Opinion
E082721
11-21-2024
In re E.T., a Person Coming Under the Juvenile Court Law. v. H.H., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. DPRI2200176 Mona M. Nemat, Judge. Affirmed.
John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
Defendant and appellant, H.H. (Father) appeals from post-judgment orders denying his Welfare and Institutions Code section 388 petition and denying him paternity status under Adoption of Kelsey S. (1991) 1 Cal.4th 816 (Kelsey S). Father also contends plaintiff and respondent, the Riverside County Department of Public Social Services (DPSS) failed to act with due diligence in searching for and noticing him of the juvenile dependency proceedings brought on behalf of his daughter, E.T. (born in late 2022). He therefore requests this court to vacate the juvenile court's jurisdiction and disposition findings and orders.
All further statutory references are to the Welfare and Institutions Code.
We conclude that notice was sufficient, and even if deficient, there was no prejudicial error. We further conclude that the juvenile court did not err in denying Father Kelsey S. status or his section 388 petition. Therefore, the orders denying the section 388 petition and Kelsey S. status are affirmed.
II.
FACTS AND PROCEDURAL BACKGROUND
On November 17, 2022, DPSS received an immediate response referral alleging general neglect. Sa.T. (Mother), who tested positive for fentanyl, gave birth to E.T., who suffered severe drug withdrawal symptoms requiring medical intervention. Mother stated she used fentanyl daily and methamphetamine throughout her pregnancy. She disclosed she had a 10-year history of abusing opioids, which included using fentanyl daily for the past five years. Before that, she used prescription drugs and heroin. Mother failed to complete any drug rehabilitation programs. E.T. remained hospitalized until January 2023, while receiving morphine to manage her withdrawal symptoms. Within hours of giving birth to E.T., Mother began experiencing drug withdrawal symptoms and left the hospital against medical advice.
A. Juvenile Dependency Petition
During an investigative interview on November 17, 2022, Mother identified Father as E.T.'s father and said he was aware of Mother's pregnancy but not of E.T.'s birth. Mother reported that Father wanted her to abort the pregnancy. She also stated that Father was residing in San Diego, but she refused to provide his phone number. She stated she did not want him contacted.
During an interview on November 18, 2022, Mother confirmed the referral allegations. She reported that she used fentanyl daily and methamphetamine every few months, including throughout her pregnancy. She said the last time she used fentanyl was that morning. Mother again identified Father as E.T.'s biological father. Mother lived with maternal grandfather (MGF) at his home, rent-free. MGF's wife, Mother's two older brothers, and a niece also lived in MGF's home. MGF reported that Mother could not possibly care for a baby because of her use of fentanyl.
Because of the severity of E.T.'s drug withdrawal symptoms, Mother's drug addiction and unresolved drug use while pregnant, Mother's failure to engage in substance abuse services, and Father's absence, DPSS placed E.T. in protective custody. At the detention hearing on November 23, 2022, the court ordered E.T. detained from her parents, with supervised visitation for Mother and authorized relatives.
B. Jurisdiction/Disposition Hearing
During the contested jurisdiction hearing on January 5, 2023, Father's attorney requested to be relieved if the court found "good notice," because Father's whereabouts remained unknown. The court responded that it found DPSS used due diligence and there was good notice and relieved Father's attorney. The court continued the contested jurisdiction hearing to January 25, 2023. At the continued hearing, the court ordered family reunification services for Mother and denied them for Father, who still had not been located.
C. Six-Month Status Hearing Report
On January 12, 2023, E.T. was discharged from the hospital and placed with her maternal aunt, S.T. On May 29, 2023, Father texted DPSS for the first time and requested visitation with E.T. DPSS responded that the court had ordered a DNA paternity test for him. DPSS requested Father to provide his date of birth, address, and social security number in order to provide him with a paternity test referral. Father did not respond. On June 7, 2023, DPSS sent Father another text requesting Father's personal information needed for the paternity test referral. On June 13, 2023, he responded.
However, DPSS reported in its six-month status report, filed June 28, 2023, that Father's identifying information, current address and current circumstances were still unknown. E.T. no longer met the medically fragile criteria and had moderate medical needs. She was reportedly "healthy and normal," and did not appear to have any developmental delays. E.T. was bonded to her caregiver, S.T. At the end of March 2023, E.T. began attending daycare while S.T. was at work. S.T. stated she was willing to adopt E.T. if she did not reunify with her parents. S.T. reportedly continued to provide E.T. with "exceptional care"
Mother failed to engage in reunification services. She was unwilling to enter substance abuse treatment and declined detox treatment. When asked why she declined to participate in the residential program, she stated she was not ready.
On June 14, 2023, Mother's two older brothers, B.T. and R.T., sent DPSS an email reporting concerns regarding Mother's addiction and its impact on her mental health stability, and her neglecting responsibilities at home, including caring for her dog, abusing their elderly father, and intentionally destroying their father's belongings. Her home reportedly was filthy and unsafe. B.T. reported overhearing Mother tell MGF that she planned to maintain sobriety solely to pass a few drug tests and complete a rehabilitation program so that she could regain custody of E.T., and then, once she achieved custody, she would resume using drugs. B.T. further reported that he was concerned about Mother getting custody of E.T. because her room was unsafe, with needles and drug paraphernalia everywhere, including on the floor.
DPSS concluded in the June 2023, six-month status report that Mother had not mitigated the issues that led to E.T. being placed in protective care. Her unresolved substance abuse negatively affected her ability to care for E.T. Also, Mother was inconsistent with visitation and was habitually late or did not appear. As to Father, DPSS reported that the possibility of placing E.T. in Father's care "is nonexistent" because he had not been located, he had not maintained contact with E.T., and he had not submitted to a DNA paternity test. DPSS concluded it was in E.T.'s best interest to terminate Mother's reunification services and set a section 366.26 hearing.
Father appeared in court for the first time at the six-month review hearing on July 10, 2023. The court appointed counsel for him and continued the hearing to allow him to complete paternity testing. On August 14, 2023, Father reported that he missed his paternity test, and was waiting to talk to his attorney because he had lots of questions. On September 6, 2023, Father completed paternity testing, which showed a 99.99 percent probability that he is E.T.'s biological father.
During the contested six-month review hearing on September 18, 2023, the court ordered that E.T. remain with S.T., terminated Mother's reunification services, set the matter for a section 366.26 hearing, and found that DPSS had made diligent efforts to locate Father. The court ordered supervised visitation for Mother once a month, for one hour, and visitation for Father upon completing paternity testing.
D. Section 388 Petition and Hearing
On September 27, 2023, Father filed a JV-180 form petition (section 388 petition), requesting the court change the detention hearing order on November 23, 2022, and also find he is a Kelsey S. father and place E.T. with him or, alternatively, order reunification services and visits for him. Father asserted this was in E.T.'s best interest because he is her natural father and he timely appeared in the dependency proceeding.
Father attached to his section 388 petition a declaration of paternity requesting changing his alleged father status, ordered on November 23, 2022, to presumed father status (form JV-505). Father also requested placement of E.T. with him and, alternatively, reunification services. Father stated in the declaration that he believed he was E.T.'s parent, and requested the court to find he was her presumed parent. Father further stated that he told "parents, family, friends, employment, social media" that E.T. is his child, and stated: "I have taken responsibility from 1st notice of pregnancy. I have made countless attempts to see [E.T.]. [Mother] promised I would meet her 'soon.' She lies and manipulates for her bennefit[sic] only. I was never informed of the birth until a week after. I didn't even know [at] which hospital she was born. I was never contacted by family [maternal] or social worker. I never was informed of situation by juvenile court system."
