Opinion
MOORE, J. The superior court issued a judgment under the Uniform Parentage Act (Civ. Code, § 7000 et seq.) denying petitioner Mauro B.’s request to declare a parent and child relationship exists between himself and Baby Boy G. (minor), and allowing real parties in interest William and Mary S. to adopt minor without Mauro’s consent. Mauro filed the instant petition seeking to vacate the judgment. Initially, we issued an alternative writ and set the matter for a hearing. Real parties filed a demurrer and return to the writ, arguing in part the petition had not been timely filed. We conclude that since the lower court’s decision was an appealable judgment and petitioner failed to file a notice of appeal within the time provided by law, the petition should be dismissed.
[952]Facts
The relevant facts are not in dispute.1 Tammie G. gave birth to minor April 5, 1990. On April 16, William and Mary S. filed a petition to adopt him in the Orange County Superior Court. Unaware of the S.’s petition, Mauro filed an action in the San Joaquin County Superior Court seeking to declare the existence of a father and child relationship between himself and minor. (Civ. Code, § 7006.) On May 5, Tammie formally consented to minor’s adoption by Mr. and Mrs. S. However, Mauro refused to consent. Real parties then filed a petition to determine Mauro’s parental rights and the necessity of his consent for the proposed adoption. (Civ. Code, § 7017.) The matter originally filed in San Joaquin County was consolidated with the Orange County proceedings.
On August 9, at the conclusion of a four-day trial, respondent court orally pronounced judgment denying Mauro’s request to establish he had a parent and child relationship with minor, and granting the S.’s petition allowing them to adopt him without Mauro’s consent. A written judgment was signed and entered by the lower court August 20, and real parties served notice of its entry on petitioner August 29.
Mauro did not appeal from the judgment. On October 29, 82 days after respondent court announced its decision, Mauro filed his present petition with this court.
Discussion
Real parties contend the petition is untimely because Mauro failed to appeal the judgment pursuant to Civil Code section 7017, subdivision (g) and California Rules of Court, rule 39(b). Mauro argues the timeliness of his petition must be determined under California Rules of Court, rule 2(a). At oral argument, Mauro alternatively argued his right to seek relief by extraordinary writ is supported by California Rules of Court, rule 39.2(b) and In re Baby Boy M. (1990) 221 Cal.App.3d 475 [272 Cal.Rptr. 27],
It is well settled that a party is not entitled to obtain review of an appealable judgment or order by means of a petition for an extraordinary writ where he or she failed to timely file an appeal from the ruling. (Adoption of Alexander S. (1988) 44 Cal.3d 857, 865 [245 Cal.Rptr. 1, 750 P.2d 778] [habeas corpus]; Simmons v. Superior Court (1959) 52 Cal.2d 373, 375 [341 P.2d 13] [cert.]; Phelan v. Superior Court (1950) 35 Cal.2d 363, [953370]-371 [217 P.2d 951] [mandamus]; Leach v. Superior Court (1932) 215 Cal. 531, 535 [12 P.2d 1] [prohibition]; see also In re Marriage of Patscheck (1986) 180 Cal.App.3d 800, 802-804 [225 Cal.Rptr. 787]; Taper v. City of Long Beach (1982) 129 Cal.App.3d 590, 606-607 [181 Cal.Rptr. 169].) In Leach v. Superior Court, supra, 215 Cal. 531, the Supreme Court held a writ would not lie where the petitioner “had a right to appeal from the order or judgment in question, and has permitted his time to elapse without perfecting an appeal therefrom.” (Id. at p. 535.) “An attempted appeal from a nonappealable interim order has sometimes been treated as a writ petition. [Citation.] However, there is no authority for treating an untimely appeal as a writ petition. [Citation.] To do so would be improper because a writ petition should be entertained only where there is no adequate remedy by appeal and the remedy by appeal is not made inadequate by a party’s having neglected to submit his notice of appeal for filing within the time allowed. [Citation.]” (In re Marriage of Patscheck, supra, 180 Cal.App.3d at p. 804, italics added.)
This rule is particularly important in adoption-related cases where courts recognize a “special need for finality.” (In re A. M. (1989) 216 Cal.App.3d 319, 322 [264 Cal.Rptr. 666].) In Adoption of Alexander S., supra, 44 Cal.3d 857, the Supreme Court found the public policy against protracted litigation in child custody matters supported its decision to bar using habeas corpus to collaterally attack a final nonmodifiable judgment in an adoption-related proceeding. “. . . ‘It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current “home,” under the care of his parents or foster parents, especially when such uncertainty is prolonged.’ ” (Id. at p. 868, quoting Lehman v. Lycoming County Children’s Services (1982) 458 U.S. 502, 513-514 [73 L.Ed.2d 928, 938, 102 S.Ct. 3231].)
