Dependency Law Finder

         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT
                                              NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
                                              DISPOSITION THEREOF IF FILED

E.L., FATHER OF E.L., A CHILD,
             Appellant, v.                                                Case No. 5D18-2238 DEPARTMENT OF CHILDREN AND FAMILIES,
             Appellee. ________________________________/ Decision filed September 25, 2018 Appeal from the Circuit Court for Orange County, Timothy R. Shea, Judge. Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant. Kelley Schaeffer, of Department of Children & Families, Children's Legal Services, Bradenton, for Appellee. Patrick John McGinley, of Law Office of Patrick John McGinley, P.A., Winter Park, and Thomasina Moore, Statewide Director of Appeals, and Sara E. Goldfarb, Appellate Counsel, of Guardian ad Litem Program, Tallahassee, for Guardian ad Litem Program. PER CURIAM.
      AFFIRMED.


TORPY and BERGER, JJ., concur. EVANDER, J., concurs, with opinion.
                                                            Case No. 5D18-2238

EVANDER, J., concurring.
       This is an appeal of a final judgment of termination of parental rights (TPR). Appellant does not challenge any of the trial court’s findings of fact and conclusions of law. Rather, he argues that he is entitled to a new trial because the trial court failed to conduct a Nelson1 hearing when, at the outset of his trial, he expressed dissatisfaction with his appointed counsel. Because this issue was not preserved below, affirmance is appropriate. I write to suggest that the strict standards set forth in Nelson should not apply in termination of parental rights (TPR) cases.
       In Nelson, our sister court stated:
                [W]here a defendant, before the commencement of trial,
                makes it appear to the trial judge that he desires to discharge
                his court appointed counsel, the trial judge, in order to protect
                the indigent's right to effective counsel, should make an
                inquiry of the defendant as to the reason for the request to
                discharge. If incompetency of counsel is assigned by the
                defendant as the reason, or a reason, the trial judge should
                make a sufficient inquiry of the defendant and his appointed
                counsel to determine whether or not there is reasonable
                cause to believe that the court appointed counsel is not
                rendering effective assistance to the defendant. If reasonable
                cause for such belief appears, the court should make a finding
                to that effect on the record and appoint a substitute attorney
                who should be allowed adequate time to prepare the defense.
                If no reasonable basis appears for a finding of ineffective
                representation, the trial court should so state on the record
                and advise the defendant that if he discharges his original
                counsel the State may not thereafter be required to appoint a
                substitute. Nelson, 274 So. 2d at 258, 259 (emphasis added).

       The Florida Supreme Court has expressly held that the right to counsel in TPR cases includes the right to effective assistance of counsel. J.B. v. Fla. Dep’t of Children & Families, 

 (Fla. 2015). However, in determining the means to vindicate the right to effective assistance of counsel in TPR cases, the court recognized that the State has a stronger interest in finality than it does in criminal cases:
              Although the State has a significant interest in the finality of
              both criminal and TPR judgments, the interest in finality is
              substantially heightened in the TPR context by the very
              important consideration that must be given to the child’s
              interest in reaching permanency and to the harm that results
              when permanency is unduly delayed. 

.
       As a result, in the context of an ineffective assistance of counsel claim, the court concluded that it was not appropriate to simply transplant the standards governing criminal cases, as set forth in Strickland v. Washington, 

 (1984). Specifically, the court required “a showing of prejudice that goes beyond the Strickland requirement that confidence in the outcome is undermined.” J.B., 

. Instead, a parent must show that deficient representation so prejudiced the outcome of the TPR proceeding that “but for counsel’s deficient representation the parent’s rights would not have been terminated.” 

.
       In further recognition of the State’s “substantially heightened” interest in finality in TPR cases, the court also concluded that a parent is required to file a motion alleging a claim of ineffective assistance of counsel within twenty days after a TPR judgment and, in that motion, explain how counsel’s alleged ineffective representation prejudiced the parent’s case “to such an extent that the result would have been different absent the deficient performance.” 

.
       Consistent with J.B., I do not believe that it is appropriate simply to transplant Nelson and the body of caselaw that it has spawned into the TPR context. See J.B., 

 (“We therefore conclude that it is not appropriate simply to transplant Strickland and the body of case law that it has spawned into the TPR context.”)
       First, I do not believe that a request for substitute counsel is timely, as a matter of law, simply because it occurs before the actual commencement of trial. Rather, in determining the timeliness of an indigent parent’s request for substitute counsel, a trial court should consider whether the indigent parent has acted in a diligent manner in bringing his or her dissatisfaction with appointed counsel to the attention of the trial court. See In re Lillian SS., 

 (N.Y. App. Div. 2017) (holding request for substitute appointed counsel in abuse and neglect proceeding must be based on good cause; court must consider “timing of the . . . request, its effect on the progress of the case and whether present counsel will likely provide . . . meaningful assistance”; substitution designed to remedy impairments to effective representation, not reward truculence with delay”). For example, in the instant case, Appellant’s primary complaint was that his appointed counsel erroneously advised him to consent to a case plan, which occurred almost two years prior to the filing of the TPR petition and almost two and one- half years before commencement of his trial. However, Appellant failed to bring this matter to the trial court’s attention until the day of trial. Thus, I believe, this complaint was untimely.
       Second, because of the state’s overriding interest in providing permanency for a child, and consistent with J.B., the parent should be required to file a post-trial, pre-appeal motion explaining how, but for the trial court’s failure to appoint substitute counsel, the parent’s rights would not have been terminated. Although a trial court should always make appropriate inquiry when an indigent parent makes a timely request for substitute counsel based on alleged ineffective assistance of counsel, I believe the prejudice standard to be applied when the trial court errs in failing to appoint substitute counsel should be consistent with the prejudice standard for ineffective assistance of counsel claim pronounced by the Florida Supreme Court in J.B. Here, Appellant made no effort to explain how the trial court’s failure to appoint substitute counsel prejudiced him “to such an extent that the result would have been different.”
       For all the reasons set forth above, I believe the final judgment terminating Appellant’s parental rights is properly affirmed. 

Nelson v. State, 

 (Fla. 4th DCA 1973).