Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J184222, Marsha Slough, Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, Acting County Counsel, and Danielle E. Wuchenich and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Andrea Renee St. Julian, under appointment by the Court of Appeal, for Minor.
OPINION
King, J.
I. INTRODUCTION
Allan R. (Father) is the biological father of nine-year-old Kaylynn C. He appeals the juvenile court’s orders terminating his parental rights, placing Kaylynn for adoption, and denying his Welfare and Institutions Code section 388 petition in which he sought reunification services for Kaylynn. When the dependency proceedings for Kaylynn commenced in 2002, Father was an alleged father whom the Department of Children’s Services (DCS) was unable to locate. Kaylynn’s mother failed to reunify and her services were terminated in 2003. Kaylynn was placed in long-term foster care. Father did not receive notice of the proceedings until 2006, when DCS served him by mail with notice of a new section 366.26 hearing for Kaylynn. At that hearing, the court was to consider changing Kaylynn’s permanent plan from long-term foster care to adoption and terminating parental rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father appeared in the proceedings for the first time at the new section 366.26 hearing for Kaylynn on September 12, 2006. He was appointed counsel and promptly filed a section 388 petition seeking custody and reunification services. A paternity test subsequently confirmed he was Kaylynn’s biological father. In his section 388 petition, he argued that DCS had failed to exercise due diligence in its earlier attempts to locate him, and his late notice of the proceedings amounted to changed circumstances warranting modification of the court’s jurisdictional and dispositional orders. The court set a hearing on Father’s petition and continued the section 366.26 hearing. The hearings were held concurrently in October and November 2007.
During the months before the combined hearings, Kaylynn had overnight visits with Father and three of his daughters whom Father was raising in his home. At the hearings, Kaylynn testified she enjoyed visits with her father and older siblings, but “liked her foster mother more” and wanted to be adopted by her. The juvenile court denied Father’s petition, terminated parental rights, and ordered Kaylynn placed for adoption. The court specifically found that Father was not a Kelsey S. father whose parental rights could not be terminated absent a finding he was an unfit parent.
Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.)
On this appeal, Father claims the juvenile court (1) erroneously failed to find he was a Kelsey S. father whose parental rights could not be terminated without a finding he was an unfit parent, (2) erroneously denied his section 388 petition, and (3) erroneously failed to apply the parental benefit and sibling relationship exceptions to the statutory preference for adoption. (§ 366.26, former subd. (c)(1)(A) & (E).) We find no error and affirm the orders.
II. FACTS AND PROCEDURAL HISTORY
A. The Initial Proceedings Involving Kaylynn
On September 11, 2002, DCS took Kaylynn (then age 4) and three of her stepsiblings, Coty (then age 8), Anthony (then age 5), and Jessica (then age 6 months), into protective custody after their mother, Victoria P. (Mother) had left the children at the home of her former boyfriend without indicating when or whether she would return, and with no provisions for their support. Kaylynn told the social worker that she, Mother, Coty, Anthony, and Jessica had been living in Mother’s car. Mother had a lengthy history of substance abuse, homelessness, and a criminal record resulting in incarceration.
On September 13, DCS filed a petition alleging jurisdiction over Kaylynn pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). On October 7, 2002, the juvenile court sustained the allegations of the petition, declared Kaylynn a dependent, and granted Mother reunification services. The court also found that notice had been given as required by law.
On a paternity questionnaire Mother signed in October 2002, she listed Antonio V. as the alleged father of Kaylynn, Coty, and Anthony. She later told the social worker she needed to correct the form and that “Ray Re.” was the father of Kaylynn. Coty, Anthony, and Jessica each had different fathers. Mother claimed she did not know the whereabouts of Ray Re. or her children’s other alleged fathers, and had not been in contact with any of them in some time. There were no known relatives to consider for placement.
Mother also had two older children, Brandon and Brady, who were living with their fathers. Mother married Jerald P. in 1981, and they never divorced. Jerald P. was not the biological father of any of Mother’s children, but Jerald P. was the presumed father of Kaylynn by virtue of being married to Mother at the time of Kaylynn’s birth. (Fam. Code, § 7611, subd. (a).) Neither Ray Re. nor any of the other alleged fathers of Mother’s children was cohabitating with Mother at the time of Kaylynn’s birth, was at the hospital at the time of her birth, was identified as the father on Kaylynn’s birth certificate, or had signed a declaration of paternity.
