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Potato, potahto: whether ineffective assistance or due process, an effective rule is overdue in termination of parental rights cases in Florida.

  I. The Nature of the Right Involved
         A. Ineffective Assistance of Counsel
         B. Due Process
         C. Florida Cases Addressing the Right Involved
            1. E.T. and Subsequent Cases
            2. Pre-E. T. Cases
 II. Ineffective Assistance or Due Process?
III. The Procedure to Assert a Claim
 IV. The Need for a Better Procedure
  V. The Unheeded Call
 VI. A Better Procedure
VII. Conclusion

Pat X., a Florida resident, is a good father who loves, provides for, and takes care of his child. So, he is stunned one day when his child is removed from him and a petition for termination of his parental rights is filed. The petition alleges that Pat, who has never had any problems with the law, was convicted of first degree murder and sentenced to life imprisonment. It seeks termination on the basis that Pat will be incarcerated for a substantial portion of his child's remaining minority. (2)

Pat's lawyer investigates the matter. The lawyer speaks with the prosecutor who handled the murder case and learns that the Pat X. who was prosecuted was a woman. Not only that, but the criminal defendant was white and Pat is black. The lawyer engages the services of a fingerprint expert, who opines unequivocally that the fingerprints on the criminal judgment do not match Pat's.

A few days before trial on the termination petition, Pat's lawyer goes on a drinking binge, loses all memory of the facts learned during the investigation and, consequently, offers no argument at trial as to why Pat's rights should not be terminated. A judgment of termination is entered and Pat loses his child. A notice of appeal is filed and Pat tells his new appellate attorney what happened.

Surely, something can be done to right this outrageous wrong. Or can it? It is not clear under Florida law what legal concept governs claims arising from the acts or omissions of counsel in termination proceedings. Whatever that concept may be, it is also unclear whether a procedure even exists to attack a judgment on such a ground. Some courts have said that none does. While it appears that one procedure may be viable, it is one with an extremely limited and, in many situations, unreasonable timeframe. A call from the Supreme Court of Florida for the development of a rule to deal with situations like this one has gone unanswered. The matter needs to be addressed.



At first blush, it might appear that Pat should assert that he has been denied the effective assistance of counsel. There is no question that deficiencies arising from the acts or omissions of attorneys can give rise to relief under that theory in criminal cases.

It is well established that an ineffective assistance of counsel claim in a criminal case has two components. As set forth in the landmark case of Strickland v. Washington:
   First, the defendant must show that counsel's performance was
   deficient. This requires showing that counsel made errors so
   serious that counsel was not functioning as the "counsel"
   guaranteed the defendant by the Sixth Amendment. Second, the
   defendant must show that the deficient performance prejudiced the
   defense. This requires showing that counsel's errors were so
   serious as to deprive the defendant of a fair trial, a trial whose
   result is reliable. (3)

   The Court elaborated on the first prong of this test by stating:

   A convicted defendant making a claim of ineffective assistance must
   identify the acts or omissions of counsel that are alleged not to
   have been the result of reasonable professional judgment. The court
   must then determine whether, in light of all the circumstances, the
   identified acts or omissions were outside the wide range of
   professionally competent assistance.... [T]he court should
   recognize that counsel is strongly presumed to have rendered
   adequate assistance and made all significant decisions in the
   exercise of reasonable professional judgment. (4)

With respect to the second prong of the test, the Court said: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (5)

There seems to be no question that both prongs of this test are met in Pat's case. But, is it the test to apply? Maybe not.


The right to counsel in criminal matters comes from the Sixth Amendment to the United States Constitution (6) and, in Florida, from article I, section 16(a), of the Florida Constitution. (7) The right to counsel in a termination proceeding, however, is a matter of due process. (8) Discussing this distinction, the Supreme Court of Florida stated:
   [I]t is important to note that the right to counsel, as it has been
   presently established by the United States Supreme Court, applies
   only in criminal cases and flows principally from the sixth
   amendment right to counsel, applied to the states through the
   fourteenth amendment, rather than from the fourteenth amendment due
   process guarantee. Right to counsel in dependency proceedings, on
   the other hand, is governed by due process considerations, rather
   than the sixth amendment. (9)

The Sixth Amendment right to counsel and the right to due process are very different. "The liberty interest at stake in criminal cases is simply not equivalent to that involved in custody cases involving children." (10) It is the loss of physical liberty in criminal cases that stands as the essential difference between them and termination proceedings. (11)

This distinction not only shows that termination cases are starkly different from criminal cases, but also that they are different from juvenile delinquency matters. As noted by the United States Supreme Court when recognizing in In re Application of Gault the right to counsel in the delinquency context:
   A boy is charged with misconduct. The boy is committed to an
   institution where he may be restrained of liberty for years. It is
   of no constitutional consequence--and of limited practical
   meaning--that the institution to which he is committed is called an
   Industrial School. The fact of the matter is that, however
   euphemistic the title, a "receiving home" or "industrial school"
   for juveniles is an institution of confinement in which the child
   is incarcerated for a greater or lesser time. His world becomes "a
   building with whitewashed walls, regimented routine and
   institutional hours ***." Instead of mother and father and sisters
   and brothers and friends and classmates, his world is peopled by
   guards, custodians, state employees, and "delinquents" confined
   with him for anything from waywardness to rape and homicide. (12)

Expanding on this concept in In re D.B., the court, in distinguishing delinquency cases from dependency proceedings, stated:
      To accurately characterize the proceeding involved, it should be
   recognized that juvenile dependency proceedings and juvenile
   delinquency proceedings have distinct and separate purposes.
   Dependency proceedings exist to protect and care for the child that
   has been neglected, abused, or abandoned. Delinquency proceedings,
   on the other hand, exist to remove children from the adult criminal
   justice system and punish them in a manner more suitable and
   appropriate for children. We reject the contention that In re
   Gault, which the Davis [v. Page, 442 F. Supp. 258 (S.D. Fla. 1977)]
   court found applicable, requires the appointment of counsel in a
   juvenile dependency proceeding. The holding in Gault, in our
   opinion, only requires the appointment of counsel for an indigent
   child in delinquency proceedings which might result in detention as
   a punishment. Further, there are numerous types of juvenile
   dependency proceedings, but all concern the care, not the
   punishment, of the child. Some provide very temporary types of
   relief and custody, while other dependency proceedings permanently
   terminate the custody and care of a child. See s 39, Fla.Stat.
   (1979); Bell, Dependency Law in Florida, 53 Fla.Bar J. 652 (1979).