Where an appeal lies, the timely filing of a notice of appeal.is a jurisdictional requirement. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674 [125 Cal.Rptr. 757, 542 P.2d 1349]; Estate of Hanley (1943) 23 Cal.2d 120, 123 [142 P.2d 423, 149 A.L.R. 1250].) However, the Supreme Court has held the use of an extraordinary writ to review an appealable judgment or order after the time for appeal has passed is barred except “in the absence of special circumstances constituting an excuse for failure to employ that remedy . . . .” (Adoption of Alexander S., supra, 44 Cal.3d at p. 865; see also Phelan v. Superior Court, supra, 35 Cal.2d at pp. 370-371.)
Although the Supreme Court has not defined what constitutes special circumstances in this context, relief has been allowed in only very narrow [954]situations. A few cases have permitted a party to employ a writ after the time for an appeal expired where the lower court acted in excess of its jurisdiction or fundamental constitutional rights were violated. (In re James (1952) 38 Cal.2d 302, 309 [240 P.2d 596] [fundamental rights; denial of right to counsel]; Grinbaum v. Superior Court (1923) 192 Cal. 528, 556-557 [221 P. 635] [excess of jurisdiction; order appointing a guardian in an insanity proceeding where the alleged incompetent was not given notice of the proceeding or the application for appointment of the guardian, and did not appear]; Elder v. Justice’s Court (1902) 136 Cal. 364, 367 [68 P. 1022] [excess of jurisdiction; petitioner given no notice of the trial date or that a default judgment had been entered against him]; see also In re McInturff (1951) 37 Cal.2d 876, 880 [236 P.2d 574].) In Phelan v. Superior Court, supra, 35 Cal.2d 363, the court also permitted the writ to be heard on its merits where uncertainty had previously existed respecting the appealability of the order in question, and several earlier decisions, overruled in Phelan, had held an appeal was not an adequate remedy in that type of case. (Id. at pp. 371-372.)
Here, none of the foregoing circumstances applies. Petitioner appeared at trial with counsel and was present when respondent court announced its ruling from the bench. The petition contains no factual allegations explaining why an appeal was not taken or justifying the delay in filing it. At oral argument, petitioner’s counsel argued he was waiting for preparation of the reporter’s transcript of the lower court’s proceedings before filing the petition. This is no excuse. Even assuming Mauro was entitled to relief by an extraordinary writ, California Rules of Court, rule 56(c)(4) provides a transcript is not necessary where counsel files a declaration stating the transcript has been ordered and the date it is expected to be filed. Neither can petitioner argue the delay in hearing an appeal makes that remedy inadequate where he waited so long before filing his writ petition.
The dissent cites several cases for the proposition an appellate court has discretion to consider an extraordinary writ at any time, and uses the underlying facts of this case to find the special circumstances supporting use of a writ. With the sole exception of Reynolds v. Superior Court (1883) 64 Cal. 372 [28 P. 121], none of the cited cases involved an appealable order or judgment. And Reynolds is in accord with our opinion: “[Ujnless circumstances of an extraordinary character be shown to have intervened, the remedy through a writ of certiorari should be held to be barred by the lapse of the same length of time that bars an appeal from a final judgment.” (Id. at p. 373.)
The underlying facts cannot provide a basis for allowing use of an extraordinary writ to review an appealable judgment or order after the time [955]for an appeal has expired. The required special circumstances must relate to the delay and justify the petitioner’s failure to employ the appeal remedy. (Adoption of Alexander S., supra, 44 Cal.3d at p. 865.) Under the dissent’s approach, a writ would be allowed whenever the appellate court disagrees with the result reached by the lower court. Such an approach would wreak havoc on the finality of all cases and would relegate judgments in adoption-related cases to interim custody orders.
Our dissenting colleague also claims the failure of Mauro’s attorney to file an appeal is sufficient excuse to allow appellate review. Such an argument is nothing more than a disguised attempt to apply the doctrine of constructive filing to an adoption-related case. (See In re Benoit (1973) 10 Cal.3d 72 [109 Cal.Rptr. 785, 514 P.2d 97].) This contention was rejected in In re A. M., supra, 216 Cal.App.3d 319, which held the special need for finality in adoption-related proceedings to be of paramount importance over the parental rights of a natural mother or father. (Id. at p. 322.)
Mauro also contends his petition was filed on the last day for taking an appeal under California Rules of Court, rule 2(a), and therefore we can construe it as a timely appeal. Real parties contend the timeliness of the appeal must be determined under California Rules of Court, rule 39(b). We conclude real parties’ argument is meritorious.
