Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ05000662
Richman, J.
In this dependency matter, L.J., the alleged father of three-year-old Lawrence J., appeals from (1) the juvenile court’s May 1, 2007 order denying his petition for modification made pursuant to Welfare and Institutions Code section 388 and (2) the court’s July 27, 2007 order terminating L.J.’s parental rights pursuant to section 366.26. Both appeals are based on L.J.’s allegations that he received inadequate notice of the dependency proceedings. In particular, L.J. argues that the juvenile court erred in summarily denying his section 388 petition, that is, without affording him an evidentiary hearing on his petition.
Unless otherwise indicated, all statutory citations are to the Welfare and Institutions Code.
We have consolidated the two appeals at L.J.’s request.
We affirm the juvenile court’s order denying L.J.’s section 388 petition because the petition did not establish that it would be in Lawrence’s best interests to provide the relief L.J. sought and, even if it had, any error regarding notice was harmless. We also dismiss L.J.’s appeal from the subsequent order terminating his parental rights because L.J. was at all times an alleged father and, as such, lacked standing to appeal that order.
BACKGROUND
I. Detention Through Disposition
When Lawrence was born in February 2005, both he and his mother tested positive for cocaine. The Alameda County Social Services Agency (Agency) filed asection 300 petition one week later, alleging that Lawrence was at risk of serious physical harm due to his mother’s long history of substance abuse, homelessness, and mental health issues, and also due to the mother’s positive tests for cocaine both while pregnant with Lawrence and at the time of his birth. The petition indicated that Lawrence’s alleged father was L.J., and that his date of birth and address were unknown. The petition further alleged that the “alleged father’s exact whereabouts and his ability to provide care for the minor is unknown at this time.”
According to the Agency’s February 2005 detention report, the mother said “that [L.J.] is the minor’s father. Mr. J[.] states that he is the father but would like a paternity test to confirm that he is the father.” It is unclear from the report to whom L.J. made this statement. The mother’s social worker observed two unidentified men visit the mother at the hospital after Lawrence’s birth. One of the men asked what was happening. The social worker asked him if he was the father, and he responded, “If a blood test shows I am.” The mother interrupted the conversation to say that he was not the father and was not involved. The social worker asked the mother if the man was the father, and the mother responded, “No. There’s no father, don’t bother.” When the social worker then asked the mother if she would tell her who the father was, she refused to do so.
At the February 25, 2005 detention hearing, the focus was on returning Lawrence to the mother at her residential drug treatment facility. L.J. was not present at the hearing, and would not appear at any of the dependency hearings until more than two years later, at the section 366.26 hearing. At the detention hearing, the juvenile court did not question the mother about Lawrence’s father, nor was there any discussion of attempts to locate L.J. or any other father. The juvenile court adopted the Agency’s recommendations, which made no reference to L.J.
Notice of the subsequent dispositional hearing was sent to L.J. by certified mail to an address in Oakland (the Oakland address). There is nothing in the record to indicate that any other documents or information was sent to L.J. apart from the date of the dispositional hearing. The Agency obtained the Oakland address from the mother on February 24, 2005, when she identified L.J. as Lawrence’s father. Up until that time, she had refused to identify anyone as the father.
The March 2005 jurisdictional and dispositional report recommended that Lawrence be placed with his mother in her residential drug treatment facility, but that if the mother left the facility, Lawrence be returned to protective custody. The mother agreed with this plan, but the report indicates that the opinion of Lawrence’s father was unknown. The report restated that L.J. had said to someone at some point that he was Lawrence’s father, but that he wanted a paternity test to confirm that he was in fact the father. The report recommended that no reunification services be provided to L.J. because he was only an alleged father.
At the March 14, 2005 jurisdictional hearing, the mother submitted to dependency jurisdiction. The juvenile court did not question the mother about Lawrence’s father, and did not make any findings regarding notice to L.J. However, the minute order stated that the court had found that “[n]otice has been given as required by law.”
The Agency’s recommended disposition, set forth in its report, included a finding that “[n]otice has been given as required by law.” The mother was submitting on this report, so this was one of the juvenile court’s implicit findings.
At the uncontested March 22, 2005 dispositional hearing, the juvenile court again did not ask the mother about Lawrence’s father. The court found that notice had been given as required by law, and adopted the Agency’s recommendations contained in its jurisdictional and dispositional report. The only recommendation specific to L.J. was that the Agency not be required to provide reunification services to L.J. because he was “an alleged father, unless and until he establishes a legal basis for receiving those services.”
