In re N.S. CA1/4

Filed 2/3/26 In re N.S. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not

certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not

been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re N.S., a Person Coming

Under the Juvenile Court

Law.

HUMBOLDT COUNTY

DEPARTMENT OF HEALTH A173769

AND HUMAN SERVICES,

(Humboldt County

Plaintiff and Super. Ct. No. JV2400012)

Respondent,

v.

S.L.,

Defendant and

Appellant.

S.L. appeals from the juvenile court’s orders denying his

request to be named presumed father, denying his petition under

Welfare and Institutions Code section 388, denying his motion for

reconsideration, and terminating his parental rights in the

dependency proceeding for his son, N.S. (minor).1 He contends he

was a statutorily presumed father from the outset of the case by

1 Undesignated statutory citations are to the Welfare and

Institutions Code. Undesignated citations to rules are to the

California Rules of Court.

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virtue of his marriage to the minor’s mother at the time of his

birth, and the Humboldt County Department of Health and

Human Services (department) and juvenile court failed to

conduct a proper paternity inquiry or send him notices required

by section 316.2, subdivision (b) (section 316.2(b)) and rule 5.635.

He also argues the juvenile court failed to appoint counsel for him

before the section 366.26 hearing or make a paternity finding.

We agree with S.L. that he did not receive the required notice or

counsel to which he was entitled at the appropriate junctures.

The juvenile court also erred by not finding S.L. to be the minor’s

presumed father. These errors were prejudicial, so we will vacate

the order terminating S.L.’s parental rights and remand for

further proceedings.

BACKGROUND

I. Detention

In January 2024, the department filed a petition alleging

the minor came within the jurisdiction of the juvenile court based

on the behavior of L.S., his mother.2 The minor was almost four

years old and had been residing with L.S. The department

named two men, S.L. and N.M.D., as alleged fathers. The

department mailed notice of the hearing on the petition to S.L. at

two different addresses in Ridgeland, South Carolina. Neither

the petition nor the social worker’s report was attached to either

notice. The department’s detention report listed a different

2 Because the nature of the department’s allegations

against L.S. and her actions during the dependency are not

relevant to this appeal, we do not discuss them.

2

Ridgeland, South Carolina address for N.M.D., but the

department gave him notice by telephone.

The detention report named both S.L. and N.M.D. as

alleged fathers based on L.S.’s report that either S.L., N.M.D., or

a man named Antonio could be the minor’s father. The report

noted that L.S. was married to S.L. before the minor’s birth and

remained married to him. L.S. told the social worker that N.M.D.

had helped raise the minor for the first two years of his life before

L.S. moved to Humboldt County. N.M.D. told the social worker

he was the minor’s father.

L.S. and N.M.D. appeared at the detention hearing, the

latter by Zoom. The court appointed counsel for N.M.D. N.M.D.

said he was the minor’s father. L.S. said she thought N.M.D. was

the minor’s father but she was not sure. L.S. also said that S.L.

was her spouse. Counsel for the department noted that N.M.D.

was a presumed father and S.L. was a presumed father by

marriage. Mother was not prepared to agree to the elevation of

N.M.D. to presumed father because S.L. was her legal spouse and

she was not sure if N.M.D. was the minor’s biological father. The

juvenile court ordered the minor detained and placed him in the

home of a nonrelative extended family member. The court

ordered N.M.D. to complete drug and DNA tests. The juvenile

court’s findings and orders after the detention hearing state that

all alleged parents present during the hearing who had not

completed a JV-505 were provided with the JV-505 and told to

complete it. The next lines on the form allowed the court to order

the clerk to send the notice required by section 316.2(b) to other

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named alleged parents, but S.L. was not named and that box was

not checked.

II. Jurisdiction

The department mailed S.L. notice of the jurisdiction

hearing, first scheduled for February 2024. It did not attach a

copy of the petition to the notice. The hearing was later

continued to early March 2024. The record does not show that

notice of this continued hearing was mailed to S.L.

In mid-March 2024, a week before the jurisdiction hearing,

S.L. called the social worker. He said he had received paperwork

about L.S. and the minor. He thought he was the minor’s father,

and he had cared for the minor as a baby. S.L. confirmed that he

was married to L.S., and the social worker told him he was an

alleged father because of that as well. S.L. told the social worker

he was friends with N.M.D. The social worker said they needed

to start by determining paternity, and S.L. agreed to complete a

paternity test like N.M.D. The social worker told S.L. he had to

appear at the next court date to be considered the minor’s father

and he would be appointed an attorney at that time. S.L. said he

could appear by Zoom. He gave a new mailing address, which

was the same as N.M.D.’s. S.L. said he spoke English but did not

read it well. He said notices of court in Spanish would be fine,

and he could find someone to help him with the paperwork. He

told the social worker a Spanish interpreter would be helpful,

although he understood 80 to 90 percent of English most of the

time.

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After the call, the social worker texted S.L. information

about how to schedule a DNA test and gave him instructions for

how to appear at the next court date. The department mailed a

Spanish notice of the jurisdiction hearing to S.L. at the address

he had given the social worker on the phone. It did not attach a

copy of the petition to the notice.

The same day as S.L.’s call, N.M.D. filed a JV-505

statement regarding parentage in which he said he believed he

was the minor’s parent and asked the court to find he was the

presumed parent and enter a judgment of parentage. He said he

had told everyone the minor was his child and had been his

primary caretaker in South Carolina until L.S. moved to

California.

