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.