Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J05-01196
Lambden, J.
Contra Costa County Children and Family Services Bureau (the bureau) filed an amended petition pursuant to section 300, subdivisions (a), (b), and (g) of the Welfare and Institutions Code on behalf of Brandon T., the son of Sara T. (mother). Brandon was detained and, subsequently, the court terminated mother’s reunification services and set a section 366.26 hearing. When Oscar G. learned that mother’s reunification services were being terminated, he came forward and said that he was Brandon’s father. Paternity tests confirmed that he was Brandon’s biological father.
All further unspecified code sections refer to the Welfare and Institutions Code.
The court held a hearing on Oscar’s request to elevate his status from biological to presumed father; the court denied this request. Subsequently, the court terminated the parental rights of both Oscar and mother. Oscar claims that he was not provided proper notice of the hearings and that substantial evidence did not support the court’s denial of his request to have presumed father status. He also challenges the lower court’s termination of his parental rights. We are unpersuaded by his arguments and affirm the lower court’s rulings.
BACKGROUND
On November 14, 2005, the bureau filed a petition alleging that Brandon, who was born at the end of July 2005, came within section 300, subdivisions (a) and (g). Under subdivision (g), the petition asserted that the alleged father’s identity and whereabouts were unknown and mother’s address was unknown.
The court held a detention hearing on November 15, 2005, and then set it for a contested hearing for the next day. At the contested detention hearing on November 16, 2005, the court asked mother: “[W]ho’s the dad? Do we know?” Mother responded: “Unknown. I don’t know. I don’t know who the father is.” The court followed up by asking mother, “Do you have any idea?” Mother answered, “No.” Counsel for mother told the court, “Your Honor, if the court would like to discuss it off record, I can inform the court, but she does not know who the father is.” The parties then proceeded to discuss the matter off the record. After this discussion, the court explained on the record: “I will share this for the record, truly, that the unknown circumstance is genuine, and to reveal it would be unnecessarily embarrassing, so, okay. I’m satisfied.” The court detained Brandon from mother’s care.
On November 18, 2005, the bureau filed an amended section 300 petition. The amended petition alleged, under subdivision (a) of section 300, that Brandon was at risk of serious physical abuse because mother could not control her anger. It further alleged that on November 9, 2005, mother hit Brandon several times on the back and yelled at him. The amended petition added allegations under subdivision (b) of section 300, that mother had a substance abuse problem significantly impairing her ability to provide appropriate care and support for the child and that mother had neglected the child’s medical needs. Under subdivision (g), the amended petition again asserted that the alleged father’s identity and whereabouts were unknown, but it recommended dismissal of the allegation that mother’s whereabouts were unknown.
The bureau’s jurisdiction report stated that Social Worker Margie Stephens was at Love-A-Child Shelter on November 9, 2005, as mother was being discharged from the shelter for breaking the rules. Stephens reported that mother did not disclose the identity of Brandon’s father. According to the report, another resident at the shelter asserted that mother frequently spoke to Brandon’s father on the telephone, and stated that the father’s name was Oscar. She also notified the social worker that mother reported staying with Oscar’s family until a family member told her to leave. She informed the social worker that mother told her that Oscar was abusive and that they both were drinking at the time mother was asked to move from the home of Oscar. Additionally, the report indicated that mother told Social Worker Cheryl Boshers that she did not know the identity of Brandon’s father.
At the contested jurisdiction hearing on December 29, 2005, mother testified. She stated that she had stayed at the home of Oscar’s family. She lived with the family for about one year, but the family asked her to leave just after she gave birth to Brandon when she did not follow the rules and was drinking. Counsel for Brandon asked mother whether Oscar was the father of Brandon, and mother responded, “No, he is not.” When asked whether she told the social worker that Oscar was the father, she again responded, “No, I did not.”
Social Worker Boshers testified that she asked mother whether Oscar was the father of Brandon. Mother told her that he was not. Boshers also reported that she was in the process of evaluating the home of Oscar’s family as a placement for Brandon. She said that mother had told her that she had stayed with Oscar’s family right before she became pregnant with Brandon.