At the jurisdiction hearing, in late March 2024, the

department told the court about S.L.’s call to the social worker

expressing a desire to be involved in the case. The department

suggested that because S.L. was a presumed father by marriage,

was asking to be involved, and thought he might be the biological

parent, counsel needed to be appointed to represent him.

However, S.L. did not appear at the hearing. The juvenile court

said it could not appoint counsel for S.L. because S.L. was not

there, but it continued the hearing by about a month to allow him

to appear. The court reserved the appointment of a specific

attorney at the hearing for S.L. and scheduled a combined

jurisdiction and disposition hearing.

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III. Jurisdiction and Disposition

The disposition report prepared in April 2024 reflected

S.L.’s March 2024 statement to the social worker that S.L.

wanted to be considered the minor’s father and take care of him

whether the minor was S.L.’s biological child or not.

About 10 days before the jurisdiction and disposition

hearing, neither N.M.D. nor S.L. had scheduled a DNA test. The

social worker called S.L., who repeated the same statements from

the earlier call and said the minor could live with S.L.’s other

children whether the minor was S.L.’s son or not. S.L. again said

he needed help reading English. The social worker gave S.L.

information about paternity testing. S.L. claimed N.M.D. had

completed a test, but the social worker said they did not have the

results and that it would be best if they both tested. The social

worker followed up the call by sending S.L. information about

DNA testing. The department mailed a Spanish-language notice

of the jurisdiction and disposition hearing to S.L. It did not

attach a copy of the petition to the notice.

S.L. appeared at the April 2024 jurisdiction and disposition

hearing by Zoom but did not have an audio connection. Counsel

for the department said that the department had recently

learned that S.L. had received paternity testing instructions not

in Spanish and was requesting that instructions be provided in

Spanish. The department committed to doing so. The

department again requested a continuance because it was still

waiting on the results of the paternity tests for S.L. and N.M.D.,

either or both of whom might qualify as presumed fathers. The

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department said it did not want to proceed with disposition, find

out later which one was the minor’s presumed father, and then

have to redo the hearing. The attorney reserved for S.L. said that

S.L.’s English was pretty good, so the attorney did not think an

interpreter would be needed. The department asked counsel to

inform S.L. and N.M.D. of the next hearing date and asked if the

reserved attorney for S.L. wanted to be appointed. The attorney

said he would wait until after S.L.’s DNA test.

The social worker told S.L. by text message during the

hearing that there were audio issues and the hearing was being

continued to May 2024. The social worker also told S.L. it was

important that he complete paternity testing as soon as possible

because it was the main issue preventing the case from moving

forward. S.L. said he would complete the testing the following

week. The day after the hearing, a Spanish-speaking DNA

testing representative called and left a message for S.L. Shortly

afterwards, the department mailed him a notice of the new

hearing date. It did not attach a copy of the petition to the notice.

S.L. did not appear at the May 2024 jurisdiction and

disposition hearing. The court rescheduled the hearing for June

2024. The department mailed a Spanish-language notice of the

new date to father. It did not attach a copy of the petition to the

notice.

S.L. did not appear at the June 2024 hearing. Neither

N.M.D. nor S.L. had completed DNA testing, so the court

continued the hearing again until July 16, 2024. The department

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mailed notice of the July 16 date to father in Spanish. It did not

attach a copy of the petition to the notice.

S.L. did not appear on July 16, 2024. The juvenile court

continued the jurisdiction and disposition hearing until July 30

at L.S.’s request. The department mailed notice of the new date

in Spanish to S.L. It did not attach a copy of the petition to the

notice.

On July 30, the juvenile court concluded the combined

jurisdiction and disposition hearing. S.L. did not appear. The

court considered an addendum to the disposition report, which

stated that neither N.M.D. nor S.L. had responded to calls by the

social worker. The department asked that N.M.D. and S.L. both

remain alleged fathers because they had failed to comply with

requests for DNA testing. The court found that N.M.D. and S.L.

were alleged fathers and ordered reunification services only for

L.S. The court relieved counsel for N.M.D. because he had not

been elevated to presumed father.

IV. Six-month Review

The department’s report for the six-month review hearing

said that the minor remained placed with the same nonrelative

extended family member where he had been since the beginning

of the case. Neither N.M.D. nor S.L. contacted the department

during the reporting period. The social worker contacted S.L.

about the paternity test and a DNA test was scheduled for S.L.

for February 2025.

The department sent notice of the six-month review

hearing in English to S.L. and N.M.D. Neither S.L. nor N.M.D.

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appeared. The juvenile court ordered the termination of L.S.’s

reunification services and set a section 366.26 hearing.

V. Section 366.26 Hearing and Section 388 Petition

1. Notice of Hearing and Testing Results

In January 2025, the juvenile court clerk mailed to S.L. an

English-language notice of the section 366.26 hearing and the

need to file a writ petition to obtain review of the findings the

court had made when setting it. A separate notice of the hearing

was also sent in February 2025.

In March 2025 the department gave notice to S.L. by

publication because a notice mailed to him at his last known

address had been returned as “Not known at address given.”

The department’s April 2025 report for the section 366.26

hearing stated that S.L. had completed an appointment for

testing in March 2025, but a photocopy of his identification was

too dark so he needed to provide another copy. N.M.D. completed

a test. The tests showed that S.L., not N.M.D., was the minor’s

biological father.

2. Counsel, Section 388 Petition, and JV-505

S.L. appeared by Zoom at the section 366.26 hearing on

May 28, 2025. The court appointed counsel for him. Through

counsel, S.L. requested presumed father status based on his

marriage to L.S. He also asked for the minor to be placed with

him. The department’s counsel said she could not submit to

S.L.’s request to be named presumed father and needed to do

some investigation. S.L.’s counsel also requested a continuance

of the hearing because she had not had a chance to investigate

9

whether notice was proper and wanted to file a statement

regarding parentage on form JV-505. The department opposed

the request for a continuance. The juvenile court began the

section 366.26 hearing, found that notice had been proper, and

admitted the department’s report and addendum into evidence.

