Opinion
In denying review, the Supreme Court ordered that the opinion be not officially published. (See California Rules of Court— Rules 976 and 977).
Ordered Not Published Previously published at: 63 Cal.App.4th 1206
[DEPUBLISHED BY ORDER DATED JULY 8, 1998]
COUNSEL
[74 Cal.Rptr.2d 482] Pierce M. Kavanagh, under appointment by the Court of Appeal, La Jolla, for Defendant and Appellant.
Alan K. Marks, County Counsel, M. Clariza Garcia and Michael A. Markel, Deputy County Counsel, for Plaintiff and Respondent.
Charles McKinstry, under appointment by the Court of Appeal, Riverside, for Minor.
OPINION
RICHLI, Associate Justice.
Genesha S. was born addicted to cocaine. Genesha's mother, Leandra G., refused to identify Genesha's father. Accordingly, after the Department of Public Social Services (DPSS) filed a juvenile dependency petition regarding Genesha, DPSS did not give Genesha's father any notice of the petition, the detention hearing, or the jurisdictional/dispositional hearing. At the jurisdictional/dispositional hearing, the juvenile court set a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26 hearing).
Appellant Eugene S. is Genesha's biological father. Shortly after the jurisdictional/dispositional hearing, DPSS learned his identity, located him, and gave him notice of the section 366.26 hearing. He filed a petition pursuant to Welfare and Institutions Code section 388 (section 388 petition) to set aside the orders entered at the jurisdictional/dispositional hearing and to obtain reunification services. The trial court denied his petition, then terminated both his and Leandra's parental rights.
Eugene appeals, contending the lack of notice to him was a fatal defect in the proceedings below. In response, DPSS contends Eugene was not entitled to notice because he was not a " presumed father" within the meaning of the Uniform Parentage Act [74 Cal.Rptr.2d 483] (UPA) (Fam.Code, § 7600 et seq.), and hence not a " parent" entitled to notice under the dependency statutes.
We agree Eugene was not entitled to notice, although for different reasons than those advanced by DPSS. Eugene was not statutorily entitled to notice because his identity was unknown and could not be ascertained with due diligence. Eugene was not entitled to notice as a matter of due process because he failed to come forward promptly and demonstrate a commitment to his parental responsibilities, and even failed to file a voluntary declaration of paternity or a paternity action. Accordingly, we shall affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Genesha was born on February 14, 1997. Both Leandra and Genesha tested positive for cocaine. Genesha soon displayed withdrawal symptoms. Leandra had a long-standing addiction to cocaine. She had given birth to five other children, of which at least three were born drug-addicted. DPSS had removed three of the children from her custody. She had voluntarily relinquished custody of the other two. Leandra admitted she was homeless and unable to provide for Genesha.
Initially, Leandra gave the hospital staff a false name. She refused to reveal the identity or whereabouts of any of her relatives. She specifically refused to identify Genesha's father.
On February 19, 1997, DPSS filed a petition alleging Genesha came within Welfare and Institutions Code section 300, subdivision (b) (failure to supervise or protect) because of Leandra's history of drug abuse and of failing to protect and provide for her children.
On February 20, 1997, after a detention hearing, the trial court ordered Genesha detained in the custody of DPSS.
Leandra appeared at the detention hearing and designated her permanent mailing address. (See Welf. & Inst.Code, § 316.1, subd. (a).) However, she failed to appear at any subsequent hearings. Notices sent to her designated address were returned. She called DPSS twice, but when the social worker phoned the number she had left, she was told Leandra " was not there and her whereabouts was [ sic ] unknown." DPSS performed an absent parent search for Leandra, but without success.
On April 7, 1997, the social worker filed a report in connection with the upcoming jurisdictional/dispositional hearing. It indicated the identity and whereabouts of Genesha's father were still unknown.
On April 15, 1997, at the jurisdictional/dispositional hearing, the juvenile court found the allegations of the petition true and declared Genesha a dependent child of the court. It found " notice given as law requires." It did not order reunification services because Leandra had failed to reunify with her other children. (Welf. & Inst.Code, § 361.5, subd. (b)(10).) It set a section 366.26 hearing for July 31, 1997.
Some time after April 15, 1997, the case was assigned to a different social worker. The new social worker learned (the record does not reveal how) Genesha's father's name was Eugene S. She performed an absent parent search, and learned Eugene was incarcerated in Susanville. On September 20, 1996, he had been sentenced to prison for possession of cocaine base for sale. He was due to be released from prison in April 1998.
On May 7, 1997, notice of the section 366.26 hearing was served on Eugene by mail.
On May 8, 1997, the social worker telephoned Eugene. He said he had never lived with Leandra, but he knew she was pregnant, and he was sure the baby was his. He asked if the baby had been born drug-exposed. When the social worker said she had, he seemed to find this " amusing and unsurprising."
