Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. JD07-3100
Margulies, J.
A.J. was taken from the custody of her single mother, Felicia J. (Mother), after A.J.’s twin brother died of starvation while in Mother’s care. At the time of the detention, Mother identified appellant Willie J. (Father) as A.J.’s father. Mother provided the San Francisco City and County Department of Human Services (Department) with a telephone number for Father, but he did not respond to calls initially, and the Department was unable to determine his address. After the Department finally reached Father by telephone and scheduled a meeting, he did not appear. Because the Department thereafter abandoned attempts to locate him, Father was never provided with the required statutory notice of A.J.’s dependency proceedings. The juvenile court held a jurisdictional and dispositional hearing in Father’s absence and terminated reunification services to him.
Two months later, Father first appeared in the proceedings and was granted a paternity test, which confirmed that he is A.J.’s biological father. A few months later, he moved for an order declaring him to be A.J.’s presumed father and granting reunification services, arguing that the order terminating services to him was void because he had not been provided proper notice. The juvenile court found that the Department had been diligent in seeking Father and denied his motion for services and presumed father status.
While we agree with Father that the Department’s search was inadequate, we conclude that the failure to provide statutory notice to him was harmless. We further find no error in the juvenile court’s denial of Father’s motion for presumed father status and affirm the court’s orders.
I. BACKGROUND
A.J., then three months old, was detained under a petition filed pursuant to Welfare and Institutions Code section 300, on March 13, 2007. The petition alleged that A.J.’s twin brother had starved to death while in Mother’s care and that Mother abused drugs, was homeless, and often left A.J. in the care of her eight-year-old siblings. After the detention, A.J. was hospitalized with malnutrition, weighing approximately six pounds. Father was listed as A.J.’s alleged father, but his whereabouts were unknown.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Along with the petition, the Department submitted a declaration stating that a “[w]orker attempted to locate ‘father’ with the following telephone numbers,” listing numbers for various jails and prisons, the Department of Corrections and probation office, and the Department of Child Support Services. The name listed for Father in the declaration, although phonetically correct, was misspelled.
At the detention hearing the next day, the juvenile court concluded that reasonable efforts had been made to locate Father, appointed counsel for Mother, ordered A.J. detained, and scheduled a further hearing. At that time, Mother provided the Department with a telephone number for Father, and a social worker left a message for Father at the number on March 16. He did not return the call.
In a dispositional report, filed one month after the petition, the Department noted that Mother’s attorney had limited Mother’s interaction with the Department, presumably because of the risk of criminal charges resulting from the twin’s death. Nonetheless, on April 2, 2007, Mother told the Department she was in contact with Father and that he had “attempted” to attend the “last court date.” Despite repeated requests, however, she would not provide the Department with an address for Father, and she refused to discuss her relationship with him. Father continued not to answer the telephone number provided by Mother, although the message machine attached to the number used his name.
The medical examiner’s autopsy found the twin’s cause of death to be starvation by homicide. A felony complaint was later issued charging Mother with two counts of child endangerment relating to A.J. and her deceased twin.
A report prepared nearly a year later by the Department states that Mother was living with Father “since March of 2007 (reportedly off and on).” This is the only reference in the record to actual cohabitation by Mother and Father at this early date, but the evidence is clear Mother was in contact with Father at this time.
In April, a social worker left a message “to call [the social worker] to provide his address so that he could be notified of a court hearing concerning his child, [A.J.],” but Father again did not respond to the message. In an effort to locate an address for Father, the Department searched the “HSA Client Index, CMS-CWS and the Cal-Win database[s],” apparently under the correct spelling, but the search was unsuccessful. Nor was he found in the Department of Child Support Services’ records. The Department determined from an Internet database that Father’s telephone number was unlisted.