It seems clear that termination cases are much more akin to dependency, (14) rather than delinquency, (15) actions. (16) They do not seek to punish the child(ren), but to protect them. "The goal in a termination of parental rights is to get the child in a healthy environment and, preferably, to find adoptive parents." (17) Thus, in the termination context, "the 'God-given-right' of parents to the care, custody and companionship of their children ... is not absolute but is subject to the overriding principle that it is the ultimate welfare or best interest of the child which must prevail." (18) That best interest is the "polestar" by which courts must be guided. (19)

Because of the overriding concern for the interests of children, the right to counsel guaranteed by due process is not as broad as it is in criminal matters. Thus, the Supreme Court of Florida, in S.B. v. Department of Children & Families, found that there is no right to collaterally challenge the effectiveness of counsel in dependency proceedings. (20) It also concluded in N.S.H. that the procedures outlined in Anders v. California for criminal appeals (21) do not apply to appeals from orders terminating parental rights. (22)

In balancing the rights involved, the need for an expeditious resolution of a termination matter, a goal that could often be frustrated by the consideration of ineffectiveness claims, cannot be overstated. As stated in In re Adoption of T.M.F. and quoted in E.T.:
   Improper or inadequate action by counsel [in criminal cases] may be
   rectified in part or in total months or years after a final
   judgment of sentence with beneficial results for the appellant,
   whereas a review which turns around a decree of termination, unless
   done within a narrowly constrained time frame may do incalculable
   damage to the child with only marginal or questionable benefit to
   the parent. (23)

Even the United States Supreme Court, in Lehman v. Lycoming County Children's Services, recognized that "[t]he State's interest in finality is unusually strong in child-custody disputes." (24) After noting that delays due to litigation may lessen children's chances for adoption, (25) the Court went on to state:
   It is undisputed that children require secure, stable, long-term,
   continuous relationships with their parents or foster parents.
   There is little that can be as detrimental to a child's sound
   development as uncertainty over whether he is to remain in his
   current "home," under the care of his parents or foster parents,
   especially when such uncertainty is prolonged. (26)

Pointing to these sentiments, the court in In re T.M.F. stated: The
   Supreme Court recognizes a psychological determinate in child
   custody proceedings having to do with the child's sense of time,
   which is measured by a different and faster clock than an
   adult[']s, and the fact is that children evolve, grow, acquire new
   attachments and have differing needs which cannot be sublimated to
   the niceties of legal proceedings and the sometime dubious vagaries
   of the attacks on a decree. (27)

Moreover, in both S.B. and N.S.H., the Supreme Court of Florida focused on the importance of minimizing delay. (28)

It is also important to note, as the court did in S.B., with regard to dependency proceedings, the existence of safeguards that do not exist in criminal cases:
   The procedures and goals as they relate to the dependency of a
   child are different in form and function from those procedures and
   goals in place for criminal adjudications. In fact, the kinds of
   issues addressed in a collateral proceeding in criminal cases are
   part and parcel of the procedures already in place in dependency
   proceedings. Creating an additional process for a collateral
   proceeding in dependency matters would be duplicative of the
   safeguards already in place, and would undermine the stated goal of
   parsimoniously remedying the family's problems. (29)

Similarly, the court in E.T. stated:
   The role of the judge in termination proceedings is different from
   that in a criminal proceeding. See, e.g., Baker v. Marion County
   Office of Family & Children, 810 N.E.2d 1035 (Ind. 2004). The judge
   in a termination proceeding is the fact finder, the sentinel of the
   child's best interest, and an involved participant in the process.
   The criminal trial judge, however, must maintain a neutral arbiter
   position. "Under the aegis of the court, the role of the lawyer,
   while important, does not carry the deleterious impact of
   ineffectiveness that may occur in criminal proceedings." (30)

In light of the above principles, it appears that, while due process encompasses the right to counsel in termination proceedings, a parent quite possibly cannot assert ineffective representation per se as a basis to overturn a determination. Such an assertion would focus solely on the parent's interest and would thus run contrary to the purposes of the termination process. It would seem, however, that if some action or inaction by counsel renders a termination proceeding so unfair as to violate due process (as would likely be the case in Pat's situation), a claim of such a violation, as opposed to a Sixth Amendment violation, can properly be made. Analyzing the issue within that framework would call for the necessary weighing of the interests at stake.


1. E.T. and Subsequent Cases

The Fourth District Court of Appeal in E.T. addressed the question of whether ineffective assistance is a cognizable claim in termination cases. In doing so, however, the court dealt with the matter rather summarily, stating simply: "We begin our analysis with the obvious--a constitutional right to counsel means effective counsel; otherwise, the right is meaningless." (31)

Nonetheless, the court affirmed the trial court's dismissal of a habeas corpus petition, (32) which had asserted ineffectiveness due to the failure of the parent's trial counsel to challenge certain allegations of egregious conduct. (33)

It is difficult to draw any real conclusions from the court's affirmance in E.T. because of the unusual circumstances of the case. The parent there had asserted ineffectiveness in a direct appeal from the order of termination (34) and the district court had per curiam affirmed the order without opinion. (35) While the direct appeal was pending, the parent filed the habeas corpus petition, again raising the ineffectiveness claim. (36) A motion to quash the petition was filed in the trial court, asserting that habeas corpus was the wrong remedy and that the ineffectiveness issue was barred by the doctrine of res judicata. (37) In upholding the trial court's determination, the Fourth District, addressing the prior appeal, stated: "It cannot now be discerned whether the ineffectiveness of counsel claim was considered on its merits or whether the lack of an identified process for bringing such a claim caused the panel to affirm." (38)

The Fourth District certified to the Supreme Court of Florida (39) the following question: "Does Florida recognize a claim of ineffective assistance of counsel arising from a lawyer's representation of a parent(s) in a proceeding for the termination of parental rights?" (40) The Supreme Court of Florida never answered the question, however, discharging jurisdiction instead, because the children involved had been adopted by the time the case was considered by the court. (41)