On May 15, 1997, notice of the section 366.26 hearing was served on Eugene again, this time by personal service.
On May 16, 1997, counsel for DPSS advised the court it had learned Genesha's father was in prison. The trial court appointed [74 Cal.Rptr.2d 484] counsel for Eugene. However, it confirmed the setting of the section 366.26 hearing.
On or about May 23, 1997, Genesha was placed with Leandra's cousin, Christopher R., and his wife, Barbara R., in Indiana. They expressed a desire to adopt Genesha.
On July 31, 1997, the date set for the section 366.26 hearing, Eugene filed a section 388 petition. The petition alleged that Eugene " was incarcerated and could have been located," and that he had not been given notice of any hearings prior to the section 366.26 hearing. It sought to set aside the orders entered at the jurisdictional/dispositional hearing. It also sought an order that reunification services be provided to Eugene. In his memorandum of points and authorities, Eugene claimed Leandra had told him he had a daughter: " He communicated eagerly with [Leandra] to learn more of his daughter, and at all times, took as active a role as a father as he could from prison."
On August 21, 1997, the juvenile court held a hearing on the section 388 petition. It appeared sympathetic to Eugene's position. Ultimately, however, it continued the hearing so the social worker could further investigate Eugene.
On August 28, 1997, a social worker interviewed Eugene in prison. Again, he expressed confidence the baby was his. This time, however, he claimed to have had a relationship with Leandra for two years and to have lived with her for nine months. The results of a paternity test indicated a 99.79% probability Eugene was Genesha's biological father.
On October 23, 1997, the hearing on Eugene's section 388 petition resumed. Eugene's counsel did not call him (or any other witnesses) to testify. After hearing argument, the juvenile court ruled that a biological father who is not a presumed father has no right to any notice in a dependency proceeding until the section 366.26 hearing. Accordingly, it denied the petition. In light of this ruling, Eugene declined to contest the section 366.26 hearing. The juvenile court found Genesha adoptable. It therefore terminated the parental rights of Leandra, Eugene, and any unknown father.
Eugene filed a timely appeal from the denial of his section 388 petition.
II
DISCUSSION
A. Statutory Requirements.
We begin by summarizing the statutory scheme for notice in juvenile dependency cases as it stood in 1997, when the significant events in this case took place.
Welfare and Institutions Code section 316.2, effective January 1, 1998, now requires the trial court, at the detention hearing " or as soon thereafter as practicable," to examine the mother " and any other appropriate person" concerning the identity and address of any presumed or alleged father. (Welf. & Inst.Code, § 316.2, subd. (a).) It then requires that each alleged father be given notice of the dependency proceeding, specifically including notice " that the proceedings could result in the termination of parental rights...." (Welf. & Inst.Code, § 316.2, subd. (b).)
Under Welfare and Institutions Code section 302, subdivision (b): " Unless their parental rights have been terminated, both parents shall be notified of all proceedings involving the child." (Italics added.) This general requirement, however, is qualified by specific statutory notice requirements applicable at specific points in the dependency proceeding.
Generally speaking, these statutory notice requirements are directory, not mandatory. Thus, lack of strict compliance, standing alone, does not render the subsequent proceedings void; an aggrieved party must also show prejudice. ( In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419, 286 Cal.Rptr. 239 [construing Welf. & Inst.Code, § 366.21, subd. (b), regarding notice of review hearings].)
1. Notice of the Petition and of the Jurisdictional and Dispositional Hearings.
A juvenile dependency petition must contain: " The names and residence addresses, if [74 Cal.Rptr.2d 485] known to the petitioner, of both parents ... of the minor." (Welf. & Inst.Code, § 332, subd. (e), italics added.) Upon the filing of the petition: " [T]he clerk of the juvenile court shall issue a notice, to which shall be attached a copy of the petition, and he or she shall cause the same to be served ... upon each of the persons described in subdivision (e) of Section 332 whose residence addresses are set forth in the petition and thereafter before the hearing upon all such persons whose residence addresses become known to the clerk. " (Welf. & Inst.Code, § 335, subd. (a), italics added.)
2. Notice of the Detention Hearing.
If the minor has already been temporarily removed from a parent's physical custody when the petition is filed (see Welf. & Inst.Code, §§ 305, 306), the juvenile court must hold a detention hearing within one court day after the filing of the petition. (Welf. & Inst.Code, §§ 313, 315; see generally Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 247-248, 19 Cal.Rptr.2d 698, 851 P.2d 1307, cert. den. sub nom. Dobles v. San Diego Dept. of Social Services (1994) 510 U.S. 1178, 114 S.Ct. 1221, 127 L.Ed.2d 567.)
