B.K., THE FATHER, IN THE INTEREST OF K.K., MINOR CHILD, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF CHILDREN AND FAMILIES, 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.
B.K. appeals the denial of his habeas corpus petition challenging a permanency order in a child custody case. The court found that B.K. was denied due process by not receiving notice of the November 2006 hearing and not being present or represented by counsel, and reversed the trial court's denial of habeas relief.
B.K. was denied due process because the record confirms he was neither provided notice of the November 20 hearing nor present or represented by counsel at that hearing, and the trial court erred in denying his habeas corpus petition.
[1] A petition for writ of habeas corpus may be used to challenge a permanency order when a party was denied due process by lack of notice or opportunity to be present or rep…
[2] A trial court's finding that a father was represented by counsel during proceedings leading to a guardianship order is insufficient to deny a habeas petition if the recor…
Previewing 2 of 5 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 habeas remedy ... is analogous to a motion for relief from judgment in accordance with Florida Rule of Civil Procedure 1.540(b) which may be used when a party to a civil action seeks to excuse the untimely filing of a notice of appeal on the theory that it did not timely receive a copy of the order sought to be appealed.”
Establishes the legal standard for habeas relief in this context and the relationship to Rule 1.540(b) motions
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceB.K. is the father of K.K., a minor child in a dependency proceeding. B.K. was represented by counsel at a September 28, 2005 hearing, but that counse…
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 Right To Be Present cases and more on FLexlaw
B.K. appeals the trial court’s order denying his petition for writ of habeas corpus by which he sought to challenge the trial court’s permanency order rendered on February 15, 2008 nunc pro tunc November 20, 2006. Appellant contends that he was denied due process of law because he did not receive notice of the November 20, 2006 permanency hearing, and was not afforded the right to be present or represented by counsel at that hearing. The trial court denied the petition because it found that the February 15, 2008 order reflected “that the father was represented [by counsel] during the course of the proceedings leading to the guardianship.”
Our review of the record confirms appellant’s assertion that he was neither provided notice of the November 20 hearing, nor present or represented by counsel at that hearing. Further, the record reflects that, although appellant had been represented by counsel at a September 28, 2005 hearing in this proceeding, such counsel was discharged on February 9, 2006, nunc pro tunc September 28, 2005. The record reflects obvious and understandable confusion at the November 20 hearing because the hearing concerned two children, siblings, K.K. and J.K., Jr. Appellant is the father of K.K. and appellant’s brother, J.K., is the father of J.K., Jr. J.K. was present at the hearing and was represented by counsel. The permanency order closed the case as to both children.
In M.W. v. Department of Children & Families, 769 So.2d 513 (Fla. 1st DCA 2000), we explained that
the habeas remedy ... is analogous to a motion for relief from judgment in accordance with Florida Rule of Civil Procedure 1.540(b) which may be used when a party to a civil action seeks to excuse the untimely filing of a notice of appeal on the theory that it did not timely receive a copy of the order sought to be appealed. In that circumstance, if the trial court finds the motion to be well-taken it should vacate the original order and re-enter it so that the adversely affected party may appeal. If the 1.540(b) motion is denied, that order may be appealed. See Gibson v. Buice, 381 So.2d 349 (Fla. 5th DCA 1980)....
Pursuant to M.W., we REVERSE and REMAND for further proceedings consistent with this opinion.
HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Robert M. Gibson et ux. v. Buice, 381 So. 2d 349 (Fla. 5th DCA 1980)
- M.W. v. Dep't OF Child. & Families, 769 So. 2d 513 (Fla. 1st DCA 2000)