Subsequently, the Fifth District Court of Appeal, in L.H. v. Department of Children & Families, (42) certified the same question posed by the Fourth District in E.T. (43) The decision in L.H., however, adds little to what the Fourth District said on the subject. The case dealt with an appellant who argued she had received ineffective assistance of counsel at trial, but conceded the ineffectiveness was not apparent on the face of the appellate record. (44) In affirming the termination order, the court reiterated the conclusory proclamation of E.T., stating that "the constitutional right to appointed counsel means effective counsel; otherwise, the right is meaningless." (45) Although L.H. certified the question in a context in which it does not appear, as in E.T., that children involved had been adopted, the Supreme Court of Florida nonetheless declined to exercise its discretionary jurisdiction, (46) so the question remains unanswered. (47)

The Second District Court of Appeal, in T.R. v. Department of Children & Family Services, relied on L.H. in affirming a termination order in the face of an ineffectiveness claim. (48) The court noted the record did not contain sufficient information to enable it to determine the merits of the claim, but making clear its decision "[s]hould not be interpreted as resolving the question of whether an ineffectiveness of counsel claim may, in fact, be brought in a direct appeal in a termination case." (49)

Thus, while E.T. and subsequent decisions have dealt with claims arising from acts or omissions of counsel in termination cases, it does not appear that any of the cases have specifically analyzed the question of what framework applies to consideration of such issues.

2. Pre-E.T. Cases

Cases prior to E.T. do not offer a great deal of assistance in identifying the correct approach. The one significant Supreme Court of Florida case provides some conflicting indications as to the nature of the right involved.

In that case, In re Interest of E.H., (50) the court dealt with a situation in which a parent's attorney had filed a notice of appeal one day late and, therefore, the First District Court of Appeal dismissed the appeal due to lack of jurisdiction. (51) On review of the district court order, the Supreme Court of Florida granted a belated appeal, but based its decision on the "extenuating" and "unique and limited circumstances presented by the case." (52) While the court did not go into detail about those circumstances, it is apparent they included the fact that the child involved had been in foster care for nine years as of the date of the court's decision. (53) The court indicated its holding was not "based on precedent, but on the significant policy interest" involved. (54) The court relied exclusively on cases grounded on due process considerations, Moore v. City of East Cleveland (55) and In re D.B., (56) for its recognition of the fact that a constitutionally protected interest exists in preserving the family unit and in raising one's children. (57)

Although the approach taken by the court in E.H. appears to fit more within a due process analysis than an ineffective assistance framework, two factors point the other way. First, the belated appeal concept is one that has developed in criminal cases under an ineffective assistance theory. (58) Second, jurisdiction in E.H. was predicated upon two certified questions, the first of which asked: "IN A CASE INVOLVING THE TERMINATION OF PARENTAL RIGHTS IS THE PARENT ENTITLED TO BELATED APPEAL BASED ON THE INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO TIMELY FILE THE NOTICE OF APPEAL?". (59) In its opinion, the court indicated it was answering "the first certified question in the affirmative." (60) Thus, the E.H. decision can be cited to support the conclusion that the appropriate analysis is either ineffective assistance or due process.

Other pre-E.T. cases appear to be primarily concerned with the right to counsel, not with counsel's effectiveness. For instance, in In re Interest of M.R., an order terminating parental rights was reversed in part because appellant's counsel failed to appear for the adjudicatory hearing. (61) Thus, the case dealt with the deprivation of counsel, (62) not the effectiveness of counsel's representation. Of note in any event is the fact that the court in In re M.R. relied on a due process analysis in reaching its conclusion. (63)

In re Interest of L.N. also dealt with the deprivation of counsel. (64) The trial court there conducted a hearing despite the absence of the parent's counsel. (65) As in In re M.R., the court noted that the right to counsel in the termination context arises from due process. (66)

Similarly, to the extent that Lewis v. Dept. of Health & Rehab. Servs. (67) dealt with an issue regarding counsel--the case was reversed on an evidentiary point and the comments relating to counsel were noted "in passing" and in recognition of the fact that the issue was moot--it too dealt with the absence of counsel.

In Henriquez v. Adoption Centre, Inc., an ineffectiveness challenge was made, but the court did not address the question of whether such claims are appropriate. (68) Rather, it rejected the appellant's contention "without discussion" in light of the fact that the court's review revealed that the parent's trial counsel had provided highly competent representation. (69) Given the clear fact that counsel was not incompetent in that case, the court had no need to discuss the underlying question of whether ineffective assistance is even cognizable. Indeed, it is not apparent whether that issue was even raised by the appellee, which was not, as in most termination proceedings, the agency now known as the Florida Department of Children and Families and known at the time the case was decided as the Florida Department of Health and Rehabilitative Services.

Finally, it should be realized that each of the above decisions were issued before the determination in S.B. that the effectiveness of counsel in dependency proceedings cannot be collaterally attacked. In light of the Supreme Court of Florida's analysis in that case, to whatever extent the above cases might be read to express broader implications than those discussed above, the question of whether they are still good law would have to be addressed.

S.B. may also be instructive in analyzing the conclusion reached in E.T. and L.H. that the right to effective counsel is inherent in the right to counsel. In reaching its conclusion, the S.B. court specifically noted its disapproval of the decision of the First District Court of Appeal in L. W. v. Department of Children & Families (70) to the extent that it conflicted with the S.B. decision. (71) The court in L.W. had taken the same approach as was later taken in E.T. and L.H., stating that "a parent's constitutional right to the assistance of court-appointed counsel in a dependency proceeding necessarily includes the right to effective assistance by the attorney who is appointed." (72) If the concept that the right to counsel inherently encompasses the right to effective assistance of counsel is not a valid one in the dependency (or any other) context, that concept must be deemed an overly simplistic analysis and not one that automatically defines the nature of the right involved.


It seems logical that if the right to counsel in a particular situation arises from due process, the issue of whether some act or omission of counsel rendered a proceeding unfair should be deemed to be one of due process. As a practical matter, many cases will call for the same result under either a due process or an ineffective assistance analysis. After all,
   [w]hile the right to counsel may flow from, and have its origins
   in, the Sixth Amendment in the criminal context and concepts of due
   process under the United States and Florida Constitutions in the
   dependency arena, the goal to be achieved is the participation of
   counsel acting as competent counsel.... [T]he underlying
   substantive constitutional requirement of substantial equality and
   fair process can only be realized when counsel is performing as an
   active advocate. (73)

Pat's situation would seem to be one in which relief would be called for regardless of the nature of the analysis employed. Other sets of circumstances may not, however.