" The probation officer shall ... notify each parent ... of the minor of the time and place of the hearing if the whereabouts of each parent ... can be ascertained by due diligence, and the probation officer shall serve those persons entitled to notice of the hearing under the provisions of Section 335 with a copy of the petition and notify these persons of the time and place of the detention hearing." (Welf. & Inst.Code, § 311, subd. (a), italics added.)
3. Notice of the Section 366.26 Hearing.
Unlike the foregoing provisions, which require notice to " parents," the statute governing notice of the section 366.26 hearing requires notice to " the fathers, presumed and alleged, and mother of the minor...." (Welf. & Inst.Code, § 366.23, subd. (a), italics added.) If the social services agency is recommending termination of parental rights, and if (1) " the father or mother of the minor or any person alleged to be or claiming to be the father or mother cannot, with reasonable diligence, be served," (2) the social services agency files an affidavit " setting forth the efforts that have been made to locate and serve the parent," and (3) the trial court finds " there has been due diligence in attempting to locate and serve the parent," the trial court may order that service be made by publication. (Welf. & Inst.Code, § 366.23, subd. (b)(5).)
B. The Uniform Parentage Act.
Under Family Code section 7611, which is part of the UPA, a man is presumed to be the natural father of a child if any one of several specified conditions are met, including if: (1) the child is born during, or within 300 days after, he is married to the mother (Fam.Code, § 7611, subd. (a); see also Fam.Code, §§ 7540-7541); (2) he has executed a voluntary declaration of paternity (Fam.Code, §§ 7570-7576, 7611); (3) he marries the mother after the child is born, and he either is named on the birth certificate, or is obligated by written promise or court order to support the child (Fam.Code, § 7611, subd. (c)); or (4) " [h]e receives the child into his home and openly holds out the child as his natural child" (Fam.Code, § 7611, subd. (d)).
" An unwed father's rights and duties under the UPA substantially depend on whether he is a ‘ presumed father’ within the meaning of section 7611. [Citations.]" ( Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050-1051, 43 Cal.Rptr.2d 445, 898 P.2d 891, cert. den. sub nom. Mark K. v. John S. (1996) 516 U.S. 1176, 116 S.Ct. 1272, 134 L.Ed.2d 219.) For example, a presumed father is entitled to custody; a merely biological father is not. (Fam.Code, § 3010, subd. (a); In re Zacharia D . (1993) 6 Cal.4th 435, 451, 24 Cal.Rptr.2d 751, 862 P.2d 751.) Similarly, once the mother consents to adoption, a presumed father can block the adoption even if adoption is in the child's best interest; a merely biological father cannot block the adoption — and, indeed, his parental rights will be terminated — unless he can show adoption is not in the child's best interest. (Fam.Code, §§ 7662, 7664, subd. (b), 8604, subd. (a), 8605; Adoption of Michael H., supra, 10 Cal.4th at pp. 1051-1052, 43 Cal.Rptr.2d 445, 898 P.2d 891; [74 Cal.Rptr.2d 486] Adoption of Kelsey S. (1992) 1 Cal.4th 816, 823-825, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) " In essence, therefore, our statutory scheme creates three classes of parents: mothers, fathers who are presumed fathers, and fathers who are not presumed fathers. [Citation.]" (Adoption of Michael H., supra, 10 Cal.4th at p. 1051, 43 Cal.Rptr.2d 445, 898 P.2d 891.)
C. Relevant California Supreme Court Decisions.
Two California Supreme Court cases are particularly relevant to the role of a biological father, other than a presumed father, in a dependency proceeding.
1. Adoption of Kelsey S.
In Adoption of Kelsey S., supra, 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216, immediately after the child was born, her biological father filed an action to establish his paternity and to obtain custody. Meanwhile, the mother consented to adoption. The prospective adoptive parents filed an adoption petition, followed by a petition to terminate the father's parental rights. The trial court granted temporary custody to the mother. Thereafter, it found that the father was not a presumed father under the UPA and, by a preponderance of the evidence, that adoption was in the best interest of the child. It therefore terminated the father's parental rights. (Id., at pp. 821-823, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)
The Supreme Court agreed the father was not a presumed father. However, it acknowledged that the mother and the temporary custody order had prevented him from receiving the child into his home, and hence from becoming a presumed father. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 825, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) It therefore considered " whether a natural father's federal constitutional rights are violated if his child's mother is allowed to unilaterally preclude him from obtaining the same legal right as a presumed father to withhold his consent to his child's adoption by third parties." (Id., at p. 830, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)
The court began by reviewing the relevant United States Supreme Court decisions: Stanley v. Illinois (1972) 405 U.S. 645 [92 S.Ct. 1208, 31 L.Ed.2d 551], Quilloin v. Walcott (1978) 434 U.S. 246 [98 S.Ct. 549, 54 L.Ed.2d 511], Caban v. Mohammed (1979) 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297, Lehr v. Robertson (1983) 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614, and Michael H. v. Gerald D. (1989) 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91. (Adoption of Kelsey S., supra, 1 Cal.4th at pp. 830-837, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) From these, it distilled the principle that " [t]he biological connection between father and child is unique and worthy of constitutional protection if the father grasps the opportunity to develop that biological connection into a full and enduring relationship." (Id., at p. 838, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) Once a father had thereby qualified for constitutional protection, his " parental rights could not be terminated absent a showing of his unfitness ... [A] showing of the child's best interest would be an insufficient basis for termination of the father's rights." (Id., at pp. 830-831, 4 Cal.Rptr.2d 615, 823 P.2d 1216; see also id., at p. 833, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)
The court concluded the UPA's distinction between mothers, presumed fathers, and merely biological fathers " violates the federal constitutional guarantees of equal protection and due process ... to the extent that the statutes allow a mother unilaterally to preclude her child's biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child's best interest. If 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.