On May 8, the social worker called Mother and told her that Father was not responding to the Department’s calls. Mother told the social worker “to call [Father] immediately and he would answer his phone.” According to a later declaration, the social worker “ended the call with mother and immediately called [Father]. [Father] answered his phone. I spoke with [Father]. [Father] already knew that I was the child welfare worker assigned to [A.J.’s] case. He knew that [A.J.’s twin] was deceased. [Father] informed me that he and [Mother] had signed funeral documents on May 4, 2007. This information is consistent with information from the cemetery that [Mother] and [Father] signed documents on May 4, 2007.” Father agreed to meet with the social worker on May 10, two days later, but he neither attended the scheduled meeting nor called to explain his absence and reschedule. There is no evidence that the Department made any further attempt to locate or speak with Father, or vice versa. It is not disputed that he never received the statutorily required written notice of the proceedings.
A combined jurisdictional and dispositional hearing was held on July 17, 2007, four months after the filing of the petition. Neither parent was present, and Father’s whereabouts were still listed as “unknown.” Certain of the jurisdictional allegations were sustained, and reunification services were denied to Mother, on the finding that she had caused the death of A.J.’s twin, and to Father, who was not entitled to reunification services because he had not gained presumed father status. A section 366.26 permanency planning hearing was scheduled for November 7, 2007.
The Department had no indication that Father was interested in establishing a relationship with A.J. until over five months after the petition was filed, when, on August 22, Mother asked a social worker to permit Father to visit A.J. Two days later, Mother’s attorney filed a request, which was later granted, to have counsel appointed for Father. On August 31, the Department learned that Mother and Father were living together.
Two weeks later, on September 14, Father asked the court to order paternity testing. The application explained that Father “was unaware that the mother was pregnant and had given birth,” without mentioning the various contacts between Father and the Department or specifying when Father became aware of the child and his possible parentage. The court granted the request three days later and directed testing to occur on or before September 20. Although Father did not appear for the first two appointments for his paternity testing, he was eventually tested on September 26, and found to be A.J.’s biological father.
On November 1, 2007, Father filed a motion to set aside the jurisdictional and dispositional findings as to him on grounds he did not receive proper notice of the hearing. He also sought presumed father status and reunification services. In a declaration submitted with the motion, Father declared that he did not know he was A.J.’s biological father until he received the results of the paternity test. Mother told him he was not the child’s father, and he believed he was sterile as a result of cancer treatment. In April, he received a telephone call from a social worker about a funeral for A.J.’s twin, but the social worker did not mention a court hearing. At an unspecified time, Mother’s attorney told him that he should attend the proceedings. Father also declared that he and Mother had executed a voluntary declaration of paternity. The Department argued in response that Father’s motions should be judged by the standards of section 388 and denied as not in A.J.’s best interests.
At the hearing on the motion, the commissioner asked about an irregularity in the declaration of paternity, which the court referred to as an apparently “falsified document.” Mother’s signature was notarized on October 18, but her signature was dated October 30. Counsel was aware of the discrepancy and stated that she had arranged for a new declaration to be executed, but the new declaration had not been submitted to the court prior to the hearing, nor had the court been notified of the irregularity. The commissioner denied the motion to set aside, concluding that Father had been “properly noticed” for the jurisdictional and dispositional hearing. The motion for presumed father status was denied separately without explanation.
On December 18, Father sought rehearing of the motions before the juvenile court, submitting a copy of the new declaration of paternity. The motion for rehearing was denied without explanation on January 14, 2008. Father appealed this ruling.
On February 6, 2008, Father renewed his motion for presumed father status. In support of his renewed motion, Father provided evidence that the second voluntary declaration of paternity had been filed with the Department of Child Support Services and argued that the filing created a presumption of fatherhood requiring the provision of reunification services. The court again denied the motion. An appeal was also filed from this order. Father’s two appeals have been consolidated here.
II. DISCUSSION
A. Motion to Set Aside Jurisdictional and Dispositional Orders
Father first contends that the juvenile court erred in denying his motion to set aside the jurisdictional and dispositional orders because the Department had not made a diligent attempt to locate him and provide notice.
We find no merit in the Department’s claim that Father waived his right to appeal this claim. Because he was not a party to the proceeding and received no notice of either the hearings or the orders that resulted from them, Father could not have been expected to make a timely appeal. Further, Father’s notice of appeal is sufficiently broad to cover all orders challenged in this appeal.
