Filed 7/27/16 In re Alayna B. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

In re ALAYNA B., a Person Coming Under the
Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY                                                                F072580
SERVICES AGENCY,
                                                                                 (Super. Ct. No. 517260)
         Plaintiff and Respondent,

         v.                                                                              OPINION
PETER M.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
         Gino de Solenni, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County
Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-
       Peter M. (father) appeals the jurisdiction/disposition order of September 1, 2015,
denying him custody of Alayna B. and reunification services. Father contends the
juvenile court erred in failing to grant his request to make a determination of paternity,
which deprived him of the opportunity to seek custody of Alayna and have Alayna placed
with relatives of father’s choosing while father was incarcerated. We reject father’s
contentions and affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
Detention
       In April of 20151, the Stanislaus County Community Services Agency (agency)
received a referral that Alayna’s mother, C.B.2, claimed she had been poisoned. Mother
was found to be living in a foreclosed home with five-month-old Alayna. The home had
water, but was without electricity. Mother, who was on probation for a theft offense, was
placed on psychiatric hold.
       Mother named father as Alayna’s father and stated he had been incarcerated at
Avenal State Prison since September of 2014. Mother refused to allow voluntary
placement of Alayna. But due to mother’s apparent mental health issues, Alayna was
placed in protective custody. Maternal grandmother was called and reported mother was
diagnosed with bipolar disorder, depression, and anxiety. According to maternal
grandmother, mother did not take her prescribed medications but reportedly took
“random drugs” she got from “different” people.
       The agency filed a Welfare and Institutions Code section 300 petition3, alleging,
pursuant to subdivision (b), that Alayna was at substantial risk of harm due to mother’s


1      All further dates are to 2015, unless otherwise stated.
2      Mother is not a party to this appeal.
3     All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.


                                               2.
mental health issues and criminal history, which included, inter alia, charges of substance
abuse, domestic violence, burglary and prostitution. It further alleged, pursuant to
subdivision (g), that mother was placed on psychiatric hold and was unwilling or unable
to make arrangements for Alayna’s care.
       As for father, the petition alleged, pursuant to subdivision (b), that he was a
registered sex offender and had an extensive criminal history, including convictions for
substance abuse and possession, battery on a prisoner, sexual battery, and grant theft.
The petition also alleged, pursuant to subdivision (g), that father was incarcerated in
Avenal State Prison and unable to provide or arrange for care for Alayna. The detention
report included an extensive criminal history report for father, dating back to 1985.
       At the detention hearing on April 29, neither mother nor father were present.
Counsel was appointed for father and the matter continued to May 20 for a jurisdiction
hearing. On May 1, father was informed, via letter, of Alayna’s detention and of the
upcoming hearing.
Jurisdiction and Disposition
       On May 11, a social worker interviewed mother regarding Alayna’s paternity. A
report was filed the following day indicating mother was not married at the time of
conception or thereafter, no person provided or offered support for the child during the
pregnancy or after, and no one formally or informally acknowledged paternity. Mother
reported Indian ancestry.
       The report prepared for the jurisdiction hearing stated father was not listed on
Alayna’s birth certificate and was therefore an alleged father. A copy of Alayna’s birth
certificate was attached to the report.
       The report recommended the section 300, subdivision (g) allegation due to
mother’s hospitalization be stricken, as mother had been released from psychiatric hold.
       At the May 20 jurisdiction hearing, mother completed an Indian Child Welfare
Act (ICWA; 25 U.S.C. 1901 et seq.) form 020 stating she was Comanche from

