[947] Opinion
KRIEGLER, J.
Vincent M. was surrendered by his mother at the hospital at birth in February 2006, placed with Dan and Tina B. (the B.’s) for adoption, and declared a dependent of the court. Mother refused to identify the father. The case went directly to permanency planning. Jorge C., Vincent’s biological father and a stranger to Vincent, appeared in the proceeding eight months later and filed a petition under Welfare and Institutions Code section 388,1 asking for presumed father status and family reunification services. The dependency court granted the request, finding that Jorge was a nonstatutory presumed father entitled to reunification services without consideration of Vincent’s best interest. The B.’s appeal this ruling.
Relying on In re Zacharia D. (1993) 6 Cal.4th 435 [24 Cal.Rptr.2d 751, 862 P.2d 751] (Zacharia D.), we hold that Jorge is not a presumed father because he does not fall within the definition of presumed father under Family Code section 7611. We further hold that a biological father seeking reunification with a child, who does not come forward in the dependency proceeding until after the reunification period has ended, must establish under section 388 that there are changed circumstances or new evidence demonstrating the child’s best interest would be promoted by reunification services. The rule is the same whether his paternity was concealed from him or not. In reaching these conclusions, we hold that Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216] (Kelsey S.) and cases decided thereafter such as In re Baby Boy V. (2006) 140 Cal.App.4th 1108 [45 Cal.Rptr.3d 198] (Baby Boy V.) do not support the dependency court’s ruling made at the section 366.26 permanency planning stage that a late appearing father whose paternity was hidden from him by the mother is a presumed father entitled to reunification services without regard to the best interests of the child. Accordingly, we reverse.2
[948] PROCEDURAL HISTORY
On March 8, 2006, the dependency court declared Vincent a dependent of the court based on sustained allegations under section 300, subdivision (g),3 that Lena M. (mother) was unwilling to provide for the child and wanted the child to be placed for adoption, mother’s whereabouts were unknown, and father’s identity was unknown. Custody was taken from the parents and given to the Los Angeles County Department of Children and Family Services (the Department) for suitable placement. Because the parents’ whereabouts were unknown, reunification services were not ordered, permanency planning services were ordered, and a section 366.26 hearing to select the permanent plan was set for July 5, 2006, with adoption as the plan.
On July 5, 2006, Daniel L. appeared in court with a prenatal paternity test report indicating he was the father. Paternity testing was ordered, and the section 366.26 hearing was continued pending receipt of the test results. On August 14, 2006, the B.’s were granted de facto parent status. In September 2006, a DNA test revealed that Daniel was not the father.4 The section 366.26 hearing was continued to October 19, 2006.
On October 19, 2006, Jorge appeared in court alleging he was the biological father, counsel was appointed to represent him, and the dependency court ordered paternity testing to determine if he was the biological father. The section 366.26 hearing was continued to November 30, 2006.
On October 20, 2006, Jorge filed a petition under section 388 requesting to “be declared presumed [father] commensurate with his conduct and DNA results and corresponding home of parent order or family reunification.” The changed circumstances or new evidence he alleged was that he had lived with mother from December 2003 to December 2005 and neither observed mother was pregnant, nor was informed by mother of the pregnancy and birth. He alleged he moved to New York in December 2005 to get things ready so that she could join him there and continue their relationship, and they stayed in [949] touch when he was in New York. He alleged that the requested order was in Vincent’s best interest because “upon being informed of his possible paternity!, Jorge] immediately appeared. The child should not be deprived of his father because of the mother’s fraud and concealment. Legislative scheme is family reunification.” The dependency court ordered a hearing on the petition, with the section 366.26 hearing to follow.
On November 30, 2006, based on the paternity test report that Jorge could not be excluded as Vincent’s biological father,5 the dependency court found Jorge was the biological father.
Jorge’s section 388 petition was heard on February 14 and 15, 2007. The dependency court took judicial notice of the file and heard testimony and argument. Jorge asked the court to find he was a presumed father under Family Code section 7611, subdivision (d) on the basis he would have taken the child into his home but for mother’s concealment. In the alternative, Jorge asked the court to deem him a presumed father under Baby Boy V., supra, 140 Cal.App.4th 1108, in that he timely came forward after learning he was the father. Jorge argued that, as a presumed father, he was entitled to family reunification services unless the court found him to fall into one of the categories for denial of reunification services under section 361.5, subdivision (b).
