Amendments to the juvenile procedure and appellate rules.

The Select Committee on Claims of Ineffective Assistance of Counsel in Termination of Parental Rights Proceedings and The Florida Bar's Appellate Court and Juvenile Court Rules Committees have submitted to the Florida Supreme Court a joint out-of-cycle report offering the Court two sets of amendments to the Florida Rules of Juvenile Procedure and Florida Rule of Appellate Procedure. The proposals are in response to the Court's request for proposed rules for raising claims of ineffective assistance of counsel following the termination of parental rights. See J.B. v. Florida Department of Children and Families, 170 So. 3d 780, 793-795 (Fla. 2015). The first set of rules are narrowly tailored to provide an ineffective assistance of court-appointed counsel claim for indigent parents whose parental rights have been terminated (Narrow Set of Amendments). The second set of rules is broader and would apply to counsel for all parents whose parental rights have been terminated (Broad Set of Amendments). The court invites all interested persons to comment on the proposals, which are reproduced in full below, as well as online at http://www. floridasupremecourt.org/decisions/proposed.shtml. All comments must be filed with the court on or before June 1, with a certificate of service verifying that a copy has been served on the committee chairs, Judge Sandra Sue Robbins, chair, Select Committee on Claims of Ineffective Assistance of Counsel in Termination of Parental Rights Proceedings, Marion County Judicial Center, 110 NW 1st Avenue, Ocala 334475-6601 (srobbins@circuit5.org); Judge T. Kent Wetherell II, chair, Appellate Court Rules Committee, 2000 Drayton Drive, Tallahassee 32399-0950 (wetherellk@ldca.org); and Robert William Mason, chair, Juvenile Court Rules Committee, 407 North Laura Street, Jacksonville 32202-3109 (rmason@pd4.coj.net); and on the Bar staff liaisons to the rules committees, Heather Savage Teller (htelfer@floridabar.org), and Gregory A. Zhelesnik (gzhelesnik@floridabar.org), 651 E. Jefferson Street, Tallahassee 32399-2300, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral, which may be scheduled in this case. The committee chairs have until June 22 to file a response to any comments filed with the court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee 32399-1927; no additional copies are required or will be accepted.

IN THE SUPREME COURT OF FLORIDA IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE AND FLORIDA RULE OF APPELLATE PROCEDURE 9.146, CASE NO. SC16-553

NARROW SET OF AMENDMENTS

Rule 8.510. Advisory Hearing and Pretrial Status Conferences

(a) Advisory Hearing.

(1) [No Change]

(2) The court must:

(A) advise the parents of their right to counsel including the right to an effective court-appointed attorney and appoint [begin strikethrough]counsel[end strikethrough]an attorney in accordance with legal requirements;

(B)-(D) [No Change]

(3)-(5) [No Change]

(b)-(c) [No Change]

RULE 8.517. WITHDRAWAL AND APPOINTMENT OF [begin strikethrough]COUNSEL[end strikethrough]ATTORNEY

(a) Withdrawal of Attorney after Order Adjudicating Child Dependent [begin strikethrough]or Terminating Parental Rights.[end strikethrough] After an order of adjudication of dependency: or an order of dependency disposition, [begin strikethrough]or an order terminating parental rights[end strikethrough] has been entered, the [begin strikethrough]counsel[end strikethrough]attorney of record for a parent or legal custodian in a dependency proceeding [begin strikethrough]or a parent in a termination of parental rights proceeding[end strikethrough] shall not be permitted to withdraw as [begin strikethrough]counsel of record[end strikethrough]the-attorney until the following have occurred:

[begin strikethrough](1) The attorney certifies that the attorney has discussed appellate remedies with the parent or legal custodian.[end strikethrough]

(A)(1) The attorney certifies that after discussing appellate remedies with the parent or legal custodian, the parent or legal custodian [begin strikethrough]does not want[end strikethrough]elects not to appeal the order; or

(B)(2) The attorney certifies that after discussing appellate remedies with the parent or legal custodian, the parent or legal custodian [begin strikethrough]want[end strikethrough]selects to appeal the order, and