After hearing the testimony, the court sustained the amended count that mother used inappropriate physical discipline on Brandon and that mother had a substance abuse problem. Counsel for Brandon asked the court to ask mother about paternity. Mother’s attorney stated that mother did not know who the father was, and the court stated that it was still going to make the inquiry. The court asked mother if she knew who the father of Brandon was and mother responded, “I don’t.” The court asked her if she had any idea who the father might be, and mother responded: “You know what, the truth is I was too drunk to even see straight.” She said that she wished she knew who the father was, but she did not. The court responded, “As much an answer I guess as we can get.” Mother added: “Because, believe me, if I did, I would want that child supported, but I don’t, so I can’t do nothing about it.” The court then continued the matter for a disposition hearing.
The bureau filed a disposition report, which indicated that mother was again staying at the home of Oscar’s family. Oscar’s family had expressed interest in having Brandon placed in the home and the bureau was awaiting results from Life Scan regarding the family to assess any possible placement of Brandon in this family’s home. The disposition report recommended that Brandon remain in foster care.
The court held the disposition hearing on January 26, 2006. The court removed Brandon from mother’s physical custody and ordered him placed in foster care. It continued the matter for a six-month status review hearing.
The bureau filed its six-month status review report. The report indicated that Brandon, who was very healthy, was living with a foster family since he was almost four months old. Mother was continuing to live with Oscar’s family. The report indicated that mother could not safely and adequately parent her son. The bureau recommended that the court order mother to continue to receive reunification services and that it continue the matter to a 12-month review hearing.
Prior to the contested status review hearing, the bureau submitted a memorandum that it was changing its recommendation to terminate reunification services for mother and to set a section 366.26 hearing. Mother was visiting with Brandon inconsistently and she had missed three drug tests in June and five tests in July. Further, she was not working on her case plan and was not attending weekly Alcoholics Anonymous meetings. She also had stopped attending her anger management program and her weekly therapy session. Mother had become homeless, as Oscar’s family had asked her to leave the family’s home.
The court held the contested six-month status review hearing on September 12, 2006. According to the minute order following this hearing, counsel for Brandon, mother, and Oscar appeared; Oscar also appeared. The court terminated mother’s reunification services, set a hearing pursuant to section 366.26, and set an additional hearing to receive paternity results.
The transcript of this hearing is not included in the record and counsel for Oscar did not file a motion in this court to augment the record to include this transcript. Bureau filed a motion to augment, which we granted, but this motion only included the transcript of the detention hearings on November 15 and 16, 2005.
The court held a paternity hearing on November 6, 2006. Oscar was present at the hearing. The test results established that Oscar was the father of Brandon. Oscar’s attorney asked to raise his status to presumed father and to provide him with reunification services and visitation rights. The court set the hearing date regarding Oscar’s paternity status for December 8, 2006.
At the contested paternity hearing on December 8, 2006, the parties reached a stipulation that if Social Worker Shirley Michael were called to testify, she would testify that on August 2, 2006, she had a conversation with mother and advised her of the upcoming section 366.26 hearing and the plan to terminate her services. Oscar contacted Michael regarding paternity on August 4, 2006. Since the dependency proceedings began, and until the present, mother never disclosed the name of the father to Michael.
Oscar testified at the paternity status hearing. He stated that he had a relationship with mother in 2003 and 2004, but he broke up with her because she was seeing other men. Oscar’s attorney asked him whether he used a condom, and the court sustained the objection to this question. Counsel explained that the question was relevant to Oscar’s reasons for not believing he was the father of Brandon. The court explained: “Well, unless you have a case specific as to immaculate conception at some point in time he had to have unprotected sex with the mother.” Counsel for Oscar agreed.
Oscar testified that he learned mother was pregnant, but mother told him that he was not the father and that she did not know who the father was. Subsequently, Oscar clarified that mother did not tell him that he was not the father; rather, she told him that she did not know who the father was. When he learned that mother was pregnant, he made arrangements for her to live with his parents. Oscar gave mother a ride to the hospital when she was going to deliver Brandon and he signed the birth certificate as a witness. Mother continued to live at his parents’ home for about two months after Brandon was born. After being asked to leave his parents’ home, Oscar stated that mother lived with her uncle for about two months and then he found a shelter in Stockton for her. The parties then stipulated to the fact that Oscar knew where mother was living and rendered her some assistance. He stated that he visited mother and the baby about three times while they were with the uncle and he visited her about two times while at the Stockton shelter. He did not visit them while they were at the Love-a-Child Shelter. Oscar was aware of the dependency proceedings as his mother told him of them when Brandon was removed from mother’s custody.
