Potato, Potahto: Whether Ineffective Assistance or Due Process, an Effective Rule is Overdue in Termination of Parental Rights Cases in Florida

Authors

Anthony C. Musto, St. Thomas University College of Law

First Page

231

Document Type

Article

Abstract

Pat X., a Florida resident, is a good father who loves, provides for, and takes care of his child. So, he is stunned one day when his child is removed from him and a petition for termination of his parental rights is filed. The petition alleges that Pat, who has never had any problems with the law, was convicted of first degree murder and sentenced to life imprisonment. It seeks termination on the basis that Pat will be incarcerated for a substantial portion of his child's remaining minority.' Pat's lawyer investigates the matter. The lawyer speaks with the prosecutor who handled the murder case and learns that the Pat X. who was prosecuted was a woman. Not only that, but the criminal defendant was white and Pat is black. The lawyer engages the services of a fingerprint expert, who opines unequivocally that the fingerprints on the criminal judgment do not match Pat's. A few days before trial on the termination petition, Pat's lawyer goes on a drinking binge, loses all memory of the facts learned during the investigation and, consequently, offers no argument at trial as to why Pat's rights should not be terminated. A judgment of termination is entered and Pat loses his child. A notice of appeal is filed and Pat tells his new appellate attorney what happened. Surely, something can be done to right this outrageous wrong. Or can it? It is not clear under Florida law what legal concept governs claims arising from the acts or omissions of counsel in termination proceedings. Whatever that concept may be, it is also unclear whether a procedure even exists to attack a judgment on such a ground. Some courts have said that none does. While it appears that one procedure may be viable, it is one with an extremely limited and, in many situations, unreasonable timeframe. A call from the Supreme Court of Florida for the development of a rule to deal with situations like this one has gone unanswered. The matter needs to be addressed.

Recommended Citation

Anthony C. Musto, Potato, Potahto: Whether Ineffective Assistance or Due Process, an Effective Rule is Overdue in Termination of Parental Rights Cases in Florida, 21 St. Thomas L. Rev. 231 (2009).
Available at: https://scholarship.stu.edu/stlr/vol21/iss2/5