IN RE: JACQUELINE P.

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Court of Appeal, Fourth District, Division 1, California.

IN RE: JACQUELINE P., on Habeas Corpus.

No. D042482.

Decided: September 24, 2003

Appellate Defenders, Inc. and Cheryl A. Geyerman, under appointment by the Court of Appeal, San Diego, for Petitioner. John J. Sansone, County Counsel, Susan Strom, Chief Deputy County Counsel, Katharine R. Bird, Deputy County Counsel, for Real Party in Interest San Diego County Health and Human Services Agency.

The juvenile court granted an order terminating the parental rights of petitioner Jacqueline P. as to her three children.  (Welf. & Inst.Code, § 366.26.) 1 Petitioner decided to appeal and followed the instructions of her trial attorney to return to the trial attorney's office, the Alternate Public Defender, a signed notice of appeal form two days before the office's prescribed deadline, May 10, 2003.   However, the trial attorney was out of the office for other responsibilities (tending to her husband during his terminal illness), and due to the admitted oversight of the attorney and her office, petitioner's notice of appeal was filed approximately two weeks past the normal deadline, or on June 23, 2003.  (In re Leania P., et al, No. D042377;  the underlying appeal.)   This court received the notice of appeal and noted its apparent untimeliness, and a motion to dismiss the underlying appeal was brought by the San Diego County Health and Human Services Agency (the Agency).

In response to communications from the clerk's office, petitioner filed this petition for writ of habeas corpus to deem the notice of appeal timely under the doctrine of constructive filing, as described in In re Benoit (1973) 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97 (Benoit ).   Opposition and reply papers have also been submitted in response to an order to show cause issued on August 8, 2003.

The applicability of the doctrine of constructive filing, based on allegedly ineffective assistance of counsel that potentially resulted in an avoidable dismissal, has been discussed by the appellate courts in a number of opinions arising in the juvenile dependency context.   This authority includes broad statements such as, “Numerous cases have held that constructive filing, which can be applied in criminal cases, does not apply in termination of parental rights proceedings under former section 232.  (In re Issac J. (1992) 4 Cal.App.4th 525, 533-534, 6 Cal.Rptr.2d 65 [Issac J.];  In re A.M. (1989) 216 Cal.App.3d 319, 321-322, 264 Cal.Rptr. 666.)   These cases have determined that the special need for finality in parental termination cases and the danger of imperiling adoption proceedings prevails over the policy considerations in favor of constructive filing.  [Citation.]”  (In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1254, 27 Cal.Rptr.2d 809;  also see In re Ricky H. (1992) 10 Cal.App.4th 552, 560, 12 Cal.Rptr.2d 578.) 2

Based on the specific set of circumstances before us in this case, this court declines to adopt such a broad approach as outlined above, that would universally disallow the constructive filing doctrine within the juvenile dependency context when parental rights are terminated.   The facts alleged in this petition show that the client, petitioner, acted in a diligent and timely manner to make her wishes to appeal an adverse judgment known to her attorney of record, who undisputedly failed to act in a diligent and timely manner to proceed with the filing of that notice, even though there were extenuating personal circumstances on her part.   In an appropriate case, in the context of a contested termination of parental rights judgment, the purposes of the jurisdictional requirements for bringing a timely appeal of a judgment are readily reconciled with the purposes of the constructive filing doctrine, because there are significant due process considerations favoring the hearing of such an appeal on the merits.   The degree of the delay imposed by doing so in this case is not so great as to justify penalizing the client for the inaction of the appointed attorney.   For the reasons to be explained, we will grant the petition, which will have the effect of validating the client's timely submission of the notice of appeal to the office of her attorney of record, for purposes of proceeding with that appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On March 26, 2003, the juvenile court terminated petitioner's parental rights and declared the three minors involved in this case, ages 7, 5, and 3, to be freed from her custody and control.   They were placed in two separate pre-adoptive homes.

