Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD224906
SCOTLAND, P.J.
Joseph Y. (appellant), the father of Dylan P. (the minor), appeals orders of the juvenile court. (Welf. & Inst. Code, §§ 360, 395; further section references are to the Welfare and Institutions Code.) He contends the court erred in denying him presumed father status and reunification services. We disagree and shall affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006, the Sacramento County Department of Health and Human Services (the Department) filed a juvenile dependency petition on behalf of the nearly four-year-old minor after his mother was incarcerated for child endangerment by engaging in a physical altercation with her partner while holding the minor. The petition was later amended to add allegations that the minor’s mother had a history of marijuana use, that she associated with drug users, and that she failed to adequately supervise and provide medical and dental care for the minor.
Appellant, who was incarcerated in state prison in Nevada, was identified at the detention hearing as the minor’s alleged father. According to the minor’s mother, she and appellant separated before the minor was born and appellant had not had any contact with the minor. Appellant’s paternity was confirmed prior to the jurisdictional hearing, and counsel was appointed to represent him.
At the jurisdictional hearing, the juvenile court sustained the allegations in the amended petition. Appellant requested that he be given presumed father status, arguing that although he had minimal contact with the minor prior to his incarceration, he wanted contact and reunification services. According to his attorney, appellant was participating in substance abuse classes in prison, was attempting to enroll in other programs, and would want the minor placed with him if he were available. However, the Department asserted that appellant was not a presumed father because there was no evidence he had received the minor into his home and held him out as his child. Appellant’s attorney replied that her argument was based on appellant’s status as a biological father, which would allow him to receive services if it was shown that this would benefit the minor. The matter was continued to assess services for appellant.
According to the facility where appellant was incarcerated, he had been in custody since July 2006 for possessing controlled substances, and he had a “potential release date” in September 2008. Appellant asserted that the earliest he would be released was September 2007, but that he had additional charges pending which could prolong his incarceration.
During a telephone interview with the social worker in January 2007, appellant said he was “getting any help he c[ould] in prison” and he wanted to have a relationship with the minor. He claimed that he was not aware he had a child until a year earlier, “when he was contacted by the Child Support Unit in his county,” and that he then began writing letters to the minor. However, the minor’s mother and maternal grandmother stated that appellant “ha[d] always known” the minor was his child and that the minor was “not even aware he ha[d] a father.” The family reunification social worker “expressed concern about the [minor] suddenly learning he had a father” who was incarcerated.
The social worker recommended that reunification services not be provided to appellant because of the length of appellant’s incarceration, his lack of a relationship with the minor, and the belief that it would be traumatic for the minor to have visits with him in prison.
At the dispositional hearing in March 2007, appellant’s attorney informed the court that appellant was seeking presumed father status because his paternity had been established “and he has held the child out as his own.” The attorney noted that appellant was incarcerated when his paternity was determined and that he had attempted to have contact with the minor.
The juvenile court denied appellant reunification services, finding that appellant had not established he was a presumed father and that services would not be in the minor’s best interests. The court ordered services for the minor’s mother.
DISCUSSION
I
Appellant claims the juvenile court erred by denying him presumed father status. He is incorrect.
Ordinarily, a man who has never married, or attempted to marry, the mother of a child and has not signed a voluntary declaration of paternity may be considered a presumed father of the child only if he “receives the child into his home and openly holds out the child as his natural child.” (Fam. Code, § 7611, subd. (d).)
Appellant does not contend he came within the statutory definition of a presumed father. Instead, he argues that when the juvenile court denied him presumed father status, it applied the wrong standard because it did not assess whether he was a “Kelsey S.” father. In Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 (hereafter Kelsey S.), the California Supreme Court held that, absent a showing of unfitness, due process and equal protection prohibit the termination of parental rights of a father who has been prevented by the child’s mother from receiving his child into his home and who steps forward at the earliest possible time and demonstrates a full commitment to his parental responsibilities.
The contention fails because appellant did not raise this theory in the juvenile court. “‘As a general rule, a new theory may not be presented for the first time on appeal unless it raises only a question of law and can be decided based on undisputed facts.’” (In re P.C. (2006) 137 Cal.App.4th 279, 287; In re Dakota H. (2005) 132 Cal.App.4th 212, 222.) In particular, “a party seeking status as a father under Kelsey S. must be clear he wants to be so declared”; an alleged father’s failure to “ask the court to find he was a father within the meaning of Kelsey S. . . . [forfeits] his right to raise the issue [on appeal].” (In re Elijah V. (2005) 127 Cal.App.4th 576, 582.)
Appellant’s request for presumed father status was based on his paternity and his claim he had “held the child out as his own.” He never asked to be considered a Kelsey S. father; consequently, the facts were not developed in this regard. For example, he was required to show that his attempts to achieve presumed father status were thwarted by the mother and that he was prepared to make a full emotional and financial commitment to his parental responsibilities and to assume full custody of the minor. (Kelsey S., supra, 1 Cal.4th at p. 849.) The record contains conflicting evidence as to when appellant learned of the minor’s existence, and there is scant evidence as to why he did not learn about the minor sooner. Appellant admitted that he did no more than write letters to the minor when he first learned he was the minor’s father, even though he apparently was not in custody at that time. And there is no evidence in the record to suggest that appellant--who by the time of the dependency proceedings was in custody in another state--was in a position to assume physical, emotional and financial responsibility for the minor.
Accordingly, appellant’s claim of entitlement to presumed father status fails.
II
Appellant contends that, even if it was not error to deny him presumed father status, the court abused its discretion in denying him services. This claim, too, is without merit.
“Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.” (§ 361.5, subd. (a).) “[T]he presumed father is generally entitled to reunification services, but a mere biological father only has the possibility of services if the juvenile court makes the appropriate determination. This distinction reflects a policy determination that it is generally in the best interests of the child to be reunited with his or her presumed father, but not necessarily with a mere biological father. As to a biological father, the issue is left to the discretion of the juvenile court and its determination of the benefit to the child of providing services.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.)
Appellant’s incarceration, his lack of contact with the minor, and the minor’s young age all support the juvenile court’s exercise of discretion in denying appellant services. The only benefit to the minor suggested by appellant is that of the minor “[k]nowing that his biological father was doing all he could to straighten out his life and learn to be a good father.” This “benefit” was not suggested by appellant at the dispositional hearing. Even if it had been, the juvenile court would not have abused its discretion by forgoing such benefit in the absence of any relationship between the minor and appellant.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: SIMS, J., RAYE, J.