On October 4, 2023, the juvenile court ordered a hearing on Father's section 388 petition. At the petition hearing on October 11, 2023, the court continued the hearing to November 29, 2023, to allow the parties to provide the court with additional information, including a DPSS addendum report summarizing interviews of Mother and Father regarding Father's paternity and how Mother thwarted him from asserting parentage. The court stated it needed additional information regarding Father's efforts to contact E.T. and Mother, roadblocks put in his way, his efforts to have a relationship with E.T., and whether Father is a presumed father under Kelsey S., supra, 1 Cal.4th 816.
On October 25, 2023, DPSS filed an addendum report regarding Father's section 388 petition. DPSS recommended that the court deny Father's section 388 petition, that E.T. remain placed with S.T., and that the section 366.26 hearing proceed as previously set. DPSS reported that on October 16, 2023, Father stated that Mother had told him she was pregnant, but she only permitted him to attend one prenatal doctor appointment. He was not told when or where she was giving birth to E.T. Father said he did not try to see her, but Mother did not allow him too anyway. He said the reason he did not respond to DPSS's texts on May 30, 2023, and June 7, 2023, regarding completing a DNA test was because he did not know who the person was who texted him or the reason he was contacted. Father stated: "'I did not know that [E.T.] was detained as a dependent of Riverside County.'" Father also explained he did not attend his originally scheduled DNA paternity test appointment on July 27, 2023, because he forgot. Father requested the appointment be rescheduled.
DPSS reported it also interviewed Mother on October 16, 2023. She said Father made little effort during her pregnancy to see her and did not show interest in being a Father. She did everything in her power to motivate him but his motivation was nonexistent. She invited him throughout her pregnancy to attend E.T.'s ultrasounds. However, he only went to one appointment and acted very bored and uninterested. That was the only time he saw Mother during her pregnancy, other than the day she told him she was pregnant. Mother reported that Father was extremely volatile and was practically impossible to talk to because he had an extremely short temper.
Mother told DPSS Father wanted her to have an abortion because he believed they were not ready to be parents. On April 28, 2022, Father gave her $300 for the abortion. Mother told DPSS that she made a baby registry, which included low-priced items. Her family purchased most of the requested items. Mother asked Father to share the registry with his family, but he did not do so. Mother also contacted paternal grandmother (PGM), who told her that Father lived too far away. Mother reported that she had been texting Father photos and videos of E.T. since her birth. Mother said it was odd Father made so little effort during the pregnancy and thereafter to participate, and then suddenly wanted full custody when he previously told her he could not handle full custody. Mother believed Father's family was pressuring him to get custody and planning on raising E.T. if he succeeded. Mother said Father had a major fear of paying child support. Mother concluded this was why he took so long to complete the DNA paternity testing and why he wanted full custody.
During S.T.'s interview, she told DPSS that she met Father a few years ago when he started coming to family parties with Mother. S.T. hardly spoke to him then and never got a chance to know him. When Mother learned she was pregnant at about 12 weeks, she wanted an abortion. Mother told S.T. that Father gave her $300 for an abortion. Mother vacillated for a while between having an abortion and keeping her baby. Mother ultimately decided to have E.T. S.T. reported that, during that time, Father never accompanied Mother to doctor's appointments. Mother told S.T. several times that Father was going to visit her but never did because Mother and Father would get into arguments. S.T. was present during E.T.'s birth.
S.T. further told DPSS that a few months after E.T.'s birth, Mother asked S.T. if she could let Father see E.T. S.T. told her he would have to call DPSS to arrange for a visit. Mother told S.T. that Father had said he was already communicating with S.T. regarding visiting E.T. This was false. Father never contacted her. S.T. said Father has always been polite to her, and she has no ill will towards him. The first time S.T. saw Father within the last couple of years was in court at the six-month hearing on August 21, 2023. S.T. gave Father her phone number and told him to send her a text so she would have his contact information, but he never did. S.T. never heard from Father again until after the September 2023, six-month hearing. He never reached out to her to visit S.T.
DPSS also interviewed MGF in October 2023. He said Mother lived with him during her pregnancy and was currently living with him. MGF believed it would be a mistake to award Father custody because, when Mother was pregnant, Father pressured her to have an abortion and no longer visited her. He failed to help her in any way during the delivery of E.T. and after the birth. He continued to keep his distance and did not communicate with her for several months.
DPSS stated in the October 26, 2023, addendum report that Father had never contacted DPSS or S.T. to request an update on E.T.'s condition. E.T. reportedly made great strides in her health status while placed with S.T., and S.T. is committed to providing E.T. with a permanent home.
On November 29, 2023, the juvenile court heard Father's section 388 petition seeking Kelsey S. status and reunification services. Father was the only witness who testified at the evidentiary hearing. After hearing Father's testimony and oral argument, and reviewing DPSS reports and Father's certificate of completion of a parenting skills course, the juvenile court found that Father was E.T.'s biological father but was not a Kelsey S. father, and denied his section 388 petition.
This court ordered stayed the section 366.26 hearing scheduled for February 22, 2024, pending this court's determination of Father's appeal.
III.
NOTICE
Father contends that the juvenile court erred in finding he received adequate notice of the juvenile dependency proceeding. Specifically, Father argues that DPSS failed to act with due diligence in searching for and noticing him of the juvenile dependency proceedings early on. We disagree.
A. Notice Requirements
"Generally, there are three basic types of fathers in dependency law: presumed, biological, and alleged. A presumed father is afforded the most rights in dependency proceedings, followed by a biological father, who '" has established his paternity but has not established his qualification as a presumed parent."' [Citation.] An alleged father is just that-a man alleged to be the father, but who has not yet established either presumed father status or biological paternity. A presumed father is afforded standing, the appointment of counsel, and reunification services, while a biological father's access to appointed counsel and services is discretionary. An alleged father has a constitutionally protected due process right to be given notice and an opportunity to appear, to assert a position, and to attempt to change his paternity status. [Citation.]" (In re A.K. (2024) 99 Cal.App.5th 252, 263 (A.K.), italics added.)
Here, from the inception of the juvenile dependency proceedings, Father was an alleged father, until after he completed paternity testing which established he was E.T.'s biological father. Once the juvenile court found he was a biological father at the section 388 hearing on November 29, 2023, it had discretion to order services for him, even though the court found he did not qualify as a presumed or Kelsey S. father. Nevertheless, the court denied Father reunification services and visitation.
"In juvenile dependency proceedings, notice is both a constitutional and statutory duty, 'with the constitutional dimension requiring "'notice that is reasonably calculated to advise [parents] an action is pending and afford them an opportunity to defend.'"' [Citation.] A parent's fundamental right to adequate notice and the opportunity to be heard in dependency matters involving potential deprivation of the parental interest has little value '"'"unless that parent is advised of the nature of the hearing giving rise to that opportunity, including what will be decided therein. Only with adequate notice can one choose to appear or not, prepare or not, and to defend, or not."'"' [Citation.] Without notice, an alleged father 'will be uninformed of his right to participate and thus unable to elevate his status to presumed parent, to be afforded the opportunity to visit with his child, to receive any services needed to reunify and to protect his rights to custody or an ongoing relationship with his child.' [Citation.]" (A.K., supra, 99 Cal.App.5th at pp. 263-264.)
