Filed 4/4/16 In re J.R. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



In re J.R., a Person Coming Under                                      B265354
the Juvenile Court Law.
_____________________________________                                  (Los Angeles County
                                                                       Super. Ct. No. CK92569)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

ANDRES M.,

         Defendant and Appellant.




         APPEAL from orders of the Superior Court of Los Angeles County,
Stephen Marpet, Commissioner. Affirmed.
         Lisa A. Raneri, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Mary C. Wickham, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, Navid Nakhjavani, Deputy County Counsel for Plaintiff and Respondent.
                           _________________________
       Alleged father Andres M. appeals from juvenile court orders terminating his
parental rights and denying his request for a paternity test. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
                                             I.
                                        Detention
       J.R., born in June 2011, is the child of Karla R. and an unknown father. J.R. came
to the attention of the Department of Children and Family Services (DCFS) in
February 2012 when an anonymous caller reported that mother was emotionally and
physically abusing J.R., and mother and maternal aunt were selling and using
methamphetamines in J.R.’s presence. Mother tested positive for methamphetamines on
February 24 and March 7, 2012, and J.R. was detained on March 12, 2012.
       At a detention hearing on March 15, 2012, the court found a prima facie case for
detaining J.R. Mother submitted a “Parentage Questionnaire” in which she stated under
penalty of perjury that she believed J.R.’s father was Ruben C., who died February 3,
2011. No father was identified on J.R.’s birth certificate. The court found Ruben to be
J.R.’s alleged father.
                                            II.
                              Jurisdiction and Disposition
       DCFS filed a juvenile dependency petition on J.R.’s behalf on March 15, 2012.
As subsequently amended, the petition alleged jurisdiction pursuant to Welfare and
Institutions Code section 300, subdivision (b),1 because mother was a current user of
amphetamines and methamphetamines, which rendered her incapable of providing
regular care of J.R. and placed him at risk of harm.
       On April 16, 2012, mother pled no contest to the allegations of the petition. The
court ordered mother to submit to weekly on-demand drug testing, to participate in a drug



1
        All subsequent undesignated statutory references are to the Welfare and
Institutions Code.

                                             2
program, and to attend parent education and individual counseling. Mother was granted
monitored visitation twice each week.
                                           III.
                                         Review
       The six-month status review report, dated October 15, 2012, said J.R. was doing
well in his foster placement, but mother was only minimally compliant with her family
reunification plan. On October 24, 2012, the court ordered DCFS to continue to offer
mother family reunification services.
       On July 23, 2013, and again on September 17, 2013, the juvenile court ordered
DCFS to continue to provide mother with family reunification services. On December 6,
2013, however, the court terminated mother’s reunification services and set a
section 366.26 hearing for April 8, 2014. That hearing subsequently was continued to
July 8, 2014.
                                            IV.
                  J.R.’s Placement in a Prospective Adoptive Home
       J.R. was placed in the home of Mr. and Mrs. R. in early 2013. In 2014, the R.’s
told DCFS they wished to adopt J.R., and an adoptive home study was complete by
April 2014. J.R. was reported to have a close bond with his prospective adoptive parents
and to get along well with his prospective adoptive siblings.
                                            V.
                Andres’s Appearance and Request for a Paternity Test;
                            Termination of Parental Rights
       In a “Last Minute Information for the Court,” DCFS said it had been contacted on
June 16, 2014, by Andres M., who claimed to be J.R.’s father. Andres said he had been
romantically involved with mother in 2010. DCFS further reported as follows:
“Mr. [M.] reported that he was arrested and incarcerated in 11/2010 and was released in
12/2011. Mr. [M.] reported that he made contact with [mother] and she informed him
that he was [J.R.]’s father. Mr. [M.] reported that he saw [J.R.] a few times before being
arrested and incarcerated again in 03/2012. Mr. [M.] was released into Delancy Street, a

