Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Stephen Marpet, Commissioner., Los Angeles County Super. Ct. No. CK15366.
Merrill Lee Toole, for Defendant and Appellant C.Y.
Kimberly A. Knill, under appointment by the Court of Appeal, for Appellant B. Y.
Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel and Kim Nemoy, Senior Deputy County Counsel for Plaintiff and Respondent.
MANELLA, J.
Appellant minor B.Y. was brought under dependency jurisdiction at birth due to the presence of cocaine in his body. The Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300 naming his mother, Tiffany S., as the offending parent. As no parent appeared at the jurisdictional/dispositional hearing, no reunification services were provided, and although appellant C.Y. intervened and sought to obtain custody as the father of the minor, the matter proceeded relatively quickly to termination of parental rights.
There is no name on the minor’s birth certificate, and he was identified in the DCFS petition as “Baby Boy S[.]” Because he has been given the name B.Y. and the parties referred to him by that name during the proceedings and in their briefs on appeal, we also refer to him by that name.
Unless otherwise specified, statutory references are to the Welfare and Institutions Code.
C.Y. contends that he is the child’s father and that the juvenile court violated his due process rights to the companionship, care, custody and management of his child by terminating his parental rights when he had never been found to be an unfit parent. C.Y. further contends that the court abused its discretion in denying his section 388 petition to be awarded custody of B.Y., and that the court erred in concluding that none of the statutory exceptions to termination of parental rights applied. B.Y., through counsel, joins in C.Y.’s contentions and further argues that the court abused its discretion by refusing to continue the section 366.26 hearing and by summarily denying a section 388 petition submitted by his mother, Tiffany. B.Y. also contends that the court erred in failing to consider the sibling exception to termination of parental rights based on his relationship with a sibling, Marguerite Y.
Tiffany is not a party to this appeal.
Respondent concedes that the section 366.26 order should be reversed, but otherwise contests B.Y.’s arguments. Further, respondent asserts we need not consider some or all of C.Y.’s contentions on appeal because he was an alleged father only, and failed to challenge earlier orders that denied him presumed father status.
Addressing the latter argument first, our review of the record leads us to conclude the court never unambiguously ruled that appellant was not a presumed father, but instead accorded appellant the rights of a presumed father at various times during the proceedings, including the right to seek custody of B.Y. through a petition for modification. Accordingly, appellant was not aggrieved by any earlier orders and had no obligation to appeal them. With respect to the substance of the appeals, we conclude: (1) the juvenile court abused its discretion in denying C.Y.’s section 388 petition; (2) the court did not abuse its discretion in denying Tiffany’s section 388 petition; and (3) the court’s section 366.26 order terminating parental rights was premature and issued without proper notice. We therefore reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention and Pre-Release Investigation
B.Y. was born in April 2006 with a positive toxicology screen for cocaine. His mother, Tiffany, had a long history of substance abuse and had lost custody of five older children born between 1988 and 2004. As soon as the infant was released from the hospital, he was sent to reside with a foster parent, Pamela D. Due to Tiffany’s history and the lack of any immediate information concerning the father, DCFS’s report, prepared for the April 26, 2006 detention hearing, recommended no family reunification services.
It should be noted that C.Y. was the recognized father of Tiffany’s next youngest child, Marguerite, born two years earlier, and he had successfully reunified with her after DCFS intervention. Why DCFS made no attempt to contact C.Y. to determine whether he was B.Y.’s father is unclear.
The day after the detention hearing, C.Y. contacted DCFS, identified himself as the father, and asked that his mother, Barbara N., be permitted to care for B.Y. The case worker noted that C.Y. had custody of Tiffany’s older child, Marguerite, and that Barbara had been “a predominant presence in [Marguerite’s] life.” C.Y. informed the case worker he would be unable to attend the next scheduled hearing, a pre-release investigation (PRI) hearing to determine whether to release B.Y. to Barbara, because he would be transporting Barbara to DCFS offices so that she could submit to a live scan and obtain clearance for transfer of custody. C.Y. further informed the case worker that he would attend the jurisdictional/dispositional hearing scheduled for May 24, 2006, at which time he intended to inform the court that he held B.Y. out to be his child.
Marguerite had been removed from the custody of her parents because both were using drugs. However, C.Y. successfully completed reunification, and Marguerite was returned to his custody.
On May 3, 2006, the court conducted the PRI hearing to determine whether to give Barbara custody of B.Y. (See § 361.3.) At the hearing, an attorney who had represented C.Y. in a related case requested appointment to represent C.Y. in connection with B.Y. The court denied the request, as C.Y. had not yet made an appearance. The court placed B.Y. with Barbara. Within a few days of the placement, however, DCFS submitted an ex parte application to remove B.Y. from Barbara’s care after discovering that Barbara was on probation for a drug offense. The court granted the application, and B.Y. was returned to Pamela.