At the trial on the termination issues, petitioner was represented by an attorney employed by the Alternate Public Defender, Primary Parent Office.   Petitioner decided to appeal and pursuant to instructions given her by her attorney, she signed and returned to that office a notice of appeal form on May 8, 2003, which was two days before the requested date set by that office.   Because the matter had been heard by a referee, and the written order was mailed March 28, 2003, an extended 10-day deadline applied to allow a rehearing request, such that the 10 days ran on April 8, 2003.   The deadline to file a notice of appeal was accordingly extended until Monday, June 9, 2003. (§ 395;  Cal. Rules of Court, rules 39(b), 1417(c).) 3

Since late 2002, petitioner's trial attorney worked on a sporadic basis because her husband had developed cancer and she was caring for him.   She was working full-time at the time of the trial, but learned in March 2003 that his cancer had returned and accordingly, she worked out of the home sporadically until he died on June 18, 2003.   When the trial attorney discovered petitioner's notice of appeal upon returning to the office, she submitted to the juvenile court and this court a declaration requesting an excuse for late filing of the notice of appeal on the basis that she did not believe she would have missed the deadline except for the extenuating circumstances that she was required to attend to her husband during his last illness.   The notice of appeal was filed in the Superior Court on June 23, 2003, and received by this court on June 25, 2003, approximately two weeks late.  (Rules 39(a), (b);  31(a).)

The Agency brought a motion to dismiss the underlying appeal.   This petition for habeas corpus seeks to have the notice of appeal deemed to be timely filed or constructively filed on a timely basis.   It does not seek to make a collateral attack upon the judgment itself, but only to have the matter proceed in the normal course of an appeal, which is on a priority basis in this context of termination of parental rights.  (Rule 39(e).)

DISCUSSION

 Resolution of this petition requires us to apply the policy considerations authorizing constructive filing of notices of appeal, in light of other undisputed public policies supporting prompt resolution of parental termination cases and the established due process considerations in that special factual context.   It is well recognized that parental termination orders represent a point at which the interests of the child and parent may collide, with respect to the child's interest in finality and the parent's interest in assuring the correctness and appropriateness of any such final order.  (Issac J., supra, 4 Cal.App.4th 525, 540, 6 Cal.Rptr.2d 65 (dis. opn. of Timlin, J.).)   The statutory scheme and the court system provide expedited proceedings in the juvenile dependency context, and priority appeals as well.  (Rule 39(e).)   However, they also recognize that the legitimacy of this system depends upon the application of due process as to all participants.  (In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 17, 272 Cal.Rptr. 787, 795 P.2d 1244;  Santosky v. Kramer (1982) 455 U.S. 745, 753-754, 102 S.Ct. 1388, 71 L.Ed.2d 599.)   In this case, those due process considerations arise specifically with respect to the alleged ineffective assistance of counsel that was rendered to petitioner, with respect to the filing of her notice of appeal.  (In re Adoption of Michael D. (1989) 209 Cal.App.3d 122, 135, 256 Cal.Rptr. 884.)

 We will briefly outline the history of the constructive filing doctrine, then the due process considerations applicable to parental termination cases and appeals generally, with attention to their expedited nature.   Our inquiry is whether petitioner's individual acts were enough to invoke the jurisdiction of this court, under all of the relevant circumstances, including the constructive filing doctrine as it has been created and applied in aid of interpretation of the Rules of Court.   We do not seek to create jurisdiction where none exists, but rather to recognize its existence if justice and due process so require.   This approach is consistent with that of rule 45(e), providing that the court cannot grant relief from default for an untimely filing of the notice of appeal.   Rather than attempting to do so here, we seek to accommodate the “ ‘strong public policy in favor of hearing appeals on their merits and of not depriving a party of his right to appeal because of technical noncompliance where he is attempting to perfect his appeal in good faith.’  [Citation.]”  (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 853-854, 237 Cal.Rptr. 282.)   We are mindful that the “ ‘remedial character of the right of appeal’ ” points in favor “ ‘of according that right in doubtful cases “when such can be accomplished without doing violence to applicable rules.” [Citations.]’  ” (Warmington Old Town Associates, L.P. v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840, 849, 124 Cal.Rptr.2d 744.)

