Opinion
DABNEY, Acting P. J.— As will be discussed more fully below, we dismissed petitioner Joseph A.’s appeal from a judgment declaring his minor [528]children free from his custody. He then filed the instant petition for a writ of habeas corpus in which he seeks to have his appeal reinstated or, in the alternative, to raise certain issues afresh in a collateral attack on the judgment rendered by the trial court. For the reasons set forth in this opinion, we deny all relief and discharge the order to show cause previously issued.
Although, in light of our resolution, we need give no extensive recitation of the facts of the case, the procedural history must be set out in some detail. On April 1, 1988, Sherry Lynn T., the mother of the minor children (Mother) filed a petition to have Issac and Cassi declared free from the custody and control of Joseph A. (Father). It was alleged that Father had not contacted the children since July 1, 1985, and had not provided for their support, and that these omissions were done with the intent to abandon. Father responded in propria persona, asserting that Mother had actually concealed the children from him. It appears that Father filed a complaint with the district attorney, alleging that Mother and her husband, Steven T., were unlawfully interfering with his visitation rights under a dissolution decree, which he then began attempting to enforce.
After the preparation of a report by the probation officer, and referral of Father to a psychologist, a 12-day trial was held at which Father was represented by appointed counsel, Timothy Guhin. The issue of abandonment was tried first, and although the testimony of Father and Mother was in sharp conflict, the trial court found that Father had made no serious efforts to contact the children during the period from July of 1985, until the petition was filed, and further found the intent to abandon. (Civ. Code, § 232, subd. (a)(1).)
The hearing then proceeded to a determination of whether the children’s best interests required a termination of the parent-child relationship. (Civ. Code, § 232, subd. (b).) Although both sides presented expert psychological testimony, the trial court found that of Mother’s expert, Dr. William Nelson, more persuasive. Dr. Nelson testified, in essence, that Father had serious personality and psychological defects amounting to a “severe mental disorder.” He also testified that the children were afraid of their father, and that even visitation, at the present time, would be detrimental. His conclusion was that the best interests of the children required a stable family unit such as they were currently enjoying.
The court announced its findings on February 23, 1989, although the judgment was not filed until March 24, 1989. On April 14, Father filed a motion for new trial; due to other obligations (both personal and professional), counsel requested that the court continue the hearing for “as long a [529]period of time [as]. . . possible.” As a result, the hearing was set for August 3, 1989, and then continued again to August 31. On the latter date, the motion was denied. In the meantime, notice of entry of judgment was finally served on Father on July 20, 1989.
Father filed a notice of appeal on October 11, 1989. On our own motion, we requested briefing on the issue of whether the appeal should be dismissed as untimely filed. Father, then represented by attorney James Bostwick, argued that his failure to comply with the 60-day limit of California Rules of Court, rule 39(b),1 was excused because the trial court failed to apprise him of his right to appeal. (See rules 250 (renumbered 470 eff. Jan. 1, 1991), 251.) We ruled that, even assuming that this failure gave rise to a right to a late appeal (see Castro v. Superior Court (1974) 40 Cal.App.3d 614 [115 Cal.Rptr. 312]), Father failed to show that he was actually ignorant of his right to appeal.
Father also argued that his failure to file the notice of appeal on time was excused because the trial court did entertain his motion for a new trial, albeit erroneously,2 thus misleading him into believing that the motion was appropriate. We noted, however, that the notice of appeal was untimely even under this theory, as it was not filed within 30 days of the denial of the motion. (Rule 3(a).) Accordingly, we dismissed the appeal by order dated January 25, 1991, and a remittitur issued on April 1, 1991.
The petition for habeas corpus with which we are now concerned was filed on June 5, 1991. Representing Father are attorneys for Appellate Defenders, Inc., which was responsible for supervising the work of attorney Bostwick on the original appeal. Attorney Ellen Geis, for Appellate Defenders, Inc., submitted an affidavit in which she averred that Attorney Bostwick had been advised to expect a motion to dismiss, and to contact the trial attorney concerning the delay in filing the notice of appeal. After we requested briefing on the issue, Mr. Bostwick told Ms. Geis that he had not contacted trial counsel, Timothy Guhin, or his client. Instead, he intended to raise the issues discussed above. Ms. Geis suggested that this argument was unlikely to succeed, and advised that Bostwick look into the factual basis for a motion pursuant to In re Benoit (1973) 10 Cal.3d 72 [109 Cal.Rptr. 785, 514 P.2d 97]. This was not done.
Following the dismissal, Appellate Defenders, Inc., elected to pursue Father’s other possible remedies because it was felt that Father had not received the effective assistance of counsel on appeal.