                                             3
behavior modification program in 06/2012 and kicked out in 04/2013. In 04/2013 he
entered Amitty Foundation, w[h]ere he remained until 03/2014. Mr. [M.] stated that he
re-connected with [mother] via Facebook in 03/2013 and she did not tell him that [J.R.]
was in foster care until this month. Mr. [M.] stated that he would be attending the
July 8th hearing, asking to be acknowledged as [J.R.]’s father.”
       On July 8, 2014, Andres submitted a JV-505 Statement Regarding Parentage
(JV-505). Andres checked box (4), which said, “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.” Andres did not check box (8), which says, “I believe I am the parent of the child
and request that the court find that I am the presumed parent of the child.” However, he
stated he told family members he was J.R.’s father, had “visited [J.R.] a couple times in
2011” and once in 2014, gave mother “diapers and other necessities in the beginning,”
and gave J.R. money for his birthday in 2014.
       Andres appeared on July 8 and told the court he believed he was J.R.’s father. The
court then questioned mother as follows:
       “The Court: You indicated back in March of 2012 that Ruben [C.] was the father.
       “Mother: Yes.
       “The Court: And you swore under penalty of perjury that you declared him to be
the father of this child.
       “Mother: Uh-huh.
       “The Court: And I can show you the document [in which] . . . you swore that this
was the only person who could be the father. Now why is this gentleman here?
       “Mother: There’s no D.N.A. test from him yet. We don’t know if he’s –
       “The Court: But you told me and swore that the father was Ruben [C.].
       “Mother: And that’s who I think it is.”
       Mother’s counsel stated that mother had been in a sexual relationship with Andres
when J.R. was conceived, and she asked the court to appoint counsel for Andres and
order a paternity test. The court refused: “First of all, this gentleman, at best, can be
nothing more than an alleged father. Period. Even if he’s the biological father, he’s an

                                              4
alleged father. He’s never presented himself to court in the last two years. And there’s
no basis upon which I would grant any continuance or appoint counsel. There’s no basis.
He is an alleged father only and the statute doesn’t even provide I should appoint counsel
so I’m going forward.” The court subsequently found by clear and convincing evidence
that J.R. was likely to be adopted, and it terminated the parental rights of mother, Ruben,
“and all other persons claiming to be the father, including any identity unknown father, to
the child [J.R.].”
       Andres then attempted to address the court; the court declined to hear from him,
saying, “Sir, I don’t need to hear from you.”
                                             VI.
                             Mother’s and Andres’s Appeals
       Mother timely appealed from the July 8, 2014 order terminating parental rights.
On March 27, 2015, we affirmed the order. Andres was not a party to that appeal.
       Andres also timely appealed from the July 8, 2014 order. For reasons that are not
clear from the record, the notice of appeal was not received by the Court of Appeal until
July 13, 2015, more than a year after it was filed.
                                      DISCUSSION
                                              I.
                      Andres Is Not Estopped from Raising Issues
                             Addressed in Mother’s Appeal
       Preliminarily, we address Andres’s contention that he is not estopped from raising
issues addressed in mother’s appeal. We agree. “The doctrine of issue preclusion
prevents relitigation of issues already argued and decided. (Rodgers v. Sargent Controls
& Aerospace (2006) 136 Cal.App.4th 82, 89.) Among other requirements, the doctrine
only applies where the identical issue was decided previously, and the party against
whom the earlier decision is asserted had a ‘ “ ‘full and fair’ ” ’ opportunity to litigate
the issue.” (In re Y.R. (2007) 152 Cal.App.4th 99, 110, italics added, disapproved on
another ground in In re S.B. (2009) 46 Cal.4th 529, 537, fn. 5.)