A

Constructive Filing and Rules of Court

The Supreme Court's opinion in Benoit, supra, 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97, extended the doctrine of “constructive filing” on the basis of ineffective assistance of counsel, to late-filed criminal appeals, but only under certain circumstances:  “[W]here the late filing of the notice of appeal occurred in the context of (a) the justifiable reliance of the defendant on his or her attorney to timely file a notice of appeal, (b) the due diligence of the defendant in assuring himself or herself that a notice of appeal was being timely filed, and (c) the ineffective assistance of counsel in nevertheless failing to timely file such a notice.  [Citation.]”  (Issac J., supra, 4 Cal.App.4th 525, 536-537, 6 Cal.Rptr.2d 65 (dis. opn. of Timlin, J.), citing Benoit, at pp. 86-89, 109 Cal.Rptr. 785, 514 P.2d 97.)

 In Benoit, supra, 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97, the court's reasoning was based on the federal constitutional right to counsel in criminal cases under the Sixth Amendment to the United States Constitution, as extended to the states through the due process clause of the Fourteenth Amendment.  (Issac J., supra, 4 Cal.App.4th 525, 531, 6 Cal.Rptr.2d 65.)   However, case law has also recognized that there is a due process right to the assistance of counsel in civil matters that involve liberty interests, such as proceedings to terminate parental rights, and this may include the right to appointed counsel.  (Ibid.;  Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640.)  “Where there is a due process right to counsel, there is a concomitant right to the effective assistance of counsel.  [Citation.]”  (Issac J., supra, 4 Cal.App.4th at p. 531, 6 Cal.Rptr.2d 65.)  “It is true, as we have noted above, that in a proceeding involving parental rights, the child's interests should be given great weight.   However, if counsel's ineffective representation of the parent has resulted in an inappropriate termination of the parent-child relationship, the child may have an interest equal to that of the parent's in its restoration.   Thus, we believe with the court in In re Adoption of Michael D., supra, [209 Cal.App.3d 122, 256 Cal.Rptr. 884], that the denial of effective assistance at trial is an issue properly presented to a reviewing court.”  (Issac J., supra, 4 Cal.App.4th 525, 531-532, 6 Cal.Rptr.2d 65.)   The right to assistance of appointed counsel will also apply at the appellate level.  (In re Sade C. (1996) 13 Cal.4th 952, 984, 55 Cal.Rptr.2d 771, 920 P.2d 716.)

 Effective assistance of appellate counsel includes the timely filing of an appeal, where appropriate.  (Roe v. Flores-Ortega (2000) 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985.)  “[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.  [Citations.]  This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice.   Counsel's failure to do so cannot be considered a strategic decision;  filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes.”  (Ibid.;  also see People v. Diehl (1964) 62 Cal.2d 114, 117-118, 41 Cal.Rptr. 281, 396 P.2d 697.)

Some courts in the juvenile dependency context have refused to find that rule 39, governing juvenile appeals, impliedly incorporates the doctrine of constructive filing as applied to rule 31 by Benoit, supra, 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97, in criminal appeals, or have said that even if it is included, the doctrine should be found inapplicable due to the “special need for finality in cases under [former] section 232” (In re A.M., supra, 216 Cal.App.3d 319, 322, 264 Cal.Rptr. 666), and due to “the danger of imperiling adoption proceedings.”  (Issac J., supra, 4 Cal.App.4th 525, 531, 6 Cal.Rptr.2d 65.) 4