[74 Cal.Rptr.2d 487] " A court should consider all factors relevant to that determination. The father's conduct both before and after the child's birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit.... A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216, fns. omitted.)
The court further held: " [T]he courts have the authority ... to grant custody to the natural father despite the mother's objection. In the present case, the superior court had the authority to grant petitioner custody of his child so that he could qualify as a presumed father...." (Adoption of Kelsey S., supra, 1 Cal.4th at p. 842, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)
2. In re Zacharia D .
In In re Zacharia D ., supra , 6 Cal.4th 435, 24 Cal.Rptr.2d 751, 862 P.2d 751, Zacharia was born with methamphetamine in his system. As a result, he became the subject of a dependency proceeding. When Zacharia was conceived, his mother, Wendy, was cohabiting with Lee. Wendy named Lee as Zacharia's father. Actually, Zacharia's biological father was Javan. ( Id ., at pp. 439- 440, 24 Cal.Rptr.2d 751, 862 P.2d 751.) When Zacharia was a little over a year old, Javan saw a picture of him, and began to suspect he might be his son. However, he did not attempt to establish a relationship with him, nor to support him. ( Id ., at p. 440, 24 Cal.Rptr.2d 751, 862 P.2d 751.)
Javan first appeared in the dependency proceeding at the 18-month review hearing. The juvenile court granted his request for a paternity test, but it also terminated reunification services and set a section 366.26 hearing. ( In re Zacharia D ., supra , 6 Cal.4th at p. 441, 24 Cal.Rptr.2d 751, 862 P.2d 751.) The paternity test showed Javan was Zacharia's biological father. ( Id ., at pp. 441- 442, 24 Cal.Rptr.2d 751, 862 P.2d 751.) Javan filed a paternity action, and requested custody and visitation rights. ( Id ., at p. 442, 24 Cal.Rptr.2d 751, 862 P.2d 751.) The juvenile court then held a further review hearing, at which it ruled Javan was not entitled to reunification services, and returning Zacharia to Javan would create a substantial risk of detriment. ( Id ., at p. 443, 24 Cal.Rptr.2d 751, 862 P.2d 751.) Later, it held a section 366.26 hearing, at which it terminated Wendy's, Lee's and Javan's parental rights. ( Id ., at p. 444, 24 Cal.Rptr.2d 751, 862 P.2d 751.)
The Supreme Court began by noting that under Welfare and Institutions Code section 361.5, subdivision (a), reunification services are to be provided to the minor's " parents." ( In re Zacharia D ., supra , 6 Cal.4th at pp. 447- 448, 24 Cal.Rptr.2d 751, 862 P.2d 751.) Although the dependency statutes do not define the word " parent" ( id ., at p. 448, 24 Cal.Rptr.2d 751, 862 P.2d 751), " [t]he word ‘ parent’ is defined in the Uniform Parentage Act (UPA).... In particular, the UPA ‘ distinguishes between a " presumed father" and one who is merely a " natural father" ’ [citation], ‘ according presumed fathers greater rights than natural fathers.’ [Citations.]" ( Id ., at pp. 448- 449, 24 Cal.Rptr.2d 751, 862 P.2d 751, fns. omitted.)
The Supreme Court concluded the dependency statutes implicitly incorporated the UPA definition of " parent." ( In re Zacharia D ., supra , 6 Cal.4th at pp. 451, 454, 24 Cal.Rptr.2d 751, 862 P.2d 751.) It reasoned: " [O]nly a presumed father is entitled to custody of his child; custody is the consequence of either a successful reunification plan or a placement of the child with the father under section 361.2. Moreover, the Legislature uses the word ‘ parent’ at all times prior to the sections regarding termination of parental rights, and only then differentiates among alleged, natural, and presumed fathers. We are reluctant to conclude that the Legislature's use of different terms, at different times in the statutory scheme, is meaningless. Finally, interpreting ‘ parent’ to include a strictly biological father would introduce into the dependency context fathers who had never demonstrated any commitment to the child's welfare. [Citation.] Indeed, such an [74 Cal.Rptr.2d 488] interpretation would arguably grant ‘ reunification services to a rapist or an anonymous sperm donor.’ [Citation.]" ( Id ., at p. 451, 24 Cal.Rptr.2d 751, 862 P.2d 751, quoting In re Sarah C. (1992) 8 Cal.App.4th 964, 975, 11 Cal.Rptr.2d 414.)