The dependency court granted the petition, found Jorge to be Victor’s presumed father, not under the statute but under case law, and ordered the Department to prepare a report on Jorge and recommend what services to provide. The court found mother did not tell Jorge she was pregnant, Jorge moved to New York believing she would follow him, and Jorge should have known she could get pregnant. The court did not make a finding Jorge did not know she was pregnant. The court found it did not have enough information to make a finding about whether Jorge should have known mother was pregnant. Finding that Jorge “came forward at the earliest possible time, after the original paternity test was refuted,” the court had “no choice” but to find he was the presumed father entitled to reunification services without consideration of the child’s best interest, as “he meets the criteria set out in the case law.”
After the court’s ruling, the following colloquy between the prospective adoptive mother and the dependency court occurred: “[Mrs. B.]: What about [950] the intentions of this child, what about Jack,[6] what about him? [¶] The Court: Ma’am, I know you are upset. I have a threshold issue that I have to determine and that’s what I have done. That doesn’t allow me to go to the direction that you have asked me to go. If I had the option, we might be in a totally different place. But I don’t have that option at this juncture. [j[] The two of you sat here and you listened to the same testimony that we all listened to and I know that you were no doubt offended by everything that you heard regarding people involved. [][] I don’t have the—I can’t base a decision on these kinds of issues at this point. I can only look at them as they relate to the determination that I have to make today. And a lot of that didn’t help me in making that decision.”
The section 366.26 hearing was taken off calendar. The matter was continued to March 19, 2007. On that date, the dependency court ordered reunification services, monitored visits, and an Interstate Compact on the Placement of Children for placement of Vincent with Jorge in New York.
The B.’s timely appealed from the order of February 15, 2006, granting the section 388 petition.
STATEMENT OF FACTS
Jorge lived in New York at the time of the hearing on his section 388 petition. In 1996, when he was 18 years old, he had a daughter, Alexis. Following his separation from Alexis’s mother after one year together, he never had custody of Alexis. Alexis lived with her mother, who subjected Alexis to neglect and domestic violence. In 2005, when Alexis’s mother did not want to care for Alexis any longer, Jorge did not seek custody, and Alexis went to Jorge’s father’s home to live.
Jorge met mother, who lived in Los Angeles, in 1999. In December 2003, he relocated to Los Angeles and moved in with mother. They did not use contraceptives or protection, and mother became pregnant in April 2004. Jorge was “shocked,” “overwhelm[ed],” and concerned about how he could take care of a baby. They discussed terminating the pregnancy. Mother had an abortion in May 2004.
Jorge and mother continued having unprotected sexual intercourse almost every day. He knew she was not using contraception and he used no [951] protection. Mother was also having an affair with Daniel L. Mother became pregnant again, but did not tell Jorge. She said she would never tell him, because “it would kill him.” Mother told Daniel, who took a prenatal paternity test, which indicated he was the father.7
Jorge testified he never knew or suspected mother was pregnant and never asked her if she was pregnant. She took a maternity leave of absence from her job in the fall of 2004, but told Jorge it was a medical leave because she had “slight arthritis in her hand.” In October 2004, Jorge learned mother was having an ongoing sexual relationship with Daniel; in November 2004, he audiotaped them having sex in his own bed. Jorge was irate with mother. Jorge noticed she was gaining weight, but she was a “big girl” and he thought she was eating more because she was at home. Daniel observed that mother displayed an obvious weight gain of 40 or 50 pounds by January 2006. When Vincent was bom in February 2006, mother told Daniel that the baby died at birth.
Jorge moved to New York in late December 2005 to obtain custody of Alexis. He thought mother would follow after she had settled her affairs, but mother did not join him there. Jorge testified he did not suspect that mother had been pregnant and given birth, even though he saw a photograph in May or June 2006 revealing mother had lost significant weight. Mother did not tell Jorge about Vincent until Daniel’s September 2006 paternity test revealed Daniel was not the father. On October 16, 2006, Jorge called the social worker and identified himself as Vincent’s father.
At the time of the hearing, Jorge still had not taken Alexis into his home. He testified he was ready to have Vincent live with him, with his family’s help, and he would allow mother to be part of Vincent’s life. The dependency court asked: “[W]hy haven’t you made the same preparations to have your daughter with you. . . . [W]hy isn’t your daughter with you?” Jorge said his father felt Jorge was not ready to have her.
In the meantime, Vincent thrived in the B.’s home, where he had been provided with the unconditional love and attention of two loving parents since he was four days old. He was in the 90th percentile of growth. Mrs. B. quit her job to be with him full time. “[The child] and his [foster/adoptive] parents have bonded. He has become an integral part of their lives, families [952] and friends.” “Jack lights up with smiles and cooing when either of the B.’s walk into the room. His loving, happy interaction is ever present when he is being held.”