It also appears from a policy perspective that due process is a more fitting framework than ineffective assistance for termination cases. It is a more flexible approach because "[t]he extent of procedural due process protections varies with the character of the interest and nature of the proceeding involved." (74) It thus broadens the appropriate considerations in a manner that can better focus courts on the best interest of the child(ren) involved, rather than merely the impact on the parent of counsel's acts or omissions. It is also more in keeping with the protective approach the courts have historically taken in such cases.

Thus, both simple logic and policy reasons call for the conclusion that attacks on termination orders that are based on the acts or omissions of counsel should be analyzed under a due process analysis. At least one justice on the Supreme Court of Florida has recognized that the flexibility provided by due process may be the critical distinction in deciding which right applies, pointing out that "it may be argued that the Sixth Amendment right to counsel may be somewhat distinguished from the right to counsel in dependency proceedings flowing from due process considerations, in that the extent of the protections may vary with the character of the interest and nature of the proceeding involved." (75) Given the similar purposes of dependency and termination matters, the same reasoning would apply in both situations.


Regardless of the nature of the right involved, there can be no question that a parent should have an opportunity to assert that the right has been violated. The cases discussed above leave open the question of what procedure should be utilized to assert claims based on the acts or omissions of counsel. (76) It seems clear, however, that, absent an opportunity for factual development, claims should not be raised for the first time on direct appeal.

It is well settled in criminal cases that "[t]he general rule is that the adequacy of a lawyer's representation may not be raised for the first time on direct appeal.... because there usually is insufficient opportunity to develop the record pertaining to the merits of these claims." (77) Thus, the courts of this state have consistently declined to consider such contentions on direct appeal, (78) "but only by collateral challenge." (79)

Clearly, the need to develop a record is as important in termination cases as it is in criminal matters. This fact is vividly demonstrated in Pat's case, in which the evidence that he was not the person convicted would not be in the record in an appeal from the order of termination. He, like most parents (or criminal defendants) seeking relief based on the acts or omissions of counsel, needs the chance to present his evidence at a hearing.

Such hearings are also important because they provide the opportunity to rebut claims that may appear facially viable either from the appellate record or from a parent's initial presentation of evidence. For instance, a failure to object to a particular piece of evidence or to present a particular witness may be a valid strategic decision depending on the facts of the case.

Therefore, it has been recognized that "[c]ounsel's omissions are often inadequately represented in the record. Even claims based on counsel's actions sometimes require evidentiary hearings to determine whether counsel acted reasonably in the context of the litigation." (80)

In light of the necessity for such hearings, attempts to assert ineffectiveness on direct appeal in termination cases have been rejected by the Florida appellate courts (81) in a manner similar to the approach taken in criminal cases.

Thus, it can be concluded that parents seeking to raise challenges should do so in the trial court. The question then becomes, "How"? Both E.T. (82) and L.H. (83) suggested that there is presently no procedure for such challenges. It appears, however, that those courts may be mistaken and that a vehicle, albeit a flawed one, does exist.

In this regard, the court in E.T. stated that the Florida Rules of Juvenile Procedure do not contain procedures for additional fact finding, (84) such as those applicable to criminal proceedings, in which defendants may raise ineffectiveness claims in motions for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The E.T. court rejected the use of habeas corpus as a vehicle, noting "the perils inherent in the use of habeas corpus petitions, such as unlimited time to file the petition, the lack of any identified rules, the proper burden of proof, and the proper parties to such a petition." (85)

The court in E.T. then concluded that "any attack on the effectiveness of counsel must come in the form of a direct appeal or a post-trial motion authorized by the rules," (86) and certified to the Supreme Court of Florida, in addition to the previously noted question, the question of what procedure must be followed to raise ineffectiveness claims if such claims are considered cognizable. (87) The court in L.H. also certified the same question. (88) Of course, because, as noted above, the Supreme Court of Florida discharged jurisdiction in E.T. and declined to accept jurisdiction in L.H., the question has not been answered. (89)

There can be no doubt that in light of the indisputable need to expeditiously resolve proceedings involving the welfare of children, an open-ended opportunity to raise ineffectiveness claims would be inappropriate. It seems, however, that the court in E. T.--and, subsequently, the court in L.H.--overlooked a procedural mechanism that does allow for the factual development of issues. That mechanism is the use of Florida Rule of Juvenile Procedure 8.265, which allows for the filing of a motion for rehearing within ten days of the entry of an order. The rule specifically allows parties to assert that they did not receive a fair hearing, (90) a concept that would encompass claims made under either a due process or ineffectiveness rationale. In light of this provision, it appears that a procedure does exist to give parents an opportunity to litigate claims at the trial level


Requiring parents to raise claims in a motion for rehearing has definite advantages. The most obvious is that the procedure resolves issues expeditiously and allows denials of relief to be reviewed within the context of appeals from orders of termination, rather than in additional, collateral proceedings. It also allows retrials, when warranted, to begin as soon as possible. It alleviates concerns that requiring claims to be raised in the trial court will cause unacceptable delays. More than any other reasonable approach, it provides prompt and final determinations in cases that so badly need such an approach.

But, the expeditious nature of the procedure is also its disadvantage. In many cases, it is simply unrealistic to expect a party to be prepared to bring a claim within the ten-day period allowed by the rule.

In this regard, it should be noted that the concept of imposing a time limitation on the assertion of claims based on the acts or omissions of counsel is not novel. Motions for post-conviction relief in criminal cases must be filed within two years after judgments and sentences become final in noncapital cases and within one year when a death sentence has been imposed. (91)

While the time period defined by the motion for rehearing rule in juvenile cases is significantly shorter and therefore problematic, it is not as Draconian as it might appear. It should be realized that the ten-day period defined by the rule starts to run upon the entry of an order, not after an oral pronouncement. (92) Orders in termination cases are seldom entered on the same date as final hearings, at which oral rulings may be made. Indeed, sometimes orders are not entered for weeks or even months after hearings. Thus, parents usually have longer than just ten days from the date they become aware of a trial court's conclusion to raise their claims.

It should be further realized that in extraordinary situations, when additional time is needed for whatever reasons, parents can advise trial courts of the reasons and ask for a delay in the entry of the order. If such a request is granted, the parent can proceed at an appropriate pace. If it is denied, the trial court's refusal can be raised as an issue on direct appeal from the final order.