Thus, it held: " Applying the UPA definition to the dependency context, we conclude that only a presumed, not a mere biological, father is a ‘ parent’ entitled to receive reunification services under [Welfare and Institutions Code] section 361.5. [Citation.]" ( In re Zacharia D ., supra , 6 Cal.4th at p. 451, 24 Cal.Rptr.2d 751, 862 P.2d 751.) Moreover, under Welfare and Institutions Code section 361.2, " only a presumed father is entitled to assume immediate custody...." ( Id ., at p. 454, 24 Cal.Rptr.2d 751, 862 P.2d 751.)
The court recognized, however, that under Kelsey S., there was an issue with respect to " whether the statutory distinctions between biological and presumed fathers are unconstitutional as applied to a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process, and who displays a commitment consistent with the standard set forth in Kelsey S. Extending Kelsey S. to apply in the dependency context would allow such a father to participate as a ‘ parent’ in, or end the need for, the dependency proceedings. However, under no view of the evidence did Javan demonstrate such a commitment, or satisfy any of the Kelsey S. criteria during the relevant period in this case. Nor does Javan claim he was precluded from attaining presumed father status by Wendy or any third party. Thus, we need not address this constitutional issue here." ( In re Zacharia D ., supra , 6 Cal.4th at p. 451, 24 Cal.Rptr.2d 751, 862 P.2d 751.)
Finally, the court also recognized that, under Kelsey S.: " The ‘ superior court ha[s] the authority to grant [a biological father] custody of his child so that he [can] qualify as a presumed father....’ [Citations.]" ( In re Zacharia D ., supra , 6 Cal.4th at pp. 449- 450, 24 Cal.Rptr.2d 751, 862 P.2d 751, brackets in original, fns. omitted, quoting Adoption of Kelsey S., supra, 1 Cal.4th at p. 842, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) " Such an order in the dependency context would be made pursuant to a motion under section 388." ( Id ., at p. 449, fn. 17, 24 Cal.Rptr.2d 751, 862 P.2d 751.) " While a biological father is not entitled to custody under section 361.2, or reunification services under section 361.5 if he does not attain presumed father status prior to the termination of any reunification period, he may move under section 388 for a hearing to reconsider the juvenile court's earlier rulings based on new evidence or changed circumstances. [Citations.]" ( Id ., at pp. 454- 455, 24 Cal.Rptr.2d 751, 862 P.2d 751, fn. omitted.)
D. Application of These Principles to This Case.
DPSS contends, syllogistically, the applicable statutes require notice to a " parent" or " parents" ; Zacharia D . held only a presumed father is a " parent" within the meaning of the dependency statutes; thus, notice to a biological father who is not a presumed father is not required. Quod erat demonstrandum.
The trial court found this reasoning persuasive. We decline to adopt it, however, because it would mean a " quasi-presumed" father under Kelsey S. — a biological father who has promptly come forward and demonstrated a full commitment to his parental responsibilities — would not be entitled to notice. This reasoning also is troublesome because it assumes DPSS will know with certainty, from the moment the petition is filed, which alleged fathers are presumed fathers and which are not. At least in the adoption context, it has been held " an effort must be made to identify the natural father and give him notice and an opportunity for a hearing on custody and the determination of his status as a ‘ presumed ... father ’ ...." ( In re Tricia M. (1977) 74 Cal.App.3d 125, 132, 141 Cal.Rptr. 554, italics added, cert. den. sub nom. Detrich v. Sheldon G. (1978) 435 U.S. 996, 98 S.Ct. 1649, 56 L.Ed.2d 86.) Nevertheless, we conclude the juvenile court did the right thing, albeit for perhaps the wrong reason. " [W]e review the lower court's ruling, not its reasoning; we may affirm that ruling if it was correct on any ground. [Citations.]" ([74 Cal.Rptr.2d 489] In re Natasha A. (1996) 42 Cal.App.4th 28, 38, 49 Cal.Rptr.2d 332.)