It then continued the hearing to give S.L. a chance to file

anything he wished to file.

S.L. filed a section 388 petition asking the court to change

its order placing the minor in foster care and instead place the

minor with him as the minor’s presumed father. He objected that

there had not been an appropriate paternity inquiry, he had not

been properly notified until recently, he was the minor’s

presumed father under Family Code section 7611, subdivision (a)

(section 7611(a)) as well as his biological father, and there was no

finding that returning the minor to S.L. would be detrimental.

The department asked the court to identify S.L. as the minor’s

biological father but otherwise opposed his petition.

S.L. also filed a form JV-505 in which he declared he was

married to L.S., he had told his family that the minor was his

son, and he believed he was the minor’s parent. He gave the

court a link to a Facebook video of him wrestling with the minor

when he took care of the minor. He attached a copy of his

marriage certificate, which shows he married L.S. in South

Carolina in 2015.

S.L. and his counsel appeared at a hearing on his section

388 petition in June 2025. His counsel noted that the only

documents she or S.L. had received were the section 366.26

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report and addendum and copies of the department’s delivered

service logs, not records from earlier in the case.

S.L. testified about the family background and his

relationship with the minor. S.L. married L.S. in South Carolina

May 2015. S.L. and L.S. had two children together and lived in

South Carolina. L.S. became pregnant with the minor in 2019.

At this time, L.S. and S.L. had an on-gain, off-again relationship

and had started to separate. L.S. lived part of the time with S.L.,

part with N.M.D., and part with a friend in Tennessee. L.S. gave

birth to the minor in Tennessee in February 2020.

S.L. met the minor when he was three weeks old. S.L. was

not sure at first that the minor was his biological child. L.S. had

told S.L. that the minor was someone else’s child. But S.L.

always loved the minor as his own child. S.L. took care of the

minor and treated the minor with the same love as S.L.’s other

children. S.L. bought the minor clothes, diapers, or other items

the minor needed. S.L. saw the minor every afternoon after work

and played with him. The minor stayed at S.L.’s house for one or

two nights, sometimes three. The minor called both S.L. and

N.M.D. by their names or “papa” or “daddy.”

S.L. last saw the minor two or three years earlier, when

L.S. came to take the minor and N.M.D. back with her to

California. When the minor was with L.S. in California, S.L.

talked to him by video call every day on his lunch break.

S.L. helped L.S. with money while she was in South

Carolina. S.L. consistently sent money to L.S. via her relatives

after she moved to California, even though he was not sure that

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the minor was his. S.L. had continued to send L.S. money during

the dependency, even after the minor was removed from her

custody.

S.L. previously used drugs, so his two older children with

L.S. lived with their maternal grandmother. S.L. stopped using

drugs two years earlier.

S.L. acknowledged that the department had sent him

notices of court hearings. He tried to attend some of the hearings

but always had bad connections and then would lose a good

signal after a few minutes. He would communicate with the

department afterwards. He said he became aware of his right to

an attorney three or four months earlier.

S.L. said that he was not sure he understood at the time of

his March 2024 call with the social worker why the minor was

taken away. But L.S. had called him and said why the

department was taking the minor away. L.S. had also said the

removal would just be for a short time and L.S. would get the

minor back soon.

S.L. said he originally did not get paternity testing because

he thought the minor was N.M.D.’s child and the testing would be

a waste of time. He figured that if N.M.D. would go and confirm

his paternity, then S.L. would not have to. Only when S.L. heard

that N.M.D. had not gotten tested and received a phone call from

someone who spoke Spanish did S.L. decide to get tested himself.

N.M.D. got tested as well afterwards.

S.L. said he was only able to talk to the minor during the

course of the dependency when L.S. visited the minor. L.S. would

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connect them with a video call, and the minor remembered S.L.’s

name. S.L. had asked someone involved in his case about setting

up calls with the minor, but that person never really gave him a

reply. He could not recall whom he asked. S.L. had recently

been communicating with the minor’s caregiver, whose family in

Ridgeland S.L. knew. The caregiver had agreed to allow him to

talk to the minor.

3. Arguments and Ruling

S.L.’s counsel argued that there had been a change of

circumstances in that S.L. had always been a presumed father

but that had fallen through the cracks. He said there had not

been an appropriate paternity inquiry. He said S.L. had only

recently obtained counsel and was just understanding the

possible consequences of the proceedings.

The juvenile court denied S.L.’s section 388 petition as not

being supported by sufficient evidence of changed circumstances.

It found that S.L. received notices from the department,

understood them, and knew of the court case and that the minor

was in foster care. The court therefore could not find that there

had been a change of circumstances to support S.L.’s section 388

petition. S.L.’s counsel suggested the juvenile court could on its

own motion correct the error in the handling of the case of not

treating him as a presumed father. The juvenile court explained

that it was not required to elevate to presumed father status

someone who never participated in the case or asked to be

elevated.

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S.L. moved for reconsideration, pointing out that the

juvenile court had a duty under California Rules of Court, rule

5.635 to determine parentage of the minor. S.L. further argued

that he was not required to establish changed circumstances to

have the court address paternity and his JV-505 statement

regarding paternity. The juvenile court stated that it had found

S.L. was the minor’s biological father but that S.L. did nothing

during the year and a half that the minor was in foster care. It

denied S.L.’s motion for reconsideration.