II. The Review Period
In its August 2005 report, the Agency recommended that Lawrence remain with his mother and that she be provided an additional six months of maintenance services to assist her in overcoming her substance abuse problems. The report again stated that L.J. wanted a paternity test, and reported that the social worker had had no contact with “the father” during the review period and “his circumstances were unknown.” The report also noted that, according to the house manager of the mother’s residential drug treatment program, the father would not be allowed to visit Lawrence while he and his mother were at the residential drug treatment facility unless the father’s name was “on the birth certificate” or there was “a DNA test stating that he is the biological father.” No relatives had visited Lawrence while the mother was at the treatment facility.
The clerk sent notice of the six-month hearing to L.J. at the Oakland address. At the August 31, 2005 six-month hearing, the juvenile court found that notice had been given as required by law, and adopted the Agency’s recommendations.
The minute order for that hearing also indicated that the “[a]lleged father” had arrived at the courthouse late and was referred to the Public Defender’s office. However, the reporter’s transcript of the hearing does not indicate that L.J. or any other alleged father was present, nor is there any other evidence in the record that L.J. attempted to attend the hearing that day.
The status review report for the February 2006 hearing reported that L.J. had not had any contact with the Agency during the reporting period. The clerk mailed notice of the hearing to L.J. at the Oakland address. At that hearing, the juvenile court again found that notice had been given as required by law, and followed the Agency’s recommendations to provide six more months of services to the mother.
The July 2006 status review report restated that L.J. had not had any contact with the Agency in the last year and his circumstances were still unknown. Notice of the eighteen-month hearing was sent to the Oakland address. At the eighteen-month hearing, the court found that notice had been given as required by law, and continued all previous orders.
III. The Mother’s Relapse, New Information About L.J.’s Whereabouts, and Appointment of Counsel for L.J.
After the mother had a relapse into substance abuse, Lawrence was taken into protective custody. Notice of a section 387 detention hearing was sent by certified mail to L.J. at the Oakland address. Someone at that address signed the return receipt.
At the December 13, 2006 section 387 detention hearing, the juvenile court removed Lawrence from his mother, whose whereabouts were unknown at that time. On December 15, 2006, the clerk mailed a copy of the section 387 hearing minute order to L.J. at the Oakland address. The minute order indicated that Lawrence had been removed from the mother and that a new hearing was set for December 28.
The Agency’s next jurisdiction and disposition report provided no new information about L.J., and simply stated that L.J. had not contacted the Agency in the last year. Lawrence had been placed with his maternal aunt, who wanted to adopt him and who had also adopted his older brother. Notice of the next dependency hearing was sent to L.J. at the Oakland address by certified mail. Someone at that address signed the return receipt.
On December 28, 2006, the juvenile court found that notice had been given as required by law, and continued all previous orders until the next hearing.
At the January 3, 2007 hearing, the court again found that notice had been given as required by law. It also: sustained the allegations of the section 387 petition against the mother; denied reunification services to the mother; ordered that reunification services not be offered to L.J. because he was an alleged father; found that adoption was the permanent goal for Lawrence; and set a section 366.26 hearing for May 3, 2007. The court also scheduled a due diligence hearing for February 15, 2007. At the time, the mother’s whereabouts were still unknown. The clerk mailed a copy of the minute order, which included the dates of upcoming hearings, to L.J. at the Oakland address by certified mail.
In its February 2007 interim review report, the Agency reported that L.J. had been “subserved” for the section 366.26 hearing on February 15, 2007, and recommended that due diligence for him be dropped. The proof of service indicated that notice for the section 366.26 hearing had been completed by substitute service at the Oakland address on a “ ‘Jane Doe’-Cousin/Co-occupant.”
At the due diligence hearing on February 15, 2007, the Agency’s counsel informed the court that Lawrence’s father “ha[d] been located,” and that due diligence was only required for the mother. Counsel did not provide any further explanation about the father or his whereabouts. The court acknowledged that it had not reviewed the due diligence efforts with respect to the father, but stated that since the father had been located, “due diligence may be dropped as to the alleged father, [L.J.].” The court went on to order that notice by first-class mail be provided to all of Lawrence’s grandparents.