The notice shall state that the child is the subject of section 300 proceedings 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." (§ 316.2, subd. (b); A.K., supra, 99 Cal.App.5th at p. 264.)
"'[A]n alleged father's rights (and/or corresponding duties on the part of the state), fall into essentially four categories: (1) the right to notice of the proceedings and of certain hearings (see [] §§ 290.1, 290.2, 291, 294, subd. (a)(2)); (2) the right to notice of their rights as an alleged father and the steps necessary to elevate their status to that of a presumed father (see § 316.2, subd. (b)); (3) the court's corresponding duty to inquire into an individual's possible parentage through various extrinsic sources apart from the individual's own self-reporting (see § 316.2, subd. (a)); and (4) if the whereabouts of an alleged father are unknown, the state s constitutional duty to exercise reasonable diligence to find him, so that he may be given proper notice of the proceedings.' [Citation, fn. omitted.]" (A.K., supra, 99 Cal.App.5th at p. 264; italics added.)
"'Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend.' [Citation.] 'The child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith. [Citation.] [¶] However, there is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings. [Citations.]' [Citation.] Thus, where a parent cannot be located notwithstanding a reasonable search effort, the failure to give actual notice will not render the proceedings invalid. [Citation.]" (In re J.H. (2007) 158 Cal.App.4th 174, 182 (J.H.); italics added.)
"[T]he failure to give notice carries such grave consequences in the dependency court, where parent-child ties may be severed forever. Social services agencies, invested with a public trust and acting as temporary custodians of dependent minors, are bound by law to make every reasonable effort in attempting to inform parents of all hearings. They must leave no stone unturned." (In re DeJohn B. (2000) 84 Cal.App.4th 100, 102.)
However, the law "'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.'" (J.H., supra, 158 Cal.App.4th at p. 182, quoting In re Justice P. (2004) 123 Cal.App.4th 181, 191; see also In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)
B. Standards of Prejudice and Review
The juvenile court's finding DPSS used due diligence to locate a parent is reviewed for substantial evidence. (In re Sarah C. (1992) 8 Cal.App.4th 964, 974.) Constitutional issues, such as whether there has been a due process violation, are reviewed de novo. (J.H., supra, 158 Cal.App.4th at p. 183.)
"Unless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se [citations], errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice. [Citations.]" (J.H., supra, 158 Cal.App.4th at p. 183.)
C. Analysis
Based on the following summary of DPSS's efforts to locate and notify Father of the juvenile dependency proceedings, we reject Father's contention that his due process and statutory rights to notice were violated.
1. Notice Efforts
Right after DPSS received a referral reporting that Mother gave birth to E.T. while testing positive for fentanyl, DPSS conducted an investigative interview of Mother.
Mother provided DPSS with Father's name and said he knew she was pregnant but did not know she had the baby. Mother told DPSS Father lived in San Diego, and said she had his phone number but refused to provide it or provide his full address. She stated she did not want him contacted.
Because of Mother's substance abuse and because Father's whereabouts were unknown, DPSS placed E.T. in protective custody. E.T. remained hospitalized until January 12, 2023, when she was discharged from the hospital and placed with her maternal aunt, S.T. E.T. remained there throughout the remainder of the dependency proceedings.
In November 2022, the court ordered counsel appointed for Father at the detention hearing, even though Father's whereabouts were unknown. Counsel appeared on behalf of Father at all of the juvenile dependency proceedings until he was relieved of representing Father during the contested jurisdiction hearing on January 5, 2023, because Father's whereabouts remained unknown. As a consequence, he was not represented at the continued contested jurisdiction/disposition hearing on January 25, 2023, or any subsequent proceedings, until after he contacted DPSS on May 29, 2023, and first appeared in court on July 10, 2023, at the six-month status review hearing.
On January 5, 2023, DPSS filed a declaration of due diligence reporting DPSS's efforts to locate Father. Those efforts included conducting a Person Locator search for Father on November 23, 2022; child support request search on December 8, 2022; and county sheriff's department jail/state/federal prison systems search on November 30, 2022, in the counties of Riverside, Orange, San Diego, Imperial, San Bernardino, and Los Angeles, and in the California Department of Corrections and the federal department of prisons. On November 30, 2022, DPSS conducted searches of the California statewide automated welfare system (CalSAWS); medical eligibility data system (MEDS); child welfare services/case management system (CWS/CMS); and voter registration records. No information was found on Father. A superior court civil and criminal imaging-on-the-Web search on November 30, 2022, also did not produce any information. DPSS also checked Facebook and was unable to confirm a positive profile.
The declaration of due diligence further stated that on November 30, 2022, DPSS conducted a Transunion government data search and location tool search, which provided four possible addresses for Father in San Diego, two phone numbers, and one email address. On December 7 and 8, 2022, DPSS called each of the two phone numbers a total of three times and left voicemails and texts. On December 8, 2022, DPSS sent letters to the four San Diego addresses, and sent an email to the email address produced by the Transunion search.
The letters sent to the four addresses were on DPSS, Children's Services Division letterhead, and stated the following: "There is a matter in Riverside County that requires your attention. Please call or email at your earliest convenience. If you are unable to, then please fill out the bottom half and return it" to the provided address. The form provided the name, address, phone number, and email address for a "Social Services Assistant" at the "County of Riverside-Person Locator Unit." The email sent on December 8, 2022, stated: "I am with the Person Locator Unit of the Riverside County's Children Services Division and I am attempting to contact you to provide you with important court hearing information." The social services assistant provided her phone number and email address, and requested Father to contact her.
Father testified at the section 388 petition hearing that Mother provided him with a phone number to arrange to see E.T. Father stated that Mother "sent it" to him to contact the social worker. Father testified he learned of the social worker's contact number and that E.T. was in foster care in March 2023. But he also testified that "[i]t could have been about two weeks" between when he got the phone number to contact DPSS and when he called it. The social worker who responded asked for his personal information.
DPSS reported in its six-month status report that on May 29, 2023, father first contacted DPSS via text, requesting a visit with E.T. DPSS responded by text. Father's phone number was not any of the phone numbers Mother had provided DPSS or that had been provided during DPSS's search efforts. DPSS requested by text that Father provide DPSS with his date of birth, address, and Social Security number for purposes of arranging for a court-ordered DNA paternity test. Father did not respond. On June 7, 2023, DPSS sent Father a second text message again requesting Father's personal information needed for a paternity test referral. Again, Father did not respond.
On June 12, 2023, DPSS again texted Father using the phone number he had used to contact DPSS. DPSS informed Father of the upcoming six-month hearing. Father responded that he intended to be at the hearing.
On June 16, 2023, DPSS filed another declaration of due diligence, reporting its efforts to locate Father. DPSS stated that on June 12, 2023, it submitted a request for Person Locator assistance and Father was not found. On June 16, 2023, the county sheriff's jail/federal prison systems reported that, as of June 15, 2023, Father was not incarcerated in jails in Riverside County, Orange County, San Diego County, Imperial County, San Bernardino County, or Los Angeles County. He also was not found in the California Department of Corrections or Federal Department of Prisons. On June 15, 2023, searches were also conducted of the CalSAWS, MEDS, CWS/CMS, voter registration, Transunion, and the superior court civil and criminal imaging-on-the-Web system, and no current information was found regarding Father. A Facebook search was also done on June 15, 2023, and DPSS was unable to confirm a positive profile.
