In re J.W.-P.

Filed 9/8/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re J.W.-P., a Person Coming
Under the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL
SERVICES AGENCY, A156550
Plaintiff and Respondent,
v. (Alameda County
Super. Ct. No. JD-028932-01)
R.P.,
Intervener and Appellant.

The Alameda County Social Services Agency ( “Agency”) took
J.W.-P. (“minor” or “daughter”) into custody and initiated a juvenile
dependency case after her mother (“mother”) was arrested and
incarcerated. Mother testified in the dependency proceedings that R.P.
(“father”) is minor’s father, lived with and cared for his daughter during
the first two years of her life, acknowledged minor as his daughter, and
was subject to a child support order in another state. However,
contrary to Welfare and Institutions Code section 316.2, subdivision
(b),1 and California Rules of Court, rule 5.635(g), the trial court clerk
never provided father with notice of the procedure he should follow to

1 Undesignated citations are to the Welfare and Institutions
Code.

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establish that he is minor’s father and to protect his parental rights.
Because we conclude father was prejudiced by this failure, we reverse.
BACKGROUND
A.
In a dependency case, “a man’s status as a presumed or biological
father is critical to whether he retains his rights to his child.” (In re
O.S. (2002) 102 Cal.App.4th 1402, 1410 (O.S.); see also In re Paul H.
(2003) 111 Cal.App.4th 753, 760 (Paul H.).) A presumed father is one
who “receives the child into [the parent’s] home and openly holds out
the child as [the parent’s] natural child.” (Fam. Code, § 7611, subd. (d);
see Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 119.) A biological
father is one who has established his paternity but has not established
his qualification as a presumed parent. (In re T.G. (2013) 215
Cal.App.4th 1, 4 (T.G.).) An alleged father has established neither
biological nor presumed father status. (Ibid.) Alleged fathers have
“fewer rights” and, unlike presumed fathers, “are not entitled to
custody, reunification services, or visitation.” (O.S., supra, 102
Cal.App.4th at p. 1410; Paul H., supra, 111 Cal.App.4th at p. 760; T.G.,
supra, 215 Cal.App.4th at pp. 4-5.) A court may order reunification
services for biological fathers if they are in the child’s best interest but
may not do so for alleged fathers. (O.S., supra, 102 Cal.App.4th at p.
1410.)
Despite father’s consistently stated desire to gain custody of his
daughter, he was deemed an “alleged” father at all stages of these
proceedings.

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 B.
After police arrested their mother in October 2017 for being in
possession of two stolen vehicles, ten-year-old minor and her two half-
brothers were found at a homeless encampment and detained by the
Agency. The Agency filed a juvenile dependency petition pursuant to
section 300, subdivision (b).
At a detention hearing on November 2, 2017, the trial court
conducted a paternity inquiry. Mother testified that father is minor’s
father. Mother and father lived together for approximately four years,
starting from before minor was born until she was two years old.
During that time, mother and father jointly raised minor, together with
mother’s other children, as a family. Mother and father planned to get
married, but they separated in 2009.
Father subsequently participated in child support proceedings in
Nevada, acknowledged minor as his child, and was subject to an order
to pay child support for her. Father lived in Reno, Nevada, and he
arranged visits with minor through her maternal grandfather. Minor
had last visited with her father during the summer.
After hearing mother’s testimony, the court stated that it would
make no formal finding regarding paternity that day. The court
concluded that the detention of the children was necessary and that the
temporary care, custody, and placement of the children would be vested
with the Agency.
On November 17, 2017, after the Agency filed a first amended
petition naming father as minor’s alleged father, the court found the
amended petition’s allegations true, declared the children dependents
of the court, and ordered family reunification services for mother. After

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several months, they were placed at their maternal grandfather’s
home.
At an August 30, 2018, hearing, the court granted the children’s
request to terminate reunification services for mother and concluded
that the children’s out-of-home placement with their maternal
grandfather continued to be appropriate. The court ordered that a
hearing to adopt a permanent plan for the children pursuant to section
366.26 would be held on December 20, 2018.
On December 20, 2018, the court held a hearing pursuant to
section 366.26 to select a permanent plan for minor and her half
siblings. As a permanent plan, the court ordered a legal guardianship
by the children’s maternal grandfather and step-grandmother. The
permanent plan was consistent with the children’s wishes and the
Agency’s determination that it would be detrimental to separate the
siblings. The court also ordered visitation for mother.
On January 31, 2019, the court held a hearing to address the
Agency’s ex parte request that the court terminate the dependency.
The Agency sought immediate dismissal of the dependency because
financial support for the guardianship was conditioned on dismissal by
February 2. The court dismissed the dependency, retaining general
jurisdiction.
C.
During the pendency of the proceedings, father maintained his
relationship with minor and consistently stated that he wanted custody
of her.
Prior to a six-month review hearing in May 2018, the social
worker filed a report with the court that detailed the Agency’s contacts