At a further due diligence hearing as to the mother on March 7, 2007, the paternal grandparents, L.J.’s parents, appeared for the first time. The juvenile court found that there was a proof of service for L.J., and that due diligence had been exercised in searching for him. At that point, L.J.’s mother informed the court that L.J. had been incarcerated for a little more than a year, was currently at the Claremont Custody Center in Coalinga, and was due to be released on August 28, 2007. She gave the court L.J.’s contact information at the Coalinga facility. She also told the court that L.J. had lived at the Oakland address for about 15 years, along with many of his cousins. That address was the home of L.J.’s grandmother. L.J.’s mother told the court that she had informed Lawrence’s child welfare worker about L.J.’s location about a week before the hearing because it appeared that the worker did not know L.J.’s whereabouts.
The juvenile court asked the Agency’s counsel why L.J. had not been served at the Coalinga facility previously. Counsel replied that she had only received the call from L.J.’s mother in the past week, and that prior to her call notice had been sent to the Oakland address. The Agency’s counsel had thought the Oakland address was the proper address, no one had told the Agency about L.J.’s whereabouts, and he had not come forward. Therefore, L.J.’s location at the Coalinga facility was “new information.” In absentia, and at the request of the Agency’s counsel, the court appointed counsel to represent L.J.
IV. L.J.’s Section 388 Petition
On April 6, 2007, L.J.’s newly appointed counsel filed a section 388 petition requesting that: the juvenile court change its March 22, 2005 dispositional orders, which had denied reunification services to L.J.; vacate the section 366.26 hearing set for May 3, 2007; and offer L.J. reunification services for six months. The petition also requested a hearing, with testimony, to determine whether the Agency engaged in the necessary investigation and inquiry regarding L.J.’s location. The petition alleged that L.J. had never received any notice of the juvenile dependency proceedings, and noted that he had not been appointed an attorney until the recent due diligence hearing. L.J.’s counsel indicated that, based on his review of previous reports and the file, it was not clear why L.J. was never provided with notice. The petition also asserted that it was in Lawrence’s best interests that L.J. be given the chance to raise him. Significantly, the petition did not request a change in paternity findings and included no evidence that L.J. was more than an alleged father.
The petition asserted that the Agency had assumed since the inception of the case that the person who had visited the mother in the hospital when Lawrence was born was L.J., and had thereafter ceased all efforts to locate L.J. The petition admitted that L.J. had lived at the Oakland address for three to four months after Lawrence was born, but alleged that L.J. had been incarcerated since January 2006 and was scheduled to be released in September 2007. The petition also alleged that L.J.’s grandparents had been systematically throwing away mail addressed to L.J. at the Oakland address, and that L.J. had only been made aware of the proceedings when his parents were served with notice of the proceedings. No evidence and no declaration by L.J. was attached to the petition.
In its May 2007 report, the Agency recommended that L.J.’s petition be denied. The report sought to address the petition’s allegations by asserting that the Agency had made a diligent effort to identify L.J. and had sent notices of hearings to his residence. The report noted that Lawrence’s birth certificate did not identify a father. It also explained that the mother had refused to identify L.J. until February 24, 2005. Lawrence’s maternal aunt, the mother’s sister, told the Agency that the mother and L.J. had lived together at the Oakland address for some time before Lawrence’s birth, which is why the mother knew the Oakland address. According to the report, L.J. knew about Lawrence’s birth for 10 months before his incarceration in January 2006, but took no steps to assert himself as the legal father during those 10 months.
Attached to the report is a letter written to the Agency in April 2007 by Lawrence’s maternal grandparents in which they state that they had seen L.J. at the hospital after Lawrence’s birth, that he knew about Lawrence’s birth, and that he denied paternity both before and after the birth. Their letter also stated that L.J. had been asked to place his name on the birth certificate and to take a paternity test around the time of Lawrence’s birth, but had refused. Four months after Lawrence’s birth, L.J. called the maternal grandparents to ask how Lawrence was doing, but he did not want to take a paternity test at that time or “do anything to provide for the child in any way.” The letter concluded by saying that L.J. “is being dishonest if he is stating to you, the Court, or anyone else that he has not been given an opportunity in the past two years to exercise parental rights for Lawrence . . . . To the contrary, [L.J.] . . . has continuously and consistently refused to comply or exercise these rights—especially when given the opportunity to do so.”
