In Re Issac 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…

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:

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…

William Bud Walls II, for Minors.

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 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…