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with father. Father had repeatedly contacted the Agency beginning in
November of 2017, stating that he was minor’s father and wanted
custody of his daughter. In December, after father stated his desire for
custody, the social worker advised him to ask for an attorney to be
assigned to him so that he could be represented in court and elevated to
presumed father status.
A few weeks later, father contacted the social worker to tell her
that he had a birth certificate for minor listing him as her father, and
he mailed the birth certificate to the social worker. That same month,
he attended a meeting with the social worker in which he stated that,
while he agreed that minor should remain with her siblings, he wanted
his daughter placed with him and his fiancé.
During spring break in 2018, minor visited with father and his
family for two days. Minor reported to the social worker that she had
“a lot of fun.” In May, minor indicated to the social worker that her
father was “important” to her. By late June, father had visited minor
three times at her placement home.
The social worker’s report filed in advance of the August 30,
2018, hearing indicated that father “has maintained his desire to have
[minor] placed with him[.]”
A December 2018 report by the social worker indicated that
minor “sees her father regularly” and that she “has visited with her
father on multiple occasions, the last visit being 11/03/2018.” Minor
told the social worker that “her parents are important people in her
life” and that she “wants to remain . . ., close to her father.” The social
worker also reported that minor “has connections with her own father

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and her extended family members, which seems to help [her] feel
emotionally settled.”
D.
The trial court appointed a series of three separate attorneys or
legal organizations to represent father between March of 2018 and
January of 2019 although, as explained below, father was effectively
unrepresented during a critical period.
Father’s first attorney requested appointment in March 2018
specifically to “address his paternity status” but took no action in court
to do so during the five-plus months he represented father. Indeed, at
one of the four hearings at which this attorney appeared on father’s
behalf, he remained silent while the attorneys for the fathers of minor’s
half-siblings both asked the court to adjudge them presumed fathers.
Ultimately, on August 31, 2018, the court granted the first attorney’s
request to be relieved as father’s counsel because his contract with
Juvenile Dependency Counselors was set to expire, and the court
appointed East Bay Family Defenders to represent father.
East Bay Family Defenders was unable to represent father
because it was already representing three other parties in the
dependency proceedings—a fact that the court learned months later.
Father was unrepresented from August 31, 2018 (the day after the
court set a hearing to adopt a permanent plan) to January 31, 2019 (the
hearing to dismiss the dependency). No attorney appeared on father’s
behalf at the December 20, 2018, hearing in which the court adopted
the permanent plan.
The court located and appointed a third attorney during the
dismissal hearing on January 31, 2019. At the beginning of the

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hearing, the court noted that no counsel was present on father’s behalf.
It acknowledged that “[w]e conducted our last proceeding [December
20], . . ., without counsel present for [him]. That was an error.” During
the hearing, a court officer then located an attorney to represent father.
She had no prior knowledge of the case. The court offered her an
opportunity to contact her client. However, she had been told that
grant funding for the guardianship was set to expire in two days and
that father’s status was merely an alleged father. Counsel declined the
opportunity to speak with father and submitted to the dismissal on the
spot.
About a week later, after father received the minute order
dismissing the action, he located the attorney who represented him at
the dismissal hearing (her name was on the minute order) and told her
that he wanted custody of his daughter, had told this to the Agency,
and had provided the Agency a copy of minor’s birth certificate stating
he is her father. Counsel later said that her telephone call with father
“disturbed me greatly” and that she had relied on “inaccurate and
incomplete information” when she submitted to the dismissal.
DISCUSSION
A.
As an initial matter, the Agency asserts that father does not have
standing to appeal because he is an alleged father who never personally
appeared in the dependency proceedings. (See In re Emily R. (2000) 80
Cal.App.4th 1344, 1356-1357 [to become a party, an alleged father
must appear and take a position].) We disagree.
The Agency provides no reason why father’s appearances through
counsel should be deemed insufficient to establish standing, and we can

