E.T. v. State, Dept. of Children and Fams.

• Decision Date: 03 May 2006
• Docket Number: No. 4D04-1450.,4D04-1450.
• Citation: 930 So.2d 721
• Parties: E.T., Appellant, v. STATE of Florida and DEPARTMENT OF CHILDREN AND FAMILIES, Appellees.
• Court: Florida District Court of Appeals

930 So.2d 721

E.T., Appellant, v. STATE of Florida and DEPARTMENT OF CHILDREN AND FAMILIES, Appellees.

No. 4D04-1450.

District Court of Appeal of Florida, Fourth District.

May 3, 2006.

Rehearing Denied June 29, 2006.

Valentin Rodriguez of Valentin Rodriguez, P.A., West Palm Beach, for appellant.

Jeffrey Dana Gillen, West Palm Beach, for appellee Department of Children and Family Services.

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, and Amy J. Genet, West Palm Beach, for appellee Foster Children's Project.

MAY, J.

The father of two minor children appeals the trial court's dismissal of his petition for writ of habeas corpus alleging ineffective assistance of counsel during the proceedings that resulted in termination of his parental rights. He raises a single issue: whether the court erred in failing to conduct an evidentiary hearing on his petition for writ of habeas corpus. However, that issue begs two questions: (1) whether Florida recognizes a claim of ineffective assistance of counsel in termination of parental rights [TPR] cases; and if so, (2) what is the proper mechanism for filing such a claim. We find no error in the trial court's denial of an evidentiary hearing and affirm the order dismissing the petition.

The Facts Leading to the TPR

The trial court terminated the father's parental rights following two separate reports of abuse and neglect. The first incident occurred on March 29, 2002, when the two boys were two and three years of age. At that time, the father was the sole caretaker of the children because the mother had left them. Upon receiving a report from a resident of the housing complex in which the father and children lived, law enforcement arrived to find the two boys in diapers playing unattended in the parking lot.

The officer found the boys playing near a car that contained a cold six-pack of beer. The officer searched the complex for forty-five minutes before locating the children's home about 150 feet away. A locked six-foot wooden fence surrounded the apartment. The officer jumped the fence and pounded on the front door, but no one responded. The officer then went inside and found all the doors in the apartment locked from the inside. The father emerged from one of the bedrooms.

The officer testified, and the trial court found, the father was in a "drunken, intoxicated, and disoriented state." When asked if he knew where his kids were, the father responded, "[m]aybe they got out." The officer arrested the defendant for child neglect.

As a result of the first incident, the court adjudicated the children dependent and placed them with the father under the protective supervision of the Department of Children and Families [DCF]. The father pled to the child neglect charge. The court withheld adjudication and placed him on probation.

The second incident occurred just three weeks later on June 4, 2002. This time the children were found playing in the ocean off Singer Island, unattended and unsupervised. The woman who found them testified one of the boys was totally naked and the other one was wearing a diaper, pants, and a top. The boys were unable to verbally communicate. They had teeth marks and/or bite marks on their backs. They were dirty and smelled. The woman bought them food and diapers and after spending two hours with them without any sign of a parent, she took them to a police station near the beach.

A sheriff's deputy located the father's motel room near the beach a couple of hours later. The deputy testified that the motel room door was slightly ajar, which allowed him to peer into the room. He saw two men sleeping in a bed. He banged on the door, but was unable to wake either of them. When the father finally awoke, the deputy found him to be drunk.

The deputy took the father to the station where the father admitted to consuming alcoholic beverages (two screwdrivers and twenty beers) since noon. He stated that one of the children had gotten away from him while he was trying to change the other child's diaper. He looked for them, but abandoned the effort. He did not call the police because he was on probation for the prior incident.

The children were placed in the temporary custody of the maternal grandmother under the protective supervision of DCF. Subsequently, however, the court ordered the children taken into custody following a report of possible child neglect when the mother removed them from their placement without permission.