In a declaration of due diligence dated September 25, 2002, DCS reported it had initiated a search for Kaylynn’s alleged father, Ray Re. The declaration also stated that search source “J-NET” showed that “Allen Ru.” was the father of Kaylynn, but no address or other information had been found for Allen Ru. On March 10, 2003, DCS signed declarations of due diligence for both Ray Re. and Allen Ru. The declaration for Allen Ru. stated that no information or matching records had been found, but results from the Child Support Division were pending. In the six-month review report filed on March 27, DCS identified both Allen Ru. and Ray Re. as alleged fathers of Kaylynn, who were not entitled to services and whose whereabouts were unknown. (§ 361.5, subd. (a).)
Kaylynn was formerly a dependent of the juvenile court from August 19, 1998, to May 9, 2000. Mother reunified with Kaylynn and the case was dismissed. Father was not involved in the prior proceedings, and it is unclear from the record whether DCS knew or reasonably should have known of Father’s whereabouts from the prior proceedings.
Mother failed to complete her case plan, including her substance abuse program, and many of her drug tests were positive. At the six-month review hearing on May 14, 2003, the juvenile court terminated Mother’s services and set a section 366.26 hearing for Kaylynn and Jessica on September 11, 2003. The court ordered DCS to give notice of the September 11 hearing to “numerous alleged fathers,” including Kaylynn’s alleged fathers, pursuant to former section 366.23, subdivision (b)(5)(B).
Mother filed a writ petition challenging the court order setting the section 366.26 hearing. On August 14, 2003, this court denied Mother’s writ in an unpublished opinion in case No. E033703.
On June 11, 2003, DCS filed a “30 Day Notice [of] Review Hearing” regarding its efforts to locate Kaylynn’s alleged fathers, Ray Re. and Allen Ru., in advance of the September 11, 2003, section 366.26 hearing. The report stated that a search for both alleged fathers had been completed on March 10, and their whereabouts were still unknown. The report also noted that Jerald P. was Kaylynn’s presumed father, because Mother had never divorced him and was married to him at the time of Kaylynn’s birth. (Fam. Code, § 7611, subd. (a).) DCS had initiated a search for Jerald P. on June 3 and was awaiting the results. At the notice review hearing on June 17, the court confirmed that the section 366.26 hearing would be held on September 11, 2003.
On July 17, the social worker signed proofs of service indicating that notice of the section 366.26 hearing had been served by first-class mail on Allen Ru. and Ray Re. but the residence addresses on the proofs of service stated “whereabouts unknown,” indicating that no notice had in fact been mailed. These proofs of service were filed on September 8. On August 14, DCS requested a 120-day continuance of the September 11 section 366.26 hearing to perfect notice on “some of the alleged fathers” because their whereabouts were still unknown. DCS also requested that notice be served on the presumed father, Jerald P., by publication.
In a section 366.26 report filed on August 28, 2003, DSC stated that the whereabouts of Ray Re. and Allen Ru. were still unknown. The September 11 hearing was continued to January 9, 2004, and on September 19, DCS filed a request for an order of court dispensing with notice to Allen Ru. and any other alleged fathers. Allen Ru.’s date of birth, social security number, and whereabouts were still unknown. DCS also indicated that, on July 23, it had obtained search results from the “Child Support Division” but did not describe the contents of those search results. On September 19 and 22, the court issued orders dispensing with notice to Allen Ru. and Ray Re., respectively, and any other “unknown fathers.”
DCS initially recommended adoption as the permanent plan for both Jessica and Kaylynn, but later changed Kaylynn’s recommendation to long-term foster care. On October 15, 2003, the social worker reported that the current foster mother for Kaylynn and Jessica, Mrs. B., had discovered that Kaylynn had been fondling her four-year-old son. It was later confirmed that Kaylynn had also been fondling Jessica. Kaylynn was in therapy to address these issues. Mrs. B. still wished to adopt Jessica but no longer wished to adopt Kaylynn.
In October 2003, Kaylynn was placed in a new foster home—her eighth since September 2002. She was the only child in the home. Coty and Anthony were in a group home due to their behavioral problems, and were not interested in visiting Kaylynn or Jessica. The social worker opined that Kaylynn’s and Jessica’s visits with Mother, Coty, and Anthony were having a negative effect on Kaylynn, and requested that the visits be reduced in frequency. The court refused to reduce the frequency of Mother’s visits but ordered that Mother would have separate visits with the boys and the girls.
On November 14, 2003, DCS changed its permanent plan recommendation for Kaylynn from adoption to long-term foster care. On the same date, the court adopted long-term foster care as Kaylynn’s permanent plan. At a review hearing in May 2004, Kaylynn was continued in long-term foster care, and continued to have visits with Mother. At post-permanency review hearings on May 14, 2004, November 12, 2004, May 11, 2005, and November 14, 2005, Kaylynn was continued in long-term foster care.