[begin strikethrough](i)[end strikethrough](A) a notice of appeal containing the signatures of [begin strikethrough]counsel[end strikethrough]the attorney and the parent or legal custodian has been filed or a notice of appeal containing the signature only of the attorney has been filed if the parent or legal custodian elects to appeal but is unable to personally timely sign the notice and that an amended notice of appeal containing the parent's or legal custodian's signature will be filed;

(ii)(B) directions to clerk, if necessary, have been filed;

(iii)(C) a motion to transcribe the requisite proceedings has been filed;

(iv)(D) a designation to the court reporter specifying the proceedings that must be transcribed in order to obtain review of the issues on appeal and designating the parties to receive a copy of the transcripts has been filed; and

([begin strikethrough]v[end strikethrough])(E) an order appointing appellate counsel, if any, has been entered.

Conformed copies of each of these documents shall be attached to the motion to withdraw.

([begin strikethrough]2[end strikethrough])(3) If the attorney [begin strikethrough]has been[end strikethrough] is unable to contact the parent or legal custodian regarding appellate remedies, the attorney certifies and describes the efforts made to contact the parent or legal custodian.

(b) Withdrawal of Attorney after Order Terminating Parental Rights. After an order terminating parental rights has been entered, the attorney of record for a parent in a termination of parental rights proceeding shall not be permitted to withdraw as attorney until the following have occurred:

(1) Discussion of Appeal.

(A) The attorney certifies that after discussing appellate remedies with the parent, the parent elects not to appeal the order terminating parental rights; or

(B) The attorney certifies that after discussing appellate remedies with the parent, the parent elects to appeal the order terminating parental rights; and

(i) a notice of appeal containing the signatures of the attorney and the parent has been filed or a notice of appeal containing the signature only of the attorney has been filed if the parent elects to appeal but is unable to personally timely sign the notice and that an amended notice of appeal containing the parent's signature will be filed;

(ii) directions to clerk, if necessary, have been filed:

(iii) a motion to transcribe the requisite proceedings has been filed;

(iv) a designation to the court reporter specifying the proceedings that must be transcribed in order to obtain review of the issues on appeal and designating the parties to receive a copy of the transcripts has been filed: and

(v) an order appointing appellate counsel, if any, has been entered.

Conformed copies of each of these documents shall be attached to the motion to withdraw.

(2) Discussion of Ineffective Assistance of Counsel Claim.

(A) The court-appointed attorney certifies that after discussing the right of an indigent parent to file a motion claiming ineffective assistance of court-appointed counsel, the parent elects not to file the motion, or

(B) The court-appointed attorney certifies that after discussing the right of the parent to file a motion claiming ineffective assistance of court-appointed counsel, the parent elects to file a motion. Consequently, the court-appointed attorney must immediately seek to withdraw from representation of the parent.

(3) Inability to Discuss Remedies. If the court-appointed attorney is unable to contact the parent regarding appellate remedies and the right to file a motion claiming ineffective assistance of court-appointed counsel, the attorney certifies and describes the efforts made to contact the parent.

(c) Appointment of Appellate Counsel. If the court permits the attorney to withdraw, the court must expeditiously appoint appellate counsel for indigent parents pursuant to law. The indigent parent is not entitled to a court-appointed attorney in any trial court proceeding regarding a motion claiming ineffective assistance of counsel. However, a parent may independently retain an attorney to assist in any trial court proceeding regarding a motion claiming ineffective assistance of court-appointed counsel.

(d) Service of Order Appointing [begin strikethrough]Counsel[end strikethrough]Attorney. Following rendition of an order appointing appellate counsel, the court [begin strikethrough]shall[end strikethrough]must serve [begin strikethrough]a copy of [end strikethrough]the order on the appointed appellate counsel and the clerk of the appellate court.

Committee Note

Amendment 20. Significant amendments were made to create a process for claiming ineffective assistance of court-appointed counsel in termination of parental rights proceedings. J.B.. etc. v...