On June 26, 2023, DPSS served Father with a notice of the six-month review hearing on July 10, 2023. The notice was sent to Father at 3538 Front St., in San Diego, the address Father provided DPSS by text on June 13, 2023. Father's address was different than the addresses produced during DPSS's search efforts.
On June 28, 2023, DPSS filed a six-month status report, which stated that Father's current address was on Front Street, in San Diego, where the notice of the six-month hearing was sent to Father. The report also stated that Father's current phone number was 619-***-6533, which was different than the phone numbers produced during DPSS's search efforts. DPSS's status report stated that on June 12, 2023, DPSS informed Father of the six-month status review hearing via text message to his phone number, 619-***-6533. Father responded by text on June 12 or 13, 2023, that he would attend the hearing. DPSS requested Father to provide his address. Father responded with his partial address of **** Front St 92103." DPSS requested his full address, and Father added by text, "San Diego 92103-Cottage house." DPSS used this address to provide written notice to Father of the six-month status review hearing. DPSS reported that there were no family law orders for the family.
DPSS stated in the June 28, 2023, six-month status report that Father had only limited contact with DPSS via text and, therefore, his identifying information, current address, and current circumstances were unknown. Also contrary to other statements within the report, DPSS stated in the report that Father responded to DPSS's attempts to contact him only once, on June 13, 2023. The report also stated that Father's "whereabouts are unknown"; "he has not responded to the Department's attempts to contact him"; and "his exact whereabouts remain unknown, rendering him unable or unwilling to provide care, supervision, or support for his child." But the same report also states Father provided DPSS with his full address. Notice of the contested six-month review hearing was sent there. DPSS reported that Father said he intended to attend the six-month review hearing when informed of it, and he did so on July 10, 2023. This was his first appearance in juvenile court.
Father received notice of the remainder of the proceedings. At the continued contested six-month review hearing on September 18, 2023, the court ordered that E.T. remain with S.T., terminated Mother's reunification services, set the matter for a section 366.26 hearing, and found that DPSS had made diligent efforts to locate Father. On September 27, 2023, Father filed a section 388 petition seeking to set aside the November 23, 2022, order detaining E.T. in protective custody. On November 29, 2023, the juvenile court denied Father's section 388 petition, and Father appeals the ruling, in part, on the ground DPSS did not exercise reasonable diligence to find him, so that he could be given proper notice of the proceedings early on, to allow him the opportunity to participate in and establish presumed father status.
2. Sufficiency of Notice Efforts
Father argues that DPSS's efforts do not reflect a through, systematic investigation conducted in good faith. Specifically, Father asserts that, because Mother told DPSS Father's name, which is an uncommon name, and told DPSS that Father lived in San Diego, DPSS should have been able to locate him. But the record shows DPSS did a reasonable search using this information and the addresses, phone numbers, and email address from the search did not disclose his current address and phone number.
We note that none of the addresses or phone numbers DPSS obtained through its efforts to locate Father matched the address and phone number Father provided. We also note that Mother refused to provide a correct phone number for Father even though she had been communicating with him by phone throughout the proceedings and apparently knew his correct phone number. She told DPSS she did not want Father contacted because she did not want him to know about the juvenile dependency proceedings. When DPSS later again requested Mother for Father's phone number, she misled DPSS by providing an incorrect phone number for him, which she likely knew was incorrect, because she frequently communicated with him by text. Despite these circumstances, Father eventually contacted DPSS and provided his contact information. It is unknown whether such contact was the result of DPSS's efforts to locate Father or was a result of Mother providing Father with DPSS's phone number.
Father argues DPSS should have obtained additional information from Mother, which would have enhanced the search, including: (1) Father's birth date; (2) how DPSS could contact Father; (3) how Mother communicated with Father; (4) whether Father had any social media accounts; (5) where Father worked and what type of work he did; and (6) the names and contact information for Father's parents and other relatives. In addition, DPSS did not search the United States Postal Service (USPS) or California Department of Motor Vehicles (DMV) databases, or search social media, other than Facebook, and did not do a Google search. Father believes that had DPSS done a more extensive search, it was "virtually certain" Father would have been located. Father had a stable residential address, was employed fulltime, and had an Instagram account. Father also asserts that DPSS could have gotten his contact information by asking Mother for PGM's contact information. He claims Mother had PGM's contact information and PGM had Father's contact information.
Father argues that when DPSS attempted to contact Father by mailing, emailing, and texting him, and left voicemail messages, DPSS failed to provide Father with adequate notice of the juvenile dependency proceedings, as required under sections 290.1, et seq., and section 316.2, subdivision (b), and California Rules of Court, rule 5.635(g). Without notice that E.T. was the subject of juvenile court proceedings, Father was unaware of the urgency of responding to DPSS's efforts to contact him and obtain his personal information. Father maintains that DPSS's deficient efforts to locate him, in conjunction with Mother's obstruction of DPSS's search efforts, violated his due process right to notice of the juvenile dependency proceedings.
As discussed above, we disagree DPSS did not make a diligent, good faith attempt to locate and provide notice to Father. In addition, the evidence is in conflict as to when Father was first informed E.T. was in foster care, and whether Father received any of DPSS's letters, phone calls, voicemails, texts, emails, or Facebook contacts. When there are conflicts in the evidence, the evidence must be viewed in the light most favorable to the judgment, accepting every reasonable inference that the court could have drawn from the evidence. (In re James G. (1985) 165 Cal.App.3d 462, 469-470.)
There is also a factual dispute as to whether Father was living in the home he claims he moved to in October 2022, and continued living there throughout the juvenile dependency proceedings. DPSS argues, based on a statement S.T. made to DPSS, that he may have been a transient, living in his van. This would have made it even more difficult to locate him. Either way, the record supports a finding that DPSS made a diligent and reasonable effort to locate Father.
We acknowledge that DPSS's texts, letters, calls, and emails provided to Father before he first contacted DPSS on May 29, 2023, did not constitute proper notice of the juvenile dependency proceedings. Those attempts to contact Father were appropriately provided for the purpose of locating him. Once he was located, he was provided with proper notice of all subsequent proceedings.
3. Prejudice
Even if DPSS's efforts to locate Father were deficient, such error was harmless error beyond a reasonable doubt because it is unlikely that Father would have been located even if DPSS had done everything Father argues should have been done to locate him. (Chapman v. California (1967) 386 U.S. 18, 24; In re Angela C. (2002) 99 Cal.App.4th 389, 395-396; In re Christopher L. (2022) 12 Cal.5th 1063, 1073; A.K., supra, 99 Cal.App.5th at p. 271.) Father has not provided any evidence to the contrary. It also is unlikely the result would have been any different, had DPSS located Father sooner.
Some courts ask whether the defect in notice was harmless beyond a reasonable doubt. (In re Justice P., supra, 123 Cal.App.4th at p. 193.) Other courts ask whether, had the defect in notice not occurred, there is a reasonable probability of a more favorable outcome. (In re Daniel F. (2021) 64 Cal.App.5th 701, 715-716.) We need not weigh in on the split because any defect in the notice satisfies the more stringent harmless error test: the notice defect in this case was harmless beyond a reasonable doubt.
As to social media searches, DPSS checked Father's Facebook account in November 2022 and June 2023, and was unable to confirm a positive profile. An Instagram search might have resulted in locating Father's account because he has an unusual name, but it is unlikely that it would have yielded contact information. Based on his unresponsiveness to DPSS's other attempts to contact him and requests for personal information, it is unlikely he would have responded to DPSS contacting him on Instagram, or to a request to provide his address and phone number.
