I dissent.
I agree with the majority that this writ petition was filed after the trial court order terminating petitioner’s parental rights became final. However, as recognized by my colleagues, writ review in special circumstances is nevertheless available. (Maj. opn., ante, at p. 953, quoting from Adoption of Alexander S. (1988) 44 Cal.3d 857, 865 [245 Cal.Rptr. 1, 750 P.2d 778].) Such are our circumstances.
I
Because the majority opinion omits many material facts necessary to determine whether “special circumstances” exist, we recite the facts in detail. Petitioner and the child’s natural mother, Tammie G., were never married, although they did cohabit. They lived together off and on, but separated several weeks before their baby was bom. Tammie G. does not dispute that petitioner is her son’s natural father.
*958The relationship was tumultuous. When Tammie G. gave birth on April 5, 1990, she was living with her sister; petitioner was living with his mother. Petitioner did not learn of his son’s birth until April 12, when he also discovered Tammie G. had placed the baby for adoption. She refused to tell him his son’s whereabouts. The next day he learned the baby was in Orange County but could not find out any details. He called and wrote a letter to the Orange County court clerk, noting his opposition to any adoption. On April 16, 1990, petitioner retained counsel. Unbeknownst to him, a petition for independent adoption was being filed by William and Mary S. on the same day in Orange County Superior Court. Two days later, petitioner filed a complaint in San Joaquin County Superior Court seeking to declare the existence of his parental relationship. Discovery in that proceeding led petitioner’s counsel to Mrs. S., who by then had temporary custody of the baby, anticipating adoption.
Tammie G. formally consented to the adoption on May 5, and a petition for appointment of a guardian was filed in Orange County five days later. On May 14, 1990, Mr. and Mrs. S. filed a petition to determine petitioner’s parental rights and the necessity of his consent for the proposed adoption, pursuant to Civil Code section 7017. Petitioner later filed a formal objection to the guardianship petition. The matter petitioner had originally filed in San Joaquin County was consolidated with both matters in Orange County and a four-day contested trial was held in August. The court denied petitioner’s request to declare a parental relationship, and granted Mr. and Mrs. S.’s request permitting the adoption to go forward without petitioner’s consent. The baby has resided with Mr. and Mrs. S. in Orange County since shortly after his birth. Petitioner has never seen his child.
The instant writ petition was filed on October 29, 81 days after the court rendered its oral statement of decision. At oral argument we learned petitioner’s attorney had waited for the reporter’s transcript before filing the writ petition. The attorney also believed a direct appeal would be an inadequate remedy because of the need to quickly decide the questions presented. Indeed, the points and authorities in support of the petition state: “Petitioner requires the fastest remedy possible in order to minimize any separation trauma that his son may suffer should this writ be granted.” It is true that in most instances an extraordinary writ petition is resolved more quickly than a direct appeal. Counsel negligently, however, failed to file a protective notice of appeal within 60 days of the court’s oral pronouncement of judgment.
II
Petitioner’s failure to file his petition before the judgment became final is not a jurisdictional defect. “An appellate court may consider a petition for *959extraordinary writ at any time (Bryant v. Superior Court (1936) 16 Cal.App.2d 556, 561 [61 P.2d 483]), but has discretion to deny a petition filed after the 60-day period applicable to appeals, and should do so absent ‘extraordinary circumstances’ justifying the delay. (Reynolds v. Superior Court (1883) 64 Cal. 372, 373 [28 P. 121]; People v. Municipal Court (Mercer) (1979) 99 Cal.App.3d 749 [160 Cal.Rptr. 455]; People v. Superior Court (Duran) (1978) 84 Cal.App.3d 480, 489 [148 Cal.Rptr. 698]; Scott v. Municipal Court (1974) 40 Cal.App.3d 995, 996 [115 Cal.Rptr. 620]; Estate of Glassgold (1950) 97 Cal.App.2d 859, 863-864 [218 P.2d 1016].)” (Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499 [165 Cal.Rptr. 748].) Extraordinary circumstances here warrant appellate review.1
At the outset, it should be noted that fundamental constitutional rights are involved. “When an unwed father demonstrates a full commitment to the responsibility of parenthood by ‘coming forward to participate in the rearing of his child,’ [citation], his interest in personal contact with his child acquires substantial protection under the Due Process Clause.” (Lehr v. Robertson (1983) 463 U.S. 248, 261 [77 L.Ed.2d 614, 262, 103 S.Ct. 2985].)2
Moreover, the majority opinion ignores petitioner’s efforts to thwart the proposed adoption. He tenaciously protested adoption long before judgment was entered. He retained counsel immediately when the mother refused to tell him his son’s whereabouts. Everything he did was consistent with asserting his parental rights.