Mother told the social worker on November 14, 2005, that Oscar’s family asked her to leave the home approximately three months earlier, which would have been shortly after the birth of Brandon. Further, she testified at the jurisdiction hearing that she was told to leave the home of Oscar’s family “right after” she “had Brandon.” Since Brandon was just over three months old when removed from mother’s care, Oscar’s testimony that Brandon and his mother were at two different shelters for a period of time, with Oscar’s family for two months, and with mother’s uncle for two months, was not credible. Accordingly, mother’s recollection of being told to leave the home of Oscar’s parents shortly after Brandon’s birth is more credible than Oscar’s testimony that she remained in his family’s home for a couple of months.
Oscar testified that in August 2006 mother called him on the telephone and told him that she was living with her boyfriend in Stockton. She told Oscar that he could be Brandon’s father. He said that he now wanted Brandon since he knew he was the biological father. He said that he had been working full-time at his job for five years and had a room at his parents’ home.
After hearing the testimony and the argument, the court stated that the law requires prompt action by a potential father. Oscar knew he was a potential father, but did not promptly come forward. The court explained: “And the only reason [Oscar] came forward . . . was we were going to move on to some plan of adoption or permanent plan. And that was the reason he was contacted by mother, and that’s the reason he came forward. And mother was continually telling him that she didn’t know who the father was. Not that he wasn’t the father[,] but she didn’t know who the father was. [¶] The law requires prompt action by a potential father. He was a potential father. He didn’t come forward.” The court therefore denied Oscar’s request to elevate his status to presumed father.
On January 9, 2007, counsel for Oscar filed a request to change the court order regarding his paternity status. Oscar requested the court to elevate his status to presumed father and to vacate the section 366.26 hearing. Additionally, he requested an order to provide him with reunification services. Oscar claimed that he “mistakenly led the court to believe that he was told by the mother that she did not know who the father was. In fact, the mother advised [him] that he was not the father and the father was one of several other men. Accordingly, [he] delayed in coming forward for a paternity test until she advised him that he could be the father.”
On January 9, 2007, the court held the hearing pursuant to section 366.26 and denied Oscar’s request to continue the hearing. The court heard testimony from Social Worker Shirley Michael. Counsel for Oscar objected that the bureau’s report was not sent to Oscar in a timely fashion, and the court continued the matter.
On January 12, 2007, the court held the continued hearing pursuant to section 366.26. The court terminated parental rights.
On January 25, 2007, Oscar filed a notice of appeal from the order of December 8, 2006, which denied his motion to elevate his status from biological father to presumed father, and from the order terminating his parental rights.
DISCUSSION
I. Defective Notice
Oscar argues that alleged fathers have statutory and constitutional rights to due process. He complains that the court did not properly inquire about paternity at the detention hearing and his due process rights were violated because he was never provided notice of the jurisdiction and disposition hearings. Further, he never received the Judicial Council form Paternity––Waiver of Rights (JV-505), which must be included with the notice.
It is undisputed that Oscar received notice of the setting of the section 366.26 hearing.
The dependency statutes distinguish between three categories of fathers: alleged, biological or natural, and presumed. (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed father status. (Id. at p. 449, fn. 15.) A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the child’s presumed father. (Ibid.) The Family Code sets forth the criteria for determining presumed father status, which include: A man marries or attempts to marry the child’s mother, he and the mother execute a voluntary declaration of paternity, or he receives the child into his home and openly holds out the child as his natural child. (Fam. Code, §§ 7571; 7573; 7611, subds. (a)-(d).)
The court in In re Crystal J. (2001) 92 Cal.App.4th 186, 190, also recognized “de facto fathers,” persons who assume the role of parent on a day-to-day basis. The evidence in the record does not support any assertion that Oscar was a de facto father.
In dependency proceedings, a man’s status as a presumed father is critical. (In re O.S. (2002) 102 Cal.App.4th 1402, 1410.) “[P]resumed fathers possess far greater rights than alleged or biological fathers. [Citation.] Only a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services, and only a presumed father is entitled to custody of his child. [Citation.] In contrast, the juvenile court ‘may’ order reunification services for a biological father if the court determines that the services will benefit the child.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596; see also In re A.A. (2003) 114 Cal.App.4th 771, 779-780.)