B. Jurisdiction/Disposition
In the jurisdiction/disposition report, the case worker again stated that C.Y. “believes he is the father of [B.Y.]” and “will hold [the] child out to be his own.” C.Y. had contacted DCFS and explained he was in the process of moving and would be prepared to take custody of B.Y. after he “settle[d] in.” The report recommended that C.Y. receive family reunification services with the goal of regaining custody. The case worker noted that C.Y. was “a non-offending parent and currently cares for one of [B.Y.’s] older siblings” and that “[n]o allegations of abuse or neglect were reported [with respect to C.Y.,] and no petition has been filed against him.” However, it seemed appropriate “to allow [him] time to complete his move and create a more stable environment prior to releasing [B.Y.] to [C.Y.].” The case worker estimated C.Y. would be ready to regain custody in approximately two months.
Notice of the hearing was sent to C.Y. at an address on West 41st Street in Los Angeles, that the jurisdictional/dispositional hearing would be held on May 24, 2006. He did not, however, attend. The court, after finding all the allegations of the petition true, denied reunification services to either parent and set a section 366.26 hearing for September 19. With respect to C.Y., the court stated: “[N]o [family reunification] as he is an alleged father only.”
The petition essentially alleged that B.Y. was born with a positive toxicology screen for cocaine, having been put in that condition by Tiffany, and that Tiffany had a 12-year history of substance abuse which caused the loss of five older children.
C. July 2006 Review Hearing
In June 2006, C.Y. contacted the case worker and advised her that he and Tiffany were living with Marguerite at the San Fernando Valley Rescue Mission in North Hollywood. The case worker went to that location to give C.Y. and Tiffany personal notice of the section 366.26 hearing.
The court held a review hearing on July 19, 2006. At that time, DCFS reported that B.Y. had been placed with a new foster mother, Eleshia W. C.Y. appeared at the review hearing and the court appointed counsel to represent him. At the request of counsel, the court conducted a brief paternity inquiry. Tiffany stated that although she was not married to C.Y. nor living with him at the time of B.Y.’s birth, he was B.Y.’s father and there was no one else who could be the father. She stated that C.Y. had provided support for the child during the brief period he was in Barbara’s custody. C.Y. stated he had also provided financial assistance to Tiffany during the pregnancy. The child’s attorney expressed no objection to C.Y. being named presumed father, but DCFS objected, contending C.Y. did not meet the requirements for presumed father status. The court stated: “At this point, father is an alleged father only.” As the hearing progressed, the court ordered two-hour, twice-a-week monitored visitation for C.Y. with B.Y., with DCFS discretion to liberalize. The court also inquired whether C.Y. had Native American heritage and, on being informed that he might have Cherokee ancestry, ordered DCFS to notify all potentially affected tribes.
The court also asked whether C.Y. was listed as the father on the birth certificate. Tiffany stated that she had not filled out a birth certificate request. When the birth certificate was later located, there was no father named on it.
At the review hearing, C.Y. and his counsel claimed that DCFS had made no due diligence attempts to locate C.Y. prior to the jurisdictional/dispositional hearing and that the address on West 41st Street to which notices had been sent was incorrect. The court urged counsel to “fil[e] whatever you need to file to assist him . . . ” and promised to “address all those things when you file your appropriate motion.”
The court’s written order of July 19, 2006, nowhere reflected a ruling that C.Y. was an alleged father only. To the contrary, C.Y. was identified as B.Y.’s “father”; the order noted that an attorney had been appointed to represent him and that he had been granted visitation, with authority for DCFS to liberalize. Additionally, the order stated: “[B.Y.’s] father appears in court and indicates a desire to reunite and or have extensive contact with his son. The court is also informed that [C.Y.] has custody of a sibling. DCFS is to further investigate [B.Y.’s] father as to his background and has discretion to allow him appropriate visitation. DCFS to also investigate [B.Y.’s] father’s possible Native American-Cherokee Indian heritage background with proper [Indian Child Welfare Act (ICWA)] notices to be given.” The order did not instruct the clerk to give any notices under section 316.2 or Rule 5.635 of the rules of court.
