I respectfully dissent. I would grant the petition of the petitioner/father (father) for a writ of habeas corpus so as to permit the “constructive filing” of the father’s appeal in case No. E007280.
So as to place my disagreement with the majority in proper context, it is helpful to highlight certain of those portions of the majority opinion with which I fully agree:
(1) “Here, it cannot be disputed that Father had a due process right to counsel.” (Maj. opn., ante, p. 531, fh. 5; Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [68 L.Ed.2d 640, 649-650,101 S.Ct. 2153].)
(2) “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].) . . . Thus, we believe with the court in Adoption of Michael D., supra, that the denial of effective assistance [of counsel] at trial is an issue properly presented to a reviewing court.” (Maj. opn., ante, pp. 531-532.)
(3) “It is true that relief [from the late filing of a notice of appeal] 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 [of appeal] will be filed. In this situation, the attorney’s inaction can usually be justly characterized as ineffective assistance, and it certainly was so in this case. 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.” (Maj. opn., ante, p. 532, fns. omitted.)
With all of the above in mind, I turn now to the basis of my disagreement with the majority’s conclusion that a constructive filing of the father’s appeal should not be allowed.
It was, of course, our Supreme Court’s opinion in In re Benoit (1973) 10 Cal.3d 72 [109 Cal.Rptr. 785, 514 P.2d 97] (hereinafter referred to simply as Benoit) which first extended the doctrine of “constructive filing,” on the basis of ineffective assistance of counsel, to late-filed criminal appeals. Benoit did not countenance the indiscriminate application of the constructive filing doctrine to all criminal cases in which it could be argued that there had been “ineffective assistance of counsel” in failing to file a timely notice of appeal. Rather, Benoit limited the application of the constructive filing doctrine to those situations where the late filing of the notice of appeal *537occurred 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. (Benoit, at pp. 86-89.) It is the constructive filing doctrine, as specifically limited and applied by Benoit, that the father seeks to have applied to this case.
A: Incorporating the Benoit Constructive Filing Doctrine Into Procedural Rules for Free From Custody Cases.
The primary “hurdle” to be crossed by the father in making his argument is the fact that Benoit applies to criminal cases and this is not a criminal case—it is a “free from custody” case brought under Civil Code section 232 et seq. (hereinafter referred to as an FFC case). Both the majority and the father seem to concur—quite rightly, I think—that, if this “hurdle” is to be overcome at all, it must be overcome by use of rule 39(a) of the California Rules of Court.1 It must first be determined, then, whether rule 39(a) can be applied in such a way as to “transport” the Benoit constructive filing doctrine to FFC cases. Rule 39(a) states, 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 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.” The 60-day statute of limitations for filing notices of appeal in criminal cases set forth in rule 31(a), then, applies as well to FFC cases. So too, the argument goes, the Benoit constructive filing doctrine, to the extent that it qualifies the 60-day time limit of rule 31(a), must also apply in FFC cases. There are two positions which are maintained, to a greater or lesser degree, by the majority in rejection of this argument that the Benoit constructive filing doctrine applies in FFC cases by virtue of the operation of rule 39(a):
(1) First, the majority notes that rule 39(a) applies only to “rules,” while the Benoit constructive filing doctrine is only a judicially created doctrine. The majority professes to have “serious doubts” as to whether rule 39(a) applies to anything other than actual procedural rules of the California Rules of Court—preferring, apparently, a somewhat literalistic interpretation of the word “rules” in rule 39(a). I have no such doubts. 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 *538Rules 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 FFC cases by rule 39(a)—unless the application of the rule, as qualified, “would be clearly impracticable or inappropriate.” This “unless” provides the basis of the majority’s second position taken in rejection of the argument that the Benoit constructive filing doctrine should apply in FFC cases.
(2) The majority finds, on policy grounds, that a minor’s interests in the finality of FFC proceedings outweigh a parent’s interests in being able to obtain a full and fair adjudication of the termination of his or her parental relationship with that minor and, on the basis of that finding, concludes that it would be impracticable or inappropriate (to use the language of rule 39(a)) to permit the application of the Benoit constructive filing doctrine in FFC cases.2 It is here, on the issue of conflicting policy considerations, that I have my clearest disagreement with the majority.
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.
The United States Supreme Court has explicitly recognized that: “[F]reedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. [Citations.] [¶] The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, *539persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.7” The court’s footnote 7 provides: “We therefore reject respondent [’s] . . . claim that a parental rights termination proceeding does not interfere with a fundamental liberty interest. [Citations.] The fact that important liberty interests of the child and its foster parents may also be affected by a permanent neglect proceeding does not justify denying the natural parents constitutionally adequate procedures. Nor can the State refuse to provide natural parents adequate procedural safeguards 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 (1982) 455 U.S. 745, 753-754 [71 L.Ed.2d 599, 606-607, 102 S.Ct. 1388], italics added.)