Under the Uniform Parentage Act (Fam. Code, § 7600 et seq.), a man who may be the father of a child, but whose biological paternity has not been established or who has not achieved presumed father status, is an “alleged” father. (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) At the time of the detention hearing, Oscar was at most an alleged father. An alleged father is entitled to notice of the proceedings only to give him an opportunity to establish paternity. (In re Alyssa F. (2003) 112 Cal.App.4th 846, 855.) The social worker is required to give written or oral notice of the detention hearing to the father when a petition to detain a child is filed. (§ 290.1, subd. (a).)
Section 316.2, subdivision (a), provides that, at that detention hearing, “the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers. The presence at the hearing of a man claiming to be the father shall not relieve the court of its duty of inquiry. The inquiry shall include at least all of the following, as the court deems appropriate: [¶] (1) Whether a judgment of paternity already exists. [¶] (2) Whether the mother was married or believed she was married at the time of conception of the child or at any time thereafter. [¶] (3) Whether the mother was cohabiting with a man at the time of conception or birth of the child. [¶] (4) Whether the mother has received support payments or promises of support with respect to the child or in connection with her pregnancy. [¶] (5) Whether any man has formally or informally acknowledged or declared his possible paternity of the child, including by signing a voluntary declaration of paternity. [¶] (6) Whether paternity tests have been administered and the results, if any. [¶] (7) Whether any man otherwise qualifies as a presumed father pursuant to Section 7611, or any other provision, of the Family Code.”
Subdivision (b) of section 316.2 reads: “If, after the court inquiry, one or more men are identified as an alleged father, each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity—Waiver of Rights (JV-505) shall be included with the notice. Nothing in this section shall preclude a court from terminating a father’s parental rights even if an action has been filed under Section 7630 or 7631 of the Family Code.”
The Judicial Council form JV-505 advises an alleged father of his legal options, including his right to compel a court to determine his paternity and his right to be represented by court-appointed counsel, if need be. It is undisputed that Oscar did not receive this form.
At the detention hearing, the court asked mother if she knew who the father of Brandon was and mother denied knowing who the father could be. Counsel for mother asked that any further questioning be done off the record. After the discussion off the record, the court concluded that “the unknown circumstance is genuine, and to reveal it would be unnecessarily embarrassing . . . .” Consequently, the court did not ask the questions specified in section 316.2, subdivision (a), and we agree that the court’s inquiry did not comply with the statute.
We note that Oscar challenged his due process rights in his opening brief and argued that the court did not make the proper inquiry at the detention hearing. However, the record at this point did not include the transcript of this hearing. After Oscar had filed his opening brief, bureau filed a motion to augment the record to include the transcript of the detention hearings.
Oscar, however, has forfeited raising the issue of defective notice on appeal. Although not addressed by either party, the forfeiture rule applies to dependency cases. (See, e.g., In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another issue.) The forfeiture rule has specifically been applied to dependency cases involving defective notice. Thus, for example, in In re B.G. (1974) 11 Cal.3d 679, 689, our Supreme Court held that the mother who had received inadequate notice of the jurisdiction hearing forfeited her right to raise the issue on appeal because she appeared at the subsequent disposition hearings with her counsel and failed to challenge the validity of the jurisdiction order. Similarly, in In re Wilford J. (2005) 131 Cal.App.4th 742, 754, the court held that the father who claimed a lack of notice of the jurisdiction hearing forfeited that objection by failing to raise it at the subsequent disposition hearing he attended with appointed counsel. In In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198, the court held that a father claiming a lack of notice of dependency proceedings waived raising the issue on appeal when he failed to make that objection at the section 366.21 hearing. (See also Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149 [mother waived lack of notice argument by failing to object in juvenile court].)
In the present case, Oscar and his counsel first appeared at the contested six-month review hearing on September 12, 2006. Although we do not have a transcript of the hearing, the minute order does not indicate that Oscar or his counsel made any objection on the basis of defective notice of the jurisdiction or disposition hearing. It is axiomatic that Oscar, as the appellant, has the responsibility of providing a record that is adequate for appellate review of his claims. (See, e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574; In re L.B. (2003) 110 Cal.App.4th 1420, 1424.) Additionally, no objection based on defective notice of the prior hearings was made when Oscar and his counsel were present at the paternity hearings on November 6 and December 1, 2006. Oscar and his counsel also attended the section 366.26 hearing on January 9 and 12, 2007. Although Oscar’s attorney made numerous objections—including an objection to Oscar’s untimely receipt of the bureau’s report––there was no objection based on defective notice of the jurisdiction and disposition hearings. Accordingly, Oscar has forfeited raising this issue for the first time on appeal.