DISCUSSION

I. Fathers Under Dependency Law

“There are three types of fathers in dependency law:

presumed, biological and alleged.[3] [Citation.] ‘ “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.] [¶] Presumed

parent status, which is the equivalent of a legal parent, ‘ “ ‘ranks

[the] highest.’ ” ’ [Citation.] It confers ‘all the rights afforded to

parents in dependency proceedings, including standing, the

appointment of counsel, and reunification services.’ [Citation.]

Presumed parentage is determined under the Uniform Parentage

Act (Fam. Code, § 7600 et seq.), a statutory framework that

3 We recognize that an alleged parent can be of either

gender and that an alleged mother has the same rights as an

alleged father. For convenience, and because this case involves

the more typical situation addressed in the case law in which the

alleged parent is a father, we use the male gender without

meaning to exclude alleged mothers.

14

‘ “provides for conclusive and rebuttable presumptions of

paternity” ’ on various grounds.” (In re A.H. (2022)

84 Cal.App.5th 340, 349.) One circumstance conferring presumed

parent status is if “[t]he presumed parent and the child’s natural

mother are, or have been, married to each other and the child is

born during the marriage.” (Fam. Code, § 7611(a).) Another

circumstance is if “[t]he presumed parent receives the child into

their home and openly holds out the child as their natural child.”

(Id., subd. (d).)

One rank below presumed father is biological father, which

is “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.]

“Finally, an alleged father is a man who may be a child’s

father but has not yet established either presumed father status

or biological paternity. [Citation.] ‘Alleged fathers have “fewer

rights” and, unlike presumed fathers, “are not entitled to custody,

reunification services, or visitation.” ’ [Citation.] . . . [¶] ‘An

alleged father has no rights in a dependency case other than the

right to step forward and to seek to establish his paternity of the

child’ [citation], a right that is guaranteed through various

constitutional and statutory requirements . . . .” (In re A.H.,

supra, 84 Cal.App.5th at p. 350.)

II. Parentage Inquiry and Notice

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S.L. contends the juvenile court failed to conduct a proper

paternity inquiry and he did not receive notice to which he was

entitled. We agree.

“[J]uvenile courts have a duty to determine a child’s

parentage at the earliest opportunity, imposed both by statute

and under the California Rules of Court.” (In re A.H., supra,

84 Cal.App.5th at p. 363.) Section 316.2, subdivision (a) states,

“At the detention hearing, or as soon thereafter as practicable,

the court shall inquire of the mother and any other appropriate

person as to the identity and address of all presumed or alleged

fathers.” The statute lists questions the court must ask as it

deems appropriate, including “[w]hether the mother was married

or believed she was married at the time of conception of the child

or at any time thereafter” and “[w]hether any man otherwise

qualifies as a presumed father pursuant to Section 7611, or any

other provision, of the Family Code.” (§ 316.2, subd. (a)(2), (7).)

“The California Rules of Court go even further. Rule 5.635

imposes a continuing duty on the juvenile court to inquire about

parentage at every hearing from the very beginning of a

dependency case until the question of parentage has been

resolved; it specifies steps the court must take to address the

issue of parentage with every person present at each hearing and

with local child support authorities; and, if there has been no

prior determination of parentage, it requires the court to make

such a determination.” (In re A.H., at p. 364.)

An alleged father identified through this inquiry has

statutory and constitutional rights to notice, “ ‘with the

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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.’ ” (In re A.K. (2024)

99 Cal.App.5th 252, 263–264.)

To that end, “[a]n alleged father is ‘entitled at the earliest

possible point to be informed of the importance of, and apprised of

the statutory method for, seeking presumed parent status. [¶]

Specifically, section 316.2 requires the court to give to all men

who are identified as an alleged father a statutorily prescribed

notice and a statutorily prescribed form containing various

advisements that enables them to exercise their rights as an

alleged father to assert a claim to parentage. This procedure

mandated by section 316.2 is the statutory means of protecting an

alleged father’s limited due process to notice and an opportunity to

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appear in the case to assert a position and attempt to change his

paternity status.’ [Citations.]

“In relevant part, section 316.2, subdivision (b) states: ‘If,

after the court inquiry, one or more men are identified as an

alleged father, each alleged father shall be provided notice at his

last and usual place of abode by certified mail return receipt

requested alleging that he is or could be the father of the child.

The notice shall state that the child is the subject of proceedings

under Section 300 and that the proceedings could result in the

termination of parental rights and adoption of the child. Judicial

Council form Paternity — Waiver of Rights (JV-505) shall be

included with the notice.’ (Italics added.)

“Rule 5.635(g) of the California Rules of Court places a

related and, in some ways, more robust duty explicitly on the

clerk of the trial court (unless certain circumstances not

pertinent here exist): ‘If, after inquiry by the court or through

other information obtained by the county welfare department or

probation department, one or more persons are identified as

alleged parents of a child for whom a petition under section 300,

601, or 602 has been filed, the clerk must provide to each named

alleged parent, at the last known address, by certified mail,

return receipt requested, a copy of the petition, notice of the next

scheduled hearing, and Statement Regarding Parentage —

(Juvenile) (form JV-505).’ (Italics added.)” (In re A.K., supra,

99 Cal.App.5th at p. 265.)

The department and juvenile court failed to comply with

these requirements. The department was aware of S.L. as at

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least an alleged father when it filed the petition, since the

detention report names him as such.4 The juvenile court’s form

findings and orders after the detention allowed it to order the

clerk to send the notice required by section 316.2(b) to alleged

parents who were not at the hearing, but S.L. was not named and

that box was not checked. The department does not cite and we

have not discovered anything else in the record that shows the

court clerk sent the required notices to S.L. despite the lack of a

court order.