                                             3.
Montana/Wyoming. Father’s completed ICWA form 020 stating he was of Cherokee
ancestry, Eastern Band Cherokee and United Keetowa Cherokee Nation, through his
mother. On his statement of parentage form JV-505, father checked the box stating: “I do
not know if I am the parent of the child and I … request blood or DNA testing to
determine whether or not I am the biological parent.…” The juvenile court ordered a
DNA test for father and set the jurisdiction/disposition hearing for June 25, to
accommodate ICWA notice requirements and transportation of father from prison.
       On May 28, ICWA notice was sent to the Cherokee and Comanche Tribes, but did
not include any information on father’s family. A first amended ICWA notice was sent
June 1, but still contained no information on father’s family. A second amended ICWA
notice, this time including the information received from father regarding his family
history, was sent June 17.
       The disposition report recommended mother (who by now had an appointed
guardian ad litem because she had trouble understanding the proceedings) receive
reunification services. The report recommended father be denied services pursuant to
section 361.5, subdivision (e)(1)4, due to his incarceration until June 23, 2017. The
report also stated the DNA testing contractor had not received the referral for father’s
DNA test; a new referral was submitted June 16.
       Father reported to the social worker that a large part of his history of past mistakes
was due to substance abuse, which he was making efforts to address. Father stated that,
while he was incarcerated, he had family, whom he did not name, who were willing to
take “temporary guardianship” of Alayna.

4      Section 361.5, subdivision (e)(1) provides, in relevant part, that if a parent is
incarcerated, the juvenile court shall order reasonable services unless the court
determines, by clear and convincing evidence, those services would be detrimental to the
child. In determining detriment, the juvenile court considers the age of the child, the
degree of parent-child bonding, the length of incarceration, the nature of the crime, and
the degree of detriment to the child if services are not offered.


                                             4.
       The report further stated numerous relatives were contacted but, thus far, only
maternal grandfather who lived in Nevada expressed interest in placement of Alayna.
The remaining relatives, including a paternal uncle and aunt, had not yet applied for
placement.
       Because ICWA notice had not been perfected, the June 25 hearing was reset for
July 27, and new ICWA notice sent. Father did not object to the request to begin an
Interstate Compact of the Placement of Children (ICPC) for a maternal relative living in
Nevada.
       The July 27 hearing was postponed because paternal grandmother’s name was
misspelled on the ICWA notice. It was through this relative that father claimed Indian
ancestry and corrected notice was required. The hearing was continued to September 1.
       An addendum report filed for the September 1 hearing recommended father be
denied reunification services based on the fact that he was an alleged father, pursuant to
section 361.5, subdivision (a). The addendum report stated that, as of July 23, no DNA
draw had been completed on father because when the testing contractor attempted to do
the draw at Avenal State Prison, he was informed father had moved to Kern Valley State
Prison. The test kit was then sent to Kern Valley State Prison, and the testing contractor
was told father was not there. The social worker later determined father was back at
Avenal State Prison. On August 12, the social worker became aware that father had not
been returned to prison after the July 27 hearing and advised the testing contractor he was
being held locally until September 1 and asked that they get a sample there. The testing
contractor stated a third party was collecting the sample, which was to be returned by
August 26, but no such sample had yet been received.
       At the September 1, contested jurisdiction/disposition hearing, it was determined
proper ICWA notice had been given and all counsel indicated they were “ready to
proceed.” The agency submitted on the petition and reports. Mother made an offer of
proof that she had not been under the influence for four months.

                                             5.
       Through counsel, father made an offer of proof that he still had not had a DNA
test done and he had not been asked about relatives he wished assessed for placement.
County counsel declined to accept the offer on the issue of relative placement because
father was still only an alleged father. The juvenile court acknowledged father’s
frustration regarding the lack of the DNA test, but declined to blame the agency because
it was the result of father’s various moves by the Department of Corrections and
subsequent transportations made back and forth to court. The juvenile court offered to
set the matter for a paternity determination hearing in approximately six weeks, but
concluded that, as of the current date, father was an alleged father.
       Father, through counsel, then stated father’s offer of proof would be that he denied
the allegations in the jurisdictional report. The offer of proof was never accepted. In
subsequent argument, father objected to the allegations in the petition which included “a
laundry list[]” of his convictions, claiming only some were convictions and others merely
arrests. After a question by the juvenile court, father admitted he was a Penal Code
section 290 sex offender registrant, but stated he had not committed a sex offense
involving a child.
       At the September 1 hearing, the juvenile court sustained the petition, removed
custody from both mother and father and granted reunification services to mother. It
denied services to father pursuant to section 361.5, subdivision (a). The juvenile court
then set a hearing for review of the DNA testing on October 20.
       On October 6, the agency received DNA results, which indicated father is the
biological father of Alayna B. After a paternity hearing October 20, father’s status was
elevated to that of biological father. All previous orders remained the same.
       According to the agency, ICPC paperwork was completed October 8 for an
investigation of paternal aunt’s home in Arkansas.