Also, as Father acknowledges in his opening brief, "it is unsurprising that the Department's database searches yielded no up-to-date results." This likely would have also been the case, had DPSS done a USPS or DMV search. Father has not provided any evidence that his name and the city where he lived would have been sufficient to do a USPS and DMV search or that such additional searches would have produced his current address.
Because Father had recently moved to his current residence in October 2022, shortly before the juvenile dependency petition was filed in November 2022, it is likely that his current address had not yet been entered into the USPS, DMV, or Google databases, as was the case when DPSS searched the other databases. Father has not provided any evidence that, prior to DPSS's searches, he notified USPS or the DMV of his new address or other current contact information. Without knowing Father's contact information or other personal information, such as his birth date, and without Mother's cooperation in locating Father, it is unlikely DPSS would have been able to locate him or his parents or other relatives.
Father argues that had he been informed of the juvenile dependency proceedings sooner, he might have been able to take custody of E.T. or avoid a jurisdiction ruling, and would have had the opportunity to establish a relationship with E.T. which would have supported a finding of presumed father or Kelsey S. status. He asserts that once he was notified of the juvenile dependency proceedings in May 2023, he demonstrated he was committed to participating in the proceedings and parenting E.T., and had he been noticed sooner, he would have taken action sooner to become a presumed father and take custody of E.T.
But if Father's testimony is correct, that he learned of the DPSS's social worker's contact number and that E.T. was in foster care in around March 2023, Father delayed contacting DPSS for at least two months. If Father was aware of DPSS's involvement in March 2023, any prejudice caused by DPSS's alleged deficient efforts and delay in contacting him would have been minimal. The dependency proceedings began in midNovember 2022, when E.T. was born, and E.T. remained hospitalized in the Neonatal Intensive Care Unit until January 12, 2023. Upon discharge from the hospital in January 2023, E.T. was placed with her maternal aunt, S.T., where she remained throughout the remainder of the dependency proceedings.
Had Father been located and provided notice sooner, during that initial period of time, from mid-November 2022 to March 2023, the record shows that it is unlikely that the outcome would have been any different. Other than visiting E.T. when she was an infant in a fragile medical state, it is unlikely E.T. would have been placed with Father or would have been found to be a Kelsey S. father, because he did not promptly come forward and demonstrate "a full commitment to his parental responsibilities-emotional, financial, and otherwise," during Mother's pregnancy or after he learned E.T. was born, until May 2023. (Kelsey S., supra, 1 Cal.4th at p. 849; In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1117.)
The record shows that Father could have taken action to assert his parental rights before becoming aware of the juvenile dependency proceedings and failed to do so. He knew Mother was pregnant. He knew by the time she was five months pregnant she was going to have their baby. And he was informed of E.T.'s birth six days after she was born. Yet he failed to take any concerted action to assert his parental rights and provide support, financial or emotional, for E.T. for at least six or seven months after E.T.'s birth. Because of this delay, it is highly unlikely the juvenile court would have found that Father qualified as a Kelsey S. father, regardless of any deficiencies in DPSS's search for Father and delay in providing notice of the juvenile dependency proceedings.
In addition, once Father appeared in the proceedings in July 2023, he was given the opportunity to establish he was a Kelsey S. father. The court continued the matter to allow Father to complete paternity testing, and file supplemental briefing and evidence regarding the issue of whether he was a Kelsey S. father. The trial court reasonably found based on the evidence, including Father's testimony, that he did not qualify as a Kelsey S. father because, before E.T.'s birth and afterwards, he did not make a concerted effort to go to Mother's and E.T.'s doctors' appointments. He also did not provide financial support in connection with E.T.'s birth or afterwards, and did not make a concerted effort to visit E.T. after her birth or participate in her care. Although Mother impeded his ability to participate in E.T.'s birth and visit her afterwards, Father took minimal, if any, action, legal or otherwise, to see E.T. and enforce his parental rights until he first appeared in court in July 2023, eight months after E.T.'s birth.
Furthermore, Father did not take any action to address the potential harm to E.T. of Mother's drug abuse during her pregnancy and after E.T.'s birth. Although Father, Mother, and S.T. denied he was aware Mother had a lengthy history of drug abuse, including using fentanyl and other controlled substances throughout her pregnancy and thereafter, the juvenile court could reasonably find Father was aware of Mother's drug abuse because he had been in a relationship with her for at least two years, she admitted using fentanyl every day during that time, and Mother's family was aware she had a serious, obvious drug abuse problem, which prevented her from safely caring for E.T. unsupervised.
Citing A.K., supra, 99 Cal.App.5th 252, Father argues that it is reasonably probable that had DPSS located him sooner and advised him of his rights as an alleged father, he would have stepped forward, obtained counsel, and demonstrated a basis to obtain services as at least a biological father. In In re A.K., the court held that the juvenile court and county health and human services agency violated the father's due process rights to notice and an opportunity to try to establish presumed father status. (A.K., supra, at p. 257.) Minor A.K.'s mother tested positive for controlled substances when A.K. was born in April 2022. The mother told the agency that she had used methamphetamine during her pregnancy. The agency filed a juvenile dependency petition alleging prenatal exposure to methamphetamine, lack of prenatal care, history of substance abuse, and history of arrests for possession of a controlled substance. A.K. was detained in protective custody. D.C. was identified as A.K.'s father. He requested paternity testing, which established that he was not A.K.'s biological father.
In June 2022, the agency learned for the first time from the mother that C.B. might be A.K.'s biological father. The agency listed him in the hearing report as an alleged father and included his address and phone number in the report. In June 2022, the agency sent C.B. a letter and Judicial Council form JV-505, stating that he might be the biological father of A.K., who was a dependent of the juvenile court.
In August, C.B. had a supervised visit with A.K. and completed a paternity test, which established C.B. was A.K.'s biological father. In November, C.B. filed a section 388 petition, requesting visitation and reunification services. The court summarily denied the petition. C.B. filed a second section 388 petition in November, again requesting reunification services, with the goal of reuniting with A.K. C.B. asserted that the mother had not told him she was pregnant, and he was not told that failure to appear at the September paternity hearing and request reunification services would implicate his parental rights. The juvenile court summarily denied C.B.'s second section 388 petition on the ground the issue had already been considered and denied.
At the contested section 366.26 hearing in January 2023, C.B. argued he had not received notice of the jurisdiction hearings, which were scheduled before he was identified as a biological father. C.B. argued that, had he been informed he was A.K.'s biological father, he could have taken steps sooner to become a presumed father. The juvenile court found notice and the opportunity to be heard was satisfied by virtue of the current section 366.26 hearing, and terminated parental rights. C.B. appealed termination of parental rights and the ruling denying his second section 388 petition.
On appeal, the A.K. court held that the agency and juvenile court failed to comply with notice and parentage inquiry requirements at the inception of the proceedings, and that these compound failures deprived C.B. of due process by delaying the discovery that C.B. was A.K.'s biological father. (A.K., supra, 99 Cal.App.5th at p. 266.) In addition, the agency and court clerk failed to adequately inform C.B. of the dependency proceedings and potential consequences of the proceedings, even after he was designated an alleged father and his address was known. (Id. at pp. 266-267.)