This was error. Father was not told that his parental

rights could be terminated, as required by section 316.2(b). He

was not given a copy of the petition, as required by rule 5.635(g).

And he was not given form JV-505, as required by both section

316.2(b) and rule 5.635(g).

The department did send other notices to father before and

after the detention hearing, but none of them cured this violation.

The detention report and a proof of service in the record state

that the social worker sent notice of the detention hearing to S.L.

at two addresses, but the notices do not mention the termination

of parental rights. The petition would have informed S.L. of this

4 The report should have identified S.L. as a presumed

father because it mentioned his marriage to L.S. at the time of

the minor’s birth. The department had no trouble identifying

S.L. as a presumed father by marriage at the detention hearing.

We note also that section 290.1 requires notice of a detention

hearing for a child to be retained in custody to be served on a

child’s “father or fathers, presumed and alleged,” at the outset of

a case. (§ 290.1, subd. (a)(2).) This necessarily presupposes that

some fathers can be presumed fathers, even without asking first

to be elevated or court action acknowledging them as such.

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possible consequence, since it was on Judicial Council form JV-

100 and prominently mentioned the potential for loss of parental

rights. (In re A.K., supra, 99 Cal.App.5th at p. 265, fn. 7.) But

the department did not attach a copy of the petition to the notice.

There is no indication that form JV-505 was attached, either.

However, the notices did state that S.L. had the right to be

represented by an attorney and one would be appointed for him if

he could not afford it.

The department sent S.L. notices of the ensuing

jurisdiction and, eventually, combined jurisdiction and

disposition hearing dates. These notices were on the same form

as the notices of the detention hearing, did not have the petition

attached, and did not satisfy the requirements of section 316.2(b)

or rule 5.635(g), although they, too, mentioned S.L.’s right to an

attorney.

The social worker communicated with S.L. by phone on a

few occasions, but none of the records of their interactions shows

that the social worker gave him the information required by

section 316.2(b) or rule 5.635(g). S.L. spoke with the social

worker ahead of the jurisdiction hearing, but the social worker’s

notes from the call do not say she told S.L. his parental rights

could be terminated, offered to send him a copy of the petition, or

mentioned form JV-505. The social worker also spoke with S.L.

while preparing the disposition report, but nothing in those call

notes mentions giving S.L. the required information or

documents.

20

The notice to father regarding the section 366.26 hearing

may have contained some of the required information. The

department’s report for the section 366.26 hearing states it

mailed S.L. notice of the section 366.26 hearing. The record does

not appear to contain a copy of this notice, but the department

may have used form JV-300, as it did with L.S. That form states

that parental rights will be terminated at the section 366.26

hearing. Father may not have received this notice, however. The

department told the court a notice to S.L. had been returned, to

justify giving notice by publication. The published newspaper

notice mentions the termination of parental rights as well. But

S.L. told the social worker he could not read English well, so it

seems unlikely he read the published notice. Even if these

notices did reach S.L., they did not provide him a copy of the

petition or form JV-505 and came far too late to satisfy section

316.2(b) or rule 5.635(g) in any event.

S.L. detailed in his opening brief these flaws in the notices

sent to him. The department’s only response is to cite the notices

of hearings it sent to S.L. that mentioned his right to counsel.

We take this failure to challenge S.L.’s evidence of deficiencies in

the notices as a concession that S.L. has correctly described what

transpired in the case. We also reject the department’s position

that the notices of the later hearings suffice. Alleged or

presumed parents are entitled to notice of specific hearings in

addition to the notice required by section 316.2(b). (In re A.H.,

supra, 84 Cal.App.5th 367–368; § 291, subd. (a)(2).) These

notices cannot substitute for the section 361.2(b) notice unless

21

they contain the information that statute requires, which the

hearing notices here did not.

III. Counsel

S.L. contends the juvenile court erred by not appointing

him counsel when it learned he qualified as a presumed father or

at his first appearance. We agree.

Section 317, subdivision (b) states, “When it appears to the

court that a parent or guardian of the child is presently

financially unable to afford and cannot for that reason employ

counsel, and the child has been placed in out-of-home care, or the

petitioning agency is recommending that the child be placed in

out-of-home care, the court shall appoint counsel for the parent or

guardian, unless the court finds that the parent or guardian has

made a knowing and intelligent waiver of counsel as provided in

this section.” Presumed fathers are included within this right.

(In re A.H., supra, 84 Cal.App.5th at p. 349.) “So long as an

indigent parent or guardian appears or communicates to the

court a request for legal representation, counsel should be

appointed.” (In re Al.J. (2019) 44 Cal.App.5th 652, 668.)

The juvenile court should have appointed S.L. counsel

before the completion of the jurisdiction and disposition hearing.

The detention report stated that L.S. was married to S.L. before

the minor’s birth and remained married to him. Although the

report continued to refer to S.L. as an alleged father, the

department explicitly flagged the issue at the detention hearing,

telling the court, “[I]t also sounds like [S.L.] is a presumed father

by marriage.” This was sufficient to show that S.L. qualified as a

22

presumed father under Family Code section 7611(a) and would be

entitled to counsel. However, S.L. had not yet appeared at the

detention hearing, so the juvenile court’s reluctance to appoint

counsel is understandable. (Abbott et al., Cal. Juvenile

Dependency Practice (Cont.Ed.Bar 2025) § 2.47 [“Most courts will

not appoint counsel for a parent who has not come into court

unless the parent is incarcerated . . . .”].)