                                             6.
                                       DISCUSSION

    I. DID THE JUVENILE COURT ERR IN FAILING TO FIND FATHER WAS
         THE BIOLOGICAL FATHER OF ALAYNA?
       Father first contends the juvenile court abused its discretion in failing to find that
he was Alayna’s biological father before denying him services, thereby depriving him of
the consideration of his relatives as possible placements for Alayna. We find no
prejudicial error.
Applicable Law
       The Welfare and Institutions Code differentiates between “alleged,” “biological”
or “natural,” and “presumed” fathers.5 (In re B.C. (2012) 205 Cal.App.4th 1306, 1311,
fn. 3 (B.C.); In re Paul H. (2003) 111 Cal.App.4th 753, 760 (Paul H.).) “The extent to
which a father may participate in dependency proceedings and his rights in those
proceedings are dependent on his paternal status. ‘A man who may be the father of a
child, but whose biological paternity has not been established, or, in the alternative, has
not achieved presumed father status, is an “alleged” father. [Citation.]’ [Citation.]”
(Paul H., supra, at p. 760.) As it had not yet been determined whether father was
Alayna’s biological father, and as he had not requested consideration as a presumed
father, father’s status was that of alleged father throughout these proceedings. (In re O.S.
(2002) 102 Cal.App.4th 1402, 1410.)
       An alleged father has limited due process and statutory rights. “‘Alleged fathers
have less rights in dependency proceedings than biological and presumed fathers.
[Citation.] An alleged father does not have a current interest in a child because his
paternity has not yet been established. [Citation.]’ [Citation.] As such, an alleged father
is not entitled to appointed counsel or reunification services. [Citations.]” (Paul H.,
supra, 111 Cal.App.4th at p. 760.) “‘Presumed father status ranks highest.’ [Citation.]

5     A fourth category, a “de facto” father, is also recognized in dependency
proceedings but is not relevant to these proceedings.


                                              7.
‘[O]nly a presumed, not a mere biological, father is a “parent” entitled to receive
reunification services under section 361.5. [Citation.]’ [Citation.] However, a biological
father may be offered reunification services if the juvenile court determines such services
will benefit the child.” (B.C., supra, 205 Cal.App.4th at p. 1311, fn. 3.)
       “Due process for an alleged father requires only that the alleged father be given
notice and ‘an opportunity to appear and assert a position and attempt to change his
paternity status. [Citations.]’ [Citation.] The statutory procedure that protects these
limited due process rights is set forth in section 316.2.” (Paul H., supra, 111 Cal.App.4th
at p. 760.)
       Section 316.2, subdivision (a), requires the juvenile court to inquire at detention,
“or as soon thereafter as practicable,” as to the identity of all presumed or alleged fathers.
Once an alleged father has been identified, section 316.2, subdivision (b), requires the
juvenile court to provide the alleged father with notice that he is or could be the father of
the child and that the child is the subject of juvenile dependency proceedings that could
result in the termination of parental rights and adoption of the child. The court is
required to include with notice Judicial Council form JV-505, entitled “Statement
Regarding Parentage.”
       California Rules of Court, rule 5.6356 implements the provisions of section 316.2.
Rule 5.635 requires that, if a person appears in dependency matters and requests a finding
of paternity through Judicial Council 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.” (Rule 5.635(h).) The
juvenile court may make such determination either by ordering blood tests or based on
testimony, declarations or statements by the mother and alleged father. (Rule 5.635(e)(2)
& (3); B.C., supra, 205 Cal.App.4th at pp. 1311-1312.)