In fact, it is the oversight of petitioner’s attorney which leads to the majority opinion’s conclusion precluding appellate review. Petitioner has no remedy for counsel’s neglect. If this court is ever to afford extraordinary relief, this is exactly the case which demands it. Sufficient excuse was shown to allow appellate review of petitioner’s claims, asserted here a mere three weeks after the judgment would otherwise have been final.
The majority opinion’s reliance on Adoption of Alexander S., supra, 44 Cal.3d 857, is misplaced. There, the Supreme Court reversed an appellate court decision which treated an untimely appeal as a petition for writ of habeas corpus. Ignoring the lateness of the appeal, the appellate court went on to review the merits of a natural mother’s plea to reassert her parental *960rights in an adoption-related action. The natural mother had not appealed the trial court’s denial of her petition to withdraw consent to her child’s adoption. Rather, she sought to collaterally attack that order by appealing a judgment entered after the trial court concluded the father’s consent was not required.
The Supreme Court, chastising the intermediate appellate court for treating the appeal as a petition for a writ of habeas corpus, emphasized the need to avoid “additional delay, uncertainty and potential harm to the prospective adoptee.” (44 Cal.3d at p. 866.) Unlike Alexander S.’s mother, the petitioner here is not the cause of the delay. He has consistently asserted his parental rights and never wavered in his demand to be a father to his child. Alexander S.’s mother, by contrast, had originally given her consent to the adoption. After her request to withdraw that consent was denied, she did not appeal. Only later did she seek appellate review, and even then she did not petition for an extraordinary writ. The petitioner here did everything he could to avoid losing his parental rights. Yet the majority opinion concludes his attorney’s failure to file a protective appeal allows this court to ignore, without review, petitioner’s assertion those rights were unlawfully terminated. But ours is not a collateral attack on an issue previously adversely decided. It is, however, this petitioner’s only chance to attack. In this case, the public policy favoring finality does not outweigh petitioner’s right to appellate review of the termination of his fundamental constitutional right to be a father.
Ill
As for the merits of the petition, my review establishes the judgment should be reversed.3 The trial court found petitioner is a natural father. Civil Code section 7017, subdivision (d)(2), provides: “(2) If the natural father or a man representing himself to be the natural father claims parental rights, the court shall determine if he is the father. The court shall then determine if it is in the best interest of the child that the father retain his parental rights, or that an adoption of the child be allowed to proceed. The court, in making that determination, may consider all relevant evidence, including the efforts made by the father to obtain custody, the age and prior placement of the child and the effects of a change of placement on the child. If the court finds that it is in the best interest of the child that the father should be allowed to retain his parental rights, it shall order that his consent is necessary for an adoption.”
*961Here, the trial judge, in a lengthy oral pronouncement of judgment, articulated his reasons for terminating petitioner’s parental rights. He found the best interests of the child required termination and concluded it would be detrimental to remove the child from the adoptive family. He announced it was in the child’s best interest to have two parents rather than one. He also found “another area of detriment” if petitioner’s parental rights were not terminated because Tammie G. planned to reclaim the child and contest petitioner’s request for custody. That, according to the trial judge’s views, would require visitation rights for the noncustodial parent: “And the track record of five years of getting along does not bode well for having a smooth visitation schedule.” The judge also noted “that it’s in the best interests of the minor child that the minor child go to a family that is intact and appears to be able to deal with its problems in a much quieter and more sophisticated manner.”
The judge acknowledged the allegations of petitioner’s alcohol and drug abuse, but rejected the theory that made him an unfit father. Rather he questioned petitioner’s response to those problems and concluded he demonstrated no interest in dealing with them. Finally, the judge stated, “We do have a situation where it’s in the best interests of the minor child that I not disturb where the minor child is presently living, and the court has found as a matter of law there’s no biological preference to the natural father . . . .”