At a further review hearing on May 15, 2006, DCS recommended, and the court determined, that it was in Kaylynn’s best interests to “consider termination of parental rights.” (Capitalization omitted.) Kaylynn’s current foster mother, with whom she had been living since October 2003, was ready to adopt Kaylynn. Kaylynn had a “strong bond” with her foster mother and had frequently expressed a desire to be adopted by her. The court discontinued Mother’s visits with Kaylynn and scheduled a section 366.26 hearing for September 12, 2006.
B. Father’s Appearance and Section 388 Petition
Father appeared in court for the first time at Kaylynn’s new section 366.26 hearing on September 12, 2006. He advised the court he had received notice of the hearing in the mail, and he did not know whether he was Kaylynn’s biological father. He told the court he had nine children, three of whom were adopted. At Father’s request, the court continued the section 366.26 hearing, appointed an attorney for Father, and ordered paternity testing. The paternity test results later showed that Father was Kaylynn’s biological father.
On October 6, 2006, before the paternity test results were obtained, Father filed a section 388 petition requesting that the court modify its October 7, 2002, jurisdictional and dispositional orders, which found that “‘Ray [Re.]’ was the alleged father of KAYLYNN,” and that DCS had given notice as required by law. The court found that the petition stated a prima facie case for relief and set an evidentiary hearing on the petition.
In the petition, Father sought custody of Kaylynn and reunification services. He claimed he did not know of Kaylynn’s existence before he was personally served with notice of the September 12, 2006, section 366.26 hearing. He specifically claimed that DCS failed to exercise due diligence in its efforts to locate him, and his late notice of the proceedings amounted to changed circumstances warranting a modification of the court’s jurisdictional and dispositional orders. He had lived at the same address for the previous eight years and had the same telephone number for the previous 10 years. His telephone number was listed, and Mother knew how to contact him.
DCS responded to the petition in part by arguing that Father was an alleged father who was not entitled to custody or reunification services. It also claimed Father “sat on his rights, if any,” and knew or reasonably should have known of Kaylynn’s existence long before he was personally served with notice of the September 12, 2006, section 366.26 hearing on June 13, 2006.
DCS presented evidence that, on April 7, 2003, and again on October 23, 2003, Father was personally served with copies of a summons and complaint and related documents from the Department of Child Support Services regarding his child support obligation for Kaylynn. A judgment for child support for Kaylynn was entered on December 29, 2003. Father filed for public assistance on October 2, 2003; hence, the amount owing on the child support judgment was $0. The child support judgment indicated that Father’s paternity of Kaylynn had been established through DNA testing.
DCS explained it did not ascertain the whereabouts of Father or “Allen Re.” (as opposed to Ray Re.) until it was time to attempt to personally serve Kaylynn’s alleged fathers with notice of her new section 366.26 hearing, originally scheduled for September 12, 2006. Sometime before June 13, 2006, DCS contacted the Child Support Office and learned that “Allen G. Re.” was the biological father of Kaylynn. The Child Support Office also provided DCS with Allen Re.’s date of birth. DCS then obtained his address by searching the state’s MediCal or “MEDS” system. After Father filed his section 388 petition, DCS contacted the Child Support Office for further information. It then discovered the December 29, 2003, child support judgment against Allen Re., as well as the summons, complaint, and related documents which had been personally served on Allen Re. in April and October 2003.
DCS also noted that Kaylynn was previously a dependent of the juvenile court from August 19, 1998, to May 9, 2000. Mother was able to reunify and the matter was dismissed. Father or “Allen Re.” never appeared in Kaylynn’s prior dependency proceedings, although he was identified as Kaylynn’s alleged father in those proceedings. It was unclear, however, whether Father was ever given notice of the prior proceedings. In any event, DCS claimed Father had received sufficient notice of the current proceedings, and observed that the court had consistently found that notice had been given as required by law.
C. Father’s Visits With Kaylynn and DCS’s Further Reports
On March 13, 2007, and before the hearing on Father’s section 388 petition and the new section 366.26 hearing for Kaylynn could be held, DCS asked the court to continue both hearings for four months. County counsel told the court that Kaylynn’s current placement, where she had been since October 2003, was “problematic” because her foster mother was not following up on doctor’s appointments. Consequently, DCS was concerned the placement “may fall through” and wanted to give Father the opportunity to visit with Kaylynn. The court granted the continuance and ordered visitation between Father and Kaylynn.