First, Eugene failed to show his statutory right to notice was violated. For purposes of our analysis, we need not decide whether the statutory provisions requiring notice to " parents" are limited to presumed fathers; we may assume, without deciding, Eugene was a " parent" for this purpose. Even if so, however, DPSS was not statutorily required to give Eugene notice of the petition, the detention hearing, or the jurisdictional/dispositional hearing. Leandra was refusing to identify Genesha's father. His identity remained unknown until some time after the jurisdictional/dispositional hearing. Eugene was not statutorily entitled to notice of the petition nor of the jurisdictional/dispositional hearing, because, at the time, his name and address were not " known." (Welf. & Inst.Code, §§ 332, subd. (e), 335, subd. (a).) Similarly, he was not statutorily entitled to notice of the detention hearing because, at the time, his name and address could not be " ascertained by due diligence." (Welf. & Inst.Code, § 311, subd. (a).)
Admittedly, after the jurisdictional/dispositional hearing, a different social worker learned Eugene's identity. The record, however, does not indicate how she accomplished this. Eugene did not subpoena the social worker to testify at the hearing on his section 388 petition. Given the uncontradicted evidence that Leandra was refusing to identify Genesha's father— and given the complete absence of any evidence that DPSS had any means of learning his identity before the jurisdictional/dispositional hearing— any suggestion DPSS could have learned his identity sooner would be sheer speculation.
Second, Eugene failed to show his due process right to notice was violated. The leading case on this question is Lehr v. Robertson, supra, 463 U.S. 248, 103 S.Ct. 2985. There, the biological father had never lived with the mother or the child, had never supported them, and was not named on the child's birth certificate. Eventually, the mother married another man; she and her husband petitioned to adopt the child. Under New York law, notice of adoption proceedings was to be given to specified classes of unwed fathers, including those who had filed notice of paternity with the state's " putative father registry." The father was not within any of these classes, and he was not given notice. The father, however, filed a paternity action, and sought visitation rights. After the adoption petition was granted, the father's paternity action was dismissed. The father's petition to vacate the adoption order, on the ground the failure to give him notice violated due process, was denied. (Id., at pp. 250-253, 103 S.Ct. at pp. 2987-2989.)
The United States Supreme Court held: " When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘ com[ing] forward to participate in the rearing of his child,’ [citation], his interest in personal contact with his child acquires substantial protection under the due process clause. At that point it may be said that he ‘ act[s] as a father toward his children.’ [Citation.] But the mere existence of a biological link does not merit equivalent constitutional protection." (Lehr v. Robertson, supra, 463 U.S. at p. 261, 103 S.Ct. at p. 2993, quoting Caban v. Mohammed, supra, 441 U.S. at pp. 392, 389, fn. 7, 99 S.Ct. at pp. 1768, 1766, fn. 7, respectively.)
" The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a state to listen to his opinion of where the child's best interests lie.
" In this case, we are not assessing the constitutional adequacy of New York's procedures for terminating a developed relationship.... We are concerned only with whether New York has adequately protected his opportunity to form such a relationship." (Lehr v. Robertson, supra, 463 U.S. at pp. 262-263, 103 S.Ct. at p. 2994, fn. omitted.) " If th[e statutory notice] scheme were likely to omit many responsible fathers, and if qualification for notice were beyond the control of an interested putative father, it might be [74 Cal.Rptr.2d 490] thought procedurally inadequate. Yet ... the right to receive notice was completely within appellant's control. By mailing a postcard to the putative father registry, he could have guaranteed that he would receive notice of any proceedings to adopt Jessica.... The New York legislature concluded that a more open-ended notice requirement would merely complicate the adoption process, threaten the privacy interests of unwed mothers, create the risk of unnecessary controversy, and impair the desired finality of adoption decrees. Regardless of whether we would have done likewise if we were legislators instead of judges, we surely cannot characterize the state's conclusion as arbitrary." (Id., at pp. 263-264, 103 S.Ct. at pp. 2994-2995, fns. omitted.)
Under Lehr (and under Kelsey S., which relied on Lehr), a quasi-presumed father, i.e., a father who has promptly come forward and demonstrated a full commitment to his parental responsibilities, has a constitutionally protected liberty interest in his relationship with his child. It follows that, as a matter of due process, a quasi-presumed father is entitled to notice before the state can terminate his parental rights.
In California, both presumed and alleged fathers are expressly entitled to notice of the section 366.26 hearing at which parental rights may be terminated. (Welf. & Inst.Code, § 366.23, subd. (a).) For a quasi-presumed father, however, such notice is a day late and a dollar short. A quasi-presumed father also has a constitutional right to a particularized finding of unfitness before his parental rights may be terminated. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) In a dependency proceeding, we cannot imagine how such a finding could be made with respect to a noncustodial parent unless he or she has been allowed to participate during the reunification period. Thus, Zacharia D . indicated a quasi-presumed father has a right to file a section 388 petition seeking reunification services and/or custody during (or even after) the reunification period. ( In re Zacharia D ., supra , 6 Cal.4th at pp. 449- 450, 454- 455, 24 Cal.Rptr.2d 751, 862 P.2d 751.) It even suggested a quasi-presumed father may have full rights " to participate as a ‘ parent’ in ... the dependency proceedings." ( Id ., at p. 451, 24 Cal.Rptr.2d 751, 862 P.2d 751.) We believe it follows that a quasi-presumed father is constitutionally entitled to notice of the petition and notice of the jurisdictional and dispositional hearings, not just notice of the section 366.26 hearing.