The Agency’s report also stated that all notices to L.J. regarding every dependency hearing since March 2005 had been sent to the Oakland address, and none had been returned. Two of the notices—regarding the section 387 petition—were sent by certified mail, and someone at that address had signed the return receipts for both of those notices The Agency also asserted that there “was no indication that the alleged father was incarcerated” and that “there was no corpus history for ‘[L.J.]’ ”
“CORPUS” (Criminal Oriented Records Production Unified System) is a county database which provides criminal histories on adults and juveniles prosecuted as adults in Alameda County. The Agency’s December 2006 report had also indicated that there was no CORPUS history under the name “[L.J.].”
L.J. did not attend the May 1, 2007 hearing on his section 388 motion, despite an order for him to be transported that day from the Claremont Custody Center. It is unclear why L.J. was not transported to court; L.J. did not execute a waiver of his presence. L.J.’s stand-in counsel—different from the attorney who authored the section 388 petition—argued that L.J. needed to be present and afforded an evidentiary hearing on his petition because there were many issues in the case file which required L.J.’s testimony. She argued that there had been a notice problem throughout the case, and L.J. was entitled to be heard on the matter. She noted that none of the Agency’s reports made any reference to attempts by L.J. to contact the mother while she was at her residential drug treatment program or indicated whether anyone had ever told L.J. that he needed to contact the social worker, and she argued that L.J. needed to testify on these issues.
The juvenile court denied L.J.’s section 388 petition on the grounds that L.J. had failed to state a sufficient change of circumstance and that he had not presented any evidence that it would be in Lawrence’s best interests to grant the motion and to postpone permanency in the case. The court confirmed that it would proceed with the section 366.26 hearing on the previously scheduled date of May 3, 2007. L.J. timely filed a notice of appeal from the court’s denial of his section 388 petition.
V. Termination of Parental Rights
On July 27, 2007, L.J. was transported to court for the section 366.26 hearing. This was the first time he had attended a hearing in these dependency proceedings. The Agency and Lawrence’s counsel submitted on the reports which recommended that Lawrence be adopted by his current caretaker, his maternal aunt, and that parental rights be terminated. L.J.’s counsel asked that the juvenile court conduct a paternal inquiry, as this was L.J.’s first appearance and he had not received notice of the dependency proceedings until the due diligence hearing, and also asked that the court grant L.J. presumed father status.
The juvenile court recounted the evidence regarding paternity contained in the Agency’s May 2007 report: the mother had initially refused to disclose the father’s name, but later disclosed L.J.’s name; that L.J. was at the hospital shortly after the minor’s birth; that no father was named on the birth certificate; that a male visitor to the hospital gave an equivocal answer to direct questions regarding his paternity; and that L.J. denied paternity both before and after Lawrence’s birth. When the court then asked if there was “[a]nything further on this issue,” L.J.’s counsel did not object to the accuracy of this evidence but instead said that the matter was submitted.
The court then denied the request to determine that L.J. was the presumed father, noting that the issue was not properly before the court or timely raised. The court stated that there had previously been a paternity inquiry in the case pursuant to section 316.2 by inquiry of the mother. The juvenile court proceeded with the section 366.26 hearing, found Lawrence to be adoptable, found that notice had been given as required by law, and terminated parental rights. After objecting at the hearing to termination of his parental rights, L.J. timely appealed.
DISCUSSION
I. No Abuse of Discretion to Deny the Section 388 Petition
L.J. contends that the trial court abused its discretion and violated his due process rights when it summarily denied his section 388 petition (petition) without affording him an evidentiary hearing. L.J. contends he should have been permitted to testify regarding his lack of notice and to present evidence in favor of providing reunification services. We conclude that the trial court did not abuse its discretion because L.J.’s petition failed to make a prima facie showing that granting the relief he sought in the petition—vacating the section 366.26 hearing and offering him reunification services for six months—would have been in Lawrence’s best interests. Moreover, even assuming the notice provided L.J. was defective, we conclude that such error was harmless.
Preliminarily, we note that, contrary to what the Agency asserts, L.J.’s petition and his appeal from the order denying that petition were both timely and proper. An alleged father may raise a due process challenge based on lack of notice by filing a section 388 petition at anytime before an order terminating parental rights becomes final. (In re Zacharia D. (1993) 6 Cal.4th 435, 447, 454-455 (Zacharia D.); In re Justice P. (2004) 123 Cal.App.4th 181, 189 (Justice P.); David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1019.) Denial of a section 388 petition is an appealable order. (In re Shirley K. (2006) 140 Cal.App.4th 65, 71.) We review the juvenile court’s denial of the petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.).) And we find no abuse.
