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Name: In re Jacqueline P.
Case #: D042482
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/24/2003
Subsequent History: 11/19/03 Rev. denied but depublished
Summary

Petitioner’s notice of appeal from the termination of her parental rights was given to her attorney timely, but due to the admitted oversight of the attorney and her office, the notice of appeal was filed two weeks late. Petitioner here sought to have the notice of appeal deemed timely filed under the doctrine of constructive filing, as described by Benoit. Based on the specific facts of this case, the appellate court declined to follow previous cases which have held that there is a special need for finality in 366.26 cases which prevails over the policy considerations in favor of constructive filing. The facts here showed that petitioner acted in a diligent and timely manner by delivering a notice of appeal within two days to her attorney’s office, and it was her attorney who failed to act in a diligent and timely manner to file the notice as she had agreed to. In an appropriate case there are significant due process considerations favoring hearing the appeal on the merits. The degree of the delay imposed by doing so here is not so great as to justify penalizing the client for the inaction of appointed counsel. Therefore, the petition was granted, and the notice of appeal was ordered to be deemed timely filed.