Unlike a quasi-presumed father, a biological father who is neither a presumed father nor a quasi-presumed father has no constitutionally protected liberty interest in his relationship with his child. He simply has no relationship to protect. Under Lehr, he does have a constitutionally protected interest in the opportunity to form such a relationship; however, this lesser interest is sufficiently protected for purposes of due process notice if he can qualify unilaterally to receive notice of a proceeding in which the opportunity may be lost.
" ‘ [I]t has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights.’ [Citation.]" (In re Melinda J., supra, 234 Cal.App.3d at p. 1419, 286 Cal.Rptr. 239, fn. omitted, quoting Mullane v. Central Hanover Bank & Tr. Co. (1950) 339 U.S. 306, 317, 70 S.Ct. 652, 658, 94 L.Ed. 865.) Given our holding Eugene's statutory right to notice was not violated because his identity could not be ascertained with reasonable diligence, it is at least arguable that, for the same reason, his constitutional right to notice was not violated.
Eugene was not a quasi-presumed father. There was no evidence he publicly acknowledged his paternity. When a social worker asked him if any of his relatives could take custody of Genesha, he responded that none of his relatives even knew he had fathered a child. There was no evidence he paid or offered to pay any part of Leandra's pregnancy and birth expenses. Most important, even though he clearly expected Genesha would be born drug-addicted, he took no [74 Cal.Rptr.2d 491] affirmative legal action to establish his parental rights or to obtain custody of Genesha. He merely reacted to the dependency proceeding.
Eugene's counsel clearly knew it was important to show Eugene was a quasi-presumed father. She relied on Kelsey S. and Zacharia D . She argued Eugene qualified as a quasi-presumed father because " he did what he could before the child was born" ; " [h]e was with the mother during most of her pregnancy, acknowledged the child as his, and did what he could from prison to be a parent."
Eugene could have qualified for notice of the dependency proceeding in at least two ways. First, he could have filed a voluntary declaration of paternity. (Fam.Code, §§ 7570-7576.) This would have made him a presumed father (Fam.Code, §§ 7575, subd. (d), 7611), and hence entitled to notice even under DPSS's view. Admittedly, such a declaration is not completely unilateral; it must be signed by both the father and the mother. (Fam.Code, § 7574, subds. (f), (g).) Still, absent a showing that Eugene asked Leandra to execute a voluntary declaration of paternity and that she refused, we cannot conclude he was prevented from qualifying for notice.
Second, Eugene could have filed a paternity action. A man alleging himself to be the father of a child which has no presumed father may bring an action to determine the existence of a father and child relationship. (Fam.Code, § 7630, subd. (c).) Such an action may be brought before the child is born. (Fam.Code, § 7633.) " The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes...." (Fam.Code, § 7636.) " If the judgment or order of the court is at variance with the child's birth certificate, the court shall order that a new birth certificate be issued...." (Fam.Code, § 7639.) " Therefore, despite the wishes of the mother, ... the natural father may acquire ‘ presumed father’ status. [Citation.]" ( In re Sabrina H. (1990) 217 Cal.App.3d 702, 710, 266 Cal.Rptr. 274.)
An alleged father may be able to bring a paternity action even if the child does have a presumed father, as long as the presumed father was not married to and cohabiting with the mother. (Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272, 1278-1285, 7 Cal.Rptr.2d 460; see also Fam.Code, § 7630, subd. (b).)
We believe a man who has been adjudged a child's father in a paternity action would be entitled to notice of a dependency petition. The court in Zacharia D . had no occasion to address this question. It did hold that " parent" within the dependency statutes normally includes only a presumed father. However, the UPA's presumptions are rebuttable. (Fam.Code, §§ 7541, subd. (a), 7612.) In particular, they are rebutted by a judgment establishing paternity of the child. (Fam.Code, § 7612, subd. (c).) Thus, the presumptions are merely a means to the end of the judgment. And, as already noted, such a judgment is " determinative for all purposes." (Fam.Code, § 7636.)
We readily concede it is harder for a biological father to become entitled to notice under California law, by filing a paternity action, than under New York law, by filing a notice with the putative father registry. However, as in Lehr, the California Legislature could reasonably conclude a less stringent requirement would complicate the dependency process, threaten the privacy interests of unwed mothers, create the risk of unnecessary controversy, and impair the finality of judgments.