A.K., supra, 99 Cal.App.5th 252, is distinguishable in a number of ways. A.K. concerns, in part, the failure early on in the proceedings to ask the mother to identify all alleged fathers. The instant case concerns alleged insufficient efforts to locate an identified biological father. Also, in A.K., the mother did not tell the biological father, C.B., that she was pregnant or that he was the child's father until four months after the child's birth. He therefore had no opportunity to establish, assert, or exercise his paternity rights until he discovered during the dependency proceedings that he might be A.K.'s father.
In the instant case, unlike in A.K., Mother told Father she was pregnant when she was three months pregnant, and Mother and Father assumed Father was E.T.'s biological father. Father did not question this or request a paternity test until July 2023. Unlike in A.K., Father had the opportunity to assert his parental rights and establish he was a presumed father or Kelsey S. father from the time he learned Mother was pregnant and gave birth to E.T. He had the opportunity to establish presumed paternity right after E.T. was born by (1) obtaining a paternity test, (2) making a concerted effort to visit E.T., (3) enforcing his parental rights through the family law court and seeking the assistance of law enforcement, and (4) seeking DPSS's assistance and immediately responding to DPSS's efforts to contact him.
Father knew in January or February 2023, that E.T. was in S.T.'s custody, yet he did not make a concerted effort to visit her there. He did not contact S.T., and did not take any legal action to enforce his parental rights to visit E.T. or obtain custody of her. In addition, there is evidence that Father may have been aware of the juvenile dependency proceedings or involvement of a DPSS social worker as early as March 2023, yet he did not contact DPSS until May 29, 2023, when he texted DPSS and requested visitation.
These circumstances are significantly different than those in A.K., in which the father was not even aware of the mother's pregnancy, the child's birth, or that he might be the child's biological father until four months after the birth. Also, unlike in the instant case, in A.K., the father's address and phone number were available to the court and agency, once he was identified as an alleged father. In A.K., immediately upon the father discovering he was an alleged father, he came forward to assume the legal and practical burdens of being a parent. In the instant case, Father did not do so. Even though he was aware Mother was pregnant and knew six days after E.T. was born that Mother had given birth to E.T., he did not come forward to assume the legal and practical burdens of being a parent until he first appeared in the juvenile dependency proceedings in July 2023, eight months after E.T.'s birth.
A.K. is also procedurally different than the instant case in that Father appealed the post-judgment orders denying his section 388 petition and Kelsey S. status. Unlike in A.K., parental rights have not yet been terminated. Because parental rights have not yet been terminated, there remains the possibility that the juvenile court may authorize visitation and reunification services for Father as a biological Father, which may lead to him becoming a presumed Father and obtaining custody of E.T. The section 366.26 hearing has been stayed pending this appeal, during which the juvenile court may permit Father to visit E.T. Father had the opportunity to fully litigate his parent status at the evidentiary section 388 hearing on November 29, 2023, during which Father testified. Therefore, remand for an evidentiary hearing is not necessary.
The January 17, 2024, minute order states that the juvenile court authorized Father to have additional contact with E.T., and authorized PGM to participate in his visits.
A.K. is inapposite and does not support the proposition that Father's due process rights were violated because of the delay in locating him and providing him with notice of the juvenile dependency proceedings. The notice issue here is whether the DPSS exercised reasonable diligence in locating Father so that he could be given proper notice of the proceedings. (A.K., supra, 99 Cal.App.5th at p. 264.)
We conclude Father's due process rights to notice were not violated and, even if they were, such deficiencies constitute harmless error. Had DPSS diligently searched for Father and given him proper notice of the proceedings before the date of his initial court appearance on July 10, 2023, it is highly unlikely he would have obtained more favorable rulings from the juvenile court. Therefore, any deficiencies in DPSS's search for Father and delays in notifying him of the proceedings were harmless beyond a reasonable doubt.
IV.
KELSEY S. STATUS
Father contends that the juvenile court erred in denying him Kelsey S. status. We disagree.
A. Testimony at the Section 388 Petition Hearing
Father was the only witness who testified at the section 388 petition hearing. Father testified to the following facts.
Father and Mother never married. Mother told Father she was pregnant three months after she got pregnant. After Mother got pregnant, Mother and Father discussed ending the pregnancy. Father gave Mother money for an abortion, but Mother decided to keep the baby. After Father learned Mother had decided to keep the baby, he intended to attend three of Mother's prenatal care appointments but, when he attended one appointment, Mother kicked him out of the room while he was observing E.T. in the womb. Mother said she had a change of feelings and wanted to speak to the doctor privately. On the way home, she told Father she wanted to terminate her pregnancy. Father was aware of only two subsequent prenatal appointments. He was working full time but would have gone to the appointments had Mother wanted him to. Father asked to attend the appointments but Mother told him she did not want him to.
Father and Mother had a long-distance, two-year relationship, in which they traveled back and forth from San Diego. While Mother was pregnant, Father sent her whatever items she said she needed for the baby. He sent her "baby bath, gifts, small things." Father prepared for E.T.'s birth by getting a bigger house and working full time. He worked two jobs at one point to get everything ready. He intended to have a home where E.T. could reside. He still has that home. Father was amenable to having Mother and E.T. live with him and to co-parenting E.T. or sharing custody while living separately. While pregnant, Mother lived with her father (MGF). Father offered to redo her room, to make it a nursery, and to make her home as comfortable as possible.
Mother preferred to communicate with Father by texting. Father preferred phone calls. They communicated both ways until E.T.'s birth approached. Then they became more distant and Mother became hostile toward Father. Father did not have any conversations with Mother's family. After Father found out E.T. was living with Mother's sister, S.T., he asked for S.T.'s phone number but Mother would not give it to him.
Mother did not tell Father E.T.'s due date. Father told her he wanted to attend E.T.'s birth. Mother did not notify him when or where she was giving birth. She told him she would give birth at one of three hospitals, but did not tell him which one. Mother did not tell Father E.T. had been born until a week afterwards. She sent him a "spiteful text" with a picture of the baby. After E.T. was born, Father asked Mother to let him visit E.T. He texted his request, because Mother would sometimes get back to him that way. After receiving Mother's first text that E.T. was born, Father responded by text, saying, "'When can I see her?'" Father made "countless attempts for months." He then contacted attorneys to find out what he could do. Father did not know then that there was a juvenile dependency proceeding pending and E.T. was a dependent of the juvenile court.
Father found out E.T. was living with Mother's sister, S.T., in January or February 2023. This was before Father had any contact with the social worker. He found out about the social worker's involvement around March 2023, when he received Mother's text sharing the social worker's contact information. He waited a couple of weeks to contact the social worker because he had no idea what was going on. He did not know E.T. was in foster care and did not understand why a social worker was involved. When Father first contacted the social worker in May 2023, he requested visits with E.T. Father attempted to contact two attorneys to assist him.
When Father first appeared in court in July 2023, he requested visits with E.T. after he confirmed he was her biological Father. He also requested visits when he was in court in September 2023, and asked the social worker if he could contact E.T.'s caregiver. The social worker told him not to do so. Before E.T. was born, he announced on Instagram he was going to have a baby. He also told everyone after she was born that he was a parent. He identified E.T. as his child. He has the ability to care for her and would like to have custody of her.