A review of the evidence does not substantiate the court’s conclusion the best interests of the child require terminating petitioner’s parental rights. The trial judge opined, without evidentiary support, this child’s best interests called for terminating his natural father’s rights in light of the child’s attachment to the adoptive family and the fact a long-term two-parent home is preferable to a single parent. He ignored petitioner’s evidence of the extensive preparations he had made to gain custody of his son.
The court was concerned about petitioner’s stormy relationship with Tammie G. But that is irrelevant. They do not plan to marry or even continue their relationship, let alone attempt to raise the child together.
The “best interest” factors enumerated in Civil Code section 7017, subdivision (d)(2), are contradictory as applied in this context. Specifically, if the “efforts made by the father to obtain custody” are thwarted by the natural mother, as is the case here, it is unfair to consider those factors twice. In other words, when petitioner and Tammie G. separated before the baby was born, and the child was placed for adoption before petitioner even knew of the birth, the natural mother had exclusive control over several factors ostensibly relating to the “best interest” question.
*962In interpreting the subject statute, we are bound by general rules of statutory construction. These require the statute be “given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which application will result in wise policy rather than mischief or absurdity. [Citations.]” (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18 [194 Cal.Rptr. 722].)
Our interpretation gives meaning to subdivision (d)(2) of Civil Code section 7017 in this light: If a natural father makes minimal efforts to obtain custody, the child’s age and prior placement are entitled to great weight. But where his efforts are thwarted, the trial judge should discount the significance of the child’s placement. Any other interpretation would, in effect, give a statutory preference to a proposed adoptive family, even where the father, like petitioner, has done everything possible to prevent this placement.
The trial court’s view of the applicable code section placed an overwhelming burden on petitioner because the prior placement was effectuated without his knowledge. One can hardly criticize his efforts to obtain custody here: He was forced to file a superior court action to even determine where the child resided. By then, his son had been spirited from the county and an adoption petition had already been filed. The consolidated actions did not come to trial until the child was six months old. Petitioner did everything he could do to obtain custody within the meaning of Civil Code section 7017, subdivision (d)(2).
Due process considerations would require we declare the statute unconstitutional under the interpretation adopted by the trial court. The judge found the child’s prior placement with the adopted family was paramount to petitioner’s paternal interests. As applied, the statute violated petitioner’s rights to due process. We recognize his rights are limited by our determination he is a natural rather than a presumed father. However, he retains certain constitutional rights as the biological father who has made an effort to gain custody.
Jermstad v. McNelis (1989) 210 Cal.App.3d 528 [258 Cal.Rptr. 519] explains it well: “We are constrained to read [Civil Code] section 7017, subdivision (d)(2) in a manner which avoids a potential for conflict with the federal Constitution. [Citation.] If read to bar a parental preference to a natural father who has appropriately grasped his custodial opportunity interest the statute would present such a conflict. The statute . . . lends itself to conformity with the constitutional concerns. In a case where the natural father has diligently sought to shoulder the burdens of the paternal relation*963ship, including the burden of custody, the requirement of parental preference arises from the federal Constitution. Accordingly, the statutory criteria of [Civil Code] section 7017 for the best interest of the child regarding retention of parental rights under the statute must be read in the light of this requirement. The statute admits of such an accommodation.” (Id., at pp. 550-551.)
The trial judge ignored petitioner’s remaining constitutional rights, as explained in Jermstad, and did not correctly apply the factors enumerated in Civil Code section 7017, subdivision (d)(2). In sum, the conclusion the best interest of the child required termination of petitioner’s parental rights is not supported by substantial evidence. The court therefore abused its discretion in terminating those rights.
Special circumstances justify petitioner’s delay in seeking appellate review. A full review of this case leads to the compelling conclusion the judgment should be reversed.
Petitioner’s application for review by the Supreme Court was denied August 15, 1991.
The majority argues that I refer “to the underlying facts of this case to find the special circumstances supporting use of a writ.” (Maj. opn., ante, at p. 945.) Of course. How else are special circumstances to be determined?
Indeed, the majority opinion concedes review by writ petition is appropriate when fundamental constitutional rights are involved, even in the absence of a timely appeal. (Maj. opn., ante, at p. 954, citing In re James (1952) 38 Cal.2d 302, 309 [240 P.2d 596].)
The majority argues my “approach” would allow writ review whenever an appellate court disagrees with a trial court. (Maj. opn., ante, at p. 955.) However I consider the ultimate result only after I conclude the request for writ relief was timely.