Section 316.2 states that the juvenile court “shall inquire” at the detention hearing “or as soon thereafter as practicable” as to the identity of “all presumed or alleged fathers.” (§ 316.2, subd. (a).) If “one or more men are identified as an alleged father,” the court is to ensure written notice is provided to each alleged father, and that included with that notice is a copy of “Judicial Council form Paternity-Waiver of Rights (JV-505).” (§ 316.2, subd. (b).) The form affords an alleged father the opportunity, among other things, to request that the court conduct paternity testing or enter a judgment of paternity. (See In re Paul H. (2003) 111 Cal.App.4th 753, 763.) Rule 5.635 similarly states “[t]he juvenile court has a duty to inquire about and, if not otherwise determined, to attempt to determine the parentage of each child who is the subject of a petition . . .,” and that such inquiry shall be made “[a]t the initial hearing . . . and at hearings thereafter until or unless parentage has been established . . . .” (Rule 5.635, subds. (a) and (b).) Failure to comply with these procedures -- and in particular failure to serve form JV-505 -- may constitute ground for reversal of an order terminating parental rights in an appeal by the alleged father. (In re Paul H., supra, 111 Cal.App.4th at p. 761; accord, In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1119.)
D. Tiffany’s Section 388 Petition
In September 2006, B.Y. was placed with a third foster mother, Kimberley T., who expressed willingness to adopt. According to the DCFS section 366.26 report, C.Y. had visited B.Y. only three times since the court granted visitation on July 19. The report stated “[t]he [c]ourt has not made any paternity findings” and recommended termination of parental rights and adoption as the permanent plan.
On September 19, 2006, the day scheduled for the section 366.26 hearing, Tiffany filed a section 388 petition for modification, seeking reunification services. Tiffany alleged she had been enrolled in a drug treatment program since May 2006 and shown good progress. In addition, she had enrolled in a parenting class. At the September 19 hearing, Tiffany’s counsel stated that the parents had had difficulty arranging visits with B.Y. when he was with Eleshia and that visitation had become easier since the child was moved to Kimberly’s home. Prior to denying Tiffany’s petition summarily, the court inquired why there had been no section 388 petition from C.Y. Counsel for Tiffany indicated this was due to the confusion concerning C.Y.’s paternity status.
The court continued the section 366.26 hearing to December 11, 2006, primarily to ensure that all necessary Native American tribes had been given proper notice in accordance with C.Y.’s claim to have Cherokee ancestry. The court also stated that DCFS was to ensure “the mother and father” were permitted visitation and gave DCFS discretion to place B.Y. “with any appropriate relative, including father.”
E. C.Y.’s Section 388 Petition
In October 2006, C.Y. filed a section 388 petition seeking either to have B.Y. placed with him outright or to have overnight, unmonitored visitation. His moving papers established he had suitable housing, was employed full-time, had pre-approved day care arranged with his mother, and had been visiting B.Y. weekly. The court set a hearing on the petition for December 11, 2006, the same date previously selected for the section 366.26 hearing.
In December 2006, DCFS filed a second section 366.26 report. According to the report, C.Y. and Tiffany were residing in a sober living facility, which the case worker did not believe constituted “the right conditions for returning a child . . . .” The case worker also questioned the parents’ “history of substance abuse” and “transient lifestyle,” as well as C.Y.’s decision to reside with Tiffany, “the offending parent.” The report stated that B.Y. had “only recently had regular contact with parents,” and that the parents had not visited during the month of September and part of October, although they had visited approximately twice weekly since then.
At the December 11, 2006 hearing, the court ordered DCFS to investigate C.Y.’s living conditions and to prepare a report specifically addressing C.Y.’s petition. The case worker had not assessed the home by the next scheduled hearing date, January 31. The court put the hearing over another week, to February 7. At the January 31 hearing, the court stated to C.Y.: “You don’t need to come back. I’m going to get a report from [DCFS] telling me they have come out, assessed your home, it is great, then we will make a determination [where] to place the child and under what circumstances.” The court warned C.Y. that “mother may have to move out until her matter is resolved [and] the social worker can address that when we come back at the next hearing.”
C.Y. contended, and DCFS did not deny, that the case worker had made an appointment to see his residence, but failed to appear at the appointed time.
In early February 2007, after inspecting C.Y.’s residence at the sober living facility, the case worker filed an interim review report. In it, the home was described as “nice and clean.” However, the case worker continued to believe a sober living facility was not an appropriate place for a child and expressed concern about potential danger to B.Y. from a pool located on the premises. Both C.Y. and Tiffany reported being employed. But the case worker was unable to verify certain facts with respect to Tiffany, including her enrollment in parenting classes and her employment status. The case worker was able to confirm Tiffany’s continued enrollment in counseling. The report noted that the parents had visited B.Y. weekly since October. The case worker recommended that C.Y.’s petition be denied at the February 7 hearing and that the matter be continued to June 19 for a section 366.26 hearing.