On cross-examination, Father testified that when Mother became pregnant, they discussed her pregnancy. Father thought it would be best for Mother to have an abortion. About a week after E.T. was born, Mother texted Father and told him she was born. Father did not know what to do. Father found out E.T. was in foster care when he called the social worker in March 2023, and when he received his first notice from the DPSS of a hearing. Mother provided Father with the DPSS social worker's contact information. The social worker texted Mother and requested Father's personal information. Father did not know who the text was from, so he did not respond until a couple of weeks later. When he had his first telephone conversation with the social worker, she did not identify herself as a social worker or give any reasons for her call.
Other statements in the record indicate that Father's first contact with DPSS was May 29, 2023.
The first time Father came to court was on June 11, 2023. At that time, he did not fill out paternity documentation because he was not yet a father. He also did not fill out a document stating he did not know if he was E.T's father and request a paternity test, because he knew he was her father. However, Father's attorney confirmed that Father filled out a form JV-505. A DNA paternity test was scheduled for Father in July 2023, but he did not attend it because he was sick. He contacted the social worker to let her know. He did not forget the appointment. He told her he did not attend because he had questions for his attorney.
This date appears to be incorrect. Nothing in the record shows Father appeared in court on June 11, 2023. Rather, the record shows he appeared in court for the first time on July 10, 2023.
After E.T. was born, Father did not send Mother any money. Before E.T. was born, he purchased a baby bath and some other small items that Mother had requested, such as a baby bottle, books, and a stuffed animal. After E.T. was born, Father had everything E.T. needed at his house, including a highchair, crib, bottles, food, diapers, and a stroller. Father was led to believe Mother took E.T. home after she was born.
When asked if Father was aware Mother abused controlled substances during his two-year relationship with her, he testified: "I was not. She completely hid it from me. No, I did not know of her substance abuse until the first court date when I got the document of crazy facts on her." In late December or early January 2022, he became aware that E.T. was living with Mother's sister, S.T. Every day he thought about calling the police to assist him in getting custody of E.T., but he did not do so. He also did not take any legal action to obtain custody of E.T. He did not know what steps to take. He wanted visitation with E.T. but did not know what to do. Father did not send S.T. any financial support because he did not have her contact information. Father also did not send Mother any financial support or send a Christmas present for E.T. Mother did not tell Father why E.T. was living with S.T. Father asked but was not given an answer.
The juvenile court asked Father follow-up questions, which he responded to as follows. He learned Mother was pregnant when she was about three months pregnant. Mother told him twice that she had an abortion, when she had not. She told him about eight or ten weeks after he found out she was pregnant. When Mother was about five months pregnant, he knew she did not have an abortion and her pregnancy would continue. When Father went to a prenatal appointment with Mother, he saw an ultrasound of E.T. in Mother's womb. He said that "Changed my world." When asked if at that point Father still wanted to terminate the pregnancy, he replied, "Absolutely not, no."
During cross-examination and redirect examination, Father testified that he was unaware that a father of a newborn baby has visitation rights. He was unaware of any rights. He did not know what to do. He did not have an attorney then. He did not know about the juvenile dependency process. Mother provided Father with a phone number to arrange for visitation. Two weeks later Father called the number and a social worker asked for his personal information.
B. Section 388 Petition Argument and Ruling
No other witnesses testified at the section 388 hearing. The juvenile court noted that the record included Father's certificate of completion of a four-hour parenting skills class completed on November 27, 2023. During oral argument, Father requested the court to find he was a Kelsey S. father and order E.T. placed with him, or order reunification services for him. DPSS and minor's counsel requested the court to reject Father's requests and deny the section 388 petition.
After hearing oral argument, the court stated that it had reviewed Father's section 388 petition, the October 2023 addendum, DPSS's and Father's points and authorities. The court noted that under Kelsey S., In re Elijah V. (2005) 127 Cal.App.4th 576, and Adoption of Baby Boy W. (2014) 232 Cal.App.4th 438, in order to find Father was a quasi-presumed, Kelsey S. father, he must show a willingness and full commitment to provide for the child emotionally, financially, medically, and in any other way possible. Once Father established a commitment to his parental role, then the court must consider how his commitment was thwarted by Mother or by a third party.
The court found that Father knew of Mother's pregnancy and that she was going to keep the baby by the time she was five months pregnant. During the remainder of her pregnancy, Father did not provide Mother with any assistance, other than give her a baby bottle, book, toy, and baby bath. He did not provide any financial assistance. Although Father worked two jobs to improve his housing situation and purchased baby items for his home, it was apparent Mother and Father no longer had a relationship. Therefore, it was unrealistic to think Mother would move into Father's home with E.T. Mother reported that she told Father about her prenatal doctor's appointments but he did not seem interested. He only went to one appointment. Father did not reach out to MGF, with whom Mother lived, to establish a relationship with E.T. In addition, even though he was aware of E.T.'s birth a week after the birth, Father did not attempt to participate in E.T.'s life.
The court noted that, even if Mother led Father to believe that E.T. was with Mother, there would not have been any legal impediment preventing him from going to family court to attempt to obtain visitation and custody. Yet Father did not do so. Father was not aware E.T. was in juvenile dependency custody until May 2023. Regardless, he did not take any affirmative action to visit E.T. or exercise his legal rights before then. He also did not provide any financial support for E.T. after her birth. The court also stated that, although Father contacted Mother numerous times during her pregnancy, there was no indication that he asked to see E.T. after she was born or sought out maternal relatives, even after being informed E.T. was living with S.T.
The juvenile court concluded that Father did not qualify as a Kelsey S. father and therefore denied the section 388 petition because "it doesn't seem that father actively has tried to obtain any information on the child, tried to provide for the child, has done anything to emotionally provide for the child financially, medical, or otherwise, nothing that would fall in line with Kelsey S., with Elijah V., or with the descriptions laid out in Baby Boy W." This court ordered stayed the section 366.26 hearing scheduled for February 22, 2024, pending this court's determination of this appeal.
C. Applicable Law
There are three types of fathers in dependency law, as mentioned above: presumed, biological and alleged. (In re A.H. (2022) 84 Cal.App.5th 340, 349.) Under section 7611, subdivision (d), a person is presumed to be the father of a child if he has married, or has attempted to marry, the child's mother; he has completed a voluntary declaration of paternity; or he has "receive[d] the child into his . . . home and openly holds out the child as his . . . natural child." (§ 7611, subd. (d); Adoption of A.S. (2012) 212 Cal.App.4th 188, 202; Adoption of H.R. (2012) 205 Cal.App.4th 455, 465.)
"'"A father's status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled."' [Citation.]" (In re A.H., supra, 84 Cal.App.5th at p. 349.) A presumed parent is the equivalent of a legal parent. (Ibid.) Presumed parent status "confers 'all the rights afforded to parents in dependency proceedings, including standing, the appointment of counsel, and reunification services.' [Citation.] . . . [¶] Next in order of ranking is a biological father, a man 'who has established his paternity but has not established his qualification as a presumed parent.' [Citation.] 'A court may order reunification services for biological fathers if they are in the child's best interest . . . .' [Citation.]" (Id. at pp. 349-350.)
"The child has a genetic bond with its natural parents that is unique among all relationships the child will have throughout its life. 'The intangible fibers that connect parent, and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility.' [Citation.] It therefore would be curious to conclude that the child's best interest is served by allowing the one parent (the mother) . . . to decide unilaterally that the only other such tie (the father's) will be cut as well. Absent a showing of a father's unfitness, his child is ill-served by allowing its mother effectively to preclude the child from ever having a meaningful relationship with its only other biological parent." (Kelsey S., supra, 1 Cal.4th at p. 848.)
