Florida Juvenile Procedure Rule 8.530
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 but for counsel’s deficient performance the parent’s rights
would not have been terminated.
(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 but for counsel’s
deficient performance the parent’s rights would not have been
terminated. 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
but for counsel’s deficient performance the parent’s rights would
not have been terminated. 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 but for counsel’s deficient performance the parent’s rights
would not have been terminated, 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 but for counsel’s deficient
performance the parent’s rights would not have been terminated,
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.
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 but for counsel’s deficient performance the parent’s rights
would not have been terminated.
(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 but for counsel’s
deficient performance the parent’s rights would not have been
terminated. 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
but for counsel’s deficient performance the parent’s rights would
not have been terminated. 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 but for counsel’s deficient performance the parent’s rights
would not have been terminated, 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 but for counsel’s deficient
performance the parent’s rights would not have been terminated,
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.