 In In re Ricky H., supra, 10 Cal.App.4th 552, 12 Cal.Rptr.2d 578, the court expressed its belief that the relief allowed by Benoit, supra, 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97, should apply only in cases of incarcerated appellants, and “even if we were to extend the doctrine beyond incarcerated criminal defendants, the mother would not qualify for relief on the record before us.”  (In re Ricky H., supra, at p. 560, 12 Cal.Rptr.2d 578.)   However, we agree with the petitioner here that “actual incarceration of the defendant is not pivotal to the reasoning for granting constructive filing of the notice of appeal.”   Although the deprivation of liberty interests by incarceration is much more extreme than is the deprivation of the child's society to the parent, as ordered through dependency and termination of parental rights proceedings, both clearly involve protected liberty interests which are deserving of close examination.   It is well established that a parent cannot be denied adequate procedural safeguards in a parental termination proceeding, “on the ground that the family unit already has broken down;  that is the very issue the permanent neglect proceeding is meant to decide.”  (Santosky v. Kramer, supra, 455 U.S. 745, 753-754, fn. 7, 102 S.Ct. 1388, 71 L.Ed.2d 599.) 5

 Accordingly, we are satisfied that due process requires the constructive filing doctrine to have a place in parental termination proceedings conducted in juvenile dependency court, provided that the doctrine is “narrowly construed so as not to obliterate the jurisdictional underpinnings of the timely filing rule.”  (Eisenberg, et al, Cal. Practice Guide:  Civil Appeals and Writs (The Rutter Group 2003) § 3:6.1a, page 3-3.)   We are well aware of the importance of the issues at stake as to both child and parent, and the need for speedy resolution of those issues, as emphasized in In re A.M., supra, 216 Cal.App.3d 319, 264 Cal.Rptr. 666, and its progeny.   However, we think the approach required by the weight of authority is to read rule 39(a) together with rule 31(a) to determine the applicable rules for filing an appeal in the juvenile dependency context when parental termination is sought.   The reason for this is well explained in the dissent in Issac J., supra, 4 Cal.App.4th 525, 6 Cal.Rptr.2d 65, where Justice Timlin observed that “Rule 31(a) does not exist in a vacuum;  it, like all other procedural rules, has come to have a particular meaning, in the context of its application, by virtue of its interpretation and application in actual cases.  ‘Rule 31(a)’ means ‘rule 31(a) of the California Rules of Court as it has been interpreted and applied.’   Since our Supreme Court issued its opinion in Benoit, rule 31(a) has been understood as being qualified by a constructive filing exception in certain situations concerning the ineffective assistance of counsel.   It is this ‘rule 31(a),’ the qualified rule, which is made applicable to [parental rights termination] cases by rule 39(a)-unless the application of the rule, as qualified, ‘would be clearly impracticable or inappropriate.’  ” (Issac J., supra, at pp. 537-538, 6 Cal.Rptr.2d 65.)   We agree with this approach and turn to the application question, next.

B

Parental Termination Cases

 Application of the constructive filing doctrine where a parental termination order is involved requires consideration of a number of factors:  Whether the late filing of the notice of appeal occurred in the context of (a) the justifiable reliance of the parent on his or her attorney to timely file a notice of appeal, (b) the due diligence of the parent in assuring herself that a notice of appeal was being timely filed, and (c) the ineffective assistance of counsel in nevertheless failing to timely file such a notice.  (Benoit, supra, 10 Cal.3d at pp. 86-89, 109 Cal.Rptr. 785, 514 P.2d 97.)   We next consider the circumstances in which the courts that have addressed this issue have declined to apply the constructive filing doctrine where parental termination orders are challenged.

First, however, it should not be disregarded in analyzing these questions regarding the ineffective assistance of counsel that petitioner was represented at trial by an attorney employed by the Alternate Public Defender, Primary Parent Office.   There is no explanation in the record why some other staff attorney in that public office was not monitoring the situation for purposes of filling in for absent counsel.   We do not condone this lack of diligence on the part of that office, and agree that prejudice to the client is clear;  we accordingly seek to analyze this case upon the facts as they are presented to us.6  (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 955-956, 124 Cal.Rptr.2d 688.)