The report noted that a child would have to pass through two doors to reach the pool, one of which was triple locked.
At the February 7, 2007 hearing, C.Y. submitted a declaration of paternity dated January 23. The attorney for B.Y. joined C.Y. in urging the court to grant C.Y.’s section 388 petition, stressing that he was non-offending and brought himself forward at an early point in the proceedings. The minor’s attorney asked that a second section 388 petition filed by Tiffany be put over for a further report on progress. DCFS urged the court to deny C.Y.’s petition based primarily on the visitation history, specifically, no visitation for the first three months after B.Y.’s birth, four visits in his first six months and, according to counsel, only 12 visits over the child’s lifetime. C.Y. protested that early on, he was unaware of B.Y.’s location and unable to find out from DCFS. He also contended that he missed the dispositional/jurisdictional hearing because he was confused about the date, and that when he called DCFS to find out what he should do, he was instructed to go to court on the next scheduled hearing date. The court stated that C.Y. could instead have “call[ed] up the clerk, call[ed] up social workers, . . . com[e] to court, bang[ed] on doors, [gotten] this matter walked on . . . if he were a father that wanted his kid back.” The court denied the petition, giving the following reasons: “It is not in this minor’s interest at this time because [C.Y.] has not made a sufficient effort to connect with this child over the nine months of this child’s life . . . [C.Y.’s] visits have been a little more than once a month [for] the child’s life. It is certainly inadequate to rise to the level, and it is, therefore, not in the minor’s best interest.” The court further stated: “I made a finding [previously], and I still make the finding that [C.Y.] is an alleged father and nothing more than an alleged father.”
On January 31, 2007, Tiffany had filed a second section 388 petition. She alleged that she had completed an 8-month drug treatment program, testing clean throughout, participated in a parenting class, maintained full-time employment, and consistently visited with B.Y. twice a week. The court denied the petition summarily at the February 7 hearing.
The court then turned to permanency planning. The attorney for the minor argued that it would be inappropriate to terminate parental rights at that time, pointing to DCFS’s final report. Tiffany’s attorney pointed out that the home study had not been completed. The court overruled these protests and announced the hearing would go forward. Called to testify concerning visitation, C.Y. said he, Tiffany, and Marguerite had been visiting B.Y. twice a week for two to four hours even though each visit required three hours of travel time. During the visits, they played with B.Y., fed him, and changed his diaper. Prior to September, B.Y.’s foster parent made visiting difficult to arrange. The court issued an order terminating parental rights.
In making the order, the court stated: “I know that they are making attempts to visit the child as much as was allowed by court order, which indicated two hours, twice a week as a minimum. It is clear that they have made attempts to keep as much contact as they could with the child.”
DISCUSSION
I
C.Y.’s Appeal
C.Y. contends that the juvenile court violated due process by terminating his parental rights over B.Y. despite the fact that he was never found to be an unfit parent; that the court abused its discretion in denying his section 388 petition; and that the court erred in concluding that none of the statutory exceptions to termination of parental rights applied. Respondent contends we need not consider C.Y.’s constitutional arguments because he was only an alleged father and failed to challenge the court findings to that effect at the May 24, 2006 jurisdictional/ dispositional hearing or at the July 19, 2006 review hearing. Moreover, although respondent does not mention this in its brief, if C.Y.’s status was solely that of an alleged father, he had no standing to assert a right to immediate custody as he did in his section 388 petition, or to contest the section 366.26 hearing. (See, e.g., In re Zacharia D. (1993) 6 Cal.4th 435, 451 [“[O]nly a presumed father is entitled to custody of his child”]; In re Eric E. (2006) 137 Cal.App.4th 252, 262 [“‘An alleged father is entitled to notice so that he may change his paternity status, but he has no standing to challenge other orders.’”]; In re Christopher M. (2003) 113 Cal.App.4th 155, 159-160 [alleged father not entitled to contested section 366.26 hearing].) Accordingly, before we can address the issues raised by C.Y., we must first determine his parental status and whether his failure to appeal from an earlier order dooms his current appeal.
A. C.Y.’s Parental Status and Timeliness of His Appeal
“‘Dependency law recognizes three types of fathers: presumed, alleged and biological.’” (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120, quoting In re T.R. (2005) 132 Cal.App.4th 1202, 1208.) A biological father is one whose paternity is established, but who does not qualify as a presumed father. (In re Kobe A., supra, at p. 1120.) To be a presumed father, a man must meet certain criteria. (Ibid.; see Fam. Code §§ 7540, 7571, 7611; Rule 5.635(b).) An alleged father is a man who may be the father, but has not yet established himself as either a biological father or a presumed father. (In re Kobe A., supra, at p. 1120.)