In the landmark California Supreme Court case, Kelsey S., the mother put the child up for adoption and the father sought to prevent adoption by retaining his parental rights. The court in Kelsey S. held that a mother cannot unilaterally preclude her child's biological father from becoming a presumed father, thereby allowing the state to terminate an unwed father's parental rights, based solely on a showing it is in the child's best interests. (Kelsey S., supra, 1 Cal.4th at p. 849.)
"'[D]ue process entitles a biological father a meaningful opportunity to qualify as a presumed father.' [Citation.]" (In re D.S. (2014) 230 Cal.App.4th 1238, 1244; Kelsey S., supra, 1 Cal.4th at pp. 840, 843, 849.) "While Kelsey S. was decided in the context of adoption, appellate courts have extended it to dependency proceedings. [Citation.]" (In re D.S, supra, at p. 1244; In re Julia U. (1998) 64 Cal.App.4th 532, 540-541.) Thus, under Kelsey S., a father who does not qualify as a presumed father under section 7611 "has a constitutional right to establish himself as a quasi-presumed or Kelsey S. father if he 'promptly comes forward and demonstrates a full commitment to his parental responsibilities-emotional, financial, and otherwise....' [Citations.]" (Adoption of Baby Boy W., supra, 232 Cal.App.4th at p. 442.)
In reaching its holding, the court in Kelsey S. states that, "[i]f an unwed 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. Absent such a showing, the child's well-being is presumptively best served by continuation of the father's parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother." (Kelsey S., supra, 1 Cal.4th at p. 849.)
In the dependency context, this means that a biological father is entitled to presumed father status if he satisfies the requirements of Kelsey S. In determining whether a biological father has met the Kelsey S. requirements, courts consider all relevant factors, including "the father's conduct both before and after the child's birth" and whether he "promptly attempted] to assume his parental responsibilities as fully as the mother [would] allow and his circumstances permit[ted]." (Adoption of Baby Boy W., supra, 232 Cal.App.4th at p. 440, italics added.) "[T]he father must demonstrate 'a willingness himself to assume full custody of the child-not merely to block adoption by others.'" (Kelsey S., supra, 1 Cal.4th at p. 849.) "'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.'" (In re D.S., supra, 230 Cal.App.4th at p. 1244; quoting Kelsey S., supra, 1 Cal.4th at p. 849.)
D. Standard of Review
"'The burden is on a biological father who asserts Kelsey S. rights to establish the factual predicate for those rights.'" (Adoption of Baby Boy W., supra, 232 Cal.App.4th at p. 452; see also In re D.S., supra, 230 Cal.App.4th at p. 1244.) "[W]e review the trial court's decision under the substantial evidence test, viewing 'all factual matters most favorably to the prevailing party and in support of the judgment, indulging all reasonable inferences and resolving all conflicts accordingly.' [Citation.] 'We do not evaluate the credibility of witnesses, attempt to resolve conflicts in the evidence or determine the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the . . . court's order and affirm the order even if there is other evidence supporting a contrary finding.' [Citation.]" (Adoption of Baby Boy W., supra, at pp. 452-453.)
Although the substantial evidence standard of review applies to the juvenile court's factual findings, the de novo standard of review applies to the mixed question of law of whether those facts satisfy the legal standard established by Kelsey S. (In re D.S., supra, 230 Cal.App.4th at p. 1245; see also Adoption of Baby Boy W., supra, 232 Cal.App.4th at p. 453, fn. 14.)
E. Analysis
Initially, in November 2022, at the beginning of the juvenile dependency proceedings, Father was identified as an alleged Father, but he could not be located. After he was located in June 2023, and he completed paternity testing in September 2023, the dependency court found during the section 388 petition hearing in November 2023, that Father was a biological father, but not a Kelsey S. father.
In Kelsey S., the court noted that the threshold constitutional question is whether the father "demonstrated a sufficient commitment to his parental responsibilities." (Kelsey S., supra, 1 Cal.4th at p. 850.) In Kelsey S., as in this case, the father and the prospective adoptive parents sharply disagreed on that question, and the evidence was conflicting as to the father's efforts to fulfill his responsibilities, especially during the period before the child's birth. (Kelsey S., supra, 1 Cal.4th at p. 850.)
The Kelsey S. court therefore concluded "the more prudent approach [was] to remand to the trial court to make the determination in the first instance. In doing so, the trial court must take into account [father's] conduct throughout the period since he learned he was the biological father, including his conduct during the pendency of this legal proceeding, both in the trial and appellate courts, up to the determination in the trial court on remand by this court." (Kelsey S., supra, 1 Cal.4th at p. 850.) The Kelsey S. court recognized that during the juvenile dependency proceedings, the father "may have been restricted, both legally and as a practical matter, in his ability to act fully as a father. Nevertheless, the trial court must consider whether petitioner has done all that he could reasonably do under the circumstances." (Kelsey S., supra, 1 Cal.4th at p. 850.)
Here, the record supports the juvenile court's determination that Father did not demonstrate a sufficient commitment to his parental responsibilities. (Kelsey S., supra, 1 Cal.4th at pp. 850.) It was not until eight months after E.T. was born that he asserted his parental rights by appearing in the juvenile dependency proceedings. By that time, E.T. had received two months of hospital care for her severe withdrawal symptoms from fentanyl exposure and had bonded with her caretaker, S.T., who had visited her in the hospital, provided a safe, loving home upon E.T.'s discharge from the hospital, took E.T. to doctors' appointments, and was willing to provide a permanent home for E.T. During that time Father did not make a concerted effort to see E.T., and did not assist with her care or provide financial support of any kind.
Father testified he knew Mother was pregnant when she was three months pregnant, and that she was going to keep the baby when she was five months pregnant. He learned of E.T.'s birth six days after her birth. Father testified he also knew in March 2023, that a social worker was involved, and knew in late December or early January 2023, that E.T. was living with S.T., and not with Mother.
We recognize there is conflicting evidence as to whether, and to what degree, Mother impeded Father from visiting E.T. and exercising his parental rights. However, unlike in Kelsey S., the juvenile court continued the proceedings to allow Father to confirm he was a biological father and held a paternity hearing during the section 388 petition hearing to determine whether Father was a Kelsey S. father. During the hearing, Father failed to establish that he came forward and asserted his parental rights at the earliest possible moment. There is therefore no need to remand for that purpose, as was done in Kelsey S. During the section 388 petition hearing on November 29, 2023, the trial court appropriately considered all relevant evidence on the issue and reasonably found based on the record as a whole that Father did not "sufficiently and timely demonstrate[] a full commitment to his parental responsibilities." (Kelsey S., supra, 1 Cal.4th at p. 849.)
The juvenile court's statement of its reasons for denying Father's section 388 petition and Kelsey S. status demonstrated that the court appropriately considered and reasonably found that Father did not qualify as a Kelsey S. father based on Father not fulfilling his responsibilities during the period before and after E.T.'s birth. The court's statement explaining its ruling showed that the court appropriately took into account Father's conduct throughout the period from the time he found out Mother was pregnant with E.T. We, therefore, conclude the juvenile court did not err in denying Father's section 388 petition and Kelsey S. status.
V.
DISPOSITION
The orders on November 29, 2023, denying the section 388 petition and Kelsey S. status are affirmed.
We concur: McKINSTER Acting P. J., FIELDS J.