 Another related issue that should not be allowed to distract us is the application of a comparable rule, the waiver rule, which prevents a parent from challenging underlying orders that have become final, in the context of an appeal from a parental termination order.   This waiver rule has been enforced over claims of ineffective assistance of counsel.  (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151, 65 Cal.Rptr.2d 913:  [“The principle ․ that an appellate court in a dependency proceeding may not inquire into the merits of a prior final appealable order on an appeal from a later appealable order is sound.   We decline to carve out an exception to it here even though the issues raised involve the important constitutional and statutory rights to counsel and to the effective assistance of counsel.”] )   The case before us is not one in which the petitioner, in the guise of appealing the parental termination order, is actually seeking to challenge the validity of a final earlier appealable order that was not timely challenged.   (See id. at pp. 1151-1155, 65 Cal.Rptr.2d 913.)

Nor is this a case in which the petition for writ of habeas corpus is being used to make an improper collateral attack upon a nonappealable order.   As explained in 10 Witkin, Summary of California Law (2003 supp.)   Parent and Child, section 230A, that defect formed part of the majority's analysis in Issac J., supra, 4 Cal.App.4th 525, 6 Cal.Rptr.2d 65, for concluding that the constructive filing doctrine should not be applied.   As stated in that source, interpreting Issac J.:  “The doctrine of constructive filing does not apply in proceedings under [Civil Code section] 232.   It is true that criminal defendants are granted relief where there is justifiable reliance on the promise of counsel to timely file notice. And here, the attorney's inaction could be characterized as ineffective assistance of counsel.  [Citation.]  However, under Adoption of Alexander S. (1988) 44 Cal.3d 857, 245 Cal.Rptr. 1, 750 P.2d 778, ․ habeas corpus may not be used to collaterally attack a final nonmodifiable judgment in an adoption-related action.  [Citation.]  Although the result may be harsh, ‘in adoption-related proceedings, the simple fact than an apparently final judgment is placed in danger of being upset must have a deleterious effect on the child.’  [Citation.]”  (10 Witkin, Summary of Cal. Law, supra, Parent and Child, § 230A, p. 171, also citing In re Alyssa H., supra, 22 Cal.App.4th 1249, 1254, 27 Cal.Rptr.2d 809;  also see Seiser et al., California Juvenile Courts:  Practice and Procedure (2003), § 2.190[4], pp. 2-302 through 2-203, opining that the doctrine of constructive filing is unlikely to be found available in dependency appeals in any context.)

In several other cases relied upon by the Agency, the parent who sought to have a tardy notice of appeal deemed to be constructively timely filed was unable to make an adequate showing of diligence as a prospective appellant.   Specifically, in In re A.M., supra, 216 Cal.App.3d 319, 321-322, 264 Cal.Rptr. 666, the mother said she wanted to appeal but her counsel was not able to reach her to obtain her signature on the notice, which counsel then signed and filed a day late.   In In re Ricky H., supra, 10 Cal.App.4th 552, 12 Cal.Rptr.2d 578, the court indicated that even if the constructive filing doctrine applied, the “failure to file a timely appeal from the [termination] orders was the result of [the mother's] own deliberate decision not to pursue an appeal, not from a reasonable but disappointed reliance upon the promise of counsel to do so.   The constructive filing doctrine is not intended to save an appellant from the natural consequences of his or her own decisions.”  (Id. at p. 560, 12 Cal.Rptr.2d 578.)   In In re Alyssa H., supra, 22 Cal.App.4th 1249, 27 Cal.Rptr.2d 809, where the appeal was dismissed, the court does not explain why late notice was given by the parent.   In Issac J., the custodial parent (mother) had sought to have the noncustodial father's rights terminated due to his abandonment of the children, in order to clear the way for a stepparent adoption.   It was in that factual context that the court found the father's appeal was untimely, and that the considerations of speediness and stability for the children were paramount.  (Issac J., supra, 4 Cal.App.4th at pp. 528, 534, 6 Cal.Rptr.2d 65.)