                                              5
       As we have said, although Andres timely filed a notice of appeal in the superior
court on July 8, 2014, the notice was not received by the Court of Appeal until July 13,
2015, more than a year after it was filed with the superior court, and four months after we
issued an opinion in mother’s appeal. Therefore, through no fault of his own, Andres
plainly has not had a full and fair opportunity to litigate the issues raised in this appeal.
He is not precluded from doing so.
                                              II.
                            The Juvenile Court Did Not Err by
                          Terminating Andres’s Parental Rights
       A.     No Error in Denying Andres Presumed Father Status.
       To have substantive rights in the dependency proceeding, Andres would have to
have established that he is J.R.’s “presumed” father. A man is a presumed father if he
comes within one of the categories set forth in Family Code section 7611: He married, or
attempted to marry the child’s mother, or “receive[d] the child into [his] home and
openly [held] out the child as [his] natural child.” (Fam. Code, § 7611, italics added;
In re J.H., supra, 198 Cal.App.4th at p. 644.) In a dependency proceeding, a presumed
father is entitled to appointed counsel, custody (absent a finding of detriment), and a
reunification plan. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.)
       Despite having the opportunity to do so, Andres did not establish that he is J.R.’s
presumed father. In his “Statement Regarding Parentage” (JV-505), Andres did not say
that he had ever married or attempted to marry mother or lived with J.R. Indeed, by his
own admission, his contact with J.R. was extremely limited: He stated that he told
unidentified family members he was J.R.’s father, “visited [J.R.] a couple times in 2011”
and once in 2014, gave mother “diapers and other necessities in the beginning,” and gave
J.R. “some money for his birthday” in 2014. Accordingly, while Andres arguably “h[eld]
out the child as his natural child,” he indisputably never “receive[d] the child into his
home.” (Fam. Code, § 7611, subd. (d).) He therefore cannot be J.R.’s presumed father.
       Andres claims that had he been permitted to address the court at the termination
hearing, he might have been able to elevate his status to presumed father. We do not

                                               6
agree. Neither in the trial court nor on appeal has Andres ever asserted that he married or
attempted to marry mother or received J.R. into his home. Absent such a showing, as a
matter of law he could not have been found to be J.R.’s presumed father.
       Andres also claims that had he been permitted to address the court at the
termination hearing, he might have been able to achieve presumed father status as a
“Kelsey S.” father. (Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).) In
Kelsey S., the biological father had openly held out the child as his own, but was
prevented by the mother from physically receiving the child into his home. (Id. at
p. 825.) The California Supreme Court held that a biological father who wanted to take
the child into his home, care for the child, and hold the child out as his own, but who was
prevented from doing so by the mother’s unilateral decisions, could qualify for the same
parental rights as those afforded by statute to presumed fathers. (Ibid.)
       In deciding whether a father is a nonstatutory presumed father under Kelsey S.,
“[a] court should consider all factors relevant to that determination.” (Kelsey S., supra,
1 Cal.4th at p. 849.) “If an unwed father promptly comes forward and demonstrates a full
commitment to his parental responsibilities—emotional, financial, and otherwise—his
federal constitutional right to due process prohibits the termination of his parental
relationship absent a showing of his unfitness as a parent.” (Id. at p. 849.) “The father’s
conduct both before and after the child’s birth must be considered. Once the father
knows or reasonably should know of the pregnancy, he must promptly attempt to assume
his parental responsibilities as fully as the mother will allow and his circumstances
permit. In particular, the father must demonstrate ‘a willingness himself to assume full
custody of the child—not merely to block adoption by others.’ [Citation.] A court
should also consider the father’s public acknowledgement of paternity, payment of
pregnancy and birth expenses commensurate with his ability to do so, and prompt legal
action to seek custody of the child.” (Ibid.)
       The undisputed facts of this case establish that Andres is not a Kelsey S. father.
Andres says mother told him he was J.R.’s father in late 2011—but by his own admission
Andres provided no financial support for the child other than “diapers and other

                                                7
necessities” in the first few months of J.R.’s life and birthday money in 2014. Further,
although J.R. has been a dependent child since he was an infant, Andres waited nearly
two and a half years to appear in the dependency action and request a paternity test. And
even at this late date, Andres has not demonstrated a willingness to assume full custody
of J.R. By no measure, then, did Andres “ ‘ “promptly attempt to assume his parental
responsibilities.” ’ ” (Adoption of Emilio G. (2015) 235 Cal.App.4th 1133, 1144.)
       Andres contends that he could not have more promptly assumed parental
responsibilities because he was “incarcerated and then in rehabilitation programs.” In
other words, Andres says, he could not act as a parent to J.R., because of his own
criminal behavior and use of illegal drugs, not because of mother’s actions. It is well
established that there is “[no] violation of equal protection or due process in holding an
unwed father’s own criminal activity against him when assessing whether he has met the
criteria for Kelsey S. rights.” (Adoption of O.M. (2008) 169 Cal.App.4th 672, 680.)
Accordingly, Andres cannot achieve presumed father status as a Kelsey S. father.
       B.     No Error in Terminating Parental Rights Without Determining Biological
              Parentage
       Andres contends that it was error for the juvenile court to terminate parental rights
to J.R. without first determining J.R.’s biological parentage. Andres does not explain
why he believes a determination of biological paternity is relevant to termination of
parental rights—he simply asserts that if this court agrees that the juvenile court was
required to make a biological parentage determination, we must reverse the order
terminating parental rights “to put the parties back into the same position they would
have been in had paternity testing been ordered.” For the reasons that follow, Andres is
wrong.
       In dependency proceedings, courts distinguish between “alleged” and “biological”
fathers. An alleged father is 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.” (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) A