Further, Oscar was not prejudiced by any defective notice. The harmless error test has been applied in dependency matters. (See, e.g., In re Celine R. (2003) 31 Cal.4th 45, 59-60.) Under this test, a judgment is not reversible due to court error unless there is “reasonable probability the outcome would have been different but for the error.” (Id. at p. 60.) In the present case, the record establishes that, even if Oscar had been provided with notice of the hearings, the outcome would not have been different. This is not a situation where Oscar was unaware of the dependency proceedings or that he potentially had paternal rights. (Cf. In re Paul H. (2003) 111 Cal.App.4th 753, 762; In re Arlyne A. (2000) 85 Cal.App.4th 591, 598.) Oscar acknowledged actual notice of the dependency proceedings when he testified that his mother informed him when Brandon was removed from mother’s custody. The record establishes that Oscar had no interest in having a paternity test until August 2006, the point when mother’s reunification services were being terminated.
Oscar argues that he was unaware of his potential paternity or how to assert his paternity in the dependency proceedings. This argument is unpersuasive. Oscar knew he had sexual relations with mother prior to her pregnancy and therefore was aware that he could be the father. Indeed, Oscar testified that mother did not tell him that he was not the father. Mother told him that she did not know who the father was. He knew about the dependency proceedings and had expressed no interest in being involved until August 2006. At that time, counsel was appointed and he had a paternity test. Thus, even if Oscar had received notice of the hearings, the record establishes that he had no interest in having a paternity test and being involved in the proceedings until August 2006. Under these circumstances, we conclude that the result would not have been different had Oscar received notice of the jurisdiction and disposition hearings or had he received Judicial Council form JV-505. (See, e.g., In re Kobe A. (2007) 146 Cal.App.4th 1113, 1123.)
Oscar first testified that mother told him that he was not the father and that she did not know who the father was. However, when further questioned, he clarified that mother did not tell him that he was not the father. Rather, she told him that she did not know who the father was. The lower court when issuing its ruling found that mother told Oscar that she did not know who the father was.
II. Presumed Father Status
Oscar challenges the lower court’s refusal to elevate his status from biological father to presumed father. We review the lower court’s denial of presumed father status under the substantial evidence test. (In re A.A., supra, 114 Cal.App.4th at p. 782.)
“In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the court’s finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case.” (In re N.S. (2002) 97 Cal.App.4th 167, 172.) We have no power to judge the effect or value of, or to weigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in, or make inferences or deductions from the evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
However, substantial evidence is not synonymous with any evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) “A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, ‘[w]hile substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’ [Citation.] ‘The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’ ” (Id. at pp. 1393-1394.)
In the present case, Oscar asserted that he had presumed status under Family Code section 7611, subdivision (d). Under this provision, Oscar had the burden of establishing by a preponderance of the evidence (In re A.A., supra, 114 Cal.App.4th at p. 782) that “[h]e receive[d] the child into his home and openly [held] out the child as his natural child” (Fam. Code, § 7611, subd. (d)).
“While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response. Once a child is placed in that system, the father’s failure to ascertain the child’s existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any ‘opportunity to develop that biological connection into a full and enduring relationship.’ ” (In re Zacharia D., supra, 6 Cal.4th at p. 452.)
Courts have set forth the factors that establish presumed father status. Once the father learns about the pregnancy, “the father must demonstrate a willingness himself to assume full custody of the child––not merely to block adoption by others.” (In re Julia U. (1998) 64 Cal.App.4th 532, 541.) “A court should also consider the father’s public acknowledgment of paternity, his payment of pregnancy and birth expenses commensurate with his circumstances, and prompt legal action to seek custody of the child.” (Ibid.)
In the present case, the record contains substantial evidence supporting the lower court’s decision to refuse elevating Oscar’s status from biological father to presumed father. Oscar knew he had sexual relations prior to mother’s pregnancy and he knew about the pregnancy; he therefore knew he was a potential father. According to Oscar’s own testimony, mother did not know who the father was. Thus, despite having this knowledge, Oscar made no attempts to establish paternity until after he learned that mother’s reunification rights were being terminated. Thus, the evidence supported the court’s conclusion that he had not demonstrated a willingness to assume full custody of Brandon, but merely wanted to block his adoption by others.