On July 13, DCS reported that Father had been visiting with Kaylynn every other week, supervised, and the visits had been going well. Initially, the visits were between Father and Kaylynn, but Father later brought his three teenage daughters to the visits. Kaylynn was “really enjoy[ing]” the visits, appeared to have “really . . . bonded” to Father and her half siblings, and had asked to spend the night at Father’s house. The social worker believed Father had been appropriate in setting boundaries with Kaylynn, and used appropriate parenting skills with her and his three other children. Father believed he was capable of parenting Kaylynn. The court granted a further 60-day continuance of the hearings to allow DCS to “assess the viability of placement in a permanent plan with the [F]ather” and authorized overnight visits.
On September 7, DCS recommended termination of parental rights and placement of Kaylynn for adoption. Since July 13, Father had had only one overnight visit with Kaylynn, on September 1. Before that, he had not visited with Kaylynn for approximately one month and had not had phone contact with her in approximately two weeks. According to the foster mother, Father had to cancel some visits due to work conflicts and did not have reliable transportation. Father had also declined the foster mother’s invitations to some birthday parties for Kaylynn’s siblings.
The foster mother had also expressed concern about Father’s home environment. After Kaylynn returned from her overnight visit with Father, she was using foul language. The foster mother also observed teenage boys “hanging around” Father’s home with Kaylynn’s half sisters, and believed Father was leaving Kaylynn in the home unsupervised in the presence of the older boys. Kaylynn said she still enjoyed her visits with Father and her half sisters, but said she would like to just “visit with them” and wanted to live with her foster mother.
In addition, Kaylynn’s half sister Brandy, who was currently a dependent of the court, had been having weekend visits with Kaylynn and the foster mother. Kaylynn and Brandy had been in contact since Kaylynn’s birth, and the foster mother had expressed interest in adopting both girls. Brandy had yet to be placed in the foster mother’s home, however. DCS was also attempting to stabilize Kaylynn’s placement with her foster mother by referring Kaylynn to “WRAPAROUND” services. There had not been “issues or concerns with the foster mother’s care” of Kaylynn during the previous several months. Kaylynn and her foster mother had a “very strong” bond.
The social worker opined that Father had “good intentions” toward Kaylynn, but also had “a lot on his plate.” He was a single father of three teenage girls, and he was often working and unable to provide the constant supervision and support Kaylynn required. The social worker said it had been “a struggle” to determine whether it was in Kaylynn’s best interest to be placed with her Father or adopted by her foster mother, because both homes had issues that had to be addressed. But in view of Kaylynn’s wishes, she believed that adoption by the foster mother and continued contact with the Father was the “best plan” for Kaylynn. The social worker believed that Kaylynn’s anxiety level would be alleviated once she was able to achieve permanency with her foster mother and focus on moving forward, and at her young age she needed the stability and permanency she would realize through adoption.
In an October 4 addendum report, DCS continued to recommend adoption for Kaylynn. On September 26, Kaylynn had a strong negative reaction when the social worker and the foster mother discussed the possibility of her living with Father. Kaylynn yelled out, “NO!” and later told the social worker she did not want to live with Father because she did not really know him. She wanted to live with her foster mother because she had lived with her for four years. The foster mother was still committed to adopting Kaylynn and hoped to adopt Brandy as well. Brandy was living in a group home but staying at the foster mother’s home on weekends.
The social worker believed the foster mother was a “marginal caregiver” and was continuing to work with her in addressing Kaylynn’s needs. Still, the social worker believed that removing Kaylynn from her foster mother, particularly against her will, would be detrimental to Kaylynn’s emotional and psychological well-being. The foster mother had been the only stable figure in Kaylynn’s life, and Kaylynn referred to her as “mom.”
In a separate October 4 addendum report, DCS described Father’s relationship with Mother. According to Father, his relationship with Mother consisted of four contacts: He was intimate with her for two days. Two or three months later, she called saying she was pregnant and asked him for money for an abortion. He gave her $200. Nine months later, she called and told him she had given birth to a baby girl and Kaylynn was his child. She told him she was “going to make him pay.” He had not heard from her since, and could not estimate the date, month, or year of his conversations with her. He also did not know the date or year of Kaylynn’s birth.
The same report stated that Father also reported receiving some legal papers three or four years earlier stating he was the alleged father of Kaylynn. There was no contact information for him to find out why he was receiving the papers. He figured Kaylynn was involved with DCS, but he was unsure.
Father had two more overnight visits with Kaylynn on September 15 and 22. According to Father and the foster mother, both visits went well. Father reported that Kaylynn told him she wanted to live with him. Father said he had cancelled some previous visits because he was working more to pay his bills. He worked as a tree trimmer and landscaper. He also claimed the foster mother had “thwart[ed]” some of his visits.
Father was currently living in a three bedroom house and raising five children, ages 14, 13, 11, 6, and 5. He was the sole caretaker of all the children, and was still very interested in having custody of Kaylynn. He did not want to be “proactive,” however, because that had “backfired” on him when he lost custody of another child.