Additionally, it should be remembered that, although no case has interpreted the specific rule involved, the concept that the time for filing motions for rehearing in the appellate context is not jurisdictional in nature (93) may well apply here. If so, parents can seek extensions of time for filing such motions when warranted by the facts. This factor would not provide parents with a great deal of relief, however, because the pendency of a motion for rehearing in termination cases does not stay the time for filing a notice of appeal. (94)

Despite the existence of the foregoing considerations, the fact is that the deficiencies in the performance of counsel frequently do not become apparent until review of the transcript is undertaken. Moreover, trial attorneys often do not recognize deficiencies that appellate lawyers later note, "making a claim of ineffectiveness unlikely. (95) In such situations, the need to seek relief will not even become apparent until after the ten-day period has run. Further, trial attorneys who do recognize the need within the ten days "are not likely to raise their own ineffectiveness," (96) and may well have ethical concerns with doing so, especially when, as would often be the case, they would be witnesses at hearings.

Therefore, it seems clear that the present procedure unduly limits the opportunity to raise issues arising from the acts or omissions of counsel. It is equally clear that, as noted above, an open-ended opportunity to assert claims would not be an acceptable approach. Thus, there is a need to balance the interests involved and put into place an improved procedure.


In discharging jurisdiction in E.T., the supreme court referred "It]he issue of ineffective assistance of counsel claims in termination of parental rights cases" to Florida's Appellate Court Rules Committee and Juvenile Court Rules Committee "for consideration of a rule to address such claims." (97) Additionally, in L.H., the court "recognize[d] that trial and appellate courts continue to struggle with this issue" and "urge[d] the Florida Supreme Court and the Juvenile and Appellate Rules Committees to provide guidance on this important issue." (98) Perhaps placing an overemphasis on the supreme court's use of the phrase "issue of ineffective assistance of counsel," the committees each declined to submit any rules proposals, concluding that the issue involved was substantive in nature. (99)

While the question of whether an ineffective assistance of counsel or a due process analysis applies is clearly substantive, there is no reason why the creation of an appropriate rule should wait for resolution of that question. The need for a rule is equally acute regardless of what conclusion is reached on the substantive issue.

That conclusion may dictate whether relief is appropriate in certain cases, but with regard to the question of whether a rule should be adopted, the difference between ineffective assistance and due process is immaterial and is more a matter of semantics. The problems arising from the uncertainty as to the nature of the right can be avoided by wording a rule that can apply regardless of the proper framework for analysis. Yet, to draw an analogy to a classic American song, the committees, unable to decide between the potato of ineffective assistance and the potahto of due process, called the whole thing off. (100) Their approach was wrong. A rule should be put into place that simply refers to claims of constitutional deprivations that arise from the acts or omissions of counsel and that allows such claims to be considered in an appropriate manner.


Perhaps the best approach would be the adoption of a procedure similar to the one now used in criminal cases to assert sentencing errors prior to or while cases are on appeal. Criminal defendants may file motions to correct sentencing errors in trial courts within the time for filing a notice of appeal. (101) Doing so stays rendition of the order at issue. (102) Defendants whose appeals are pending may serve such motions at any time before their first brief is served. (103) At the same time, those defendants file in the appellate court notices of pending motions to correct sentencing error. (104) Those notices automatically extend the time for filing briefs until ten days after the clerk submits a supplemental record (105) containing the motion, any response, any resulting order, and any amended sentence. (106)

The trial court is required to hold a calendar call within twenty days of the filing of a motion to correct sentencing error, to set any necessary evidentiary hearing within twenty days of the date of the calendar call, and to rule on the motion within sixty days of its filing. (107) The failure to rule within that timeframe constitutes a denial of the motion. (108) The supplemental record must be transmitted within five days of the filing of the trial court's order or the expiration of the sixty-day period. (109)

This approach allows for sentencing issues to be resolved within the timeframe of the direct appeal. It provides a vehicle that allows for review of issues by appellate lawyers, not just trial lawyers. It therefore establishes an approach that would work extremely well in the termination context--perhaps with shorter time periods--with regard to claims arising from acts or omissions of counsel.

Another possible approach would be to allow claims to be raised in the appellate courts, either by motion prior to the filing of briefs or in the briefs themselves. The appellate courts would remand for evidentiary hearings when necessary. This manner of proceeding would also allow for matters to be resolved within the direct appeal timeframe. It has some disadvantages, however.

In reviewing a claim, a court will first look to the question of whether it should be denied without a hearing. Such a denial would be appropriate when the claim is insufficient as a matter of law or when the record conclusively shows that the parent is not entitled to relief. While trial and appellate courts are equally equipped to determine if a claim is insufficient, trial courts, having heard the evidence, are in a much better position to determine whether claims are rebutted by the record. A trial court would know, for example, that the critical testimony a parent claims was not elicited from witness A actually came out through the testimony of witness B. An appellate court, in contrast, would have to comb through the record to make such a determination.

On a more basic level, a procedure calling for the initial presentation of a claim to an appellate court would constitute a departure from the traditional role of an appellate court as a reviewing body. Such courts would not be applying appropriate standards of review to trial court rulings (except after hearings), but would be making what would amount to (barring extraordinary circumstances that would give rise to review by the Supreme Court of Florida) the first and only determinations of legal matters.

Under either of these two possible approaches, a requirement should be adopted requiring a different attorney on appeal than at trial unless the represented parent waives any conflict or any potential claim arising from counsel's acts or omissions. Parents who wish to keep their attorneys should be advised of the concerns discussed above, which are inherent in such continued representation, and told of the possible consequences. An informed decision to proceed with the same attorney would waive any issues relating to the attorney's acts or omissions unless timely raised by the attorney. Waivers, of course, would not necessarily mean that attorneys could not be disqualified from representing parents at some future point, such as in situations in which they do raise an issue regarding their own acts or omissions and become witnesses.

A third option would be the adoption of a procedure similar to that utilized with regard to motions for post-conviction relief in criminal cases. The glaring problem with such a procedure would be the fact that the issue arising from counsel's acts or omissions would not be resolved within the timeframe for resolution of the direct appeal. Even assuming a dramatically shorter time limitation than is applicable in the criminal context, cases would be delayed significantly and additional appellate proceedings would be required. Further, parents would not necessarily be entitled to appointed counsel for such collateral attacks. Therefore, this approach, while it would address the overly tight time restrictions now in effect, would seem to be far less desirable than either of those outlined above.