[530]The issues presented by this petition—some explicitly, some by implication—are to a large extent intertwined. First, we must determine whether the doctrine of constructive filing under In re Benoit, supra, 10 Cal.3d 72 applies to judgments under Civil Code section 232. As subparts of that issue, we must decide whether the motion for new trial should be construed as a notice of appeal, and also consider the effect of the allegedly ineffective assistance of appellate counsel, which arguably resulted in an avoidable dismissal. Secondly, if the answer to the first question is in the negative and the appeal therefore cannot be resuscitated, we must decide whether Father may seek collateral relief from the judgment by way of habeas corpus. ,
We will discuss the factual assertions of the petition in more detail as required. We will note at this point, however, that Father represents that the stepparent adoption proceeding has been dismissed.
I.
Does the doctrine of constructive filing apply to judgments under Civil Code
section 232? No.
As Father recognizes, one reported case squarely addresses the above issue after the 1987 amendment to rule 39, which we discuss below, and holds that the doctrine of constructive filing does not apply in this situation.3 (In re A. M. (1989) 216 Cal.App.3d 319 [264 Cal.Rptr. 666].) However, he argues both that In re A. M. was wrongly decided, and that, even if it is correct, it need not and should not be applied to the facts of this case.
A.
This court held in In re Fredrick E. H. (1985) 169 Cal.App.3d 344, 347 [215 Cal.Rptr. 171], that the failure to file a timely notice of appeal in a proceeding under Civil Code section 232 deprived the appellate court of jurisdiction to hear the appeal. This holding was in accordance with the law generally applicable to civil cases. (See e.g., Hollister Convalescent Hosp. v. Rico (1975) 15 Cal.3d 660, 666-667 [125 Cal.Rptr. 757, 542 P.2d 1349].) However, in 1987, rule 39(a) was amended to provide that “[t]he rules governing appeals from the superior court in criminal cases are applicable to all appeals from juvenile court and any appeal in an action under Civil Code section 232, except where otherwise expressly provided by this rule or rule 39.1, or where the application of a particular rule would be clearly impracticable or inappropriate.” (Italics added.)
[531]In criminal cases, the doctrine of constructive filing effectively extends the time in which to file an appeal otherwise governed by rule 31(a). The appellant in In re A. M. contended that the amendment to rule 39 therefore impliedly incorporated the doctrine of constructive filing which was applied to rule 31 by In re Benoit, supra, 10 Cal.3d. 72. Assuming, without deciding, that this construction was correct,4 the court nevertheless found the doctrine inapplicable under the exception stressed above. Citing the “special need for finality in cases under section 232,” and noting the danger of imperiling adoption proceedings, the court found it inappropriate to extend In re Benoit to appeals involving the termination of parental rights.
We agree that the doctrine of constructive filing may not be indiscriminately extended to cases involving the termination of parental rights. However, this case presents a particular situation in which the doctrine would apply to criminal cases—one that requires further discussion here.
There is, of course, a federal constitutional right to counsel in criminal cases under the Sixth Amendment to the United States Constitution. The federal right is extended to the states through the due process clause of the Fourteenth Amendment. (Gideon v. Wainwright (1963) 372 U.S. 335, 339-340 [9 L.Ed.2d 799, 802-803, 83 S.Ct. 792, 93 A.L.R.2d 733].) The concept of due process as applied to the termination of parental rights may also include the right to appointed counsel.5 (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [68 L.Ed.2d 640, 649-650, 101 S.Ct. 2153].)
Where there is a due process right to counsel, there is a concomitant right to the effective assistance of counsel. (See Adoption of Michael D. (1989) 209 Cal.App.3d 122, 135 [256 Cal.Rptr. 884].) To this extent we disagree with the contrary holding in In re Ammanda G. (1986) 186 Cal.App.3d 1075, 1080 [231 Cal.Rptr. 372], 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, [532]the child may have an interest equal to that of the parent’s in its restoration. Thus, we believe with the court in Adoption of Michael D., supra, that the denial of effective assistance at trial is an issue properly presented to a reviewing court.
This conclusion bears on our consideration of the request for relief under In re Benoit, supra, 10 Cal.3d 72, but, as we explain, does not require that it be granted.
It is true that relief is granted to a criminal defendant in a variety of situations, one of which is the justifiable reliance on the promise of counsel that a timely notice will be filed.6 In this situation, the attorney’s inaction can usually be justly characterized as ineffective assistance, and it certainly was so in this case.7 If, to make the guarantee of counsel genuine, a parent must be permitted to raise ineffective assistance of counsel on appeal, it may very plausibly be argued that he must be given a concomitant right to pursue his appellate rights despite his attorney’s inexcusable failure to perfect the appeal in a timely fashion.
