Fifth DCA essentially declines to follow Florida Supreme Court on ineffective assistance of counsel

The opinion boils down to this:

Florida Supreme Court: Trial judges must orally advise a parent of their right to file a motion alleging ineffective assistance of counsel after a TPR trial.

Mother: The trial judge didn’t advise me, and my trial counsel (who I tried to fire halfway through the trial) didn’t say anything either. Not even my appellate counsel filed anything until the initial brief.

DCF: Yeah, she’s right.

Fifth DCA: ¯\_(ツ)_/¯

The Fifth District doesn’t offer any legal reason that it can decline to follow the Florida Supreme Court’s clear procedure. The Fifth District points to the length of time the child has been in care as a determinative factor, but it’s unclear what that has to do with ineffective assistance of counsel at a TPR trial. A parent’s right to fair treatment does not depend on when the Department decides to file a TPR petition.

The Fifth also blames the mother’s appellate counsel for not filing a motion to relinquish jurisdiction prior to the briefing. The Fifth District did not need to wait for a motion. The notice of appeal was filed on December 21, 2015. Assuming that the briefing schedule was exactly on time, the initial brief was due within 70 days, or February 29, 2016. The Fifth would then be on notice that the mother was raising an argument based on ineffectiveness and could have relinquished jurisdiction on its own. The answer brief would be due in 20 days later, and a reply brief would be due 20 days after that, Monday April 11, 2016 — also known as 25 days after the Fifth’s opinion was rendered. Under the Florida Supreme Court’s interim rules, the trial court has 25 days to render an opinion on an ineffective assistance claim.

The Fifth therefore could have relinquished jurisdiction for the trial court to hold the hearing and finished this appeal exactly within the time-frames that the appellate rules contemplated an appeal taking. Probably sooner, because at that point the opinion would be a PCA — no written opinion necessary. Given that the mother was 18 years old and the child less than 2, waiting two extra weeks does not seem particularly egregious to make sure nothing went wrong. More time than that is routinely lost in putting together transcripts or giving an attorney an extension because they are out for vacation.

It probably wasn’t clear how an appellate attorney should handle the situation of a parent who didn’t get proper notice in the trial court. The next parent’s attorney who fails to file a motion to relinquish, however, should face ineffective assistance charges or worse. The same goes to the DCF attorneys who watched it happened without filing their own motion, and the judges who stood by and ran out the clock.


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