Parent’s motion claiming ineffective assistance of counsel following order terminating parental rightsRule 8.530
Related statutes: § 39.811 · § 39.815 · § 39.807
16 opinions cite Rule 8.530
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X.T. v. Department of Children & Families 1D19-2974 · 1st DCA 2020
Termination affirmed because the parents did not preserve objections to unpleaded grounds in the order, and the missing ineffective-counsel notice caused no due process violation.
…in writing, of their rights to challenge the effectiveness of their lawyers’ representation within 20 days of the TPR order being rendered. Florida Rule of Juvenile Procedure 8.530(a) does require this notice, but we reject this claim as a basis for reversal. This procedural defect itself did not affect the TPR order, and the parents fail…
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B.T. v. Department of Children & Families 1D19-2788 · 1st DCA 2020
Termination affirmed: the parents failed to preserve their objection to unpleaded grounds in the order, and missing rule 8.530 notice caused no prejudice.
…in writing, of their rights to challenge the effectiveness of their lawyers’ representation within 20 days of the TPR order being rendered. Florida Rule of Juvenile Procedure 8.530(a) does require this notice, but we reject this claim as a basis for reversal. This procedural defect itself did not affect the TPR order, and the parents fail…
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G.L.S. v. Department of Children & Families 724 So. 2d 1181 · SC91 · Florida Supreme Court 1998
· cited by 9 in all courts
…at the time it enters the written disposition order after terminating parental rights. The recent changes to the rules of juvenile procedure, which deleted rule 8.530, providing for a disposition hearing, see In re Amendments to the Florida Rules of Juvenile Procedure, 23 Fla. L. Weekly S493 , 725 So.2d 296 …
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A.H. v. Department of Children & Families 4D21-3049 · 4th DCA 2022
…CURIAM. Affirmed. See B.T. v. Dep’t of Child. & Fams., 300 So. 3d 1273, 1285 (Fla. 1st DCA 2020) (holding failure to provide notice required under Fla. R. Juv. P. 8.530(a) is not per se reversible error); T.D. v. Dep’t of Child. & Fams., 187 So. 3d 365 (Fla. 5th DCA 2016) (finding failure to provide oral notice of right to file…
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Department of Health & Rehabilitative Services v. Irven 724 So. 2d 698 · 2D97-05373 · 2nd DCA 1999
· cited by 3 in all courts
…[name stricken], in Nassau County. The mother stated she is not being allowed visitations by the grandmother. 7. Petition was brought in Nassau County. 8. Rule 8.530 Transfer of Cases # b.......after adjudication...... When adjudication withheld .... when plan under Rule 8.760 has been accepted, or before adjudication…
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In Interest of A.L. 711 So. 2d 600 · 2D96-02815 · 2nd DCA 1998
· cited by 12 in all courts
…R. Juv. P. 8.510; the second hearing is the adjudicatory hearing, see Fla. R. Juv. P. 8.525; and the third hearing is the disposition hearing, see Fla. R. Juv. P. 8.530. [4] It should be noted that C.D.'s attorney, who was present at the adjudicatory hearing, requested the trial court to allow him to present argument.