The distinction is important because under the Welfare and Institutions Code, only a presumed father is entitled to custody or a reunification plan. (In re Zacharia D., supra, 6 Cal.4th at p. 439; In re Kobe A., supra, 146 Cal.App.4th at p. 1120; In re Paul H., supra, at p. 760; In re O.S. (2002) 102 Cal.App.4th 1402, 1406-1407.) An alleged father is not entitled even to appointed counsel, except for the purpose of establishing presumed fatherhood. (In re Kobe A., supra, at p. 1120; In re Paul H., supra, at p. 760.) Indeed, it is generally said that an alleged father’s rights are limited to “an opportunity to appear and assert a position and attempt to change his paternity status . . . .” (In re Kobe A, supra, at p. 1120; accord, In re Paul H., supra, at p. 760; In re O.S., supra, at p. 1408.)
As noted in In re Kobe A., “[t]he court may provide reunification services to a biological father, if it determines that the provision of services will benefit the child.” (146 Cal.App.4th at p. 1120.)
Respondent contends that C.Y. should have sought writ review of the order issued after the May 24, 2006 jurisdictional/dispositional hearing at which the court denied reunification services and first characterized C.Y. as an alleged father. Respondent overlooks the basic principle that only parties of record may appeal a court order. (County of Alameda v. Carlson (1971) 5 Cal.3d 730, 736; In re Paul H., supra, 111 Cal.App.4th at p. 759; In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) “An alleged father in a dependency proceeding does not become a party ‘until he appear[s] and assert[s] a position.’” (In re Paul H., supra, 111 Cal.App.4th at p. 759, quoting In re Emily R. (2000) 80 Cal.App.4th 1344, 1356; see In re Zacharia D., supra, 6 Cal.4th at p. 454 [father not entitled to custody or reunification services until he attains presumed status, and if reunification period has terminated, he must file a section 388 petition to attain that status]; In re Eric E., supra, 137 Cal.App.4th at p. 258 [request for presumed father status after expiration of reunification period made by filing section 388 petition].) C.Y. was not a party to the proceedings at the time of the jurisdictional/ dispositional hearing and therefore had no standing to seek a writ reversing the May 24, 2006 order.
C.Y. entered an appearance for the first time and affirmatively sought presumed father status at the July 19, 2006 review hearing. There, C.Y. and Tiffany presented uncontradicted evidence that C.Y. was B.Y.’s father. The parties operate under the assumption that the court unequivocally denied C.Y.’s request and permanently relegated him to alleged father status. This assumption gives rise to respondent’s alternate contention that C.Y.’s failure to appeal the July 19, 2006 order precludes our consideration of the issues raised in his appeal.
It is true that the court stated during the July 19 hearing that “[a]t this point, father is an alleged father only.” However, other rulings by the court belied that statement. For example, the court appointed counsel for C.Y., without limiting the representation to challenging his parental status. In addition, it granted C.Y. regular visitation with B.Y. and gave DCFS discretion to liberalize visitation. None of these rights are generally accorded alleged fathers. (See In re Kobe A, supra, 146 Cal.App.4th at p. 1120; In re Paul H., supra, 111 Cal.App.4th at p. 760; In re O.S., supra, 102 Cal.App.4th at p. 1408.)
The written order dated July 19, 2006 further contradicted the court’s statement on the record. The order nowhere stated that C.Y. was an alleged father. Rather, it repeatedly identified C.Y. as B.Y.’s “father” and instructed DCFS to (1) investigate his background and exercise its discretion with respect to allowing him liberalized visitation and (2) investigate his claim of Native American ancestry.
The court’s subsequent actions and statements added to the confusion. At the September 19, 2006 hearing at which Tiffany’s first section 388 petition was denied, the court inquired why C.Y. had not filed a section 388 petition of his own. At that hearing, the court also agreed that DCFS was to ensure that “mother and father” were permitted visitation and gave DCFS discretion to place B.Y. “with any appropriate relative, including father.” In October 2006, when C.Y. submitted his section 388 petition seeking custody or overnight visitation, the court did not summarily deny it based on his status, but ordered a full hearing, which the court put over several times to give DCFS time to address the substance of the petition. During this period, the court indicated it was likely to give custody to C.Y. if DCFS approved his housing situation and Tiffany moved out. As an alleged father has no right to custody (In re Zacharia D., supra, 6 Cal.4th at p. 451), the court’s actions suggested that C.Y. had achieved presumed father status either in his petition or at some earlier point in the proceedings.