Even when it seemed they might lose custody of Vincent, the B.’s “continued to provide [him] with unconditional love and care.” They had a very nurturing relationship with Vincent and their bond was “extremely close.” Vincent was “a very well adjusted happy baby” in their care. The B.’s did not give up hope and continued “to be very committed with providing Vincent a permanent adoptive home.” The B.’s completed the adoptive home study and were approved to adopt Vincent. The foregoing evidence as to the B.’s relationship with Vincent is uncontradicted.
DISCUSSION
The B. ’s Have Standing to Appeal
Jorge and Vincent8 contend the B.’s lack standing to appeal the order granting the section 388 petition. They contend that the B.’s are de facto parents who are not aggrieved by the order because the B.’s have no right to custody or placement of Vincent. Under the circumstances of this case, the B.’s have standing to appeal.
“Code of Civil Procedure section 902 . . . permits appeals by ‘any party aggrieved’ in a civil action. The case law has interpreted a ‘party aggrieved’ as any person having an interest recognized by law in the subject matter of the judgment, which interest is injuriously affected by the judgment. ... As the Supreme Court established in [In re B. G. (1974) 11 Cal.3d 679, 692 [114 Cal.Rptr. 444, 523 P.2d 244]], a de facto parent has an interest in the companionship, care, custody and management of the child.[9] [Citation.]” (In re Joel H. (1993) 19 Cal.App.4th 1185, 1195-1196 [23 Cal.Rptr.2d 878], citation omitted.) “ ‘One is considered “aggrieved” whose rights or interests are injuriously affected by the judgment.’ [Citation.]” (In re Lauren P. (1996) 44 Cal.App.4th 763, 768 [52 Cal.Rptr.2d 170].)
[953] California law does not restrict a de facto parent’s right to appellate review to the procedural rights provided by California Rules of Court, rule 5.534(e) (former rule 1412(e)) to be present at the dispositional hearing and all subsequent hearings affecting the child’s status, to be represented by counsel, and to present evidence. (In re Joel H., supra, 19 Cal.App.4th at pp. 1194-1196 [the de facto parent had standing to appeal the order under § 387, removing the children from her custody]; cf. In re P.L. (2005) 134 Cal.App.4th 1357, 1359-1362 [37 Cal.Rptr.3d 6] [the de facto parent, in whose home the child was placed pending finding a prospective adoptive home, had no standing to complain about the order removing the child to a prospective adoptive home].)
In this case, the B.’s rights and interests were injuriously affected by the dependency court’s ruling. They provided a home for Vincent since he was four days old and abandoned by mother. At disposition, the case proceeded directly to permanency planning on a track of adoption by the B.’s. As the people who, “on a day-to-day basis, assume[d] the role of parent, seeking to fulfill both [Vincent’s] physical needs and his psychological need for affection and care,” the B.’s were granted de facto parent status. (In re B. G., supra, 11 Cal.3d at p. 692, fn. 18.) They completed an adoption home study and were approved to adopt Vincent. Unlike the circumstances in In re P.L., supra, 134 Cal.App.4th at pages 1359-1360, the B.’s always intended to adopt Vincent, and Vincent was placed there with the expectation it was an adoptive home. The dependency court permitted the B.’s to litigate in opposition to the section 388 petition, gave them access to the court file to facilitate their participation, and told them they could appeal the decision on the section 388 petition. The ruling granting the section 388 petition vacated the orders for permanency planning services and setting a section 366.26 hearing to select a permanent plan, thus taking the case off the adoption track. Services would be ordered whose goal is removing Vincent from the B.’s and giving custody to Jorge. As prior final orders are not reviewable in an appeal of a subsequent order, the B.’s will be foreclosed from obtaining a ruling on the correctness of granting this section 388 petition if they cannot proceed in the instant appeal. (See, e.g., In re Megan B. (1991) 235 Cal.App.3d 942, 950 [1 Cal.Rptr.2d 177].)
Granting the Section 388 Petition Was an Abuse of Discretion Without Consideration of Vincent’s Best Interest
The B.’s contend the order granting the section 388 petition was an abuse of discretion in that the dependency court failed to consider Vincent’s best interest, and there is no substantial evidence Vincent’s best interest would be [954] promoted by granting reunification services.10 We conclude that the order granting the section 388 petition was an abuse of discretion.