6      Undesignated rule references are to the California Rules of Court.


                                              8.
Discussion
       The juvenile court has a duty to inquire about and attempt to determine the
parentage of each child who is the subject of a juvenile dependency petition. (Paul H.,
supra, 111 Cal.App.4th at p. 760.) In the instant case the juvenile court satisfied this duty
in part by ordering paternity testing at the prison after father requested, by the filing of a
JV-505 on or near the May 20 hearing date, that his “biological” paternity be determined
by blood or DNA testing. Through a series of circumstances, initially caused by father
being in custody and later transfers to various different custody facilities, sometimes due
to the various hearings and beyond the control of father, the juvenile court or agency, the
DNA test was not completed prior to the September 1 jurisdiction/disposition hearing.
       While a juvenile court may make a determination of parentage based on
testimony, declaration, or statements of mother and an alleged father (rule 5.635(e)),
father bears the burden of proof because he is the party seeking the finding. (Evid. Code,
§ 500.) At the hearing September 1, father’s counsel complained about the time it took to
accomplish the test, but he did not ask for a continuance, nor did he request the juvenile
court make the finding based on evidence other than the long-awaited DNA test.
       In any event, the harm father points to stemming from the delay in the DNA test
and paternity determination was his ability to ask that his relatives be evaluated for
placement of Alayna. While father was not allowed to make an offer of proof that he was
not questioned about possible relative placement, the record indicates the agency had
already done an extensive search of possible relative placement for Alayna, including an
aunt and uncle of father’s, and had send letters notifying them of placement opportunity. 7


7      In addition, regardless of the juvenile court’s finding that father was an alleged
father at the time of disposition, the agency continued to pursue paternal relatives for
placement and instituted an ICPC for a paternal aunt immediately upon confirming
father’s biological tie to Alayna. We realize this evidence occurs in the record as part of
a hearing that occurred after the disposition hearing, from which father appeals. We
consider this evidence pursuant to Code of Civil Procedure, section 909, as it bears

                                              9.
          Father argues further that a finding that he was the biological father of Alayna
would have allowed the juvenile court to order reunification services. But even if the
juvenile court found father to be Alayna’s biological father prior to disposition, the
likelihood of the juvenile court exercising discretion to grant reunification services for
father was minimal. “‘[O]nly a presumed, not a mere biological, father is a “parent”
entitled to receive reunification services under section 361.5. [Citation.]’” (B.C., supra,
205 Cal.App.4th at p. 1311, fn. 3.) A biological father may be offered reunification
services, but only if the juvenile court determines such services will benefit the child.
(Ibid.)
          The facts here would not support a finding that Alayna would benefit from father
receiving reunification services. While father was incarcerated during the last half of
mother’s pregnancy with Alayna, he did nothing to assist mother during her pregnancy.
He did not immediately acknowledge that Alayna was his child but, when informed of
the dependency proceedings, asked for scientific proof. Father had never met Alayna, as
he has been incarcerated since before she was born, and his expected release date is not
until June of 2017, when Alayna will be more than two and a half years old, far past the
six-month reunification period allowed for such a young child. (§ 361.5, subd. (a)(1)(B).)
Father, who is 46 years old, has never raised a child. He has an extensive criminal
history, dating back without interruption for 26 years, with convictions for sexual battery,
for which he is a registered sex offender; multiple drug-related offenses; evading peace
officers; grand theft from a person; battery of a prisoner; and multiple parole violations.
Father admitted his long-standing substance abuse issue was one of the root causes of his
criminal behavior.




directly on the issue before us. (See also In re Elise K. (1982) 33 Cal.3d 138, 149-151,
conc. opn. of Bird, C.J.)


                                               10.
         We find no prejudicial error on the part of the juvenile court in this instance in
failing to find father was the biological father of Alayna prior to disposition, and we
reject father’s claim to the contrary.

   II. DOES SUBSTANTIAL EVIDENCE SUPPORT THE JURISDICTIONAL
         FINDINGS AGAINST FATHER?
         The juvenile court in this matter sustained counts against both mother and father
pursuant to section 300, subdivision (b) and against father pursuant to subdivision (g).
While father challenges the sufficiency of the evidence as to his conduct, he makes no
challenge to the jurisdictional findings against mother.
         “[A] jurisdictional finding good against one parent is good against both. More
accurately, the minor is a dependent if the actions of either parent bring her within one of
the statutory definitions of a dependent. [Citations.]” (In re Alysha S. (1996) 51
Cal.App.4th 393, 397.) “For this reason, an appellate court may decline to address the
evidentiary support for any remaining jurisdictional findings once a single finding has
been found to be supported by the evidence.” (In re I.A. (2011) 201 Cal.App.4th 1484,
1492.)
         An appellate court may address the merits of a challenge to any jurisdictional
findings against one parent “when the finding (1) serves as the basis for dispositional
order that are also challenged on appeal [citation]; (2) could be prejudicial to the
appellant or could potentially impact the current or future dependency proceedings
[citations]; or (3) ‘could have other consequences for [the appellant], beyond jurisdiction’
[citation.]” (In re Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
         Father concedes the sustained allegation against mother is sufficient to assert
jurisdiction over Alayna. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) But, father
claims, our review of the jurisdictional findings against him is still required because
“these findings are prejudicial to [father] and could impact these or future dependency