 In the case before us, it is the termination order itself that petitioner sought to directly appeal, and she has made a prima facie showing that she justifiably relied on her attorney to timely file a notice of appeal, by acting in a diligent manner to assure herself that a notice of appeal was being timely filed.  (Benoit, supra, 10 Cal.3d at pp. 86-89, 109 Cal.Rptr. 785, 514 P.2d 97;  also see In re Darlice C. (2003) 105 Cal.App.4th 459, 466, 129 Cal.Rptr.2d 472.)   The Agency does not dispute that this was the case, but relies on the authority which holds that the constructive filing rule is wholly inconsistent with the purposes to be served by parental termination proceedings.   As outlined above, that authority is distinguishable on its facts and in the procedural context in which the application for relief from late filing was made.   Here, the only showing is that the mother acted diligently, counsel did not, and the children are in a stable pre-adoptive placement.   There is no clear indication that adoption is imminent, nor that conducting the appeal on a priority basis would create any undue turmoil on their part, or more than they have already undergone.   In such a case, there is no clear impediment to the use of the constructive filing doctrine, which would instead serve to assure that the termination order is meritorious.   Unless constructive filing is allowed, it will never be known whether the proposed arguments on appeal will have merit.  (See Issac J., supra, 4 Cal.App.4th at p. 534, 6 Cal.Rptr.2d 65, discussing Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 955, 281 Cal.Rptr. 507.)

In light of all these competing considerations, we must be guided by the language of rule 39(a), and find that “[t]he rules governing appeals from the superior court in criminal cases are applicable to all appeals from juvenile court ․,” and the application of the constructive filing rule, as it has been developed, would not be clearly “impracticable or inappropriate here.”  (Ibid.) The failure of counsel to file the notice of appeal, timely tendered by the client, amounted to a defect fundamentally undermining the statutory scheme that includes the protection of a right of appeal for the parent.  (See In re Janee J. (1999) 74 Cal.App.4th 198, 207, 87 Cal.Rptr.2d 634, discussing the comparable waiver rule.)   This record shows that the client took sufficient action to protect her right of appeal, and the trial attorney also took sufficient action, as soon as the omission was discovered, to enable the client to obtain a remedy for that right.

In reaching this conclusion, we disagree with the majority in Issac J., supra, 4 Cal.App.4th 525, 6 Cal.Rptr.2d 65, that although a flexible standard for the application of the constructive filing doctrine in the context of an attempted appeal of a parental termination order would be desirable, no such standard can be formulated that will do more good than harm.  (Id. at p. 534, 6 Cal.Rptr.2d 65.)   Instead, we seek to emphasize that in deciding here that the client's right to appeal should be protected in order to enable her to obtain a ruling on the merits at a later time, we do not in any way address the merits of her claims at this stage.   Nor do we seek to bind later reviewing courts to any particular results when considering applications for relief under the constructive filing doctrine, when parental termination orders are challenged.   Although we readily acknowledge that this doctrine is not a comfortable fit in the termination of parental rights context, we believe the application of the doctrine is required here, based on the relevant constitutional considerations, as well laid out by Justice Timlin in his dissent in Issac J., 4 Cal.App.4th at pages 542, 6 Cal.Rptr.2d 65 to 543, as follows:

“To adopt a blanket, ‘across-the-board’ holding, as the majority does, that the Benoit constructive filing doctrine simply does not, ever, apply to late-filed appeals in FFC [freedom from custody] cases where the late filing of the appeal is attributable to the professional incompetence of an appellant parent's counsel would (1) severely (and, to a large degree, needlessly) undermine that appellant parent's constitutionally protected ‘fundamental liberty interest’ in the basic human rights to conceive and raise children and (2) deprive that appellant parent of his or her constitutional right to receive the full appropriate measure of the due process of law in contesting the termination of his or her parental rights.   In my view, an ad hoc, ‘case-by-case’ approach to applying the Benoit constructive filing doctrine in FFC cases respects and preserves these fundamental constitutional rights held by parents without unduly prejudicing the interest of children (and of society) in seeing that children enjoy the benefits of stable, long-term relationships while growing up.”

