H.K., THE FATHER v. DEPT. OF CHILDREN & FAMILIES

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
H.K., the father,
Appellant,
v.
DEPARTMENT OF CHILDREN & FAMILIES and
GUARDIAN AD LITEM,
Appellees.
No. 4D19-1916
[July 17, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Alberto Ribas, Jr., Judge; L.T. Case No.
062016DP003569AXXXCE.
Antony 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 appellant.
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.
Ashley Moody, Attorney General, Tallahassee, and Carolyn Schwarz,
Assistant Attorney General, Fort Lauderdale, for appellee Department of
Children & Families.
ON ORDER TO SHOW CAUSE
KUNTZ, J.
We dismiss this appeal without prejudice to file a petition for writ of
habeas corpus seeking a belated appeal in the circuit court.
The 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.
The day 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.
The 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.
In 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.We 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.
In 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.”).
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If a 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, e.g., In re B.H., 893 So. 2d 639, 641 (Fla. 2d DCA
2005).
The appeal is dismissed as untimely without prejudice to the father’s
right to seek habeas corpus relief in the circuit court.
Dismissed.
LEVINE, C.J., and GERBER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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