Finally, there is the question of the court’s inaction. If the court believed C.Y. was an alleged father only, it had an affirmative obligation under section 316.2 and Rule 5.635 of the rules of court to conduct an inquiry to establish paternity by, among other things, providing him a “Statement Regarding Paternity (Juvenile-Dependency) (form JV-505)” and an opportunity to request a paternity test or a judgment of paternity. The fact that the court did not fulfill this statutory duty supports our conclusion that there had been no final determination of C.Y.’s status.
Under the circumstances, it cannot be said that C.Y.’s rights were so obviously and negatively affected by the July 19, 2006 order he had an immediate obligation to appeal. (See County of Alameda v. Carleson, supra, 5 Cal.3d at pp. 736-737 [right to appeal limited to those legally aggrieved by a judgment; “[o]ne is considered ‘aggrieved’ whose rights or interests are injuriously affected by the judgment”].) The order was unclear for the reasons discussed. Even had the order unambiguously conveyed the conclusion that C.Y. was an alleged father only, the court’s comments at the July 19 and September 19 hearings indicated that the court was willing to consider a section 388 petition from C.Y. and modify its orders concerning C.Y.’s parental status and B.Y.’s custody based on new information. C.Y. and his counsel cannot be faulted for seeking modification in accordance with the court’s invitation rather than pursuing an immediate appeal. Accordingly, we do not view C.Y.’s failure to appeal the July 19, 2006 order as depriving him of his right to pursue the instant appeal.
Ordinarily, the remedy for a juvenile court’s failure to undertake its affirmative obligation to give proper notice to an alleged father, present him with the proper forms, and ensure that his status is definitively resolved, is to reverse and remand for a hearing on fatherhood status. (See, e.g., In re Paul H., supra, 111 Cal.App.4th at p. 761 [order terminating parental rights reversed and matter remanded where alleged father appeared at jurisdictional hearing but neither court nor DCFS assisted him in obtaining paternity test or provided form JV-505]; In re Baby Boy V., supra, 140 Cal.App.4th at p. 1119 [order terminating parental rights reversed and matter remanded where alleged father first learned of baby’s birth and contacted DCFS on eve of section 366.26 hearing, and court refused to continue matter or order paternity testing].) Here, however, there is no basis for denying C.Y. presumed father status. At the July 19, 2006 review hearing, both he and Tiffany stated on the record that he was B.Y.’s father and was the only man who could be the father. He is the acknowledged father of B.Y.’s youngest sibling, Marguerite, of whom he has had custody for some time. He repeatedly informed DCFS that he was B.Y.’s father. Although he was not living with Tiffany at the time of B.Y.’s birth, he began living with her and supporting her within a few months. Finally, to the extent there was room for any doubt that he met the criteria for presumed father status, it is undisputed that he signed and presented to the court a declaration of paternity on February 7, 2007. Accordingly, we conclude that C.Y. was entitled to presumed father status at the time of the hearing on his section 388 petition.
B. C.Y.’s Section 388 Petition
We now turn to the substance of C.Y.’s appeal and the court’s order denying his section 388 petition for modification. Section 388 provides in pertinent part: “(a) Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [¶] . . . [¶] (c) If it appears that the best interests of the child may be promoted by the proposed change of order . . . or termination of jurisdiction, the court shall order that a hearing be held . . . .” The juvenile court’s task at a section 388 hearing is to determine whether the petitioner has demonstrated by a preponderance of the evidence that there was a change in circumstances requiring that in the child’s best interests, the prior orders be modified. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.) The task of the appellate court is to determine whether the court abused its discretion. (Ibid.)
To succeed in a section 388 petition, “[t]he parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) “[B]est interests is a complex idea” and “a one-dimensional ‘better household’ test” cannot be dispositive despite the “obvious attractiveness of insuring that the child remains with highly functional caretakers.” (Id. at p. 530.) In Adoption of Kelsey S. (1992) 1 Cal.4th 816, the Supreme Court examined what “best interests” means in the case of an unwed father who has not been proven unfit. In that situation, courts cannot “merely assume, either as a policy or factual matter, that adoption is necessarily in a child’s best interest” (id. at p. 845) because in this society, we do not take children away from their parents “because a ‘better’ adoptive parent can be found” (id. at p. 846). “The child has a genetic bond with its natural parents that is unique among all relationships the child will have throughout its life.” (Id. at p. 848.) Therefore, “[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.” (Id. at p. 849, italics added.) In making the best interests determination, the court considers “whether [the father] has done all that he could reasonably do under the circumstances” and “demonstrate[d] [a] commitment to his parental responsibilities.” (Id. at p. 850, italics omitted.)