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In re Amendments to Florida Rules of Juvenile Procedure and Florida Rule of Appellate Procedure 9.146 213 So. 3d 803 · SC16-553 · Florida Supreme Court 2017
…include in the order terminating parental rights a brief explanation of the procedure for filing a claim of ineffective assistance of counsel. New Rule 8.530 (Parent’s Motion Claiming Ineffective Assistance of Counsel Following Order Terminating Parental Rights) sets forth the procedure for a parent to file a…
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In re Amendments to the Florida Rules of Appellate Procedure SC22-1784 · Florida Supreme Court 2023
…Claims. (1) [NO CHANGE] (2) Rendition. A motion claiming ineffective assistance of counsel filed in accordance with Florida Rule of Juvenile Procedure 8.530 shallwill toll rendition of the order terminating parental rights under Florida Rule of Appellate Procedure 9.020 until the lower tribunal files a signed,…
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In re Amendments TO the Florida Rules OF Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, and the Florida Rules of Appellate Procedure-Electronic Service. 257 So. 3d 66 · SC17-882 · Florida Supreme Court 2018
· cited by 4 in all courts
… (1) [No change] (2) Rendition. A motion claiming ineffective assistance of counsel filed in accordance with Florida Rule of Juvenile Procedure 8.530 shall toll rendition of the order terminating parental rights under Florida Rule of Appellate Procedure 9.020 until the lower tribunal files a signed, written…
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In re Amendments to the Florida Rules of Juvenile Procedure - 2019 Fast-Track Report SC19-1818 · Florida Supreme Court 2020
…from the date this order is rendered (signed and filed). A parent may have the right to a court-appointed attorney as provided by law. Under Florida Rule of Juvenile Procedure 8.530, a parent, who had an attorney in the termination of parental rights proceeding, shall have 20 days after this order terminating parental rights is entered to…
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In re Amendments to the Florida Rules of Civil Procedure, Florida Rules of General Practice and Judicial Administration, Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Rules of Traffic Court, Florida Small Claims Rules, Florida Rules of Juvenile Procedure, Florida Rules of Appellate Procedure, and Florida Family Law Rules of Procedure SC21-1049 · Florida Supreme Court 2021
…Filed After Commencement of Appeal. If an appeal is pending, a parent may file a motion claiming ineffective assistance of counsel pursuant to Florida Rule of Juvenile Procedure 8.530 if the filing occurs within 20 days of rendition of the order terminating parental rights. (A) [NO CHANGE] (B)…
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In re Amendments to the Florida Rules of Appellate Procedure - 2020 Regular-Cycle Report SC20-216 · Florida Supreme Court 2021
…8.135(b); (K) to claim ineffective assistance of counsel following an order terminating parental rights pursuant to Florida Rule of Juvenile Procedure 8.530(f); or -7- (L) motion to vacate an order based upon the recommendations of a hearing officer in…
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In re Amendments to the Florida Rules of Appellate Procedure - 2020 Regular-Cycle Report SC20-216-2 · Florida Supreme Court 2020
…8.135(b); (K) to claim ineffective assistance of counsel following an order terminating parental rights pursuant to Florida Rule of Juvenile Procedure 8.530(f); or -7- (L) motion to vacate an order based upon the recommendations of a hearing officer in…
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In re Amendments to the Florida Rules of Juvenile Procedure 725 So. 2d 296 · SC93-3 · Florida Supreme Court 1998
· cited by 1 in all courts
…plans, disposition hearings, and the representation of HRS by the state attorney’s office in dependency matters. See the existing versions of rules 8.340(c), 8.530, and 8.310(a)(5), respectively. The Committee further proposes combining several of the rules concerning participation (or lack thereof) in the preparation…
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Amendments to the Florida Rules of Juvenile Procedure 684 So. 2d 756 · SC87656 · Florida Supreme Court 1996
· cited by 1 in all courts
…hearing, the court shall proceed as provided by law. (4) If an admission or consent is entered, the court shall proceed to disposition as set forth in these rules 8.530. If a denial is entered, the court shall set an adjudicatory hearing within the period of time provided by law or grant a continuance until the parentsparties…
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In re Amendments to the Florida Rules of Juvenile Procedure 661 So. 2d 800 · SC85584 · Florida Supreme Court 1995
…hearing, after proper notice, the failure to appear or respond shall constitute consent for the termination of parental rights by the person given notice. RULE 8.530. DISPOSITION HEARINGS (a) Information Available to Court. At the disposition hearing the court, after establishing compliance with the dispositional…
No opinion cites this provision by number.
Cited as rule 8.530 under earlier numbering (5)
These opinions cite a rule numbered 8.530 before that number meant this rule: before the rules were renumbered on July 1, 1991, or before this rule was adopted (effective 1991-07-01). They are about a different rule.
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(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.
Amendments since the 1991 renumbering
From the Florida Bar edition's table of amending opinions. Where it lists a range of rules ("8.400–8.410"), each rule in the range today is listed.
- Eff. 2017-03-23 Adopted · 213 So. 3d 803
- Eff. 1998-10-01 Deleted · 725 So.2d 296
- Eff. 1995-09-28 Amended · 661 So.2d 800
- Eff. 1991-07-01 Added · 589 So.2d 818