If Pat's case arises in a circuit located within the Second, Fourth or the Fifth District of Florida, the law established by T.R., E.T., and L.H. would seem to dictate that he does not have a remedy that would allow him to regain his child. Such a result is simply unacceptable. The right involved here is too basic, too fundamental, and too important to allow such a situation to exist. "[T]he interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized...." This interest is "among associational rights ... ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect." (111) The law must provide a reasonable vehicle to protect this interest. While it is certainly unlikely a case as egregious as Pat's will ever arise, there is no doubt that clear injustices can occur, given the current inadequate procedures. (112) An appropriate rule must be adopted.

To put it another way by revisiting the classic song cited above, "Something must be done." (113)


(1.) Assistant Professor of Law and Director of Community Outreach and Pro Bono Services, St. Thomas University School of Law.

(2.) See FLA. STAT. [section] 39.806(1)(d) (2008) (providing that a parent's rights may be terminated when the parent is incarcerated in a state or federal correctional institution and "[t]he period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the time before the child will attain the age of 18 years").

(3.) Strickland v. Washington, 466 U.S. 668, 687 (1984).

(4.) Id. at 690.

(5.) Id. at 694.

(6.) See U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.").

(7.) See FLA. CONST. art. I, [section] 16(a) ("In all criminal prosecutions the accused shall ... have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial in the county where the crime was committed.").

(8.) See U.S. CONST. amend. V ("No persons shall ... be deprived of life, liberty, or property, without due process of law...."). Similarly, Florida Constitution article 1, section 9 states that "[n]o person shall be deprived of life, liberty or property without due process of law...." FLA. CONST. art. I, [section] 9.

(9.) In re Interest of D.B., 385 So. 2d 83, 89 (Fla. 1980).

(10.) E.T. v. State, 930 So. 2d 721, 728 (Fla. 4th Dist. Ct. App. 2006), rev. dismissed, 957 So. 2d 559 (Fla. 2007).

(11.) N.S.H. v. Fla. Dep't of Children & Family Servs., 843 So. 2d 898, 902 (Fla. 2003).

(12.) In re Application of Gault, 387 U.S. 1, 27 (1967) (footnotes omitted).

(13.) In re D.B., 385 So. 2d at 90.

(14.) In addition to certain situations involving surrenders, voluntary placements, and a lack of parents or legal custodians, children are deemed to be dependent when they have been "abandoned, abused, or neglected" or when they are "at substantial risk of imminent abuse, abandonment, or neglect." FLA. STAT. [section] 39.01(15)(a), (f) (2008).

(15.) Section 985.03(8) of the Florida Statutes defines a "[c]hild who has been found to have committed a delinquent act" as "[a] child who, under this chapter, is found by a court to have committed a violation of law or to be in direct or indirect contempt of court, except that this definition does not include an act constituting contempt of court arising out of a dependency proceeding or a proceeding concerning a child or family in need of services." FLA. STAT. [section] 985.03(8) (2008).

(16.) Indeed, a parent's continuation of abuse, neglect, or abandonment, the factors relevant to a dependency determination, are grounds upon which a termination can be based. See FLA. STAT. [section] 39.806(1)(e)1. (2008).

(17.) E.T. v. State, 930 So. 2d 721, 727 (Fla. 4th Dist. Ct. App. 2006), rev. dismissed, 957 So. 2d 559 (Fla. 2007).

(18.) In re Interest of Camm, 294 So. 2d 318, 320 (Fla. 1974) (citing Noeling v. State, 87 So. 2d 593, 596 (Fla. 1956); In re Interest of Pendarvis, 133 So. 2d 424, 427 (Fla. 4th Dist. Ct. App. 1961)).

(19.) In re Pendarvis, 133 So. 2d at 427.

(20.) S.B. v. Dep't of Children & Families, 851 So. 2d 689, 694 (Fla. 2003).

(21.) See Anders v. California, 386 U.S. 738, 744 (1967). In Anders, the United States Supreme Court found that when a court-appointed attorney for a criminal defendant on direct appeal finds the case wholly frivolous, the attorney:
   should so advise the court and request permission to withdraw. That
   request must, however, be accompanied by a brief referring to
   anything in the record that might arguably support the appeal. A
   copy of counsel's brief should be furnished the indigent and time
   allowed him [or her] to raise any points that he [or she] chooses;
   the court--not counsel--then proceeds, after a full examination of
   all the proceedings, to decide whether the case is wholly

Id. at 744.

(22.) N.S.H. v. Fla. Dep't of Children & Family Servs., 843 So. 2d 898, 903 (Fla. 2003).

(23.) In re Adoption of T.M.F., 392 Pa. Super. 598, 613, 573 A.2d 1035, 1043 (1990); E.T. v. State, 930 So. 2d 721, 726-27 (Fla. 4th Dist. Ct. App. 2006), rev. dismissed, 957 So. 2d 559 (Fla. 2007).

(24.) Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502, 513 (1982).

(25.) Id.

(26.) Id. at 513-14.

(27.) In re T.M.F., 392 Pa. Super. at 614, 573 A.2d at 1043.

(28.) See S.B. v. Dep't of Children & Families, 851 So. 2d 689, 693 (Fla. 2003) (citations omitted) ("In fact, the health and safety of the child is of paramount concern, and the goal is to address the concern in the most economic, effective, obvious, and direct manner."); N.S.H., 843 So. 2d at 903 ("We conclude that ... any potential benefits from the Anders procedure in the context of termination of parental rights proceedings are outweighed by the delay in the disposition of the case and the consequent potential detriment to the child from any additional delay in finalizing he permanent placement of the child.").

(29.) S.B., 851 So. 2d at 693.

(30.) E.T. v. State, 930 So. 2d 721, 726 (Fla. 4th Dist. Ct. App. 2006), rev. dismissed, 957 So. 2d 559 (Fla. 2007) (citation omitted) (quoting In re T.M.F., 573 A.2d at 1042).

(31.) Id. at 726.

(32.) Id. at 729.

(33.) Id. at 724.

(34.) E.T., 930 So. 2d at 724.

(35.) Id.

(36.) Id.

(37.) Id. at 725.

(38.) Id. at 729.

