M.W., Mother of J.W., A Child, Appellant, v. DEPARTMENT OF CHILDREN FAMILIES (2000)

On February 24, 2000, the Circuit Court for Duval County entered an order which terminated the parental rights of M.W. and which placed the child with the Department of Children and Families for adoption.   The trial court appointed an attorney to represent M.W. in an appeal to this court but counsel notified the court she was not accepting such appointments.   Another attorney was then appointed to represent M.W. on appeal.   As a result of the delay, however, a notice of appeal was not timely filed.   Counsel explained this in response to a sua sponte show cause order which this court issued on the question of its jurisdiction.   We relinquished jurisdiction to allow appellant to seek relief in the trial court through a petition for writ of habeas corpus as contemplated by In re E.H., 609 So.2d 1289 (Fla.1992).   The petition for writ of habeas corpus was denied and appellant moves this court for clarification, expressing uncertainty as to how to proceed.

 The habeas remedy set forth in E.H. 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).   Thus, appellant's remedy in the matter at bar was to appeal the order denying habeas corpus relief as she has done in M.W., the Mother of J.W., a child, appellant, v. Department of Children & Families, appellee, case number 1D00-2887, which is now pending before this court.   The instant appeal is hereby dismissed for lack of jurisdiction without prejudice to appellant's right to pursue her appeal from the order which denied the petition for writ of habeas corpus.

PER CURIAM.

WEBSTER, PADOVANO and BROWNING, JJ., concur.