" ‘ [D]ue process is flexible and calls for such procedural protections as the particular situation demands.... [N]ot all situations calling for procedural safeguards call for the same kind of procedure.’ [Citation.]" [74 Cal.Rptr.2d 492] (People v. Hansel (1992) 1 Cal.4th 1211, 1219, 4 Cal.Rptr.2d 888, 824 P.2d 694, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494.) " The child has a ‘ liberty interest [ ]’ [citation] in a ‘ normal family home’ [citation], with his parents if possible [citation], or at least in a home that is ‘ stable’ [citation]. This concern has been characterized as ‘ important’ [citation] and even ‘ compelling’ [citation]." ( In re Sade C. (1996) 13 Cal.4th 952, 988, 55 Cal.Rptr.2d 771, 920 P.2d 716, cert. den. sub nom. Gregory C. v. Los Angeles County Dept. of Children's Services (1997) 519 U.S. 1081, 117 S.Ct. 747, 136 L.Ed.2d 685.) " The state has a ‘ parens patriae interest in preserving and promoting the welfare of the child....’ [Citations.] This concern has been characterized as ‘ urgent’ [citation] and even ‘ compelling’ [citation]." (Id., at p. 989, 55 Cal.Rptr.2d 771, 920 P.2d 716.) Moreover, the state has interests in expedition and finality. In a dependency proceeding, these state interests are unusually strong. (Ibid.) When these vital interests of the child and of the state are balanced against the bare opportunity interest of a biological father who has never established a relationship with his child, we believe it is not too much to ask that the father file a voluntary declaration of paternity, if the mother will cooperate, or a paternity action, if she will not.
Because Eugene was not a quasi-presumed father, and because he was afforded these opportunities to qualify for notice of this dependency proceeding, the fact Eugene was not statutorily entitled to notice did not violate his right to due process. We hasten to add that DPSS would be well advised to give notice whenever possible to all alleged fathers, regardless of whether it believes that they are presumed, quasi-presumed, or merely biological fathers. This will ensure each father statutorily or constitutionally entitled to notice receives it, even if DPSS is mistaken as to his status, and even if his status changes while the dependency is pending. It will also afford each father an opportunity to be heard on the issue of his status in the event it is disputed. Finally, it will give a merely biological father one last clear chance to grasp the opportunity to become a father to his child in the most meaningful sense. After the fact, however, a biological father who cannot show he was either an adjudicated, presumed or quasi-presumed father cannot claim the failure to give him notice of the dependency proceeding violated due process or prejudiced him in any way.
Although both juvenile dependency proceedings and adoption proceedings have the potential to end in termination of a father's parental rights, the provisions for notice to fathers in adoption proceedings are far more inclusive.
III
DISPOSITION
The judgment is affirmed.
McKINSTER, Acting P.J., and GAUT, J., concur.
If this statute had been in effect in 1997, it would certainly have altered the issues before us; it might even have resulted in prompt notice to Eugene, and thus obviated this appeal entirely.
On the other hand, Lehr implies it may be unconstitutional for a mother to have sole control over a father's entitlement to notice; the father must be able to qualify for notice unilaterally. Rather than attempt to reconcile these competing authorities, we choose not to rest our opinion on this ground.
Nevertheless, Eugene's counsel never presented any evidence to support these claims. Although she suggested Eugene should be called to testify, she never actually attempted to call him; rather, she conceded, " [T]hat's up to the court."
When the trial court suggested she make an offer of proof to preserve the record, she indicated Eugene would testify to his " commitment" to Genesha, " how much part he took in the baby's life before the baby was born. And what he did after the baby was born and that he had no notice...." Even if the trial court had precluded Eugene from testifying (which we do not believe it did), this offer of proof would be too vague and nonspecific for us to conclude Eugene is entitled to another opportunity to introduce evidence he was a quasi-presumed father. (See People v. Sperl (1976) 54 Cal.App.3d 640, 657, 126 Cal.Rptr. 907, cert. den. 429 U.S. 832 [97 S.Ct. 95, 50 L.Ed.2d 97].)
Under the UPA, even if the child has no presumed father, the mother generally cannot give up the child for adoption until the biological father's parental rights have been terminated. (Fam.Code, § 7662.) Notice must be given to every man " identified as a possible father." (Fam.Code, § 7664; see also Fam.Code, § 7662, subd. (b).) For the purpose of identifying the father, the trial court must cause the social services agency to pose specified questions to " the mother and any other appropriate person." (Fam.Code, § 7663.) The trial court is even authorized to have the local police or sheriff's department check whether the child is a missing person. (Fam.Code, §§ 3140, 7603.)
If no possible father can be identified, or if a possible father can be identified but not located, the trial court can dispense with notice. (Fam.Code, §§ 7665, 7666, subd. (b).)