the permanency offered,

the bond between the child and current caregiver,

the stability of the current potential adoptive home and maintaining continuity;

maintaining sibling relationships,

the child’s preferences and wishes, if appropriate,

whether a TPR has been filed under § 39.806(1)(f), (g), or (h),

what is best for the child, &

the parent’s right to determine an appropriate placement.

IN ALL CASES THE COURT MUST provide written notice of the parent’s right to participate in a private adoption plan including written notice of the required best interest factors in § 63.082(6)(e).

at the arraignment hearing;

in the order that approves the case plan; and

in the order that changes the permanency goal to adoption pursuant to § 39.621. IF AN ADOPTION ENTITY MOVES TO INTERVENE THE COURT MUST SET A HEARING PROMPTLY (TO BE CONCLUDED WITHIN 30 DAYS) TO DETERMINE:

if the adoption entity filed the required documents to be permitted to intervene;

if the prospective adoptive parents are properly qualified to adopt the child; and

if change of placement/adoption is in the child’s best interests. DETERMINING SUFFICIENCY OF THE MOTION: Is a valid consent from the parent attached?

Evaluate the specific requirements in section 63.082(1). Is a preliminary home study attached?

The homestudy is deemed sufficient unless the court has concerns regarding the homestudy provider’s qualifications or adequacy of the homestudy in determining the child’s best interests.

The homestudy must be maintained as confidential in the file.

If the proposed placement is out of state, the parties must comply with the ICPC.

Is evidence of the suitability of the placement provided? IS CHANGE OF PLACEMENT/ADOPTION IN THE CHILD’S BEST INTERESTS The court must consider and weigh ALL RELEVANT FACTORS to determine if a change of placement and adoption is in the child’s best interests (See text box.) ENTER A WRITTEN ORDER WITHIN 15 DAYS OF THE HEARING TO GRANT THE MOTION THE COURT MUST DETERMINE:

the adoption entity has filed the required documents to be permitted to intervene;

the prospective parents are properly qualified to adopt the child; and

the change of placement and adoption is in the child’s best interests. THE COURT MAY establish reasonable requirements for transfer of custody, including a reasonable period of time to transition to the prospective adoptive parents. THE ADOPTION ENTITY SHALL at least every 90 days inform the court of the status of the adoption proceedings until finalization and every month until finalization provide supervision reports to DCF.

REQUIRED BEST INTEREST FACTORS

PRIVATE ADOPTION INTERVENTION IN DEPENDENCY PROCEEDINGS § 63.082(6)

1 30 45

Motion to Intervene filed

Deadline to rule on Motion

Court promptly schedules hearing

Written Final Order must be entered

Adoption Entity files status reports every 90 days until

adoption final

Conduct evidentiary hearings as needed

Required showing to grant motion There is a strong presumption the attorney provided reasonable, professional assistance and the parent must make a showing of prejudice that goes beyond the Strickland v. Washington requirement that confidence in the outcome is undermined.

FOR CASES GRANTING TPR WHEN PARENT HAS COURT-APPOINTED COUNSEL, the Supreme Court in J.B. v. DCF, 170 So. 3d 780 (Fla. 2015), established the following interim procedures until it adopts rules of procedure to formally outline the process in SC16-553: AT THE END OF THE TPR TRIAL THE COURT MUST ORALLY INFORM THE PARENTS:

they have a right to appeal the TPR order to the DCA;

they have 20 days to file a motion alleging counsel provided constitutionally ineffective assistance of counsel, but that there is no right to appointed counsel for the motion; and

the parent has a right to court-appointed counsel to appeal both the TPR and denial of the motion. THE ORDER GRANTING TPR SHALL INCLUDE a brief statement of the parent’s right to effective assistance and explain how to file the motion. THE MOTION must be filed within 20 days of the TPR order and contain:

case name and number;

the date of the TPR order;

the specific acts or omissions of counsel that constitute a failure to provide reasonable, professional assistance; and

an explanation of how the errors or omissions prejudiced the case to the extent that the result would have been different absent the deficient performance.

AFTER A MOTION IS FILED:

The court has 25 days to rule or the motion is deemed denied.

The court must order an expedited compilation of the record.

The court should schedule any necessary evidentiary hearings.

The time for appeal is tolled until entry of the order on the motion. RULING ON THE MOTION: If the parent establishes the result of the TPR proceeding would have been different absent the attorney’s deficient performance, the TPR order is vacated and a new adjudicatory hearing is scheduled. If the parent does not establish that the result of the TPR proceeding would have been different absent the attorney’s deficient performance, the court shall enter an order denying the motion, which is the final order for purposes of appeal. EFFECT OF MOTION ON APPOINTMENT OF COUNSEL:

If the parent announces an intent to appeal, the court must appoint appellate counsel.