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think of none. Ordinarily, in civil proceedings, personal appearance by
a party is not required, and “appearance by an attorney is sufficient
and equally effective.” (In re Dolly D. (1995) 41 Cal.App.4th 440, 445.)
Father, who lived in Nevada, instructed an appointed attorney to
represent him in the proceeding and to “address his paternity status
and related issues.” He repeatedly told the social worker that he
wanted custody of his child, and he provided a birth certificate naming
him as the father. Father has standing. (See Paul H., supra, 111
Cal.App.4th at p. 759 [alleged father had standing where he contacted
social worker, communicated to court he might be the father, and tried
to complete paternity testing].)
B.
Before we turn to the merits, we must also resolve whether
father’s appeal is timely. We conclude that it is.
1.
Father asserts the trial court erred in failing to provide him with
notice regarding the procedure he should follow to obtain a judgment of
parentage from the court. (See § 316.2, subd. (b); Cal. Rules of Court,
rule 5.635(g).) He argues this error occurred throughout the
proceedings, including at the time of the August 30, 2018, hearing
(during which the court set the section 366.26 hearing to select a
permanent plan), as well as at the time of the section 366.26 hearing.
As to the August 30 hearing, the Agency argues that his appeal is
untimely.2

2Although father’s claim of error as to the December 20, 2018,
section 366.26 hearing is indisputably timely, we nonetheless must
consider the timeliness of his claim as to the August 30, 2018, hearing
because it affects the potential remedy on remand. If the trial court

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 Ordinarily, a party seeking review of an order setting a section
366.26 hearing must file notice of intent to file a petition for
extraordinary writ review within strict timeframes set forth in the
California Rules of Court, rule 8.450(e)(4). (See also § 366.26, subd. (l).)
Here, father should have filed a notice of intent within 17 days after
the clerk mailed a notice setting the hearing. (Cal. Rules of Court, rule
8.450(e)(4)(C).) The clerk’s notice is crucial—it advises the parties they
must file a timely writ petition to preserve their right to appeal. (See §
366.26, subd. (l).)
The Agency concedes that the clerk of the court failed to provide
the requisite notice to father.
2.
When, as here, the trial court fails to notify a party of the need to
file a writ petition, the party’s failure to file a writ petition is excused,
and the party may seek review on appeal from the disposition following
the section 366.26 hearing. (See, e.g., In re Frank R. (2011) 192
Cal.App.4th 532, 539 [excusing father’s failure to seek writ review
where the trial court failed to provide notice, and reviewing his claims
on the merits on direct appeal]; accord In re Harmony B. (2005) 125
Cal.App.4th 831, 838-39; In re Cathina W. (1998) 68 Cal.App.4th 716,

sets a section 366.26 hearing, it must terminate reunification services.
(See Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure
(2019) § 2.153 [4].) Further, “if a man fails to achieve presumed father
status prior to the expiration of any reunification period . . . . [h]is only
remedy . . . [i]s to file a motion to modify under section 388.” (In re
Zacharia D. (1993) 6 Cal.4th 435, 453.) In contrast, if father
successfully challenges the trial court’s August 30, 2018, order setting
the 366.26 hearing, then he may request presumed father status
without meeting the heightened requirements of a section 388 petition.

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723-724.) It would be unjust to penalize father for his failure to file a
timely writ petition when the court failed to comply with its obligation
to provide him with notice of the steps he needed to take to preserve his
rights. This is particularly true given that father’s appointed counsel
withdrew his representation the day after the hearing, and, due to
court error, father had no attorney for the next five months.
Accordingly, father may pursue his claims concerning the August 30,
2018, hearing in this appeal.
C.
On the merits, we hold that the trial court erred by failing to
send father a crucial statutory notice advising him of the process for
elevating his status from alleged father and the consequences of not
doing so.
Section 316.2, subdivision (b), provides that:
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.

(See also Cal. Rules of Court, rule 5.635(g) [requiring the clerk to
provide alleged parents with a copy of the petition, notice of the next
scheduled hearing, and form JV-505].) Form JV-505 explains that an
alleged parent will not receive reunification services and will not
“automatically get the child to live with you or your relatives.” (See In
re Marcos G. (2010) 182 Cal.App.4th 369, 384 (Marcos G.); see also Paul
H., supra, 111 Cal.App.4th at p. 761.) Further, the form provides