The Agency later admits in one of its briefs that it “does not contest that a 388 is the proper method for a late-appearing alleged father to make a late request for reunification services.”
A. No Prima Facie Showing that Granting the Petition Would Promote Lawrence’s Best Interests
Section 388 provides that any “parent or other person having an interest in a child . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . The petition . . . shall set forth . . . any change of circumstance or new evidence which are alleged to require the change of order . . . . [¶] . . . [¶] If it appears that the best interests of the child may be promoted by the proposed change of order . . ., the court shall order that a hearing be held . . . .” (§ 388, subds. (a), (c).)
A juvenile court may summarily deny a section 388 petition if the petition fails to make a prima facie showing either (1) a change of circumstances or new evidence requiring a changed order, or (2) that the relief requested would promote the best interests of the child. (Justice P., supra, 123 Cal.App.4th at p. 188-189.) “In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case.” (Id. at p. 189.) “ ‘[I]f the petition presents any evidence that a hearing would promote the best interests of the child,’ ” the court should order a hearing. (Jasmon O., supra, 8 Cal.4th at p. 415.)
Apart from a conclusory statement that it would be in Lawrence’s best interests for L.J. to be given the chance to raise him, the petition contains no evidence or allegations regarding Lawrence’s best interests. Instead, the petition relies almost exclusively on allegations about defective notice. Similarly, during the hearing on the petition, L.J.’s counsel did not make any offers of proof that L.J.’s testimony would have been relevant to establish the best interests prong if the court set an evidentiary hearing. Indeed, at no point in the proceedings had L.J. indicated what particular facts relevant to Lawrence’s best interests could have been supported by his testimony. (See In re Jesusa V. (2004) 32 Cal.4th 588, 601 [juvenile court did not abuse its discretion in conducting a presumed fatherhood hearing without the biological father’s presence where such father did not identify “any facts that could have been presented only through his live testimony”].)
We note that counsel was appointed for L.J. on March 7, 2007, and that counsel filed the petition on April 6, 2007. Contrary to what L.J. appears to suggest on appeal, there is nothing in the record to indicate that his appointed counsel did not have the opportunity to confer with him prior to filing the petition.
In addition to the petition’s facial inadequacy, which was itself a sufficient basis for its denial (Justice P., supra, 123 Cal.App.4th at pp. 189-190), the factual and procedural history of this case supports the juvenile court’s decision to deny the petition based on Lawrence’s best interests. (Justice P., supra, 123 Cal.App.4th at p. 189.) When a father, even one who has attained presumed father status, has been absent throughout much of the proceedings and later surfaces in a dependency case, “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.” (Justice P., supra, 123 Cal.App.4th at p. 191.) This is true even where the father makes “a prima facie showing of new evidence sufficient to satisfy the first prong under section 388” based on defective notice of the dependency proceedings. (Id. at p. 189.) It follows that in such a situation a court may properly conclude that it would not be in the child’s best interests to grant the father reunification services where the father has “had no relationship with the child,” has “done almost nothing to develop a relationship with” the child, and was incarcerated at the time. (Zacharia D., supra, 6 Cal.4th at pp. 455-456; see also In re Jeremy S. (2001) 89 Cal.App.4th 514, 521-522 [there was no showing that additional reunification services would have been in the child’s best interests where there was “little evidence of a father/son bond”].)
Such was the case here. By the time L.J. filed the petition, Lawrence was more than two years old. His aunt, who had already adopted his older brother, had stated her willingness to adopt Lawrence. Until L.J. filed the petition, he had not done anything to develop a relationship with Lawrence, and had no relationship with him, even though he was aware of Lawrence’s birth and did not become incarcerated until more than 10 months later. Moreover, L.J.’s release date was more than four months after the date he filed his petition, making it even less likely that granting him reunification services would have been in Lawrence’s best interests. (See Jesusa V., supra, 32 Cal.4th at p. 601 [biological father’s “incarceration made successful reunification all but impossible”]; see also Justice P., supra, 123 Cal.App.4th at p. 192 [father’s incarceration “evidenced a lack of interest in the children because his incarceration precluded a full commitment to his parental responsibilities”].)