If parent wants to appeal, the attorney must ask if parent intends to file a motion claiming ineffective assistance of counsel. If yes, the attorney must immediately withdraw as counsel.

If parent originally said no motion was going to be filed, and then does so, counsel of record (including appellate counsel) must withdraw and new counsel is appointed.

Once the motion is filed, the parent is pro se for purposes of the motion, but is entitled to appointed counsel for purposes of appeal.

Summary of Ineffective Assistance of Counsel Interim Procedures

30

45

TPR Order entered Motion must be ruled on

or its deemed denied

Motion filed Order expedited record

Written Final Order must be entered

45

Conduct evidentiary hearings as needed

Tie for Appeal resume

s

Time for appeal resumes upon entry of

order on motion Time for appeal is tolled while motion is pending

Parent has 30 days to appeal and 20 days to file motion 25 1

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p a r e n t a l R ig h t s

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At the close of evidence in the TPR trial and before entry of a termination order, advise the parent: 1. You have been represented by a court appointed attorney during this case, and have a right to

effective legal assistance from your attorney. Effective legal assistance means your court appointed attorney’s assistance was reasonable and professional. If the court enters an order terminating your parental rights, and you believe your attorney failed to provide reasonable, professional legal services in a way that changed the outcome of the trial, you have a right to file a motion claiming ineffective assistance of counsel.

2. If you believe your attorney failed to provide reasonable legal services in a way that changed the outcome of the trial and you want to file such a motion, tell your trial attorney. He/she will then withdraw.

3. Unless you hire an attorney to assist you with the motion, you must prepare and file it yourself. There is no right to a court appointed attorney to help with a motion claiming ineffective assistance.

4. You have 20 days after the TPR order is entered to file the motion. If you file the motion late, it will be denied.

5. The motion must contain the case name and number, and the date of the court order granting TPR. [J.B. does not say whether the motion should be under oath, but best practice suggests it should be.]

6. The motion must contain specific examples of things the attorney did or did not do during the TPR proceedings that show how the attorney's mistakes prejudiced your case to the extent that the result would have different, but for the poor performance.

7. The original motion must be filed with the clerk of court with copies immediately provided to the parties. The court may set a hearing on the motion if it is legally sufficient.

8. At the hearing it is your responsibility to prove the claims you made in the motion and that your attorney provided ineffective assistance. You may prove your claims by presenting documentary evidence or witness testimony.

9. If the court grants your motion, a new trial attorney will be appointed and a new TPR trial will be scheduled.

10. If the court denies your motion, you will have 30 days from the entry of the order denying the motion to appeal the order terminating parental rights and to appeal the order denying your claim of ineffective assistance. The court will appoint a new attorney to help you with the appeal, if one has not already been appointed.

Do you have any questions? Optional: also provide 1 - 10 in writing and note on the record its delivery to the parent. (Similar information must be included in the written TPR order.)

Ineffective Assistance of Counsel - Suggested Judicial Colloquy J.B. v. DCF, 170 So. 3d (Fla. 2015) (interim procedure; may be superseded by Juvenile Rules)

The court must provide written notice of the parent’s right to participate in a private adoption plan at the arraignment hearing and in the case plan approval order and in the order that changes the permanency goal to adoption. Because the statute requires notice at the hearing, to comply with the statute, separate written notice must be given at arraignment unless the order on arraignment includes the notice and is provided to the parent at the hearing. The following is suggested language to include in the orders:

Notice of the right to participate in a private adoption plan is provided as follows:

NOTICE OF PARENT’S RIGHT TO PRIVATE ADOPTION

The parent is/parents are hereby notified of the right to participate in a private

adoption plan and the availability of private placements of the child/children with an

adoption entity as defined in chapter 63, Florida Statutes. If a parent executes a

consent for adoption of a minor with an adoption entity or qualified prospective

adoptive parents and the requirements of section 63.082(6) are satisfied, the court

will determine whether the best interests of the child are served by transferring the

custody of the minor child to the prospective adoptive parent selected by the parent

or the adoption entity by considering and weighing all relevant factors, including,

but not limited to:

the permanency offered;

the bond between the child and the current caregiver;

the stability of the current potential adoptive home and maintaining continuity of placement;

the importance of maintaining sibling relationships, if possible;

the reasonable preferences and wishes of the child, if the court deems the child to be of sufficient maturity, understanding, and experience to express a preference;

whether a TPR has been filed pursuant to §39.806(1)(f), (g), or (h);

what is best for the child; and a parent’s right to determine an appropriate placement for the child.

If the court approves the private adoption plan, a petition will be filed to terminate your

parental rights and allow your child to be adopted. If you are interested in participating in

such a plan you should contact a private adoption entity and discuss it with your lawyer.

Notice of Parent’s Right to Participate in Private Adoption Plan