When S.L. called the social worker on his own initiative in

mid-March 2024, the social worker told him he would be

appointed counsel if he appeared at the next hearing. The

department informed the court at the next hearing that this call

had occurred and asked for counsel to be appointed for S.L. as a

presumed father. This would have been an appropriate juncture

to appoint counsel, but S.L. had still only contacted the social

worker, not the court, so the court’s choice to only reserve counsel

for S.L. is again perhaps understandable.

In April 2024, S.L. himself appeared by Zoom, albeit

without an audio connection. By this point, at the latest, the

juvenile court should have construed S.L.’s attempted appearance

in court from across the country as demonstrating a sufficient

interest in the case to justify the appointment of counsel. It is

noteworthy that the department once again suggested that

counsel be appointed. Inexplicably, however, the attorney

reserved for S.L. stated that he wanted to wait until S.L. had

completed a DNA test, apparently unaware of S.L.’s status as a

presumed father by marriage.

23

These circumstances resemble those in In re Al.J., supra,

44 Cal.App.5th at pages 657–659, in which a presumed father,

incarcerated in Mississippi, wrote letters to the agency and

juvenile court asking to be present at a jurisdiction and

disposition hearing. The Court of Appeal held these requests

included an implied request for counsel. (Id. at p. 669.)

Similarly, In re Christopher L. (2022) 12 Cal.5th 1063, 1071–

1072, affirmed a Court of Appeal’s holding that a juvenile court

should have appointed counsel at a jurisdiction and disposition

hearing to represent an incarcerated presumed father who had

not yet appeared in court but who had written to the social

services agency and asked about the possibility of appearing by

telephone. S.L. was not incarcerated here, but his

communications with the department and video appearance in

April 2024 demonstrate sufficient interest in the case to warrant

counsel. This case is therefore unlike In re Ebony W. (1996)

47 Cal.App.4th 1643, a case the department cites in support of its

argument that counsel did not need to be appointed for S.L.

because he did not appear or indicate a desire for counsel in any

manner. The mother there appealed from the termination of her

parental rights and faulted the juvenile court for not appointing

counsel to represent her at the detention, jurisdiction,

disposition, or section 366.26 hearings, even though she did not

appear at any of them. (Id. at pp. 1645–1647.) The court held

there had to be “some manifestation by the indigent parent that

he or she wants representation before the court is obliged to

appoint counsel.” (Id. at p. 1647.) Father here manifested such

24

desire when he tried to appear, thwarted only by technical

difficulties, after being told he could be appointed counsel if he

did.

After S.L. attempted to appear at the April 2024 hearing,

we cannot conceive why, when the department asked if the

attorney reserved for S.L. wanted to be appointed and the

attorney said he wanted to wait until S.L. completed a DNA test,

the juvenile court did not intervene and formally appoint the

attorney to represent S.L. It appears that the attorney had

already contacted S.L. before the hearing, since the attorney

stated that S.L.’s English language skills were sufficient to

understand what happened in the courtroom. This counsel’s

desire to delay his appointment is also in marked contrast to the

zealous advocacy S.L. received later when counsel reached out to

him in advance of being formally appointed to him and seconds

after being appointed asked for presumed father status and took

steps to file a section 388 petition and JV-505 form. The

difference in approaches demonstrates why the juvenile court

should have formally appointed counsel to vigorously protect

S.L.’s interests as soon as reasonably possible, rather than

drifting with an informal arrangement in which counsel was not

accountable for failing to advocate for S.L.

IV. Parentage Determination

S.L. faults the juvenile court for failing to find that he was

a presumed father of the minor. The department concedes that

the juvenile court should have made the requested finding. We

agree with the parties.

25

Rule 5.635(h) states, “If a person appears at a hearing in

dependency matter . . . and requests a judgment of parentage on

form JV-505, the court must determine: [¶] (1) Whether that

person is the biological parent of the child; and [¶] (2) Whether

that person is the presumed parent of the child, if that finding is

requested.” “ ‘This is a mandatory, not a discretionary, rule.’ ”

(In re J.H. (2011) 198 Cal.App.4th 635, 648.)

Father submitted a form JV-505 ahead of the section

366.26 hearing, which requested findings that he was the

biological and presumed father of the minor. Yet when S.L. cited

Family Code section 7611(a) and asked for a finding that he was

a presumed father of the minor, the court insisted that S.L. had

not shown changed circumstances to support his section 388

petition. This was error. Rule 5.635(h) requires a court to make

a finding about both biological and presumed parenthood upon

request. The juvenile court had no basis to require proof of

changed circumstances before making a finding regarding S.L.’s

status as presumed father.

The juvenile court perhaps cured this error in response to

S.L.’s motion for reconsideration. At that hearing, the juvenile

court remarked that it had previously found S.L. to be the

minor’s biological father. We construe this as a reference to the

minutes for the hearing where S.L. was appointed counsel, before

he had even submitted a JV-505. Those minutes state, “Alleged

father deemed biological father by DNA results.” The minutes

from the hearing on S.L.’s motion for reconsideration also

perhaps address S.L.’s request for presumed father status, since

26

they state that the court confirmed “its previous finding, denying

the Motion for Reconsideration, to find [S.L.] as a Presumed

Father.”