                                               11.
proceedings, particularly when the juvenile court conducts the required section 361.2
analysis.”
       We disagree with father that section 361.2 applies (see section III, post.) But in
any event, we find substantial evidence does support the juvenile court’s jurisdictional
findings as to father.
       On review, we determine whether substantial evidence supports the juvenile
court’s jurisdictional findings. (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.) All
conflicts must be resolved in favor of the respondent, and we must indulge in all
reasonable inferences which support the finding. (Ibid.) In this case, we disagree with
father and conclude there is substantial evidence to support the juvenile court’s
jurisdictional findings.
       The section 300, subdivision (b) allegation against father indicates he had a
criminal history which included being a registered sex offender and a list of crimes
ranging from the nonviolent crime of possession, being under the influence of a
controlled substance, and vehicle theft to violent felonies of sexual battery, grant theft
from a person, and battery on a custodial officer. Each of the alleged offenses is
supported by evidence of a conviction in father’s criminal history report.
       Section 300, subdivision (b) provides that a child comes within the juvenile
court’s jurisdiction if the court finds

       “[t]he child has suffered, or there is a substantial risk that the child will
       suffer, serious physical harm or illness, as a result of the failure or inability
       of his or her parent … to adequately supervise or protect the child, … or by
       the willful or negligent failure of the parent or guardian to provide the child
       with adequate food, clothing, shelter, or medical treatment, or by the
       inability of the parent … to provide regular care for the child due to the
       parent’s … mental illness, developmental disability, or substance abuse.”
A jurisdictional finding under this provision requires “(1) neglectful conduct by the
parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or



                                              12.
illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M.
(1991) 1 Cal.App.4th 814, 820.)
       However, a “court need not wait until a child is seriously abused or injured to
assume jurisdiction and take steps necessary to protect the child [citation]. The court
may consider past events in deciding whether a child presently needs the court’s
protection. [Citation.] A parent’s ‘“[p]ast conduct may be probative of current
conditions” if there is reason to believe that the conduct will continue.’ [Citation.]” (In
re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
       Father contends there is no nexus between the jurisdiction allegation and potential
harm to Alayna, in other words, that the juvenile court was merely speculating that his
continuing criminal conduct would place Alayna at risk of harm. It is true that a parent’s
criminal history alone cannot be the basis for finding jurisdiction of a child. (See In re
Sergio C. (1999) 70 Cal.App.4th 957, 959.) However, for children of tender years such
as Alayna, the absence of adequate supervision and care alone poses an inherent risk to
their physical health and safety and establishes that nexus. (In re Rocco M., supra, 1
Cal.App.4th at p. 824.)
       Under these principles, there is substantial evidence supporting the juvenile
court’s jurisdictional finding under section 300, subdivision (b). Unlike the defendant in
In re Sergio C., supra, 70 Cal.App.4th at page 959, whose criminal history consisted of
arrests, not convictions, and were all for misdemeanors described as “being in the wrong
place with the wrong people,” father’s lengthy criminal history includes convictions for
violent felonies, including sexual battery. He is a Penal Code section 290 sex registrant.
And his self-admitted substance abuse issue was a large component of his frequent
incarcerations and bad judgment.
       As for the section 300, subdivision (g), allegation, that section provides that “[a]
child who comes within any of the following descriptions is within the jurisdiction of the
juvenile court which may adjudge that person to be a dependent child of the court: [¶] …