When the children were picked up by DCF, the certified child protective investigator found them to be out of control. At their shelter placement, they displayed none of the normal adjustment anxiety associated with being moved to a strange environment. They were unable to speak and only made grunting sounds. They were unable to eat properly and appeared to be starving. They displayed cognitive impairments and low IQs.

The TPR Proceeding

The TPR hearing was held on January 30 and 31, 2003, while the father was in jail awaiting trial on the criminal child neglect charge. While a court-ordered psychological evaluation found the father was "a good candidate for alcohol treatment, was motivated to accept treatment, and was responsive to treatment in the past," the court rejected the doctor's recommendation, noting it was not in the children's best interests and that [the father] faces a criminal trial for which he may be sentenced to four years to fifteen years incarceration if convicted. His future is uncertain. No matter the services provided to him or his potential to remain sober upon release, his self-imposed legal predicament prohibits him from being able to meet his children's immediate special needs or their need for permanency as soon as possible.

In the TPR order, the trial court found the father had a serious alcohol problem and the mother reported a history of domestic violence. The court concluded that returning "these children to the care of their father ... would doom them to a life of unimaginable horror, misery and/or death." The court found that despite referrals for services, the father's severe addiction to alcohol "continued unabated." The court found the father had not seen his children for almost a year because of his incarceration. It found the children had tremendous needs from the lack of appropriate parenting, abuse and neglect, and were desperate for bonding and permanency. And, the court found the children's immediate special needs and their need for permanency established that the termination of the father's parental rights was in their manifest best interests.¹

The father appealed the TPR order, raising, among other claims, ineffectiveness of trial counsel. This court per curiam affirmed the order. See J.T. v. Dep't of Children & Families, 861 So.2d 1166 tbl. (Fla. 4th DCA 2003). While the direct appeal was pending, the father filed a petition for writ of habeas corpus in the trial court alleging ineffective assistance of counsel.

The father argued in the direct appeal, the habeas petition, and this appeal that his lawyer was ineffective because little was done to challenge DCF's allegations of egregious conduct. He contends his TPR counsel failed to produce evidence and witnesses because the witness list had been filed late. He suggests the witnesses would have shown the children were not missing as long as claimed, and that he looked for them on the beach and hotel grounds, had returned to his room just before the deputy arrived, and was not passed out drunk.

He compared his TPR counsel to his criminal defense counsel. In his criminal trial, his attorney presented testimony from the director of the children's day care center that the father was punctual and never drunk, and the kids were healthy and clean. He further alleged his TPR counsel failed to review depositions from the criminal case and did not request a continuance of the TPR proceeding pending the outcome of the criminal trial. He complained that TPR counsel did not meet regularly with him in jail and presented no evidence of his work history, skills, ability to earn money, or completion of rehabilitation programs.

The Foster Children's Project [FCP], acting as attorney ad litem for the children, moved to quash the habeas petition, arguing that the extraordinary writ could not be granted where "relief may or could have been obtained through another remedy such as an appeal or post-conviction relief." Alternatively, FCP argued that the habeas petition should not be considered until issuance of our mandate in the direct appeal.

At the criminal trial, a jury acquitted the father of child neglect for the beach incident. However, the trial court found him guilty of violating his probation and reinstated his probation with additional conditions. The father then filed a motion in this court to relinquish jurisdiction for the trial court to consider the pending habeas petition. This court denied the motion.

After this court's affirmance of the TPR order, FCP filed a renewed motion to quash the habeas petition in the trial court, arguing that (1) the father lacked standing because his parental rights had been terminated; (2) habeas corpus was an improper remedy; and (3) the claim of ineffective assistance of counsel [IAC] was barred by the doctrine of res judicata having been considered and rejected in the direct appeal. The motion urged the trial court to finalize the children's pending adoption. The trial court dismissed the petition. The children were adopted on April 30, 2004.

The Law

The right to appointed counsel in a TPR case is not absolute under the federal due process clause. See Lassiter v. Dep't of Soc. Servs. of Durham County, N.C., 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Nevertheless, the Florida Supreme Court has held Florida's constitutional due process clause creates a right to appointed counsel in proceedings which can result in the permanent loss of parental custody. See In...