final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Alberto Ribas, Jr., Judge; L.T. Case No.
P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil
Regional Counsel, Fourth District, West Palm Beach, for
Thomasina F. Moore, Statewide Director of Appeals, and Laura
J. Lee, Senior Attorney, of Florida Statewide Guardian ad
Litem Office, Tallahassee, for appellee Guardian ad Litem.
Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Fort Lauderdale, for appellee
Department of Children & Families.
ON ORDER TO SHOW CAUSE
dismiss this appeal without prejudice to file a petition for
writ of habeas corpus seeking a belated appeal in the circuit
circuit court entered a final judgment of termination of
parental rights and permanent commitment of child on April
10, 2019. On June 18, 2019, the father filed a notice of
appeal. One day later, we issued an order expediting this
appeal and requiring the father to file a conformed copy of
the order appealed and any order that tolled the deadline to
file a notice of appeal. When the father failed to respond,
we issued an order to show cause as to why the appeal should
not be dismissed as untimely.
after we issued our order to show cause, the father filed his
"response to order suggesting untimely notice and
request to accept as belated appeal." The father asks
that we accept his notice of appeal as a belated appeal. He
explains that the circuit court entered the final judgment on
April 10, 2019, but his attorney did not receive notice of
the final judgment until May 23, 2019.
father states that his counsel informed the circuit court of
the circumstances at a post-termination hearing. At the
hearing, the court allowed counsel until June 13, 2019, to
file the notice of appeal. But counsel initially had trouble
contacting the father to determine if the father wanted to
appeal. When counsel finally reached the father, the father
instructed counsel to appeal. Four days later, counsel filed
the notice of appeal.
response to our order to show cause, the father argues that
we should accept this belated appeal based on In Interest
of E.H., 609 So.2d 1289 (Fla. 1992). In E.H.,
the court granted a belated appeal to a mother who missed the
30-day deadline to file an appeal. Id. at 1290. The
court held that counsel's failure to timely file the
notice should not be imputed to the parent when the
consequences of counsel's mistake would lead to a
"permanent loss of custody." Id.
agree that E.H. allows, in some cases, a party in a
termination of parental rights case to file a belated appeal.
But E.H. explains that a "petition for writ of
habeas corpus is the proper procedural vehicle for seeking
the appeal." Id. And a "parent's
petition for writ of habeas corpus should be filed with the
trial court." Id. at 1291. So E.H.
does not permit this Court to accept a notice of appeal as a
belated appeal and to consider the appeal on the merits.
those circumstances, when a belated appeal might be
appropriate in a termination of parental rights case, we must
dismiss the appeal without prejudice for the movant to
petition the circuit court for a writ of habeas corpus
seeking a belated appeal. See, e.g., J.F.S. III
v. State, Dep't of Children & Families, 224
So.3d 926, 927 (Fla. 1st DCA 2017); M.W. v. Dep't of
Children & Families, 792 So.2d 1241, 1241-42 (Fla.
1st DCA 2001) ("[W]e reverse and remand with directions
to the appellant to file a petition for habeas corpus relief
[in the circuit court] setting forth the grounds which
entitle the appellant to a belated appeal.").
petition for writ of habeas corpus is filed in the circuit
court, the circuit court should hold an evidentiary hearing
on an expedited basis to resolve the petition. See,