D. The Combined Sections 388 and 366.26 Hearings
The hearing on Father’s section 388 petition and Kaylynn’s section 366.26 hearing were held concurrently on October 30 and November 6, 2007. At the hearings, Kaylynn testified she did not want to live with Father but wanted to live with her foster mother, whom she called “mom.” She explained she had known her foster mother longer and said, “I like her more.” Still, she enjoyed visiting Father and her three half sisters and wanted the visits to continue.
Father also testified. He said he and Mother had a “one-night stand,” and he did not even know her name. She lived in an apartment near a liquor store and saw him at the store from her apartment balcony. She called the pay phone outside the store, and Father answered. She waved at him from her balcony and invited him over. Afterward, she called Father, told him she was pregnant, and wanted $700 for an abortion. He went to her apartment with $200, but “got ran off” by another man. He was unable to see Mother or give her the money. He never went back to her apartment or attempted to contact her again. He said he used protection and did not know how she became pregnant. He believed she may have been trying to “swindle” him out of the money.
Father said he first learned of Kaylynn’s existence in mid-2006 when he received notice of the current proceedings. To his knowledge, he had never been served with a notice to pay child support for Kaylynn. Nor had he ever paid any child support for Kaylynn. He denied telling the social worker he knew of Kaylynn’s birth several years before 2006. He also denied telling the social worker he had a “two-night stand” with Mother, or that he did not want to be “proactive” in seeking custody of Kaylynn.
Father estimated he had 12 visits with Kaylynn, including overnight visits. He had three daughters living in his home, ages 15, 14, and 12. He had visitation with two of his younger children, ages 6 and 7. His older daughters loved Kaylynn “to pieces,” and engaged in “[n]onstop play” with her when she visited. He also loved Kaylynn, wanted her placed in his home, and was able to support her. Kaylynn told him she wanted to live with him. She called him “[d]addy” when she was in his home. She was distant from him when her foster mother was present.
When asked whether he was concerned about removing Kaylynn from her foster mother, with whom Kaylynn had been living for four years, Father said he was grateful the foster mother had been a good mom, but he wanted Kaylynn to live in his home. He also said, “We would overcompensate for it,” that Kaylynn would be loved and cared for, and would “be in a family like my other kids.”
No other witnesses testified. Regarding the section 388 petition, Father’s counsel argued that Father had shown changed circumstances based on DCS’s failure to use due diligence in attempting to locate him until June 2006. Counsel argued that Father would be in a different position had he been notified of the proceedings at least as early as 2003. He would have had time for more visits and would have developed a stronger bond with Kaylynn. Counsel argued that granting Father’s requested relief would serve Kaylynn’s best interests, because she, Father, and Father’s children loved each other.
Counsel also argued that, under Kelsey S., the court could not terminate Father’s parental rights absent a finding he was an unfit parent, and there was no basis for finding he was an unfit parent. Counsel requested that Father’s status be elevated from alleged father to presumed father, and that he either be granted services or that Kaylynn be placed in his home, unless the court was willing to place Kaylynn with him “outright” and dismiss the case.
County counsel argued that DCS had made reasonable attempts to locate Father, and in any event, he was not a Kelsey S. father because he knew of Kaylynn’s existence before she was born but did not come forward and assert his parental rights at that time. County counsel asked the court to find that Father was at most a biological father, not a presumed father entitled to custody or services. Furthermore, counsel argued that placing Kaylynn with Father would not serve her best interests, because she wanted to live with her foster mother and removing her from that home would be detrimental to her.
On November 6, the court denied Father’s section 388 petition, terminated his parental rights, and ordered Kaylynn placed for adoption. The court found Father knew of Kaylynn’s existence at least as early as April 7, 2003, when he received notice of the child support action, and that modification of the court’s previous orders was not in Kaylynn’s best interests. The court also found that Father was not a Kelsey S. father, because he failed to assert his parental rights as soon as he knew or should have known of Kaylynn’s existence. The court also found it was in Kaylynn’s best interests to be adopted. Father timely appealed.
III. DISCUSSION
A. The Juvenile Court Properly Determined That Father Was Not a Kelsey S. Father
Father contends the juvenile court violated his federal due process right to the care and custody of his child Kaylynn by terminating his parental rights without finding he was an unfit parent. In other words, he challenges the court’s determination that he was not a Kelsey S. father. We reject this claim, because substantial evidence supports the court’s determination that Father is not a Kelsey S. father.