Applicable Law on Presumed Father Status and Reviving the Issue of Reunification Services
Section 361.5, subdivision (a) provides: “Except as provided in subdivision (b) . . . whenever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father or guardians. Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.”
“[Ojnly a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification services under section 361.5.” (Zacharia D., supra, 6 Cal.4th at p. 451.) “ ‘[Pjarental rights are generally conferred on a man not merely based on biology but on the father’s connection to the mother [and/or] child through marriage (or attempted marriage) or his commitment to the child.’ ” (Id. at p. 449.)
“In order to become a presumed father, a man must fall within one of several categories enumerated in Civil Code section 7004, subdivision (a).[11] The only relevant category in this case is section 7004, subdivision (a)(4), which provides that a natural father may become a presumed father if ‘[h]e receives the child into his home and openly holds out the child as his natural child.’ (See In re Phoenix B. (1990) 218 Cal.App.3d 787, 790, fn. 3 [267 Cal.Rptr. 269]; id. at p. 792 [presumed father status achieved when alleged father ‘came forward when the Department instituted dependency proceedings, offered to care for his daughter, took her into his home and . . . held her out as his child’].)” (Zacharia D., supra, 6 Cal.4th at p. 449.)
[955] “[I]f a man fails to achieve presumed father status prior to the expiration of any reunification period in a dependency case, whether that period be 6, 12, or 18 months as in this case, he is not entitled to such services under section 361.5.” (Zacharia D., supra, 6 Cal.4th at p. 453.)
For a biological father who does not assert paternity until after the expiration of any reunification period, the “only remedy” is to file a petition to modify under section 388. (Zacharia D., supra, 6 Cal.4th at p. 453.) “While a biological father is not entitled to custody under section 361.2,[12] 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[13] for a hearing to reconsider the juvenile court’s earlier rulings based on new evidence or changed circumstances.” (Zacharia D., supra, 6 Cal.4th at p. 454.) The section 388 petition will not be granted unless there are changed circumstances or new evidence demonstrating it is in the child’s best interest to grant reunification services or custody. (Zacharia D., supra, 6 Cal.4th at pp. 454-456; In re Jasmon O. (1994) 8 Cal.4th 398, 415 [33 Cal.Rptr.2d 85, 878 P.2d 1297].)
“ ‘[U]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over a child’s need for stability and permanency.’ [Citation.] ‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.] ‘The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue.’ ” (Zacharia D., supra, 6 Cal.4th at p. 447.)
Jorge Was Not a Presumed Father
The only status Jorge established was that he is the biological father. He did not show he qualified as a presumed father under the only category that might be relevant—Family Code section 7611, subdivision (d)—because [956] he did not receive Vincent into his home and hold him out as his own. Under Zacharia D., Jorge is not a presumed father. (Zacharia D., supra, 6 Cal.4th at p. 449.)
As a biological father who did not assert paternity until the case was in permanency planning, Jorge’s “only remedy” was to show, under section 388, that Vincent’s best interest required vacating the permanency planning orders and providing Jorge reunification services so that he might qualify as a presumed father, entitled to custody. (Zacharia D., supra, 6 Cal.4th at pp. 453-456.) The dependency court erroneously ruled that Vincent’s best interests were irrelevant to the determination and therefore never addressed the issue of whether providing reunification services to Jorge would be in Vincent’s best interests. By failing to make the necessary determination of the best interests of the child, the dependency court abused its discretion in granting the section 388 petition. (See Zacharia D., supra, 6 Cal.4th at p. 456.)
Case Law Does Not Require Treating Jorge As a Presumed Father Entitling Him to Reunification Services Without Consideration of Vincent’s Best Interest
The dependency court in this case felt compelled by case law authority—apparently Kelsey S. and Baby Boy V—to deem Jorge a presumed father entitled to reunification services, without consideration of Vincent’s best interest under section 388, because Jorge came forward shortly after learning he was the biological father. As we discuss below, Kelsey S. and Baby Boy V. did not compel the dependency court to reach this result. Zacharia D. held that biological fathers who appear after the end of any reunification period must file a section 388 petition to revive the issue of reunification services. (Zacharia D., supra, 6 Cal.4th at p. 453.) No case has declared section 388 unconstitutional in the context of a biological father whose failure to timely appear was because the mother prevented his timely appearance. Thus, the dependency court was bound by Zacharia D. to comply with section 388 to revive the reunification issue.