Had L.J. sought to establish his biological paternity early on and to start a relationship with Lawrence soon after his birth, his petition based on lack of notice would have been more compelling: if “ ‘an unwed [biological] father promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.’ ” (Zacharia D., supra, 6 Cal.4th at p. 450.) “In determining whether a biological father has demonstrated such a commitment, ‘[t]he father’s conduct both 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 acknowledgement 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.’ ” (Id. at p. 450, fn. 19.)
Here, “under no view of the evidence did [L.J.] demonstrate such a commitment [to Lawrence], or satisfy any of the[se] . . . criteria during the relevant time period in this case.” (Zacharia D., supra, 6 Cal.4th at p. 451.) L.J.’s initial uncertainty about his paternity does not excuse his inaction. “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.’ ” (Zacharia D., supra, 6 Cal.4th at p. 452.)
Based on the contents of the petition as well as the factual and procedural history of the case, the juvenile court did not abuse its discretion in concluding, without an additional evidentiary hearing, that granting L.J. reunification services and delaying permanency for Lawrence was not in his best interests. Regardless of any irregularities in notice, L.J.’s failure to establish the best interests prong was a sufficient basis for the court to deny the petition. (Justice P., supra, 123 Cal.App.4th at pp. 189-192.)
B. No Prejudice from Defective Notice
Even had L.J. made the requisite prima facie showing regarding Lawrence’s best interests, which he did not, L.J. did not suffer prejudice from the notice defects he alleges, principally because he could not have elevated his status to that of a presumed father even had he been provided proper notice.
At all times during these dependency proceedings, L.J. was an alleged father. “A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an ‘alleged’ father.” (Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) “Due process for an alleged father requires only that he be given notice and an opportunity to appear and assert a position and attempt to change his paternity status, in accordance with procedures set out in section 316.2.” (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120 (Kobe A.).) Significantly, an alleged father is not entitled to reunification services. (Ibid.)
L.J. correctly asserts that the requirements set forth in section 316.2 and California Rules of Court, rule 5.635(g) were not satisfied in this case.
Section 316.2, subdivision (a) provides in pertinent part that “[a]t the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers.” Section 316.2, subdivision (b) provides: “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.”
California Rules of Court, rule 5.635(g) currently implements section 316.2. (See Kobe A., supra, 146 Cal.App.4th at p. 1121 [discussing former rule 1413].) Rule 5.635 provides in relevant part: “If, after inquiry by the court or through other information obtained by the county welfare department . . ., one or more persons are identified as alleged parents of a child . . ., the clerk must provide to each named alleged parent, at the last known address, by certified mail, return receipt requested, a copy of the petition, notice of the next scheduled hearing, and Statement Regarding Parentage (Juvenile) (form JV-505) . . . .”
First, the Agency admits that the juvenile court did not conduct an inquiry of the mother regarding alleged fathers as required by section 316.2, subdivision (a). However, under any standard of review, this error was harmless. On February 24, 2005, the day before the detention hearing, the mother told the Agency that L.J. was Lawrence’s father and gave the Agency the Oakland address. Starting March 2005, the Oakland address was used for notice to L.J., who by the end of that month had been designated an alleged father by both the Agency and the court. L.J. admitted in the petition that he lived at the Oakland address from the time Lawrence was born in February 2005 until May or June 2005. Consequently, although the court did not ask the mother about L.J. at the February 2005 detention hearing as required by section 316.2, subdivision (a), by the following month the court had ascertained that L.J. was an alleged father and had obtained his correct address from the mother. (Cf. In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137 [juvenile court’s failure to state factual basis for its removal order was harmless error where, had it made the required findings, they would not likely have been in appellant’s favor].)
Second, the information contained in the notice provided to L.J. at the Oakland address was insufficient. The Agency admits that L.J. was never served with the JV-505 form. Moreover, there is no evidence in the record that L.J. was ever served with the section 300 petition. And he was not notified that the dependency proceedings could result in the termination of his parental rights until February 2007, when the Agency served L.J. with notice of the section 366.26 hearing. (See § 316.2 subd. (b); Cal. Rules of Court, rule 5.635, subd. (g); see Kobe A., supra, 146 Cal.App.4th at p. 1121-1122 [concluding that the required notice was not provided to the alleged father where neither the section 300 petition nor the JV-505 form were sent to him].)
“Form JV-505 specifically informs an alleged father that he can compel the court to determine his paternity, and gives him the means to request appointment of counsel, state his belief that he is the father of the child, and ask that the court enter judgment of paternity. [¶] The form expressly advises the alleged father of his rights and options.” (Kobe A., supra, 146 Cal.App.4th at p. 1121.)