                                              8
biological father “is one whose paternity is established, but who does not qualify as a
presumed father.” (In re J.O. (2009) 178 Cal.App.4th 139, 146.)
       An alleged or biological father “has very limited rights” in a dependency
proceeding. (In re J.H. (2011) 198 Cal.App.4th 635, 644.) He must be given notice and
an opportunity to appear and attempt to change his paternity status, but he is not entitled
to appointed counsel or custody of the child. (In re Kobe A., supra, 146 Cal.App.4th at
p. 1120.) He will not receive reunification services unless the court determines such
services will benefit the child. (In re J.H., at p. 644; § 361.5, subd. (a).)
       Even if Andres were J.R.’s biological father, therefore, he would not have been
entitled to appointed counsel or reunification services absent a juvenile court finding that
such services would benefit J.R. (§ 361.5, subd. (a).) The juvenile court implicitly found
that offering Andres reunification services would not benefit J.R., a finding that is
supported by overwhelming evidence. Andres and J.R. have met only a handful of
times—twice in 2011 and once in 2014—and have no relationship. Although Andres
claims mother told him he was J.R.’s father in late 2011, he has provided no financial
support for the child other than “diapers and other necessities” in the first few months of
J.R.’s life and birthday money in 2014. Andres has been in and out of prison and is
unlikely to be able to provide a stable home for J.R. And, granting Andres reunification
services at this late date will likely disrupt J.R.’s adoptive placement, denying him a
chance at permanency after nearly two and a half years in foster care. Thus, a finding
that Andres is J.R.’s biological father would not have had any impact on the progress of
this dependency proceeding or the eventual termination of parental rights.
       For all of these reasons, granting Andres a paternity test or an opportunity to
address the court at the termination hearing would not have had any impact on the
progress of this dependency proceeding or the eventual termination of parental rights.
We therefore affirm the order terminating parental rights.




                                               9
                                               III.
           The Juvenile Court Did Not Err by Failing to Order a Paternity Test
          Andres contends the juvenile court abused its discretion by failing to order a
paternity test to determine whether he is J.R.’s biological father. We do not agree.
Parental rights have been terminated, and we have concluded that there is no basis on
which to reverse the order terminating parental rights. Thus, Andres has no rights to
assert or interests to be protected even if his biological status were determined. Because
we therefore cannot provide Andres any effective relief, the question of his biological
status is academic only.
          Andres relies on In re B.C. (2012) 205 Cal.App.4th 1306 for the proposition that
the biological paternity of a dependent child should be determined if requested, even if
the alleged parent making the request cannot elevate his status to presumed parent.
In re B.C. is distinguishable. There, a section 366.26 hearing had not yet been held, and
the reviewing court made clear that “this appeal is not from an order terminating parental
rights.” (In re B.C., at p. 1314, fn. 4, italics added.) Here, the section 366.26 hearing has
been held, parental rights have been terminated, and J.R. has been released for adoption.
We see no reason to order a test to determine a child’s potential biological link to a man
whose parental rights to that child have already been terminated.
          Andres urges, finally, that if he were determined to be J.R.’s biological father,
DCFS could “consider his relatives as possible placements for” J.R. The issue is a
theoretical one, as J.R. is already in an adoptive placement and, in any event, Andres has
made no showing that he has any relatives who are able or willing to accept placement
of J.R.




                                                10
                                    DISPOSITION
      The juvenile court’s orders terminating parental rights and denying a paternity test
are affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EDMON, P. J.

We concur:




                    ALDRICH, J.




                    HOGUE, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                           11