1. Kelsey S.
Kelsey S. was not a dependency case. It was a private adoption case in which the unwed father was prevented from taking the child into his home and becoming a presumed father under Civil Code former section 7004, subdivision (a)(4). (Kelsey S., supra, 1 Cal.4th at p. 822.) Under the statutory scheme for private adoptions, mothers and presumed fathers had greater rights to prevent termination of parental rights for purposes of adoption than unwed biological fathers.
[957] The Supreme Court in Kelsey S. did not hold that the unwed father, who promptly came forward early in the proceeding to demonstrate a full commitment to his parental responsibilities but who was prevented from receiving the child into his home by the mother’s action, was a presumed father under Family Code section 7611 under the doctrine of constructive receipt. (See Kelsey S., 1 Cal.4th at pp. 825-830, 842.) Nor did the Supreme Court hold under any theory that such a father had presumed father status.
The Supreme Court held that Civil Code former “ ‘section 7004, subdivision (a) and the related statutory scheme violates the federal constitutional guarantees of equal protection and due process for unwed fathers 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.’ ([Kelsey S., supra, 1 Cal.4th] at p. 849.) Under such circumstances, ‘[i]f an unwed [biological] 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.’ (Ibid.)” (Zacharia D., supra, 6 Cal.4th at p. 450.) “In determining whether a biological father has demonstrated such a commitment, ‘[t]he 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. . . .’ (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849.)[14]” (Zacharia D., supra, 6 Cal.4th at p. 450, fn. 19.) “In ‘emphasizing] the narrowness of our decision,’ we stated that the ‘statutory distinction between natural fathers and presumed fathers is constitutionally invalid only to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities. Our statutes (§§ 7004 & 7017, subd. (d)(2) [petition to terminate parental rights for private adoption]) are constitutionally sufficient when applied to a father who has failed to make such a showing.’ (Adoption of Kelsey S., supra, 1 Cal.4th at pp. 849-850, italics in original.)” (Zacharia D., supra, 6 Cal.4th at p. 450.)
In Zacharia D., the Supreme Court limited Kelsey S. by noting that it involved the standard under which parental rights were terminated in the private adoption context, not the standard for determining a biological parent’s right to reunification services in the dependency context. [958] (Zacharia D., supra, 6 Cal.4th at pp. 450-451.) The Supreme Court stated that the issue addressed in Kelsey S. would arise in the dependency context as follows: “The issue would arise therefore, under facts not presented here, 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.” (Zacharia D, supra, 6 Cal.4th at p. 451, italics added.) Nothing in Zacharia D. suggests that a constitutional issue would arise when an unwed father does not come forward until late in the process, as when the dependency case is already in permanency planning. When a dependency case is in permanency planning, the focus has shifted to the child’s needs for permanence and stability; the reunification issue may only be revived if it is in the child’s best interest. (See Zacharia D., supra, 6 Cal.4th at pp. 447, 456.)
The Supreme Court in Zacharia D. did not decide this constitutional issue in the dependency context. We are not called upon to decide it in this case either. However, we note that dependent children, unlike children in a private adoption, have been seriously abused or neglected. When a dependent child is involved, the state’s interest and child’s interest are unique and require higher protection for the child. “The [dependency] court deals with children who have been seriously abused, abandoned, or neglected. The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child’s circumstances when making decisions regarding the child.” (In re Chantal S. (1996) 13 Cal.4th 196, 201 [51 Cal.Rptr.2d 866, 913 P.2d 1075] [discussion of different purposes and policies of the Family Code and juvenile court law].)
2. Baby Boy V.
In Baby Boy V., a man claiming he might be the baby’s father came forward seven months after the baby was taken into custody by the Department at birth. (Baby Boy V., supra, 140 Cal.App.4th at pp. 1111-1112.) The case was in permanency planning; the baby was in a preadoptive home. (Id. at p. 1112.) The man, Jesus, stated he had had a sexual relationship with the mother but did not stay in touch with her, and she just told him about the baby. (Id. at pp. 1111-1115.) He appeared at the next court hearing, which was a section 366.26 hearing, and requested paternity testing. (140 Cal.App.4th at p. 1112.) The request was denied, and at a continued section 366.26 hearing, parental rights were terminated. (140 Cal.App.4th at pp. 1112-1113.) At no time did Jesus file a section 388 petition requesting [959] presumed father status and reunification services. (140 Cal.App.4th at p. 1116 & fn. 8.) Our colleagues in Division One reversed the orders denying paternity testing and terminating parental rights. The court held that under Kelsey S., Jesus was a presumed father and entitled to reunification services if, on remand, the dependency court found he came forward promptly, paternity testing revealed he was the biological father, and he was not unfit. (Id. at pp. 1117-1119.)