1. Due Diligence
“ ‘Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend.’ ” (In re J.H. (2007) 158 Cal.App.4th 174, 182.) Section 291, subdivision (a)(1) expressly requires that any alleged father be given written notice of the jurisdictional and dispositional hearings. (E.g., In re Daniel S. (2004) 115 Cal.App.4th 903, 910.) The statute also requires alleged fathers to be sent Judicial Council form JV-505, which, among other things, “contains an advisement to alleged fathers regarding reunification, the right to a court trial to determine paternity and the right to be represented by counsel at such trial.” (In re Paul H. (2003) 111 Cal.App.4th 753, 761.)
When the location of a parent is not known, thereby preventing the giving of requisite notice, “[t]he child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith.” (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) The agency cannot rely on a standardized approach to its due diligence searches but must tailor each search to the unique circumstances of the case. In In re Arlyne A. (2000) 85 Cal.App.4th 591, for example, the court found an agency search inadequate because, “[a]lthough the Department searched the standard avenues available to help locate a missing parent, it failed to search the specific ones most likely, under the unique facts known to the Department, to yield [father’s] address.” (Id. at p. 599.) Similarly, In re O. S. (2002) 102 Cal.App.4th 1402, noted that “[a] social services agency does not act with due diligence when it takes no action to locate an alleged father for two months after being informed of his identity. [Citation.] Likewise, an agency does not act with due diligence when it knows of the alleged father’s employer but does not promptly contact the employer.” (Id. at p. 1409; see also In re Megan P. (2002) 102 Cal.App.4th 480, 489 [no reasonable diligence when agency only searched California databases, ignoring evidence father was living out of state].)
We agree with Father that the Department did not conduct a diligent search to locate him. The initial search, conducted at the time A.J. was detained, appears to have used an incorrect spelling of Father’s name. Because Father and A.J. have the same surname, and A.J.’s surname was properly spelled in the petition, the search using the misspelling can hardly be considered diligent. Yet a search of the particular databases included at this time was apparently never repeated using the correct spelling. The subsequent search was conducted using a different set of unexplained, apparently internal databases. Although these produced no results, there is no evidence that broader state databases, such as Department of Motor Vehicles and voter registration rolls, were ever consulted.
Further, the Department failed to pursue unique avenues presented to it. Most obviously, the social worker who spoke with Father over the telephone did not ask his address. While this omission might be excused by the Department’s expectation that Father would appear for the scheduled meeting, there was no further effort to locate him after he failed to appear for the meeting. The Department knew that Father had executed papers with a cemetery, and therefore might have disclosed his address, but there is no record of an attempt to obtain this information. On the contrary, as far as the record demonstrates, the Department abandoned any effort to find an address for Father in May, two months before the jurisdictional and dispositional hearing, even though the Department was well aware that Father was living in the Bay Area and was in contact with Mother. As a result, Father was never given the written notice of the jurisdictional and dispositional hearing required by section 291 and due process.
2. Prejudice
Father argues that the failure to provide notice of a jurisdictional hearing in juvenile dependency proceedings deprives the court of jurisdiction and is therefore reversible per se. While some older cases have suggested as much (e.g., David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016), more recent decisions have applied a harmless error analysis when an agency undertakes to find an absent parent, fails to conduct a diligent search, and provides no notice. We agree that application of the harmless error rule is appropriate here.
This issue was analyzed in In re Angela C. (2002) 99 Cal.App.4th 389 (Angela C.), in which a parent sought a renewed permanency planning hearing under section 366.26, because she did not receive notice of a continued hearing. The court noted that decisions addressing the proper standard for evaluating error in providing notice were in conflict. Some cases advocated per se reversal, while others applied the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (Angela C., at p. 393.) In settling the issue, the court began by noting that “Constitutional error as a general rule does not automatically require reversal.” Instead, “most” constitutional errors are evaluated using the Chapman standard, with the per se rule restricted to “structural” errors. (Angela C., at p. 394.) The court noted that structural error is found in only a “very limited class of cases,” generally involving criminal trials, and concluded that the failure to provide notice, at least in the circumstances present there, should be judged by the harmless error standard because the failure was “in the nature of a trial error.” (Id. at p. 395.)
