Case Law Development: Florida Rejects Habeas as Route to Raise Ineffective Assistance of Counsel in Termination of Parental Rights Actions

The Florida Court of Appeals holds that ineffective assistance of counsel claims in termination of parental rights proceedings may not be collaterally attacked through habeas corpus proceedings.  The opinion thoroughly reviews the treatment of this issue by other states (see extended post below for a summary).  The court comments that "The issue is difficult because it pits the protected interest in preserving the family and raising one's children against the manifest best interests of children and their need for permanency.... The very issue calls into play questions of procedure, time requirements, burdens of proof, and a balancing of interests." (internal quotations omitted) 

The court concludes that the "liberty interest at stake in criminal cases is simply not equivalent to that involved in custody cases involving children." The court noted several differences between termination proceedings and criminal proceedings regarding the standard of proof, role of the judge, and the critical role of time in termination proceedings.  The court also commented on 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" and 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."

The court did, however, certify the question to the Florida Supreme Court.

One dissenting judge would have permitted the use of habeas to review ineffective assistance of counsel claims in termination actions.

E.T. v. State & Dep't of Children & Families, 2006 Fla. App. LEXIS 6647   
(May 3, 2006)
Opinion on the web (last visited May 6, 2006 bgf)

Outside of Florida, thirty-one states have addressed the issue of ineffective assistance of counsel in TPR proceedings. Of those, twenty seven states (Alabama, Alaska, California, Colorado, Connecticut, Georgia, Illinois, Indiana, Iowa, Kansas, Massachusetts, Michigan, Missouri, Montana, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Utah, and Virginia) have permitted the issue to be raised on direct appeal. Two states (Alabama, Wisconsin) have indicated the issue should be raised by post-trial motion, and only one state (California) has allowed the issue to be raised by habeas corpus petition. One state (Nevada) has disallowed a claim for ineffective assistance of counsel. Four states (North Dakota, Rhode Island, Tennessee, and Vermont) have declined to address the issue. And, fifteen states (Arizona, Arkansas, Delaware, Hawaii, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, and Nebraska) have simply not addressed the issue.