In a supplemental letter-brief, respondent contends that the recent case, In re P.A. (2007) 155 Cal.App.4th 1197 supports the proposition that parental rights may be terminated where the father is non-offending and unnamed in the jurisdictional petition. In re P.A. involved a father who was absent from his child’s life for many years and ignored repeated notices from DCFS after the minor was detained from the mother. He first appeared in court around the time of the section 366.26 hearing, after the child had spent years in DCFS custody. The court of appeal concluded the father had forfeited all notice-related issues by failing to raise them in the juvenile court, and that the juvenile court’s finding that return of the minor to either of her parents would be detrimental supported the order terminating parental rights despite the absence of any jurisdictional finding related to the father. Nothing in the case or the court’s holding assists us here.
When he filed his section 388 petition, C.Y. was the non-offending presumed father of B.Y. As he had initially requested that custody be given to Barbara because he did not have suitable housing, the only issues to be explored at the hearing on his section 388 petition were whether the housing he had arranged was suitable for the child and whether he had demonstrated a commitment to B.Y.
Regarded as a whole, the record does not support a finding that C.Y. failed to demonstrate diligence in asserting his parental rights to B.Y. He presented himself to DCFS the day after the detention hearing. He provided support to Tiffany while she was pregnant and assisted Barbara during the short period she had custody. He missed the PRI hearing for good reason -- he was taking Barbara to DCFS offices for a live scan. He had no reason other than confusion for missing the dispositional/jurisdictional hearing. However, he contacted DCFS shortly afterward and followed the instructions given him to attend the next court hearing, which was only a month away. At the July 19, 2006 hearing, the court issued the ambiguous ruling concerning parental status discussed above, and invited an “appropriate motion” from C.Y. While C.Y. did not file a petition seeking custody until October, as counsel explained, this was due in large part to confusion about his status. In the interim, he attempted to bring his family together by reuniting with Tiffany and supporting her efforts to live substance-free. As there was little doubt that DCFS would object to C.Y.’s bringing B.Y. into a household that included Tiffany, it made sense to first seek reunification services for her, which was accomplished by way of a petition for modification filed on her behalf in September. C.Y.’s petition for modification was filed within a month after denial of Tiffany’s first petition. Delay in addressing his petition was caused not by C.Y., but by DCFS’s failure to promptly investigate the circumstances alleged in his petition.
In denying the petition, the court focused primarily on visitation, stating that C.Y. had not made “a sufficient effort to connect with this child over the nine months of this child’s life . . .” The court overlooked that C.Y. was not accorded any right to visit B.Y. until its order of July 19, 2006. At that point, according to uncontradicted testimony, Eleshia, in whose care B.Y. was at the time, made little or no effort to accommodate visitation by the parents. Once B.Y. was moved to a new foster home, his parents visited consistently, despite the distance and time involved. The court later contradicted its own finding regarding visitation by acknowledging in connection with the ruling on termination of parental rights that C.Y. and Tiffany were “making attempts to visit the child as much as was allowed by court order [and] to keep as much contact as they could with the child.” Accordingly, we cannot conclude that the court’s findings supported the order.
As to whether C.Y.’s housing was suitable, DCFS had two objections: the swimming pool located in the facility and the presence of Tiffany in the home. The first was specious. A parent, particularly a non-offending parent, need not remove all possible safety hazards prior to obtaining custody of his or her own child. The objection to Tiffany had more merit. Given Tiffany’s history of substance abuse, DCFS had legitimate reasons for being concerned about her presence in the household. (See In re Zacharia D., supra, 6 Cal.4th at p. 455 [father’s plan to marry mother “a woman whose care of [the child] had already been adjudicated detrimental to his well-being” was one among many grounds that justified juvenile court’s refusal to grant father’s section 388 petition].) However, as the court indicated at the January 31 hearing, if necessary, Tiffany could have been ordered to move out temporarily until DCFS could be satisfied that she was not going to return to her prior lifestyle.