Since Angela C., courts have commonly applied the Chapman standard in evaluating the failure to provide notice of dependency hearings (e.g., In re J.H., supra, 158 Cal.App.4th at p. 183; In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122; In re Justice P., supra, 123 Cal.App.4th at p. 193), including the failure to provide notice of jurisdictional and dispositional hearings. (In re Daniel S., supra, 115 Cal.App.4th at p. 913.) Structural error, requiring reversal per se, has been found only when the agency failed even to attempt to provide notice. (See In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116 [agency “made no attempt, absolutely none, even to look for” the parent].)
Application of a harmless error standard to failures of notice in dependency proceedings is particularly appropriate because such proceedings must strike a balance between the rights and interests of parents and children, which are sometimes in conflict. (E.g., Adoption of Daniele G. (2001) 87 Cal.App.4th 1392, 1404.) An absolute rule reopening proceedings whenever a parent has not received notice as a result of the agency’s lack of diligence could frustrate the interests of dependent children in the prompt resolution of arrangements for their parenting. “If a missing parent later surfaces, it does not automatically follow that the best interests of the child will be promoted by going back to square one and relitigating the case. Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them.” (In re Justice P., supra, 123 Cal.App.4th at p. 191; see also In re Daniel S., supra, 115 Cal.App.4th at pp. 913–914, fn. omitted [“Time is of the essence in dependency matters [citation], because childhood does not wait for the parent . . . . [C]hildren in protective custody have an interest in the prompt resolution of their custody status. [Citations.] . . . Given [the] strict time lines, neither the court nor the Agency could wait for an indefinite period of time . . . .”].) This is especially true for infants, such as A.J., whose dependency proceedings are accelerated relative to those for older children. (§ 361.5, subd. (a)(2); see Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843, 846.) Accordingly, we are in accord with other decisions holding that dependency hearings will not be reopened because of failure of notice when it appears beyond a reasonable doubt that the giving of notice would not have changed their outcome.
Father argues that cases applying the Chapman standard do so “with respect to defective notice, not to a case of no notice at all.” While we do not agree with Father’s characterization, it would not preclude application of the Chapman standard here even if it were correct. Father did have actual notice of the pendency of the dependency proceedings for A.J.; both Mother and the Department told him about the proceedings and urged him to participate. What he lacked was the formal written notice required by section 291 and the exact date of the jurisdictional and dispositional hearing. This is, therefore, a case of defective notice, rather than no notice at all.
In this section of his brief, Father also discusses In re Wilford J. (2005) 131 Cal.App.4th 742. Because Wilford J. found that the appellant had waived his claim of improper notice, the decision does not address the harmless error issue. (Id. at p. 754.)
Applying the Chapman standard, we find no basis for reversing the jurisdictional and dispositional orders of the trial court. The evidence is clear that, even if he had received written notice, Father would not have become involved in the dependency proceedings in July, when the jurisdictional and dispositional hearings occurred. Father was aware of A.J.’s dependency proceedings no later than early April, when Mother told him about them and attempted to persuade him to attend court hearings. Yet he made no effort to become involved. The Department social workers began to call Father’s telephone number in mid-March, leaving messages regarding the proceedings. On one of those calls, Father was asked “to call [the social worker] to provide his address so that he could be notified of a court hearing concerning his child, [A.J.].” Father chose to ignore those calls, just as he failed to respond to Mother’s efforts to involve him in the proceedings. In early May, Father executed documents at a cemetery concerning the deceased twin. While there is no indication of the nature of these documents, the fact that he and Mother executed them together suggests that he was acting in the role of parent of the twin. Yet this did not cause him to take any action regarding the proceedings. On the contrary, although Father acknowledged that he was aware of the pendency of a “case” with respect to A.J. and agreed to meet with the social worker soon after, Father did not appear for the meeting, and he never called to explain his absence, attempt to reschedule, or make any other effort to become involved.