A juvenile court may not terminate the parental rights of a Kelsey S. father absent a finding he is an unfit parent. (In re Zacharia D. (1993) 6 Cal.4th 435, 450-451 [recognizing that parental rights of a Kelsey S. father may be unconstitutionally terminated in dependency proceedings]; In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117-1118 [applying Kelsey S. doctrine to dependency proceedings]; In re Julia U. (1998) 64 Cal.App.4th 532, 540-544 [same]; In re Jerry P. (2002) 95 Cal.App.4th 793, 810-811 [applying Kelsey S. doctrine to unwed nonbiological fathers in dependency proceedings].)
A Kelsey S. father is defined by case law as an unwed man who “promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise” as soon as he knows or has reason to know he has fathered a child. (Kelsey S., supra, 1 Cal.4th at p. 849.) “In determining whether a biological father has demonstrated such a commitment, ‘[t]he father’s conduct before and after the child’s birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate “a willingness himself to assume full custody of the child—not merely to block adoption by others.”’ [Citation.] ‘A court should also consider the father’s public acknowledgment of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.’ [Citation.]” (In re Zacharia D., supra, 6 Cal.4th at p. 450, fn. 19, citing Kelsey S., supra, at p. 849.)
Father maintains he demonstrated a full and sufficient commitment to his parental responsibilities to Kaylynn because he took her into his home [for visitation] as soon as the court allowed him to do so in 2007, and he held her out as his own. He also claims he did not know or have any reason to know of Kaylynn’s existence before June 2006, when he first received notice of the current dependency proceedings. As noted, however, the juvenile court found that Father was not a Kelsey S. father. The court also rejected Father’s claim that he did not know of Kaylynn’s existence until he was first given notice of the dependency proceedings in June 2006.
On appeal, we review the juvenile court’s findings under the substantial evidence standard. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) We may not disturb the findings if there is any solid, credible evidence to support them. (Ibid.) “‘[O]ur review requires that all reasonable inferences be given to support the findings and orders of the juvenile court and the record must be viewed in the light most favorable to those orders. [Citation.] . . . “Issues of fact and credibility are questions [of fact] for the trial court, not this court. [Citation.] ‘The rule is clear that the power of the appellate courts begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.’ [Citation.]” [Citation.]’” (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) Here, substantial evidence supports the juvenile court’s findings. (See In re Jerry P., supra, 95 Cal.App.4th at p. 819 [dis. opn. of Perluss, J.) [applying substantial evidence standard to court’s implied finding that father was not a Kelsey S. father].)
Indeed, substantial evidence showed that Father knew or reasonably should have known of Kaylynn’s existence shortly after Mother became pregnant with Kaylynn, and long before he first received notice of the current dependency proceedings in June 2006. Yet Father did nothing to assume his parental responsibilities for Kaylynn until after he received notice of the current proceedings in June 2006.
First, Father’s own testimony showed he had reason to believe Mother was pregnant with Kaylynn shortly after he had sex with her. She told him she was pregnant with his child. He said he tried to give her $200 for an abortion but was “[run] off” by another man at her apartment. After that, Father did nothing to ascertain whether Mother ever gave birth to his child, even though he knew where she lived and could have contacted her.
Second, the evidence showed that Father was personally served with a summons and complaint and related documents seeking child support for Kaylynn in April 2003 and again in October 2003. On December 29, 2003, a judgment for child support for Kaylynn was entered against Father. Notwithstanding Father’s denial that he ever received any of these documents, the juvenile court found he did and the evidence supports its determination. Service of the documents alerted Father to Kaylynn’s existence. Yet there is no evidence Father did anything to assume his parental responsibilities at that time.
Finally, it is indisputable that the failure of DCS to give notice to Father of the current dependency proceedings until June 2006 did not prejudice his ability to assume his parental responsibilities much earlier, and even before the current proceedings commenced in September 2002. (In re Justice P. (2004) 123 Cal.App.4th 181, 193 (Justice P.) [due process violations in dependency proceedings subject to harmless-beyond-a-reasonable-doubt standard of prejudice].) As discussed, Father knew or had reason to know of Kaylynn’s existence even before she was born in 1997, because Mother told him she was pregnant with his child. Yet there is no evidence he did anything to assume his parental responsibilities at that time or shortly after Kaylynn was born.
Thus, here, substantial evidence supports the juvenile court’s determination that Father did not qualify as a Kelsey S. father. The juvenile court was therefore not required to find that Father was an “unfit parent” before terminating his parental rights. (Cf. In re Baby Boy V., supra, 140 Cal.App.4th at pp. 1118-1119 [recognizing that a Kelsey S. father is entitled to services and visitation without a showing of the best interests of the child].)