Rule 2(a) of the California Rules of Court states the time for filing an appeal in civil actions is generally the earliest of either 60 days after the clerk mails notice of entry of the judgment, 60 days after an opposing party serves notice of entry of judgment, or 180 days after judgment is entered. Real parties served notice of entry of judgment on petitioner August 29, 1990. The 60th day thereafter fell on Sunday, October 28. Therefore, the last date to file an appeal under rule 2(a) was Monday, October 29. (Code Civ. Proc., § 12a; Grande v. Donovan (1942) 55 Cal.App.2d 694, 695 [131 P.2d 855].)
However, this case involved a consolidated proceeding involving actions to determine the existence of a parent and child relationship and the right of real parties to proceed with their adoption of the minor without Mauro’s consent. Civil Code section 7006, subdivision (c) provides that an action to determine the existence of a father and child relationship where the child has no presumed father “shall be consolidated with a proceeding pursuant to subdivision (b) of Section 7017 if a proceeding has been filed under Section 7017.” Under Civil Code section 7017, subdivision (g) “Any order requiring or dispensing with a father’s consent for the adoption of a child may be appealed from in the same manner as an order of the juvenile court declaring a person to be a ward of the juvenile court." California Rules of Court, rule 39(b) states, in part, “an appeal from the juvenile court is taken by filing [956]with the clerk of that court a written notice of appeal within 60 days after the rendition of the judgment or the making of the order. . . .” Under this rule, if an appealable judgment or order is pronounced in open court, the time for taking an appeal from it begins to run when the judgment or order is pronounced. (In re Markaus V. (1989) 211 Cal.App.3d 1331, 1337 [260 Cal.Rptr. 126].)
The lower court announced its decision in open court at the completion of trial. Accordingly, under California Rules of Court, rule 39(b) the last day to file an appeal from the judgment fell on Monday, October 8. Mauro did not file the instant petition until three weeks later.
Alternatively, Mauro contends Civil Code section 7017, subdivision (g)’s use of the word “may" rather than “shall” means application of the juvenile court rules to determine the timeliness of an appeal is discretionary. However, the term “may” appears just before the phrase “be appealed.” Thus, we construe it as giving parties to a section 7017 proceeding the right to appeal the trial court’s decision.
At oral argument, Mauro contended he relied on California Rules of Court, rule 39.2(b) and our opinion in In re Baby Boy M., supra, 221 Cal.App.3d 475 in not filing an appeal. These authorities do not support his cause.
California Rules of Court, rule 39.2(b) provides: “Extraordinary writs are encouraged to review orders in child custody proceedings. If a writ is sought after such an order, an appeal will be deemed to be an inadequate remedy.” But that rule is expressly limited to judgments of the Orange County Superior Court “freeing minors from parental custody and control under Welfare and Institutions Code section 366.26 or Civil Code section 232 if the minor is a dependent child of the juvenile court.” (Cal. Rules of Court, rule 39.2(a).) Thus, it does not apply here. While we recognize the present case also involves a determination of parental rights, the Judicial Council did not include this type of proceeding in rule 39.2 and we decline to construe the rule to apply to proceedings not expressly designated.
Second, although real parties attacked the petition on the ground it was untimely, Mauro failed to mention California Rules of Court, rule 39.2 in either his original petition or the reply. Therefore, we find Mauro’s claim he relied on rule 39.2 to be unpersuasive.
Third, California Rules of Court, rule 39.2’s policy of preferring review of child custody orders by writ rather than appeal would only be served if a writ petition were filed promptly after the trial court issued its ruling, and not by [957]waiting until after the appeal period has expired. As previously discussed, petitioner’s reliance on the alleged delay in obtaining the reporter’s transcript is no excuse. (See Cal. Rules of Court, rule 56(c)(4).)
Fourth, reliance on California Rules of Court, rule 39.2 in this context is unnecessary. As noted, an appeal in this type of proceeding is governed by the rules for juvenile court appeals. California Rules of Court, rule 39(e) grants such appeals “precedence over all other cases . . . .” Thus, the rules already provide for expediting an appeal in this context.
Finally, concerning In re Baby Boy M., supra, 221 Cal.App.3d 475, 487, we assume Mauro is referring to footnote 5 of that opinion, which discusses the difference between writs and appeals as to an appellate court’s ability to make a judgment final “forthwith.” (Id. at p. 487, fn. 5.) The footnote expresses no preference for writs, nor does it encourage parties to eschew appeals and file writ petitions instead. In the context of this proceeding, any reliance on Baby Boy M. is badly misplaced.
Disposition
Relief by extraordinary writ is inappropriate in this case. The alternative writ is dissolved, and the petition for writ of mandate or prohibition is dismissed.
Sills, P. J., concurred.
Since we conclude Mauro is not entitled to relief by extraordinary writ, the facts relating to the petition’s underlying merits are not set forth.