Until service of the notice of the section 366.26 hearing, it appears that the only notice provided to L.J. consisted of (1) dates of upcoming hearings, starting with notice of the March 2005 jurisdictional hearing, and (2) copies of minute orders, starting with the section 387 detention hearing in December 2006. In addition, many of the notices of hearings and minute orders were served on L.J. by first class mail, not the required registered mail. (See Kobe A., supra, 146 Cal.App.4th at p. 1121 [improper to serve notice of the review hearing by first-class mail, instead of registered mail].)
We analyze the effect of the defective notice provided to L.J. according “to the harmless beyond a reasonable doubt standard of prejudice.” (Justice P., supra, 123 Cal.App.4th at p. 193; see also Kobe A., supra, 146 Cal.App.4th at p. 1122.) Applying that standard, we conclude that the notice defects in this case were harmless. Here, “there is sufficient information about [L.J.’s] circumstances to permit us to conclude that the failure to give him the specific notice required by section 316.2 did not affect the ultimate outcome of the dependency proceedings.” (Kobe A., supra, 146 Cal.App.4th at p. 1124.)
Even had L.J. received proper notice of the proceedings from the outset, he could not have elevated his status to presumed father, which was the only way he could have become eligible for the reunification services he sought in the petition. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.) The Family Code sets forth the criteria for determining presumed father status, which are, in pertinent part: 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, 7611, subds. (a)-(d).)
Here, L.J. never even established that he was Lawrence’s biological father, even though there is evidence that he was invited to take a paternity test shortly after Lawrence’s birth. Indeed, the first time he ever requested “a paternity inquiry” and an elevation of his status to presumed father was at the section 366.26 hearing. Moreover, there was no allegation in the petition, nor any evidence elsewhere in the record, that L.J. had ever married or attempted to marry the mother; that he and the mother had ever executed a voluntary declaration of paternity; or that he had ever received Lawrence into his home and openly held out Lawrence as his natural child. (Fam. Code, §§ 7571, 7611, subds. (a)-(d).)
L.J.’s failure to assert in the petition that he was more than an alleged father was arguably a separate, stand-alone basis for the court to deny the petition on its face. Without offering evidence or allegations to support a finding that he was a presumed father, the petition failed to make a prima facie showing of a change of circumstances or new evidence making him eligible for reunification services. (See Justice P., supra, 123 Cal.App.4th at pp. 188-190.)
It was not possible for L.J. to receive Lawrence into his home while he was incarcerated. And it may not have been feasible to do so while Lawrence was with the mother at her residential treatment facility. However, in such circumstances, actual receipt of the child is not required. Instead, “[t]he focus is on whether the natural father ‘has done all that he could reasonably do under the circumstances’ to demonstrate his commitment to the child.” (In re Andrew L. (2004) 122 Cal.App.4th 178, 191.)
There is no evidence that L.J. ever demonstrated a commitment to Lawrence. With the exception of a visit at the hospital immediately after Lawrence’s birth, there is no evidence that L.J. ever attempted to visit or make any contact with either the mother or Lawrence during the mother’s pregnancy or after Lawrence’s birth. Nor is there any allegation or evidence that the mother or anyone else prevented L.J. from engaging in the behavior which would have allowed him to achieve presumed father status. (Compare Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825.) This was not a situation where L.J. was prevented from developing a relationship with Lawrence because the mother’s pregnancy was hidden from him, or he was otherwise unaware of Lawrence’s existence.
II. No Standing to Appeal from Termination of Parental Rights
In his second appeal, L.J. challenges the trial court’s order terminating his parental rights. As we discuss ante, L.J. did not elevate his status above that of an alleged father. An alleged father lacks standing to appeal an order terminating parental rights. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715-716; see also In re Christopher M. (2003) 113 Cal.App.4th 155, 160 [an alleged father is only entitled to assert his positions concerning paternity and reunification, neither of which “is an issue before the juvenile court at the section 366.26 hearing”].) Consequently, Lawrence lacked standing to appeal the termination of his parental rights and we must dismiss his appeal from that order. (In re Joseph G., supra, 83 Cal.App.4th at p. 716.)
DISPOSITION
The May 1, 2007 order denying the petition is affirmed. L.J.’s appeal from the July 27, 2007 order terminating parental rights pursuant to section 366.26 is dismissed.
We concur: Haerle, Acting P.J. Lambden, J.