We agree with the decision in Baby Boy V. to the extent the court reversed the order denying paternity testing. Jesus was an alleged father who was entitled to an opportunity to establish he is the biological father. (In re Paul H. (2003) 111 Cal.App.4th 753, 760-762 [5 Cal.Rptr.3d 1].) The dependency court has a duty to determine the parentage of a child when a man appears at a hearing requesting a paternity finding. (E.g., Cal. Rules of Court, former rule 1413(a), (h) [renumbered as rule 5.635(h)].) As the case before us does not involve a deprivation of the right to a determination of biological paternity, Baby Boy V. is not authority for granting Jorge’s section 388 petition. “ ‘A decision, of course, does not stand for a proposition not considered by the court.’ (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343 [14 Cal.Rptr.3d 857, 92 P.3d 350].)” (Flatley v. Mauro (2006) 39 Cal.4th 299, 320 [46 Cal.Rptr.3d 606, 139 P.3d 2].)
The conclusion in Baby Boy V. that Jesus was entitled to presumed father status and reunification services is arguably dicta and thus not entitled to binding effect on the dependency court. To the extent the Baby Boy V. court recognized presumed father status and a right to reunification services, we respectfully disagree on the basis of the holding in Zacharia D. that a biological father who appears after the end of the reunification period must proceed under section 388 in order to be awarded reunification services. In sum, like Kelsey S., Baby Boy V. does not support the decision below.15
“While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system [960] requires a more time-critical response. Once a child is placed in that system, the father’s failure to ascertain the child’s existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any ‘opportunity to develop that biological connection into a full and enduring relationship.’ [Citation.]” (Zacharia D., supra, 6 Cal.4th at p. 452.)
Any New Section 388 Hearing Will Include Current Facts
As we reverse the findings and orders, Jorge may decide to file a new section 388 petition to modify the dispositional orders. One year has passed since the order appealed from was made. Reversal of the order will not “return the . . . hearing to the same arena in which it was first held. This is because the focus of the hearing always must be upon the best interests of the child. The new hearing would entail not only the facts and evidence brought forth at the original hearing, but of necessity would require evidence as to the current status of the child.” (In re Arturo A. (1992) 8 Cal.App.4th 229, 244 [10 Cal.Rptr.2d 131], fn. omitted.) Jorge will have to plead and prove the elements for relief under section 388 “based on current facts.” (Arturo, at p. 244, italics omitted.) The child’s best interest analysis must look at the “totality of a child’s circumstances.” (In re Chantal S., supra, 13 Cal.4th at p. 201.)
While the issue of whether Jorge knew or should reasonably have known he was a father was originally cast as relevant to whether he was a Kelsey S. father, the issue would now, on remand, be relevant to whether there are changed circumstances such that granting reunification services is in Vincent’s best interest. The changed circumstance he alleged in his October 20, 2006 section 388 petition was that he did not know and was not told mother was pregnant and gave birth. On this score, we find untenable the dependency court’s conclusion that the record was insufficient to determine whether or not he knew or should have known he was a father without mother telling him. It is uncontradicted in the record that Jorge and mother engaged almost daily in what he knew was unprotected sex, which had resulted in pregnancy only a year earlier, lived with her during the pregnancy until six weeks before the birth, watched her get heavier with the knowledge she was on a leave of absence from work, and observed five or six months after he moved away that she had lost weight. The dependency court stated it was not necessary to make the finding that had Jorge reasonably suspected mother was pregnant and asked her, mother would have denied she was pregnant; had he known she was pregnant, she would have shown him Daniel’s prenatal paternity test. While the dependency court’s thinking is within the range of possibilities, the fact remains it is entirely speculative. It is undisputed there is no evidence Jorge ever asked mother if she was pregnant or had given birth. What she may have answered to a question he did not ask, and what he may have done in response [961] to an answer she did not give, is all guesswork. Because Vincent was a child placed in the dependency system and Jorge waited eight months without “inquiring into the existence of any children that may have resulted from his sexual encounters with” mother, his delay placed him “at the risk of ultimately losing any ‘opportunity to develop that biological connection into a full and enduring relationship.’ [Citation.]” (Zacharia D., supra, 6 Cal.4th at p. 452.)
DISPOSITION
The findings and orders granting Jorge’s section 388 petition are reversed. Upon issuance of the remittitur, the temporary stay of February 28, 2008, shall become permanent.
Turner, P. J., concurred.