Both of these minute entries are somewhat ambiguous, but

even if they demonstrate that the juvenile court made

determinations on S.L.’s requests to be named biological and

presumed father by granting the first and denying the second,

the denial of presumed father status was error. S.L. was entitled

to a rebuttable presumption that he was the minor’s father under

Family Code section 7611(a) by virtue of his marriage to L.S. at

the time of the minor’s birth. That presumption was never

rebutted, so the juvenile court should have declared S.L. to be a

presumed father. The juvenile court at one point cited S.L.’s lack

of contact with the minor in recent years, lack of a parental

relationship with him, failure to hold him out as his own, and

failure to engage with the dependency case as rebutting the

presumption. But as the department points out, there is no legal

authority for the proposition that the marital presumption can be

rebutted for lack of a relationship with the child. The

presumption turns solely on marital status when the child is born

or during the period shortly before the birth. (Fam. Code,

§ 7611(a).) The presumption particularly cannot be rebutted

where no other man is claiming parental rights and the result

would be to leave a child fatherless. (In re Nicholas H. (2002)

28 Cal.4th 56, 70.) By the time of the section 366.26 hearing,

N.M.D. was no longer appearing in the case, much less claiming

27

to be the minor’s father. There was no basis to deny S.L.

presumed father status at that point.

V. Prejudice

Inadequate notice under section 316.2(b) and rule 5.635(g)

and the failure to appoint counsel will not require reversal of a

juvenile court order unless they are prejudicial. (In re

Christopher L., supra, 12 Cal.5th at pp. 1069, 1082 [failure to

appoint counsel]; In re Marcos G. (2010) 182 Cal.App.4th 369,

387–388 [inadequate § 316.2(b) and rule 5.635(g) notice].) We

have no difficulty concluding the juvenile court’s errors were

prejudicial. (See In re A.H., supra, 84 Cal.App.5th at p. 372

[Courts of Appeal are split regarding the standard for prejudice];

In re Christopher L., at p. 1083 [declining to decide which

standard of prejudice applies].) Even under the more difficult

standard for an appellant, which requires proof of a reasonable

probability of a more favorable result (People v. Watson (1956)

46 Cal.2d 818, 836), the errors were prejudicial.

The department and juvenile court’s failures to give S.L.

adequate notice were consequential because they kept him

“uninformed ‘of the significance of the case’ and of ‘his right to

attempt to prevent the court from severing all legal ties between

him and the child he claims as his” son. (In re A.K., supra,

99 Cal.App.5th at p. 267.) Given S.L.’s statements to the social

worker that he wanted to have the minor live with the minor’s

siblings regardless of S.L.’s biological paternity, if S.L. had

received a copy of JV-505 at any point before counsel was

appointed there is a reasonable probability he would have

28

completed and submitted it, thereby forcing the juvenile court to

name him a presumed father of the minor. There is also a

reasonable probability that S.L. would have made more of an

effort to appear in the case had he received adequate notice and

counsel to make clear to him the gravity of the case.

While an alleged father need not establish that he would

have been recognized as a presumed father in order to establish

prejudice (In re A.H., supra, 84 Cal.App.5th at p. 372), there is no

question that S.L. would have so qualified if he had received

counsel before the conclusion of the jurisdiction and disposition

hearing. Any competent attorney would have immediately filed a

JV-505 for S.L., as his counsel did after being appointed at the

section 366.26 hearing. As noted ante, this would have required

the juvenile court to find S.L. to be the minor’s presumed father.

The juvenile court potentially could have found at that time

that N.M.D. was also a presumed father. N.M.D. had submitted

a JV-505, which said that he had accepted the minor into his

home and held him out as his son. This perhaps might have

warranted finding him to be a presumed father under Family

Code section 7611, subdivision (d). But such a finding would not

have rebutted S.L.’s presumption. It simply would have obligated

the juvenile court to balance the competing presumptions.

Family Code section 7612, subdivision (b) states, with an

exception not relevant here, “If two or more presumptions arise

under Section 7611 that conflict with each other . . . , the

presumption that on the facts is founded on the weightier

considerations of policy and logic controls.” We need not predict

29

with certainty how the juvenile court would have balanced these

competing presumptions. There is at least a reasonable

probability that S.L. would have prevailed in becoming the sole

presumed father, given his marriage to mother, his relationship

with the minor early in the minor’s life, his stated desire for

custody of the minor, and his continued role in the minor’s

siblings’ lives.

Sole presumed father status for S.L. at disposition could

have put this case on a dramatically different trajectory. It

would have given S.L. a claim to placement of the minor at

disposition as a noncustodial parent and made him

presumptively entitled to reunification services. (§§ 361.2,

subd. (a), 361.5, subd. (a).) We recognize that a juvenile court

may bypass a parent for services if the parent failed to reunify

with and had services terminated for a sibling and the parent

had not subsequently made a reasonable effort to treat the

problems that led to the removal of the sibling. (§ 361.5,

subd. (b)(10)(A).) A similar exception applies if a parent

previously had parental rights terminated as to a sibling and did

not make a reasonable effort to treat the problems that led to the

removal of the sibling. (Id., subd. (b)(11)(A).) The department

might have argued that these exceptions applied to S.L., since he

admitted to the social worker that his other children with L.S.

were involved with child protective services in South Carolina

and now lived with their maternal grandmother. But S.L. also

said that this was because he previously struggled with

substance use and that he was now clean. The department did

30

not investigate this matter further because it erroneously

considered S.L. to be only an alleged father, so the record does

not have many facts that would bear on these considerations.

“[L]ike other appellate courts before us in similar circumstances,

we decline to deem [the juvenile court’s] errors harmless when

the poor state of the record is the result of the very errors

themselves.” (In re A.H., supra, 84 Cal.App.5th at p. 373.)

