours away from the people that needed to go to them? DCF should be equitably estopped from ever making a timing argument until they get their house in order.

Second, don’t side-eye defense attorneys for being strategic: all attorneys are strategic. By not supporting an IAC claim, you are making a policy decision that mistakes made by DCF deserve infinitely more time to correct, while mistakes by the parents’ attorney are not worth even considering on the record. If a DCF attorney screws up, he or she will either get a week to fix it or screamed at by a judge. Accumulate enough mistakes and maybe he or she will get transferred or quit and go make more money doing something else. If a defense attorney screws up, the parent can’t see their child ever again and that attorney gets their dispo order for JAC and back on the wheel. There’s no process in place currently that identifies poor defense lawyering as a negative, especially when permanency (read expediency) is the controlling metric: bad defense attorneys can actually speed up permanency in all the wrong ways.

Finally, the rules argument is not very compelling: if the constitution requires due process, it must be real and not illusory. Any court could have created a prophylactic rule by now. The opinion even suggested one. When an attorney starts his opening arguments with “I’m so tired, I can’t think straight, and I’m definitely not prepared to go forward” that should cause everyone in the room to pause and be worried that they are treading into dangerous ground. Currently that territory isn’t even remotely dangerous for the state. It is a rational strategy for the state to ram the TPR through and see what happens on appeal.The DCA is correct about one thing: we need a procedure in place so that attorneys on both sides will know what the minimum expectations are and will not lure each other into error.  The Supreme Court should issue a rule. The criminal rule cited is a good start.

(I do want to say congratulations and condolences to that attorney for pushing through, though.)


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