The conclusion is inescapable that Father, aware of the possibility that he was A.J.’s biological father, decided not to become involved in these proceedings in April and May. He was given several opportunities, but he declined every one, despite pressure from Mother and the Department. There is no reason to believe that the sending of the statutory notice would have been more persuasive than personal entreaties in changing his mind with respect to the proceedings.
Citing In re Paul H., supra, 111 Cal.App.4th 753, Father argues that things might have been different had he been provided Judicial Council form JV-505, discussing the consequences of the hearings and notifying him that paternity testing was available. In Paul H., however, there was no evidence of the sustained personal contact and refusal of involvement found here. On this record, there is no reason to conclude that the information contained in form JV-505 would have made any difference. In addition to the circumstantial evidence cited above, Father’s own declaration fails to demonstrate that better notice would have caused him to become involved in July. Rather, Father suggests vaguely that illness prevented his participation at this time. Assuming that is true, there is no reason to conclude that the provision of written notice would have overcome his illness. He also suggests, equally vaguely, that he had reason to believe he was not A.J.’s father at the time. Again, if Father required proof that he was A.J.’s father before becoming involved, nothing in the statutory notice would have provided the necessary incentive. As a result, we conclude beyond a reasonable doubt that if Father had been provided with written statutory notice, he still would not have appeared for the jurisdictional and dispositional hearing. The Department’s failure to exercise diligence in locating Father’s address and providing him written notice was therefore harmless, and there is no basis for vacating the jurisdictional and dispositional orders with respect to Father.
Father’s claimed uncertainty about his parentage of A.J. did not alone justify revisiting the jurisdictional and dispositional orders. As noted in Armando L. v. Superior Court (1995) 36 Cal.App.4th 549, “[i]t is enough that he knew a child had been born to a woman with whom he had had sexual relations, that she claimed shortly after the minor’s birth that he had fathered the baby, and that the [agency] wanted to be contacted concerning the minor. Because he was in possession of this information, [father] had a duty to contact [the agency] to ascertain the steps to take in order to determine what parental responsibility, if any, he had to the minor.” (Id. at p. 555.)
B. Denial of Presumed Father Status
Father also argues that the juvenile court erred in denying his motion for a declaration of presumed father status.
“The Uniform Parentage Act (Fam. Code, § 7600 et seq.) (Act) provides the statutory framework by which California courts make paternity determinations. [Citations.] Under this statutory scheme, California law distinguishes ‘alleged,’ ‘biological,’ and ‘presumed’ fathers. [Citation] ‘A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an “alleged” father. [Citation.]’ [Citation.] ‘A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status.’ [Citation.] [¶] ‘Presumed’ fathers are accorded far greater parental rights than alleged or biological fathers. [Citation.] Presumed father status is governed by [Family Code] section 7611, which sets out several rebuttable presumptions under which a man may qualify for this status, generally by marrying or attempting to marry the child’s mother or by publicly acknowledging paternity and receiving the child into his home. [Citations.] . . . [¶] Section 7611 also recognizes two other grounds for qualification as a presumed father that are outside of the Act. These are an executed voluntary declaration of paternity [citation] and the so-called conclusive presumption of paternity [citations], which dictates the finding that a mother’s husband is her child’s father, provided the mother and her husband were married and cohabiting when the child was conceived. In addition, . . . an unmarried biological father may, under narrow circumstances, assert constitutional paternity rights [by satisfying Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.)], even though he does not qualify under any of the presumptions listed in section 7611.” (In re J.L. (2008) 159 Cal.App.4th 1010, 1018.) Because he and Mother executed a voluntary declaration of paternity, Father was undeniably qualified for designation as A.J.’s presumed father.
The juvenile court did not explain its refusal to grant Father presumed father status, but the refusal can be explained by the Department’s argument to the court that it was required to evaluate Father’s motion for presumed father status under section 388. “Under section 388, a party may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence; and (2) the proposed change in the court’s previous order is in the child’s best interests.” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071.) If Father’s motion was subject to the requirements of section 388, he would be entitled to presumed father status, although otherwise qualified, only if he persuaded the juvenile court that granting him that status was in A.J.’s best interests.