B. Father’s Section 388 Petition Was Properly Denied
Father also contends the juvenile court abused its discretion in denying his section 388 petition, in which he sought to modify the court’s October 7, 2002, jurisdictional and dispositional orders and obtain custody of Kaylynn and reunification services. Under section 388, a parent may petition the court to change, modify, or set aside a previous court order on the grounds of changed circumstances or new evidence. (§ 388, subd. (a).) The petition must allege why the requested change is “in the best interest of the dependent child.” (Id., subd. (b).) On appeal, we will not disturb the juvenile court’s ruling on a section 388 petition absent a showing of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)
Father maintains he demonstrated new evidence or changed circumstances based on DCS’s failure to notify him of the proceedings until June 2006. He specifically argues that DCS violated his due process right to notice of the proceedings because it failed to act with due diligence in its efforts to locate him during the earlier stages of the proceedings, and his late notice of the proceedings in 2006 amounted to new evidence or changed circumstances. He also argues that awarding him custody and services would serve Kaylynn’s best interests because, by the time of the combined hearings in October and November 2007, she had established a close relationship with him and his three older daughters, and he could provide Kaylynn with “a loving and stable home.”
A section 388 petition is “a proper vehicle to raise a due process challenge based on lack of notice.” (Justice P., supra, 123 Cal.App.4th at p. 189; Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481, 487-488.) Parents are entitled to due process notice of juvenile court proceedings affecting the care and custody of their children. (In re B.G. (1974) 11 Cal.3d 679, 688-689; In re Claudia S. (2005) 131 Cal.App.4th 236, 247.) Due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314 [70 S.Ct. 652; 94 L.Ed. 865].)
“If the whereabouts of a parent are unknown, the issue becomes whether [reasonable or] due diligence was used to locate the parent.” (In re Claudia S., supra, 131 Cal.App.4th at p. 247.) “‘The term “reasonable [or due] diligence”’” “‘“denotes a thorough, systematic investigation and inquiry conducted in good faith . . . .”’ [Citation.]” The due diligence standard is not met when the social services agency “ignores the most likely means of finding” a missing parent. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598; David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.)
Lack of due process notice is a fatal defect in the juvenile court’s jurisdiction and a judgment is void for lack of jurisdiction of the person when there is no proper service on or appearance of a party to the proceedings. (In re Claudia S., supra, 131 Cal.App.4th at p. 247; David B. v. Superior Court, supra, 21 Cal.App.4th at p. 1016.) Father does not argue that the juvenile court lacked personal jurisdiction over him, however. Indeed, he received proper notice of and appeared in the proceedings in September 2006, before his parental rights were terminated in November 2007. (Cf. In re Claudia S., supra, at p. 247.)
Instead, and as noted, Father argues that DCS failed to use reasonable or due diligence in attempting to locate him during the earlier stages of the proceedings, and his late notice of the proceedings amounted to changed circumstances for purposes of his section 388 petition. Father specifically argues that DCS ignored the most likely means of finding him, namely, the child support order issued on December 29, 2003, which listed his name and location.
But the child support order was not available to DCS during the initial stages of the proceedings, or on October 7, 2002, when the court issued its original jurisdictional and dispositional order. And there is no indication in the record that DCS reasonably should have discovered the whereabouts of “Allen Re.” or Father until at least December 29, 2003, when the child support judgment listing his name and location was issued, even though “Allen Re.” was identified as Kaylynn’s alleged father in the prior dependency proceedings. Throughout 2002 and 2003, DCS reasonably believed that either “Ray Re.” or “Allen Ru.” was Kaylynn’s alleged father, based on Mother’s representations and DCS’s own search efforts. Thus, here, the juvenile court’s finding at the October 7, 2002, jurisdictional and dispositional hearing that notice was given as required by law was sound. (See Justice P., supra, 123 Cal.App.4th at p. 189.)
Still, DCS failed to follow-up on its child support services lead until June 2006, when it was time to give notice of the new section 366.26 hearing for Kaylynn, then scheduled for September 12, 2006. This was inexcusable. We therefore agree with Father that his late notice of the proceedings in June 2006 amounted to changed circumstances satisfying the first prong of section 388. (Cf. Justice P., supra, 123 Cal.App.4th at p. 189 [assuming, without deciding, that due process notice violation constituted changed circumstances under section 388].)
Nevertheless, Father still had to show that the modification he sought—custody and reunification services for Kaylynn—was in the best interests of Kaylynn at the time of the hearing on his petition. (Justice P., supra, 123 Cal.App.4th at pp. 189-190.) Father did not meet this burden.
By October 2007, Kaylynn had established a bond with her foster mother and wanted to be adopted by her. She had finally achieved stability and permanency with her new foster mother, her eighth, after having lived in seven different foster homes between September 2002 and October 2003. She was an emotionally fragile child, and the social worker opined that removing her from her current foster mother’s care would be detrimental to her. She made it very clear she wanted to visit with Father and wanted to live with her foster mother.
