T.D., MOTHER OF T.D., APPELLANT,
v.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
This case addresses the proper procedure for a parent to challenge a parental rights termination order when their attorney failed to file a timely notice of appeal. The court clarifies that the trial court must properly evaluate whether the parent is entitled to a belated appeal based on attorney error before addressing the merits of the termination order.
The court reversed and remanded, holding that the trial court must properly address the mother's entitlement to a belated appeal by making specific findings of fact regarding her attorney's conduct before addressing the merits of the termination order, in accordance with the procedure established in In the Interest of E.H.
[1] A petition for writ of habeas corpus is the proper procedural vehicle for a parent to seek a belated appeal when their attorney fails to file a timely notice of appeal fr…
[2] An attorney's failure to file a timely notice of appeal from a final order permanently severing parental rights abrogates a parent's right to appellate review, and this e…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The exception was designed to address only those situations in which the attorney representing a parent in a proceeding to terminate parental rights failed to file a timely notice of appeal from a final order permanently severing the parent's right to custody of his or her child.”
Establishes the narrow scope of the exception to appellate jurisdiction rules created in E.H.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceT.D.'s mother appealed a termination of parental rights order, but her attorney failed to file the notice of appeal within the required thirty-day dea…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Jurisdictional Requirement cases and more on FLexlaw
[*705] JOANOS, Judge.
This is appellant’s second appearance before this court. The prior appeal was dismissed for lack of jurisdiction, because the notice of appeal was not filed within thirty days of the rendition of the order to be reviewed. See In the Interest of T.D., 623 So. 2d 851 (Fla. 1st DCA 1993). Our dismissal was without prejudice to appellant’s right to file a petition for habeas corpus in accordance with the procedure outlined in In the Interest of E.H., 609 So. 2d 1289 (Fla.1992).
In E.H., the supreme court authorized a narrow exception to the jurisdictional requirement established by Florida Rule of Appellate Procedure 9.110(b). The exception was designed to address only those situations in which the attorney representing a parent in a proceeding to terminate parental rights failed to file a timely notice of appeal from a final order permanently severing the parent’s right to custody of his or her child. In a situation of this nature, the failure to meet the jurisdictional requirements of the appellate rule abrogates a parent’s right to appellate review of the propriety of the trial court’s ruling. The supreme court explained that the attorney’s error ought not be imputed to the parent, when the consequence of the attorney’s mistake is the parent’s permanent loss of custody of his or her children. As a remedy, the court designated the petition for writ of habeas corpus as the proper procedural vehicle or device which a parent may use to seek a belated appeal.1 The court then directed that such petition should be filed with the trial court, as the appropriate forum for resolution of the factual circumstances surrounding an attorney’s failure to invoke the jurisdiction of the appellate court in accordance with the appellate rules.
The record and the briefs filed in this cause indicate that the trial court and respective counsel misconstrued the remedy authorized by the supreme court in E.H. The petition for writ of habeas corpus filed by appellant’s counsel contains a brief explanation of the circumstances which occasioned the late filing of the notice of appeal, and then addresses the merits of the termination order. The order denying the petition sets forth no findings with respect to the entitlement of appellant/petitioner to a belated appeal predicated on the conduct of her attorney. Rather, the order denying the petition was stated as a reaffirmation of the merits of the trial court’s order terminating parental rights.2
Accordingly, we reverse and remand this cause with directions to appellant to file a petition for habeas corpus relief with the trial court, setting forth the grounds which entitle appellant to a belated appeal. In ruling on the petition, the trial court’s order should set forth such findings of fact as are necessary to support the grant or denial of a belated appeal. Adherence to this procedure should afford appellant an opportunity to obtain a thorough review of the merits of her case, in the manner contemplated by the supreme court in E.H.
REVERSED AND REMANDED WITH DIRECTIONS.
SMITH and DAVIS, JJ., concur. . The procedure authorized by the court in E.H. is analogous to that available to a defendant in a criminal proceeding to seek a belated appeal predicated on ineffective assistance of counsel. See Fla.R.Crim.P. 3.850(h); Navane v. State, 556 So. 2d 1192 (Fla. 1st DCA 1990).
. We recognize that the order was designed to be responsive to the allegations of the petition.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
G.L.S. v. Dep't of Child. & Families, 700 So. 2d 96 (Fla. 1st DCA 1997)…s-missing untimely appeal from final order terminating parental rights “without prejudice to appellant’s right to file a petition for writ of habeas corpus in the trial court”), after remand, T.D. v. Department of Health and Rehabilitative Services, 639 So. 2d 704 (Fla. 1st DCA 1994) (reversing and remanding for trial court order setting forth “such findings of fact as are necessary to support the grant or denial of a belated appeal” of an order terminating parental rights). We also certify conflict with Moor…
-
M.W. the Mother of J.W. v. Dep't of Child. & Families, 792 So. 2d 1241 (Fla. 1st DCA 2001)…n any request for a belated appeal. The trial court summarily denied the petition without stating any findings of fact with respect to the appellant’s entitlement to a belated appeal. As discussed in T.D. v. Dep’t of Health and Rehabilitative Serv., 639 So. 2d 704 (Fla. 1st DCA 1994), the appellant should be afforded an opportunity to obtain a review of the merits of her case. Accordingly, we reverse and remand with directions to the appellant to file a petition for habeas corpus relief setting forth the grou…
-
Porter v. Dep't OF Child. & Fam. Servs., 698 So. 2d 627 (Fla. 5th DCA 1997)…f an order terminating parental rights is denied without prejudice to the petitioner to seek the proper remedy in the trial court. See, In re E.H., 609 So. 2d 1289 (Fla.1992); In re T.D., 623 So. 2d 851 (Fla. 1st DCA 1993). See also, T.D. v. H.R.S., 639 So. 2d 704 (Fla. 1st DCA 1994). PETITION DENIED. W. SHARP, PETERSON and THOMPSON, JJ., concur.…
Authorities Cited
- In the Interest OF E.H., 609 So. 2d 1289 (Fla. 1992)
- Middleton v. Middleton, 623 So. 2d 851 (Fla. 1st DCA 1993)
- Navarre v. State, 556 So. 2d 1192 (Fla. 1st DCA 1990)