The possibility of a different outcome makes this case

unlike In re Christopher L., where the Court of Appeal found a

deprivation of counsel for a presumed father was harmless

because termination of reunification services for the presumed

father was “inevitable.” (In re Christopher L. (2020)

56 Cal.App.5th 1172, 1192, affd. (2022) 12 Cal.5th 1063; accord,

In re Kobe A. (2007) 146 Cal.App.4th 1113, 1122–1124 [failure to

send JV-505 harmless where father could not qualify for

presumed father status under Family Code section 7611, was

incarcerated for entire reunification period, and was

presumptively ineligible for services based on conviction for

violent felony].) The fact that the juvenile court failed to send

S.L. a copy of the petition or JV-505, as well as the fact that S.L.

contacted the social worker on his own initiative and tried to

appear at the jurisdiction and disposition hearing, also

distinguish this case from In re Marcos G., supra,

182 Cal.App.4th at pages 388–389, which found a failure to send

a father a JV-505 was harmless where the agency sent notices of

hearings with copy of petition attached and the father made no

efforts to contact agency for 16 months.

31

We are cognizant that reversing the juvenile court’s order

here, as in all dependency matters, comes at the heavy cost of

delaying permanence for the minor. However, this fact alone

cannot justify allowing the juvenile court’s errors to go

uncorrected. We also agree with the department that S.L.

certainly could have done more to become involved with this case,

even with the inadequate notice he received. He ignored

countless notices of hearings between the hearing he attempted

to appear at through Zoom and the section 366.26 hearing and

delayed DNA testing for no apparent reason. However, the

extent of S.L.’s efforts in this case must be considered in the

context of the importance of his rights to adequate notice of the

proceedings and counsel. As another court recently explained in

a case in which an alleged father was denied notice under section

316.2(b), “The importance of this step cannot be overstated.” (In

re A.H., supra, 84 Cal.App.5th at p. 367.) Similarly, we must

bear in mind “the ‘unique impact that a deprivation of the right

to appointed counsel can have . . . on the fairness of the

dependency proceedings.’ ” (In re Al.J., supra, 44 Cal.App.5th at

p. 670.) Without adequate notice and counsel, “there was simply

no assurance of protecting” S.L.’s right to demonstrate the

presumed father status to which he was entitled. (In re A.H., at

p. 367.) “Even in cases where alleged fathers have actually

appeared in a dependency case, appellate courts have reversed

orders entered late in the dependency case — including orders

terminating parental rights — for the juvenile court’s failure to

32

give an alleged father the statutorily required notice and form

under section 316.2.” (Ibid.)

The Supreme Court recently held that although the denial

of counsel was not structural error and was susceptible to

harmless error review, “ ‘appellate courts should be wary of

finding harmless error ‘[w]hen a counterfactual inquiry appears

too difficult to responsibly undertake, or a counterfactual

conclusion relies on inferences that really amount to

guesswork.’ ” (In re Christopher L., supra, 12 Cal.5th at p. 1082.)

This is not a case in which we can see clearly what would have

transpired had the juvenile court given S.L. the notice and

counsel to which he was entitled. There is at least a reasonable

probability that S.L. could have taken enough of a role in the case

to have achieved an outcome more favorable to him, which is

sufficient to require reversal.

VI. Section 388 Petition

The department insists that the juvenile court properly

denied S.L.’s section 388 petition because it showed no new

circumstances and was not in the minor’s best interests. (In re

D.R. (2011) 193 Cal.App.4th 1494, 1512 [post-reunification, “ ‘to

revive the reunification issue,’ ” a parent’s section 388 petition

“must prove that circumstances have changed such that

reunification is in the child’s best interest”].)

We need not spend long on this argument. Although S.L.’s

briefing here focuses on his section 388 petition, his notice of

appeal includes the section 366.26 termination of parental rights

order as one of the orders he appealed from. Even if the juvenile

33

court’s ruling on S.L.’s section 388 petition was correct as a

technical matter at the time when it ruled, we cannot ignore the

fact that the errors S.L. complains of in his briefing violated his

rights and were prejudicial. This requires us to vacate the

juvenile court’s section 366.26 order terminating S.L.’s parental

rights. On remand, these errors, now established, will qualify as

new evidence or changed circumstances to support any challenges

under section 388 that S.L. chooses to make to orders and/or

findings previously entered against him, including but not

limited to the jurisdictional findings and orders and dispositional

findings and orders. The lack of notice and counsel will also

make it unnecessary for S.L. to demonstrate that any changes in

findings or orders are in the minor’s best interests. (In re R.A.

(2021) 61 Cal.App.5th 826, 836–837 [when lack of notice in

violation of due process is raised via a section 388 petition, proof

that a changed order is in the child’s best interests is

unnecessary].)

DISPOSITION

The order of the juvenile court terminating S.L.’s parental

rights is vacated. The matter is remanded to the juvenile court to

determine whether S.L. is the minor’s presumed parent and for

further proceedings not inconsistent with this opinion. Our

decision is without prejudice to S.L. filing an appropriate motion

pursuant to section 388 on remand to challenge any orders and/or

findings previously entered against him, including but not

limited to the jurisdictional findings and orders and dispositional

findings and orders. In view of the errors earlier in the case with

34

respect to S.L., the juvenile court should appoint counsel to

represent him in any further proceedings.

BROWN, P. J.

WE CONCUR:

GOLDMAN, J.

MOORMAN, J.

In re N.S. (A173769)



Judge of the Superior Court of Mendocino County,

assigned by the Chief Justice pursuant to article VI, section 6 of

the California Constitution.

35