Finally, we observe that a due process notice violation is not “‘per se violative of the best interests of the child.’” (Justice P., supra, 123 Cal.App.4th at pp. 190-191.) In other words, DCS’s failure to use reasonable diligence in its attempts to locate Father between December 2003 and June 2006, or during the earlier stages of the current proceedings, does not excuse Father’s failure to demonstrate that his requested relief was in the best interests of Kaylynn.
As the court in Justice P. explained in rejecting the same argument, “It is not always possible to litigate a dependency case with all parties present. The law recognizes this and requires only reasonable efforts to search for and notice missing parents. Where reasonable efforts have been made, a dependency case properly proceeds. 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. Further, the very nature of determining a child’s best interests calls for a case-by-case analysis, not a mechanical rule.” (Justice P., supra, 123 Cal.App.4th at p. 191.)
C. The Juvenile Court Properly Determined That the Parental Benefit and Sibling Relationship Exceptions Did Not Apply
Father further contends that the juvenile court abused its discretion in failing to apply either the parental relationship or sibling relationship exceptions to the statutory preference for adoption, in ordering Kaylynn placed for adoption. (§ 366.26, former subds. (c)(1)(A) & (E).) Again, we find no abuse of discretion.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of the statutory exceptions set forth in section 366.26, subdivision (c)(1). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) These include the parental benefit and sibling relationship exceptions.
At the time of the section 366.26 hearing in October-November 2007, the parental benefit and sibling relationship exceptions were set forth, respectively, in section 366.26, subdivision (c)(1)(A) and (E). The exceptions are currently set forth in section 366.26, subdivision (c)(1)(B)(i) and (v), respectively, without change.
1. The Parental Benefit Exception
The parental benefit exception applies when the parent has “‘maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.’” (In re Derek W. (1999) 73 Cal.App.4th 823, 826; § 366.26, former subd. (c)(1)(A).) The parent has the burden of proving that the exception applies. (In re Derek W., supra, at p. 826.) “The parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life.” (Id. at p. 827.)
The parent must also show that his or her relationship with the child “‘promotes the well-being of the child to such a degree as to out weigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’” (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
“‘The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.’” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.)
There must be a “compelling reason” for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a “quintessentially discretionary determination.” Thus, we review the juvenile court’s determination for an abuse of discretion. (Id. at p. 1351.) Nevertheless, “‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ . . . .”’ [Citations.]” (Ibid.)
Here, the juvenile court implicitly found that Father did not meet his burden of proving that the parental benefit exception applied. In reaching these conclusions, the juvenile court did not abuse its discretion and substantial evidence supports its conclusion.
First, Father did not demonstrate that he occupied a parental role in Kaylynn’s life or that he had established a parent-child bond with Kaylynn during the 12 or so visits he had with her between March and October 2007. “[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative . . . .” (In re Angel B. (2002) 97 Cal.App.4th 454, 468.) Here, however, Father showed only that he had established a warm and friendly relationship with Kaylynn; he did not show he had forged a parent-child emotional bond with her. Kaylynn said she liked visiting Father but wanted to live with her foster mother, whom she called “mom,” because she liked her foster mother more.
Moreover, Father did not show that the benefits to Kaylynn of continuing a relationship with him outweighed the benefits she would realize from being adopted. By October 2007, Kaylynn was nine years old and had been living with her current foster mother since October 2003 when she was six years old. She had finally found stability and permanency in her current foster home, and she made it clear to the social worker that she did not want to live with Father and wanted to remain living with her foster mother. She called her foster mother “mom” and the mother of her foster mother “grandma,” and the social worker was concerned that removing Kaylynn from her current foster home would be detrimental to her.
2. The Sibling Relationship Exception
Although Father did not raise the issue at the section 366.26 hearing, he now contends the juvenile court erroneously failed to apply the sibling relationship exception to Kaylynn’s relationship with her older half sisters, whom Father was raising in his home. The sibling relationship exception applies only if “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, former subd. (c)(1)(E).)
The sibling relationship exception clearly did not apply to Kaylynn’s relationships with her half sisters. Kaylynn had not been raised with these girls, had no common experiences with them, and barely knew them. Moreover, Kaylynn stood to realize comparatively little benefit from continuing a relationship with her half sisters than she stood to realize from adoption.
IV. DISPOSITION
The orders denying Father’s section 388 petition, terminating his parental rights, and placing Kaylynn for adoption are affirmed.
We concur: McKinster, Acting P.J., Miller, J.