Our own Supreme Court has likewise recognized the “fundamental liberty interest” which a parent has in retaining and maintaining a parent-child relationship (In re Laura F. (1983) 33 Cal.3d 826, 844 [191 Cal.Rptr. 464, 662 P.2d 922]) and has also recognized that constitutional principles of due process serve to protect this fundamental liberty interest under both the federal and the state Constitutions (In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 17 [272 Cal.Rptr. 787, 795 P.2d 1244]). In short: “The fundamental and crucial right to ‘conceive and to raise one’s children’ is protected by due process guarantees. [Citations.] ‘[T]he interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights [citations], [and] the state, before depriving a parent of this interest, must afford him adequate notice and an opportunity to be heard.’ [Citations.]” (In re Brendan P. (1986) 184 Cal.App.3d 910, 915 [230 Cal.Rptr. 720].) In this case, of course, “an opportunity to be heard” includes a fair opportunity to be heard on appeal.
Thus, in my view, there are no compelling policy arguments that suggest that it would be “impracticable or inappropriate” to apply a constructive filing doctrine in FFC cases and, consequently, I view rule 39(a), as qualified by Benoit, as requiring the application of that doctrine in such cases. As I discuss below, the Benoit constructive filing doctrine, if properly construed and applied, would not inappropriately impinge on a minor’s interest in the finality of FFC proceedings.
B: Raising and Applying the Benoit Constructive Filing Doctrine in FFC Cases.
The majority has relied at least in part on the following statement taken from Adoption of Alexander S., supra, to support its conclusion that a petition *540for a writ of habeas corpus should not be granted in this case: “[W]e hold that habeas corpus may not be used to collaterally attack a final nonmodifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment.” (44 Cal.3d, at pp. 867-868.) Assuming, arguendo, that FFC cases can be characterized as “adoption-related,” I still do not see that the statement has any relevance to the matter at hand. In Adoption of Alexander S., the petition for a writ of habeas corpus was made in a situation in which no appeal had ever been taken—that is, the petition for the writ was made in lieu of an appeal (constituting an attempt to mount a collateral attack on a judgment). Here, the father does not seek to collaterally attack the FFC judgment entered below in case No. E007280, nor does he argue that his petition should substitute for a proper notice of appeal: To the contrary, an appeal (although belated) was taken by the father in this case—and the writ is merely being sought to preserve that appeal (thus constituting an attempt by the father to maintain a direct attack on the FFC judgment).3
Such a use of a writ of habeas corpus is clearly proper. As stated in Benoit: “We observe at the start that ‘[i]n the absence of another adequate remedy, habeas corpus lies to’. . . determine that an appeal is pending and to effect preparation of the record so as to perfect the appeal. [Citations.]” (10 Cal.3d at p. 78.) It is true that this court traditionally has required the use of a separate motion to request permission for a late filing under the Benoit constructive filing doctrine—but, to the extent that this court might insist on calling such a motion “another adequate remedy,” it would be a simple enough task to construe a petition for a writ of habeas corpus as such a motion. (See In re Arthur N. (1974) 36 Cal.App.3d 935, 937 [112 Cal.Rptr. 89].)
Once it has been established that a cognizable request for permission to file a late appeal has been made, it remains to review such a request. The standards by which to review a request for permission to file a late appeal are suggested by Benoit. As I alluded to previously, Benoit suggests that a constructive filing of an appeal (based on ineffective assistance of counsel) should only be allowed when the request for permission to make such a filing shows (a) justifiable reliance by the appellant on counsel to file the notice of appeal, (b) due diligence by the appellant in assuring himself or herself that counsel was, in fact, proceeding to file the notice of appeal, and (c) the ineffective assistance of counsel in nevertheless failing to file the notice of appeal in a timely fashion. The showing made by a petitioner as to these three factors constitutes the basis on which an appellate court should *541determine, in the exercise of its discretion, whether to allow a late filing of an appeal in an FFC case pursuant to the Benoit doctrine.
Use of the above three factors by an appellate court has several salutary effects:
(1) Requiring a showing of “justifiable reliance” would deny the privilege of a late filing to those who merely “assumed” that counsel would pursue an appeal of the judgment. A proper showing of “justifiable reliance” would include a showing of an affirmative act by the appellant to obtain counsel’s services in pursuing an appeal as well as some showing of an affirmative response by counsel that he or she would pursue an appeal (at least to the extent of filing a notice of appeal).