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notice that if the alleged parent wants the court to decide if he is the
minor’s parent, he should fill out form JV-505, and it provides options
to request that the court make a determination concerning parentage.
(Marcos G., supra, 182 Cal.App.4th at p. 384; Paul H., supra, 111
Cal.App.4th at p. 761.) California Rules of Court, rule 5.635(h), in turn
provides that “[i]f a person appears at a hearing in [a] dependency
matter . . . and requests a judgment of parentage on form JV-505, the
court must determine” whether an alleged parent should be elevated to
a higher status—either a biological parent or presumed parent.
“Section 316.2 is designed to protect the alleged father’s limited
due process rights.” (In re Eric E. (2006) 137 Cal.App.4th 252, 257,
citing Paul H., supra, 111 Cal.App.4th at p. 760; see also In re Kobe A.,
146 Cal.App.4th 1113, 1120 (Kobe A.).) The notice required in section
316.2 provides an alleged father with critical information about an
alleged parent’s limited rights and explains the procedure he must
follow to establish his paternity status: complete form JV-505. The
court’s “[f]ailure to provide the statutory notice denie[s]” an alleged
father “adequate notice of his rights and the ability to access the
procedure for establishing paternity, obtaining reunification services,
and ultimately seeking placement of his [child] in his home or with one
of his relatives.” (Kobe A., supra, 146 Cal.App.4th at pp. 1122-1123; see
also Paul H., supra, 111 Cal.App.4th at p. 761.)
The Agency concedes that the trial court never provided the
requisite notice. During the pendency of this appeal, the trial court
clerk searched the record, as well as the records in the cases associated
with minor’s step-siblings, and confirmed that he was unable to locate
proof that father received the notice required by section 316.2.

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 Contrary to the Agency’s argument, the error here was not
harmless. (See, e.g., Kobe A., supra, 146 Cal.App.4th at pp. 1122-1123
[applying harmless error analysis]; Paul H., supra, 111 Cal.App.4th at
p. 761 [same].) Throughout the proceedings, father consistently
maintained that he wanted custody of his daughter. Had he received
the requisite notice, and submitted form JV-505, the court would have
been obligated to make a determination as to his paternity. (Cal. Rules
of Court, rule 5.635(h).) Attaining presumed father status would have
allowed father to seek custody and otherwise protect his parental
rights. (See, e.g., O.S., supra, 102 Cal.App.4th at p. 1411; Paul H.,
supra, 111 Cal.App.4th at p. 760.) The Agency does not contest that, on
this record, father likely would have qualified as a presumed parent.
(See Fam. Code, § 7611, subd. (d) [presumed parent status requires
person “to demonstrate an established parental relationship with the
minor and commitment to the minor’s well-being.”); In re Alexander P.
(2016) 4 Cal.App.5th 475, 493.)
Finally, the facts in this case underscore that the direct notice to
the parent mandated by section 316.2, subdivision (b), is critical even in
cases in which a presumed parent may be represented by counsel.
Here, the social worker advised father that he should get an attorney to
elevate his status to presumed father. Heeding that advice, father
obtained representation by an attorney who sought appointment
expressly to address his paternity status but did nothing in the trial
court to do so. After that attorney withdrew, the court appointed a
legal services agency that was unable to represent father. As a result,
unbeknownst to the court, father was effectively unrepresented for five
months. No counsel appeared on father’s behalf at the section 366.26

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hearing. When the court discovered father’s unintended lack of
counsel, an attorney summoned from outside the hearing room
accepted the representation on the spot, declined the court’s suggestion
that she speak with her new client, and submitted to dismissal of the
dependency without ever ascertaining father’s wishes. The notice
provided by section 316.2 is a failsafe mechanism that would have told
father directly the steps he himself could take – without relying on an
attorney – to establish his paternity status and protect his rights. It
could have made all the difference to father in this case.
We conclude that father was prejudiced by the trial court’s failure
to provide him with the notice mandated by section 316.2 and
California Rules of Court, rule 5.635(g). (See Paul H., supra, 111
Cal.App.4th at p. 761 [court’s failure to serve alleged father with JV-
505 violated his statutory rights and was prejudicial where alleged
father may have established paternity].) We need not reach the
parties’ other contentions, including father’s claim of ineffective
assistance of counsel.
DISPOSITION
The portion of the juvenile court’s August 30, 2018, order setting
a section 366.26 hearing is vacated. The court’s December 20, 2018,
and January 31, 2019, orders are likewise vacated, and the matter is
remanded with directions to comply with the provisions set forth in
section 316.2 and California Rules of Court, rule 5.635(g).

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 _______________________
BURNS, J.

We concur:

____________________________
JONES, P.J.

____________________________
NEEDHAM, J.

A156550

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Alameda County Superior Court, Case No. JD-028932-01, Hon. Arturo
Castro

S. Lynne Klein, Appointed by the Court of Appeal, for Intervener and
Appellant.

Office of the County Counsel, Alameda County, Donna R. Ziegler,
County Counsel, and Samantha N. Stonework-Hand, Senior Deputy
County Counsel, for Plaintiff and Respondent.

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