However, we cannot accept this argument for the reasons of policy discussed in In re A. M., supra, 216 Cal.App.3d 319. In our view, this is the point at which the interests of the child and parent collide, and at which the child’s interest in finality prevails.
In Adoption of Alexander S. (1988) 44 Cal.3d 857 [245 Cal.Rptr. 1, 750 P.2d 778], the trial court had rejected the natural mother’s efforts to withdraw her consent to the adoption of the minor. She failed to appeal the judgment denying her petition to withdraw consent, but did appeal the denial, a few months later, of her petition to establish the paternity of the [533]alleged natural father. (Civ. Code, § 7006.) In that appeal, she raised issues relating to the adoption proceeding.8
The Court of Appeal recognized that it had no appellate jurisdiction to consider those claims, but elected to treat this portion of the appeal as a petition for habeas corpus and found, inter alia, that the mother had not received effective assistance of counsel in the proceedings leading to her original consent. (Adoption of Alexander S., supra, 44 Cal.3d atpp. 862-863.)
The Supreme Court reversed. After discussing several procedural gaffes committed by the intermediate court—including the failure to apply the rule that habeas corpus cannot serve as a substitute for appeal—it acknowledged that habeas corpus is available as a means of collateral relief, and may serve as a belated appeal, where the basis is the ineffective assistance of counsel. (People v. Munoz (1975) 51 Cal.App.3d 559, 563 [124 Cal.Rptr. 322].) However, the court then held flatly that adoption proceedings were not, in this respect, governed by the rules and principles applicable to criminal matters, and that—with exceptions not here relevant9—“habeas corpus may not be used to collaterally attack a final nonmodifiable judgment in an adoption-related action.” (Alexander S., supra, 44 Cal.3d at pp. 867-868.)
We find no basis for distinguishing the holding here. The petition under Civil Code section 232 can reasonably be described as “adoption-related,” as the purpose here was to permit adoption by the stepfather. However, we do not rest our decision on that basis, and do not create a distinction between those minors for whom adoption is imminent, those for whom it is probable, and those for whom it is merely a hope. As the United States Supreme Court stated, in refusing to recognize federal habeas corpus as a remedy in child custody matters, “[i]t 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’ . . . especially when such uncertainty is prolonged.” (Lehman v. Lycoming County Children’s Services (1982) 458 U.S. 502, 513-514 [73 [534]L.Ed.2d 928, 938-939, 102 S.Ct. 3231]; see also In re A. M., supra, 216 Cal.App.3d at p. 322.) We recognize that In re Benoit, supra, 10 Cal.3d at p. 78, held that habeas corpus is the proper vehicle to enforce the right of appeal. However, we follow Alexander S. and hold that the remedy may not be employed as an means of obtaining belated relief in proceedings under Civil Code section 232.
We concede that the result will be harsh in some cases, and may be so here. We have considered the desirability of a more flexible standard, but can formulate no rules for the applicability of such a standard under which we could confidently predict that more good would be done than harm. In reviewing an application, the appellate court would be in a poor position to evaluate the merits of the proposed appeal, or the effect of the delay on the child. In some cases, such as this one, the parent may have acted diligently and been the victim of attorney incompetence—but this should not require relief if the judgment appears sound and the child is happily placed. Nor should a dilatory parent be allowed to proceed, if the appellate court believes, on limited information, that some error occurred at trial. Further, the court is uninformed of the child’s current circumstances, and cannot resolve contradictory assertions by the parties.
Recently, the court in Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949 [281 Cal.Rptr. 507] rejected a putative father’s efforts to seek review by writ of a judgment denying him paternal rights, where he had failed to file a timely notice of appeal. The court observed that extraordinary relief has historically been held unavailable where the remedy by appeal has been lost by neglect. (See Phelan v. Superior Court (1950) 35 Cal.2d 363, 370-371 [217 P.2d 951].) Although a dissenting justice argued that the neglect of counsel in failing to perfect the appeal constituted the “special circumstances” justifying extraordinary review briefly mentioned in Adoption of Alexander S. (44 Cal.3d at p. 865), the majority disagreed. Instead, it relied on In re A. M. and the special need for finality applicable to such proceedings, and rejected the petition.
The court also noted, as we have above, that the underlying facts of a case should not influence the court in determining whether to entertain such a petition. (Mauro B. v. Superior Court, supra, 230 Cal.App.3d at p. 955.) We think this rule particularly important in adoption-related proceedings. If an appellate court inaccurately evaluates the merits of a regular civil or criminal proceeding, and decides to grant extraordinary review based on this evaluation, no serious inconvenience or injustice will usually result from the delay in obtaining a final decision. However, in adoption-related proceedings, the simple fact that an apparently final judgment is placed in danger of being upset must have a deleterious effect on the child.
[535]B.