(39.) See FLA. CONST. art. V, [section] 3(b)(4). The Supreme Court of Florida has the discretionary jurisdiction to review "any decision of a district court of appeal that passes upon a question certified by it to be of great public importance." Id.

(40.) E.T., 930 So. 2d at 729.

(41.) E.T. v. State, 957 So. 2d 559, 559 (Fla. 2007), dismissing rev. from, 930 So. 2d 721 (Fla. 4th Dist. Ct. App. 2006).

(42.) L.H. v. Dep't of Children & Families, 995 So. 2d 583, 583-85 (Fla. 5th Dist. Ct. App. 2008), rev. den. sub. nom. L.H. v. Florida Dep't of Children and Families, No. SC08-2353 (Fla. Feb. 2, 2009), rev. den. sub. nom. Florida Dep't of Children and Families v. L.H., No. SC08-2356 (Fla. Feb. 2, 2009).

(43.) L.H., 995 So. 2d at 585.

(44.) Id. at 583.

(45.) Id. at 584.

(46.) L.H. v. Florida Dep't of Children and Families, No. SC08-2353 (Fla. Feb. 2, 2009), denying rev. to L.H. v. Dep't of Children & Families, 995 So. 2d 583 (Fla. 5th Dist. Ct. App. 2008); Florida Dep't of Children and Families v. L.H., No. SC08-2356 (Fla. Feb. 2, 2009), denying rev. from L. H. v. Dep't of Children & Families, 995 So. 2d 583 (Fla. 5th Dist. Ct. App. 2008).

(47.) Another opportunity to clarify the law in this area arose in A.G. v. Dept. of Children & Families, 1 So. 3d 345, 345 (Fla. 5th DCA 2009). There, the district court affirmed an appeal based on E.T. and certified the following question: "MAY A PARENT WHOSE PARENTAL RIGHTS HAVE BEEN TERMINATED CHALLENGE THE JUDGMENT OF THE TERMINATION BY PETITION FOR HABEAS CORPUS ON THE BASIS THAT THE PARENT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL?" As in L.H., however, the supreme court denied review. Fla. Dep't. of Children & Families v. A.G., 2009 WL 528682 (Fla. Mar. 2, 2009).

(48.) T.R. v. Dep't of Children & Family Servs., 33 Fla. L. Weekly D2757 (Fla. 2d Dist. Ct. App. 2008).

(49.) Id. at D2758 n.1.

(50.) In re Interest of E.H., 609 So. 2d 1289 (Fla. 1992).

(51.) Id. at 1290. Generally, in Florida courts, a notice of appeal must be filed within thirty days of rendition of the order from which review is sought. FLA. R. APP. P. 9.110(b). The time requirement for filing a notice of appeal is jurisdictional in nature. In re Interest of T.D., 623 So. 2d 851, 852 (Fla. 1st Dist. Ct. App. 1993). Thus, the failure to file a notice of appeal within the period established by the rule constitutes an irremediable jurisdictional defect. See Franchi v. Fla. Dep't of Commerce, 375 So. 2d 1154, 1155 (Fla. 4th Dist. Ct. App. 1979). Under such circumstances, appellate courts are precluded from exercising jurisdiction. See Mekertin v. Winn Dixie Stores, Inc., 869 So. 2d 1286, 1288 (Fla. 4th Dist. Ct. App. 2004); Am. Auto. Ass'n v. C.D.S. Towing & Recovery, Inc., 805 So. 2d 1064, 1065 (Fla. 3d Dist. Ct. App. 2002); Tyler v. State, 718 So. 2d 811, 812 (Fla. 2d Dist. Ct. App. 1997).

(52.) In re E.H., 609 So. 2d at 1290.

(53.) See id. at 1290 n.1.

(54.) Id. at 1291.

(55.) Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977).

(56.) In re Interest of D.B., 385 So. 2d 83, 89 (Fla. 1980).

(57.) In re E.H., 609 So. 2d at 1290.

(58.) See, e.g. Turner v. State, 588 So. 2d 1042, 1045 (Fla. 5th DCA 1991) (citations omitted) ("We find that the trial counsel's failure to timely file a notice of appeal when, finally, requested to do so by his client constitutes ineffective assistance of counsel as a matter of law."); Thames v. State, 549 So. 2d 1198, 1199 (Fla. 1st DCA 1989) (citation omitted) ("When a convicted defendant expresses his [or her] desire to trial counsel that he [or she] wishes to take a direct appeal, counsel must file a notice of appeal. Failure to do so constitutes ineffective assistance of counsel and this applies equally to both court-appointed attorneys and those privately-retained by defendant.").

(59.) In re E.H., 609 So. 2d at 1290.

(60.) Id.

(61.) See In re Interest of M.R., 565 So. 2d 371, 372 (Fla. 1st Dist. Ct. App. 1990).

(62.) Such a deprivation constitutes fundamental error. See Jackson v. State, 983 So. 2d 562, 575 (Fla. 2008), and cases cited therein.

(63.) See In re M.R., 565 So. 2d at 372.

(64.) See In re Interest of L.N., 814 So. 2d 1142, 1143 (Fla. 2d Dist. Ct. App. 2002).

(65.) See id.

(66.) See id. at 1143-44.

(67.) See Lewis v. Dep't of Health and Rehabilitative Servs, 670 So. 2d 1191, 1194 (Fla. 5th Dist. Ct. App. 1996).

(68.) Henriquez v. Adoption Ctr., Inc., 641 So. 2d 84 (Fla. 5th Dist. Ct. App. 1994) (en banc), rev. den. 649 So. 2d 233 (Fla. 1994).

(69.) See id. at 89 n.2.

(70.) See L.W. v. Dep't of Children and Families, 812 So. 2d 551, 552 (Fla. 1st Dist. Ct. App. 2002).

(71.) See S.B. v. Dep't of Children & Families, 851 So. 2d 689, 694 (Fla. 2003).

(72.) L.W., 812 So. 2d at 555.

(73.) N.S.H. v. Fla. Dep't of Children & Family Servs., 843 So. 2d 898, 904 (Fla. 2003) (Lewis, J., concurring in result only).

(74.) In re Interest of D.B., 385 So. 2d 83, 89 (Fla. 1980) (citing Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).

(75.) N.S.H., 843 So. 2d at 904 (Lewis, J., concurring).

(76.) See supra Part I.C.