In a case similarly involving an unwed father whose parental rights were disregarded, Division One of this Court expressed the following sentiments, equally applicable here: “[W]e realize that [the child’s] foster parents want to adopt him. Had [the father] not learned about the baby and come forward, it seems that adoption would have been in the baby’s best interests. But [the father] did come forward and attempt to do the right thing by offering to provide emotional and financial support and a home for the child he believes is his, and [the father’s] interests must also be considered, not just the child’s interests. [Citations.] ¶ Here, [the father’s] parental rights were ignored either in the interests of efficiency or in a misguided effort to act in the child’s best interests, which is not how the system is supposed to work. It bears noting that a more thoughtful approach to [the father’s] requests, whatever the outcome of the paternity test, could probably have saved the child, the prospective adoptive parents, and [the father] a lot of heartache, not to mention the better part of a year wasted before these proceedings are properly resolved.” (In re Baby Boy B., supra, 140 Cal.App.4th at p. 1118.) Here, too, the court and DCFS have presumed from the beginning that B.Y.’s best interests lie in severing all connection with his parents, although in the case of C.Y., there was no justifiable reason for doing so. C.Y., who appears to be working hard to keep his family together, was alternately disregarded or encouraged with false hopes. In the meantime, B.Y. was growing older, deprived of the bond with his father to which both are entitled. We are remanding -- rather than reversing -- for rehearing on C.Y.’s section 388 petition, not because we believe there was any basis for denial of his original petition, but because months have passed and conditions may have changed.
C. Order Terminating Parental Rights
C.Y. also appealed the order terminating parental rights, asserting various grounds for its reversal. The order must, of course, be reversed as a result of our ruling that the court abused its discretion in denying C.Y.’s section 388 petition. In addition, it is reversible on the procedural grounds set forth in B.Y.’s brief. Respondent concedes that the juvenile court erred in ordering parental rights terminated, but solely because B.Y.’s attorney was not afforded fair notice. We note that (1) the court stated at the January 31, 2007 hearing that C.Y. did not need to be present at the February 7, 2007 hearing because the purpose was to receive a full report from DCFS concerning his housing situation; and (2) the final DCFS report requested that the section 366.26 hearing be continued to June 2007. Although the report did not specifically state why, we further note that evidence of adoptability was lacking, as B.Y. had been placed with a prospective adoptive parent for only a short time and no home study had been completed. Under the circumstances, we conclude that, even assuming written notice of the section 366.26 hearing was provided, the court’s statement on January 31 that only custody would be addressed on February 7 rendered any such notice a nullity and requires reversal of the order terminating parental rights for lack of proper notice.
II
B.Y.’s Appeal
The sole issue remaining -- whether the court erred in summarily denying Tiffany’s second section 388 petition -- is raised only in B.Y.’s appeal. Respondent contends B.Y. lacks standing and that he waived the issue by contesting her petition below. We need not address these procedural issues because we do not believe the court abused its discretion in this regard.
Tiffany contended in her second section 388 petition that she had successfully completed eight months of a drug treatment program and had tested clean during that period. She further alleged that she had participated in a parenting class, visited B.Y. regularly, and obtained full-time employment.
When seeking modification of a court order, a parent bears the burden of proving that a change is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In In re Kimberly F., supra, 56 Cal.App.4th 519, the court explained that the fact the parent “makes relatively last-minute (albeit genuine) changes” does not automatically tip the scale in the parent’s favor on a section 388 petition. (Id. at p. 530.) The court should consider “the seriousness of the reason for the dependency in the first place.” (Ibid.) In addition, as “the essence of a section 388 motion is that there has been a change of circumstances,” the court must consider “the nature of the change, the ease by which the change could be brought about, and the reason the change was not made before.” (Id. at p. 531.) The court in Kimberly F. gave as an example of a serious offense “the parent who loses custody of a child because of the consumption of illegal drugs and whose compliance with a reunification plan is incomplete during the reunification period.” (Id. at p. 531, fn. 9.)
Drug abuse over the course of many years was the cause of Tiffany’s loss of custody of B.Y. and of the children with whom she failed to reunify. Hers was not a trivial offense and was not easily corrected. While her contentions support that she had made significant steps in the right direction, the court could not overlook that her addictive behavior dated back at least to removal of her first child in 1988. Moreover, she gave no explanation for why she had made no attempt to address her problem earlier. As her problems were longstanding and not easily resolved, the court could properly conclude that her initial steps, however promising, did not justify a change in its prior orders under the best interests of the child standard. The court’s decision to deny Tiffany’s petition summarily at that point in the proceedings did not represent an abuse of discretion. (See In re Casey D. (1999) 70 Cal.App.4th 38, 48 [where mother with long-time drug abuse problem had been in treatment for relatively short period of time, court did not abuse its discretion in denying her section 388 petition].)
DISPOSITION
The order terminating parental rights and the order denying C.Y.’s section 388 petition are reversed. All other orders are affirmed. The case is remanded for further proceedings in accordance with the views set forth in this opinion.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.