Father claims that the juvenile court erred in evaluating his claim to presumed father status under section 388, arguing that because he qualified as a presumed father, the juvenile court was required to grant him that status. This issue was resolved in In re Zacharia D. (1993) 6 Cal.4th 435 (Zacharia D.), in which a newly discovered biological father argued at the 18-month hearing that he should be deemed a presumed father and offered reunification services. Reviewing the existing law, the court noted that “[i]n developing parameters on the reunification process, ‘the Legislature balanced numerous competing fundamental interests, including the child’s compelling interest in “a placement that is stable, permanent, and which allows the caretaker to make a full emotional commitment to the child,” the parents’ compelling “interest in the companionship, care, custody and management” of their child [citation], and the “preservation of the family whenever possible. . . .” ’ ” (Id. at p. 446.) The result of this balancing test was a determination that “ ‘[u]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over a child’s need for stability and permanency.’ [Citation.] ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.] ‘The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue.’ ” (Id. at p. 447.) As a result, the court held, “if a man fails to achieve presumed father status prior to the expiration of any reunification period in a dependency case, . . . he is not entitled to such services under section 361.5. . . . [The] only remedy . . . [is] to file a motion to modify under section 388.” (Id. at p. 453.)
Since Zacharia D., two decisions of the Court of Appeal have confirmed that a man claiming presumed father status following the setting of a section 366.26 hearing may do so only by filing a petition under section 388. In In re Eric E. (2006) 137 Cal.App.4th 252 (Eric E.), two different men, the mother’s husband and the child’s biological father, were granted reunification services. (Id. at p. 256.) Following the end of the reunification period and the setting of the section 366.26 hearing, both men petitioned for presumed father status. (Eric E., at p. 256.) After the biological father was denied presumed father status, he appealed, claiming the trial court erred in rejecting his petition. Following Zacharia D., the court held that the biological father was properly required to file a section 388 petition to establish presumed father status. (Eric E., at p. 261.) The court expressly rejected the biological father’s claim that his execution of a voluntary declaration of paternity overcame the requirement of a section 388 petition. (Eric E., at p. 262.)
Similarly, in In re Vincent M. (2008) 161 Cal.App.4th 943 (Vincent M.), the dependency proceeding effectively bypassed the reunification period because the child was taken from its mother at birth, and the mother had not identified a potential father. (Id. at p. 948.) Seven months after the scheduling of the section 366.26 hearing, the child’s biological father came forward, having been unaware that the mother was pregnant and that he was the father. (Vincent M., at p. 951.) Again following Zacharia D., the court held that the biological father could assert his parental rights only through a section 388 petition. (Vincent M., at p. 955.) The court expressly rejected father’s claim that his status as a Kelsey S. father should overcome the requirement of a section 388 petition. (Vincent M., at p. 958.)
Father’s situation is not materially different from those of the fathers in Zacharia D., Eric E., and Vincent M. At the July hearing, reunification services were properly refused to both Mother and Father, and a section 366.26 hearing was scheduled. At that point, under Zacharia D., the focus of the proceedings shifted from promoting the parents’ interests in reunifying with their child to A.J.’s interest in a stable and permanent home. As a result, in order to assert his parental interest as a presumed father thereafter, Father was required to demonstrate under section 388 that there were changed circumstances and that it was in A.J.’s best interests for him to assert his parental interest.
Although Father discusses factual differences between his situation and the situation of the fathers in Eric E. and Vincent M., none of these factual differences is material to the section 388 issue.
Father raises several arguments against the application of section 388. Given the broad language of the Supreme Court’s decision in Zacharia D., we have no choice but to reject them under the doctrine of stare decisis. Nonetheless, we address the merits of the arguments briefly.
Father first argues that his voluntary declaration of paternity, as a matter of statute, has the status of a judgment declaring him to be A.J.’s father and that there were no valid grounds for setting such a judgment aside. We do not disagree with either contention. The mere fact that a voluntary declaration is the equivalent of a judgment of paternity, however, does not give it special status in a dependency proceeding. As the court concluded in Eric E., supra, 137 Cal.App.4th at page 262, a declaration of paternity has the same standing as the other grounds for a finding of presumed fatherhood listed in Family Code section 7611. All are equally subject to the rule of Zacharia D. when the father fails to come forward prior to setting of the section 366.26 hearing.