(2) Requiring a showing of “due diligence” on the part of the appellant would deny the privilege of a late filing to those who merely told their counsel to file an appeal and then “forgot about it.” A parent wishing to contest the validity of a judgment in an FFC case must continue to bear some personal responsibility for assuring counsel’s compliance with the requirements of the law. If a parent has been properly advised of his or her rights to appeal as well as “the necessary steps and time for taking an appeal” pursuant to In re Jacqueline H. (1978) 21 Cal.3d 170 [145 Cal.Rptr. 548, 577 R2d 683], at page 179, then it is entirely appropriate that a somewhat more stringent showing of “due diligence” be required. It is also arguable that, if a parent knows, or should know, of a pending adoption, a somewhat more stringent showing of “due diligence” likewise be required.
(3) Requiring the appellate court to base its determination on the above three Benoit factors focuses the court’s attention on the precise issue at hand—whether a late filing should be allowed so as to protect the fundamental constitutional interests of the appealing party—without calling for a preliminary examination into the equities or competing policy considerations raised by the overall circumstances surrounding the particular FFC case subject to appellate review.4
*542C: Application of the Benoit Doctrine in This Case.
The facts of this case, as shown in the appellate record before us as well as in the petition for a writ of habeas corpus, clearly reveals the father’s entitlement to a late filing of his appeal in this case:
(1) The father never received an “In re Jacqueline H. advisement” by the court—and, so, was left without any direct, personal knowledge of the law respecting the taking of appeals. The father clearly communicated to his trial counsel his desire to appeal the FFC judgment. Trial counsel assured the father that all appropriate steps were being taken to contest the FFC judgment, including the taking of an appeal.
(2) The father continued to impress upon trial counsel his desire to contest the FFC judgment. The father was aware that trial counsel was filing a motion for a new trial prior to filing a notice of appeal—and had been told by trial counsel that this was the appropriate manner in which to pursue the matter.
(3) Trial counsel erred in believing that a motion for a new trial was permissible in an FFC case (Civ. Code, § 238). Trial counsel never filed a notice of appeal in a timely fashion.
Under the above facts, the conclusion is inescapable that the father’s fundamental rights in and to a full and fair adjudication of the FFC case in which his rights as a father were completely and irrevocably terminated were eviscerated by the ineffective assistance of trial counsel. Basic considerations of fairness and due process compel the application of the Benoit doctrine in this case—and competing policy considerations which recognize a minor’s interest in stable, long-term relationships do not compel a contrary result.
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 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 *543or 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.
Petitioner’s application for review by the Supreme Court was denied May, 14, 1992, Kennard, J., was of the opinion that the application should be granted.
All further references to “rules” are references to the California Rules of Court.
The majority cites both In re A. M. (1989) 216 Cal.App.3d 319 [264 Cal.Rptr. 666] and Adoption of Alexander S. (1988) 44 Cal.3d 857 [245 Cal.Rptr. 1, 750 P.2d 778] in partial support for its policy position. Both of these cases, however, focused their policy arguments on the need to protect the finality of adoption proceedings—proceedings which may, but very well may not, form a part of the overall circumstances surrounding an FFC case. The majority has rightly recognized this distinction (“[W]e do not rest our decision on ... 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.”) and has focused its policy argument on the general need for children to have stable, long-term relationships (Maj. opn., ante, p. 533, quoting from Lehman v. Lycoming County Children’s Services (1982) 458 U.S. 502, 513-514 [73 L.Ed.2d 928, 938-939, 102 S.Ct. 3231].)
For the same reason, Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949 [281 Cal.Rptr. 507] (as cited by the majority) is also inapposite.
By making this point, I am not lightly brushing aside “competing policy considerations”— such as a minor’s interest in the finality of FFC proceedings. Rather, by making this point, I am urging that the reviewing court focus on the fact that it is being asked to treat this appeal as if it had been timely filed—and no one contests the fact that a minor’s interest in the finality of FFC proceedings must be subrogated to the processing of a timely appeal taken in an FFC case.
Further, I take strong issue with the suggestion in the majority opinion that in determining whether to allow a constructive late filing in an FFC case an appellate court would become enmeshed both in evaluating the soundness of the underlying FFC judgment and in determin*542ing the “desirability” of the minor’s current placement. These considerations have no relevance to whether, in a particular case, an appellant’s right to appeal was foreclosed by the dereliction of his or her counsel.