(77.) Baker v. State, 937 So. 2d 297, 299 (Fla. 4th Dist. Ct. App. 2006) (citations omitted).

(78.) E.g., Bruno v. State, 807 So. 2d 55, 63 (Fla. 2001); Smokes v. State, 940 So. 2d 607, 607 (Fla. 4th Dist. Ct. App. 2006); Blanco v. State, 932 So. 2d 1152, 1152 (Fla. 3d Dist. Ct. App. 2006); Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d Dist. Ct. App. 2002).

(79.) Wuornos v. State, 676 So. 2d 972, 974 (Fla. 1996).

(80.) E.T. v. State, 930 So. 2d 721, 730 (Fla. 4th Dist. Ct. App. 2006) (Stevenson, C.J., concurring in part and dissenting in part), rev. dismissed, 957 So. 2d 559 (Fla. 2007).

(81.) See, e.g., T.R. v. Dep't of Children & Family Servs., 33 Fla. L. Weekly D2757 (Fla. 2d Dist. Ct. App. 2008); L.H. v. Dep't of Children & Families, 995 So. 2d 583 (Fla. 5th Dist. Ct. App. 2008), rev. den. sub. nom. L.H. v. Florida Dep't of Children and Families, No. SC08-2353 (Fla. Feb. 2, 2009), rev. den. sub. nom. Florida Dep't of Children and Families v. L.H., No. SC08-2356 (Fla. Feb. 2, 2009).

(82.) The criminal approach has also been applied with regard to claimed ineffectiveness in appeals from orders of involuntary civil commitment of sexually violent predators under the Jimmy Ryce Act, Fla. Stat. [section][section] 394.910 (2008) et seq. See McCrory v. State, 990 So. 2d 658, 659 (Fla. 4th DCA 2008); Manning v. State, 913 So. 2d 37, 38 (Fla. 1st DCA 2005).

(83.) See E.T., 930 So. 2d at 729; L.H., 995 So. 2d at 584.

(84.) E.T., 930 So. 2d at 728.

(85.) Id.

(86.) Id.

(87.) L.H. v. Dep't of Children & Families, 995 So. 2d 583,585 (Fla. 5th Dist. Ct. App. 2008), rev. den. sub. nom. L.H. v. Florida Dep't of Children and Families, No. SC08-2353 (Fla. Feb. 2, 2009), rev. den. sub. nom. Florida Dep't of Children and Families v. E.H., No. SC08-2356 (Fla. Feb. 2, 2009).

(88.) L.H., 995 So. 2d at 585

(89.) See supra text accompanying notes 38-40.

(90.) FLA. R. JUV. P. 8.265(a)(2).

(91.) FLA. R. CRIM. P. 3.850(b).

(92.) FLA. R. Juv. P. 8.265(b)(1).

(93.) See Tynan v. Dep't of Highway Safety and Motor Vehicles, 909 So. 2d 991, 996 (Fla. 5th Dist. Ct. App. 2005); Maffea v. Moe, 483 So. 2d 829, 831 (Fla. 4th Dist. Ct. App. 1986).

(94.) FLA. R. JUV. P. 8.265(b)(3); In re Interest of E.P., 544 So. 2d 1000, 1001 (Fla. 1989).

(95.) E.T. v. State, 930 So. 2d 721,728 (Fla. 4th Dist. Ct. App. 2006), rev. dismissed, 957 So. 2d 559 (Fla. 2007).

(96.) Id. at 730 (Stevenson, C.J., concurring in part and dissenting in part).

(97.) E.T. v. State, 957 So. 2d 559, 559-60 (Fla. 2007), dismissing rev. from, 930 So. 2d 721 (Fla. 5th Dist. Ct. App. 2006).

(98.) L.H., 995 So. 2d at 585.

(99.) See Appellate Court Rules Committee, Minutes for January 18, 2008, 18-27; Juvenile Court Rules Committee, Minutes for January 17, 2008, 3-4; DAVID NEAL SILVERSTEIN & JOHN F. HARKNESS, JR., IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE (THREE-YEAR CYCLE): THREE-YEAR CYCLE AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE, filed in the SUPREME COURT OF FLORIDA, SC09-141, 1-2 (2009), available at 09118_012109_Petition.pdf.

(100.) IRA GERSHW1N & GEORGE GERSHWIN, Let's Call the Whole Thing Off, in SHALL WE DANCE (RKO Radio Pictures 1937) (including the lyrics sung by Fred Astaire and Ginger Rogers: "You like potato and I like potahto, / You like tomato and I like tomahto; / Potato, potahto, tomato, tomahto; / Let's call the whole thing off!").

(101.) FLA. R. CRIM. P. 3.800(b)(1).

(102.) FLA. R. CRIM. P. 3.800(b)(1)(A).

(103.) FLA. R. CRIM. P. 3.800(b)(2).

(104.) Id.

(105.) Id.

(106.) FLA. R. APP. P. 9.140(f)(6)(A).

(107.) Fla. R. Crim. P. 3.800(b)(1)(B) establishes the procedures to be followed for motions before appeals and Fla. R. Crim. P. 3.800(b)(2)(B) makes those procedures applicable to motions pending appeals.

(108.) FLA. R. CRIM. P. 3.800(b)(l)(B).

(109.) FLA. R. APP. P. 9.140(f)(6)(A).

(110.) Troxel v. Granville, 530 U.S. 57, 65 (2000).

(111.) M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996) (citation and internal quotation marks omitted).

(112.) Although unrelated to the procedure for redress in such situations, it should be noted that the number of injustices, as well as the number of hearings with regard to claimed injustices, might be reduced by trial courts conducting colloquies of parents at the close of the evidence in termination proceedings, inquiring into such matters as whether parents are satisfied with the representation they received, whether there is anything else they wish to say, and whether they feel that other evidence should have been presented, other witnesses called, or other questions asked. If a parent expresses any concerns, the matter can be dealt with at that point, prior to a final ruling on the termination petition. If not, the lack of such concerns might well demonstrate that a hearing is not needed with regard to some future claim that relates to a matter within the parent's knowledge at the time of trial.

(113.) GERSHWIN & GERSHWIN, supra note 100 (including the lyrics: "Goodness knows what the end will be; / Oh, I don't know where I'm at ... / It looks as if we two will never be one, / Something must be donez
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Date:Jan 1, 2009
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