Oscar did testify that he kept in touch with mother during and after her pregnancy. Moreover, he arranged for mother and Brandon to stay with his parents. Once mother was asked to leave his parents’ home, he arranged for her to stay at her uncle’s home and at a shelter in Stockton. He testified that he also gave mother a ride to the hospital and signed Brandon’s birth certificate as a witness. However, there is no evidence that Oscar himself provided any financial support. Moreover, he had very few visits with Brandon once mother left his parents’ home. Further, there is absolutely no evidence that Oscar held Brandon out as his own child.
Oscar argues that he had no reason to believe he was Brandon’s father until, according to him, mother told him for the first time in August 2006 that he could be the father. He claims he did not have sufficient reason to believe that he was likely to be Brandon’s father because he used condoms while having sexual relations with mother and mother had sexual relations with other men. Further, he maintains, as in the situations of In re Baby Boy V. (2006) 140 Cal.App.4th 1108 and In re Julia U., supra, 64 Cal.App.4th 532, he was not on notice that he was the father because mother misled him by stating on Brandon’s birth certificate that Brandon’s father was unknown. He concludes that he was not on notice of being Brandon’s potential father until August 2006 and, once he received notice, he immediately came forward to establish his parental rights.
In the present case, unlike the situation in Baby Boy V., supra, 140 Cal.App.4th 1108, 1116, where the father contacted the social worker as soon as he learned about the child’s existence, Oscar knew about Brandon’s existence as soon as he was born in July 2005 and knew about the dependency proceedings in November 2005. He, however, never notified the social worker about any potential relationship to Brandon until more than eight months after Brandon had first been detained. Oscar claims that mother attempted to hide the fact that he was the father, as she told the court that he was not the father. Mother may have told the court that Oscar was not the father, but Oscar testified that mother told him that she did not know who the father was and Oscar knew he had sexual relations with mother just prior to her pregnancy. Oscar did not contact the bureau to have paternity testing until August 2006.
Similarly, the present case is unlike the situation in In re Julia U., supra, 64 Cal.App.4th 532, where the mother named a different man on the birth certificate and the father had no opportunity to develop a relationship with the child because the mother would not let him visit and the court also denied his request for visitation. Here, mother told Oscar she did not know who the father was and she did not deny Oscar visitation with Brandon. According to mother’s report to the social worker and her testimony at the jurisdiction hearing, she left the home of Oscar’s parents “right after” Brandon’s birth. Thus, from sometime in August 2005 until the baby’s removal from mother’s custody on November 14, 2005, Oscar, according to his own testimony, visited mother and the baby only about five times. There is no evidence in the record that mother ever tried to prevent him or discourage him from seeing Brandon. Further, unlike the situation in In re Julia U., where the father promptly asserted his interest in the child once he learned of the dependency proceedings, Oscar did not assert his interest during the early stages of the dependency proceedings. Rather, Oscar waited until the pending permanent plan of adoption to come forward.
Accordingly, the record establishes that Oscar was on notice that he could be Brandon’s father as soon as Brandon was born in July 2005 and mother stated on the birth certificate that the father was unknown. In the present case, Oscar had actual notice of the dependency proceedings when they first started. Yet, Oscar did not come forward to request paternity testing until August 2006, more than eight months after Brandon had first been detained, and after mother’s reunification period was being terminated. We conclude that substantial evidence supported the lower court’s denial of Oscar’s request to have his status elevated to presumed father.
III. Termination of Parental Rights
Oscar argues that a reversal of the trial court’s finding that he was not the presumed father requires reversal of the order terminating his parental rights. A court may not terminate the parental rights of a presumed father absent a showing of the father’s unfitness as a parent. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 821.) Since we are affirming the lower court’s refusal to elevate Oscar’s status to presumed father, Oscar cannot establish that the lower court committed prejudicial error in terminating his parental rights (see, e.g., In re Sade C. (1996) 13 Cal.4th 952, 994). Oscar has not identified any error committed by the trial court at the termination hearing.
DISPOSITION
The judgment is affirmed.
We concur: Haerle, Acting P.J., Richman, J.