In this regard, Father discusses County of Fresno v. Sanchez (2005) 135 Cal.App.4th 15, and County of Los Angeles v. Navarro (2004) 120 Cal.App.4th 246, superseded by statute as stated in County of Fresno v. Sanchez. Both cases concerned the power of a court to set aside a judgment requiring support payments on the basis of a finding of paternity. Neither has any bearing on presumed paternity under Family Code section 7611.
Second, Father argues that construing the dependency statutes to require a declared father who emerges late in a dependency proceeding to file a motion under section 388 is inconsistent with the Family Code provisions governing paternity. The argument is premised on the assumption that a voluntary declaration of paternity is intended to create parental rights that overcome any contrary provisions in the dependency statues. Nothing in the Family Code, however, suggests the creation of such rights. As discussed in Zacharia D., the dependency statutes constitute a balancing of the interests of parents and children. Such a balancing is wholly consistent with the provisions of the Family Code.
Third, Father claims that the rule of Zacharia D. runs the risk of rendering A.J. “fatherless.” In support, he cites Elisa B. v. Superior Court (2005) 37 Cal.4th 108, which held that the lesbian partner of a biological mother can be held responsible for child support payments, despite her lack of genetic or marital connection to the child. While Elisa B. contains language suggesting the obvious—that, all other things being equal, it is better for a child to have two parents—it does not purport to establish a rule requiring two parents at any cost. Whether it was in A.J.’s best interests to have Father declared a presumed father was a decision vested in the sound discretion of the juvenile court, taking into consideration both her circumstances and his.
Fourth, Father argues that the Zacharia D. rule infringes his constitutional rights as a parent. As the very existence of the dependency statutes demonstrates, however, parents’ constitutional rights in their children are not absolute. They are subject to compromise, according to the procedures set out in the Welfare and Institutions Code. As discussed above, the rule of Zacharia D. represents one such compromise between the conflicting interests of parents and children.
Fifth, Father argues that he had superior rights as a Kelsey S. father. As discussed in Vincent M., supra, 161 Cal.App.4th at page 958, Kelsey S. rights do not supersede the provisions of the dependency statutes any more than the various other grounds for claiming presumed father status.
In this section, Father discusses In re Julia U. (1998) 64 Cal.App.4th 532 extensively. The biological father in Julia U., unlike Father, came forward before the denial of reunification services and scheduling of the section 366.26 hearing. (In re Julia U., at p. 543.) For the reasons discussed at length above, this is a critical difference.
Finally, Father argues that the Department should be estopped from denying presumed father status to him. Father contends that “[i]t was the Department’s dilatoriness in informing him and seeking to determine his paternity . . . which prevented his ability to assert parentage . . . .” Even assuming estoppel is available in these circumstances, the argument is factually unsupported. As discussed above, the Department was not dilatory in informing Father about the proceedings, nor did the Department’s conduct prevent Father from participating. The Department did not fulfill its statutory duty to provide written notice, but it was prompt in contacting Father and attempting to involve him in these proceedings.
Although we do not read Father’s brief to contest the juvenile court’s exercise of discretion in denying his motion under section 388, we note that there was substantial evidence to support the juvenile court’s conclusion that Father failed to demonstrate changed circumstances and that A.J.’s best interests would be served by declaring him a presumed father. (See Eric E., supra, 137 Cal.App.4th at p. 261 [applying substantial evidence test].) Although Father was aware of the proceedings with respect to A.J. in April, and was encouraged by both Mother and the Department to participate, he showed no interest in A.J. for several months. By the time he made the motion for presumed father status in November, he still had never met A.J., let alone formed a bond with her. Based on a November interview with Father, the Department concluded that he became involved primarily to help Mother retain her relationship with A.J., rather than out of a desire for his own relationship with A.J. On this record, we find no error in the juvenile court’s ruling.
III. DISPOSITION
The orders of the juvenile court are affirmed.
We concur: Marchiano, P.J., Swager, J.