Father asks that we construe the request for new trial as a notice of appeal, under the rule of liberal construction mandated by rule 1(a). We decline to do so. Father does not cite, and our research has not disclosed, any case extending the principle so far. The crucial element specified in the rule is that a document express the party’s intent to appeal. Where this is clear, imperfections of form, or such misdirections as addressing the document to the trial court instead of the clerk, are properly disregarded. (See In re Gonsalves, supra, 48 Cal.2d 638.) However, where a party seeks a new trial, he is unequivocally requesting that an error be corrected by the trial court; in most civil cases, of course, the remedy of appeal is preserved. The fact that this was not true here does not retrospectively convert the motion for new trial into a notice of appeal.
C.
As noted above, Father filed this petition for writ of habeas corpus, seeking the primary relief of the reinstatement of his appeal. He also sought to raise several new issues, including the ineffective assistance of counsel at the trial itself. He argued that his original appellate counsel, Bostwick, had himself rendered ineffective assistance by failing to raise these issues, making relief by habeas corpus appropriate. In a criminal case, this approach may lead to a recalling of the remittitur even after an unsuccessful appeal, and reinstatement of the appeal with the opportunity given to raise new issues. (See In re Smith (1970) 3 Cal.3d 192, 202-204 [90 Cal.Rptr. 1, 474 P.2d 969].)
We answer this contention here by reference once again to Alexander S. An action under Civil Code section 232 is not a criminal matter, and matters of “sound public policy” require that finality prevail over the option for protracted litigation. (44 Cal.3d at p. 868.)
Finally, Father asks this court to reevaluate the decision of the trial court in light of the dismissal of the stepparent adoption proceeding. We believe that only in the most compelling circumstances should we exercise our power to consider the effect of postjudgment events. (See In re Randi D. (1989) 209 Cal.App.3d 624, 627-628 [257 Cal.Rptr. 421].) To do otherwise would rob of all finality precisely those judgments as to which certainty is most important. We reject Father’s request.
McKinster, J., concurred.
All further rule references are to the California Rules of Court.
The trial court has no power to entertain a motion for new trial after a judgment freeing a minor from his parent’s custody under Civil Code section 232. (See Civ. Code, § 238; In re Manuel J. (1984) 150 Cal.App.3d 513, 520-521 [197 Cal.Rptr. 777].)
We are aware of one case which questioned the holding in In re AM. However, the opinion was depublished by order of the Supreme Court dated September 20, 1990. (In re Baby Boy B. (G008916).)
We have serious doubts about this assumption. Rule 39 applies other “rules” to juvenile appeals; the doctrine of constructive filing, as it now exists, is judicially created and does not rest for its effect on any of the Rules of Court. Thus, the amendment to rule 39 hardly compels the conclusion that the drafters intended to import into juvenile procedure all of the case law applicable to criminal appeals.
Whether a parent is entitled to counsel as a matter of due process depends upon the extent to which counsel’s assistance would be necessary, or even helpful, in presenting the parent’s case. Here, it cannot be disputed that Father had a due process right to counsel. The case involved not only serious factual disputes, but also the analysis of expert psychological testimony.
Other circumstances in which relief has been granted include the miscarriage of the mails, where a notice is timely deposited in the post (In re Gonsalves (1957) 48 Cal.2d 638, 646 [311 P.2d 483]); the dereliction of prison officials, when a notice is timely delivered to them for filing or mailing (People v. Slobodion (1947) 30 Cal.2d 362, 365-368 [181 P.2d 868]); and the fact that defendant has been misled or confused by words or acts of the court. (People v. Martin (1963) 60 Cal.2d 615, 617-618 [35 Cal.Rptr. 769, 387 P.2d 585].)
Not only did counsel prepare a motion which the court had no jurisdiction to hear; he failed to file the notice in a timely fashion under any arguably applicable theory. See page 529, ante.
Father suggests that we should consider granting relief in order to minimize the deleterious professional consequences to counsel. If we are unpersuaded by the equities of Father’s position, it would be unconscionable to create a rule designed solely to protect counsel’s professional reputation.
Notice of entry of the judgment denying the mother’s petition to withdraw consent was entered on January 30, 1985, and became final on April 1 of that year. Notice of entry of the paternity judgment was entered on April 30, and her appeal of this judgment was timely. Thus, as in this case, there was no extended delay in presenting her claim with respect to the first judgment to the appellate court.
The court described six subcategories under the general heading of cases in which the parent seeks custody of a child living with another: to enforce a right to physical custody established by court order, to determine the right to physical custody in the first instance, to modify a modifiable order for custody, to protect a child from imminent danger, where consent to adoption is required but has not been obtained, and to challenge an order made without jurisdiction. (Alexander S., supra, 44 Cal.3d 857-858.)