C

Conclusion

In this case, when the trial attorney discovered her mistake, she promptly (within two weeks) applied to the juvenile court and the Court of Appeal for relief on the basis that the notice of appeal should be deemed constructively filed, due to the client's timely exercise of diligence to protect her rights, and the inadvertence of counsel in failing to follow through, as well as the unfortunate circumstances in which this occurred.   It bears repeating that this is not a case in which the parent is seeking collateral relief from the judgment, nor from underlying nonappealable orders, by way of habeas corpus.   Rather, this is a case in which the client acted diligently and promptly after the subject order was issued, but the attorney failed to follow through due to her tragic personal circumstances, and a two-week delay ensued.   The remainder of the delay, for several months, has been mainly caused by the Agency's opposition to the constructive filing request.   It is not disputed that the three children are in stable pre-adoptive placements, but nevertheless, they, like their mother, have an interest in ensuring that the parental relationship was not erroneously severed.

Under rule 39(e), appeals from juvenile court orders are given priority over other appeals.   Based on all the relevant circumstances, we conclude that it is neither “impracticable or inappropriate,” within the language of rule 39(a), for the constructive filing rule as developed under rule 31(a) to be applied to this notice of appeal.   Rather, due process demands that we do so.

DISPOSITION

Petitioner is entitled to the relief sought and the petition is granted for habeas relief.   The notice of appeal filed June 23, 2003 and assigned Court of Appeal case number D042377 is deemed timely filed.   This opinion is final as to this court immediately.  (Rule 24(b)(3).)

FOOTNOTES

1.   All further statutory references are to the Welfare and Institutions Code unless noted.

2.   Civil Code section 232 contained the former procedure for declaring a child free from parental custody (referred to as FFC cases).   These matters are now handled through the juvenile dependency court, section 300 et seq.

3.   All further rule references are to the California Rules of Court.

4.   Rule 31(a), governing criminal appeals, provides that an appeal is taken by filing a written notice of appeal with the clerk of the superior court within 60 days after the rendition of the judgment or the making of the order.  Rule 39(b), governing juvenile appeals, sets a similar deadline.   Under Rule 39(a), in pertinent part, “The rules governing appeals from the superior court in criminal cases are applicable to all appeals from the juvenile court and any appeal in an action under part 4 (commencing with section 7800) of division 12 of the Family Code, except where otherwise expressly provided by this rule or rule 39.1, 39.1A, or 39.1B, or where the application of a particular rule would be clearly impracticable or inappropriate.”

5.   See discussion in Issac J., supra:  “I do not contest the majority's position that a minor's interest in final, stable, long-term relationships is an important one-but I cannot agree that the law, in seeking to protect a minor's interests in such relationships, should countenance an irrevocable and complete severance of a parent-child relationship on the basis of anything less than a full and fair adjudication of the grounds alleged in support of such a severance.”   (Issac J., supra, 4 Cal.App.4th 525, 538, 6 Cal.Rptr.2d 65 (dis. opn. of Timlin, J.).)

6.   Penal Code section 1240.1, subdivision (b) codifies the duty of an attorney representing a defendant in juvenile and other courts to make appropriate advisement of appeal rights and take action to file such a notice.   The court in Guillermo G. v. Superior Court (1995) 33 Cal.App.4th 1168, pages 1173, 39 Cal.Rptr.2d 748 to 1174, found that the statute should not apply to dependency cases.:  “Despite its nominal application to ‘any ․ juvenile court ․ case,’ we conclude that Penal Code section 1240.1 was never designed to apply to juvenile dependency-as distinct from juvenile delinquency-proceedings.   It would be highly anomalous for the Legislature to delineate the duties of appointed counsel regarding appeals in civil dependency proceedings right in the middle of the Penal Code. The logical place would be in the Welfare and Institutions Code, which governs the appointment of counsel for indigent parents.”   We need not express an opinion on this question in order to resolve the issues presented in our case.

HUFFMAN, Acting P.J.

WE CONCUR:  McDONALD and McCONNELL, JJ.