                                             13.
[¶] (g) … the child’s parent has been incarcerated … and cannot arrange for the care of
the child .…”
       It is undisputed that father was incarcerated at the time of the jurisdiction hearing.
Again, it is true that incarceration alone is not sufficient for jurisdiction. (In re S.D.
(2002) 99 Cal.App.4th 1068, 1077.) The agency must also prove that father could not
arrange for the child’s care. (Ibid.)
       We find substantial evidence supports the juvenile court’s jurisdictional finding
under section 300, subdivision (g). Father claimed to have relatives he wished Alayna
placed with. But while the agency insisted father had no standing to assert his wishes as
his status was that of an alleged father, that agency had, however, at the time of
jurisdiction, located and sent letters to several paternal relatives, but no one had yet
replied. The agency further stated that, if father’s status was elevated, and if any of his
relatives came forward, the agency would do the necessary investigation required for
placement.
       Sufficient evidence supports the jurisdictional findings as to father, and we reject
his claim to the contrary.

   III. DID THE JUVENILE COURT ERR BY REMOVING ALAYNA FROM
          FATHER’S CUSTODY WHEN IT FAILED TO FOLLOW THE DICTATES
          OF SECTION 361.2?
       Father finally contends that the juvenile court erred when it removed Alayna from
his custody pursuant to section 361, subdivision (c)(1), and denied him reunification
services under section 361.5. According to father, because he was a noncustodial parent
at the time of events leading to the petition, the juvenile court should have made its
determination under section 361.2 instead. We disagree.
       Section 361.2 provides that, “when a court orders removal of a child pursuant to
section 361, the court shall first determine whether there is a parent of the child, with
whom the child was not residing at the time that the events or conditions arose that


                                              14.
brought the child within the provisions of Section 300, who desires to assume custody of
the child.” (§ 361.2, subd. (a).) If there is and if that parent requests custody, “the court
shall place the child with the parent unless it finds that placement with that parent would
be detrimental to the safety, protection, or physical or emotional well-being of the child.”
(Ibid.) Furthermore, a section 300, subdivision (g) allegation, when merely based on
incarceration, should not deny a noncustodial parent custody when the parent is able to
make arrangements for the child and placement with the parent is not otherwise
detrimental to the child. (In re John M. (2013) 217 Cal.App.4th 410, 423.) But only a
presumed father is entitled to custody under section 361.2. (In re Zacharia D. (1993) 6
Cal.4th 435, 451; In re J.H. (2011) 198 Cal.App.4th 635, 644.)
       Here, as established above, father is, at most, the biological father of Alayna and
not entitled to custody. Father has not, nor is he likely to, achieve presumed father status
as defined in Family Code section 7611. In order to attain presumed father status, he
must show that he married or attempted to marry mother, that he and mother executed a
declaration of paternity or that he “receive[d] the child into [his] home and openly holds
out the child as [his] natural child.” (Fam. Code, § 7611, subd. (d).) Courts have
interpreted the “receiv[ing] the child into his home” language to mean the man seeking to
establish presumed father status must prove he has actually, physically brought the child
into his home, or at the very least, visited regularly. He must also publicly admit
paternity. (In re Cheyenne B. (2012) 203 Cal.App.4th 1361, 1379; In re A.A. (2003) 114
Cal.App.4th 771, 786-787.) Father has done nothing to achieve presumed father status:
there is no evidence that father attempted to fulfill his parental obligations with mother
while she was pregnant; he did not marry or attempt to marry mother; his name was not
on Alayna’s birth certificate; and he did not execute a declaration of paternity. In fact,
father had not met Alayna and had no relationship with her.
       Furthermore, section 361.2 applies only at the time the child is first removed from
the custodial parent, i.e., the disposition hearing. (In re Zacharia D., supra, 6 Cal.4th at

                                             15.
p. 454.) Even if section 361.2 applied at a later stage of the proceedings, the statute
assumes the existence of a “competent parent able to immediately assume custody.” (In
re Zacharia D., supra, at p. 454.) Such is not the case here, where father is incarcerated
and cannot assume custody.
       We find no error on the part of the juvenile court in not proceeding under section
361.2, and reject father’s claim to the contrary.
                                      DISPOSITION
       The order is affirmed.


                                                                 _____________________
                                                                           FRANSON, J.
WE CONCUR:


 _____________________
POOCHIGIAN, Acting P.J.


 _____________________
SMITH, J.




                                             16.
