Filed 9/18/26 Andre A. v. Superior Court CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
ANDRE A.,
Petitioner,
v.
THE SUPERIOR COURT OF A176996
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. No. J25-00345)
CONTRA COSTA COUNTY
CHILDREN AND FAMILY
SERVICES BUREAU,
Real Party in Interest.
Andre A. seeks review by extraordinary writ of a juvenile court order
setting a hearing to select a permanent plan for his seven-year-old daughter,
Y.L. (Welf. & Inst. Code, § 366.26; subsequent undesignated statutory
references are to this code.) He requests that we reverse the order on the
ground that he was denied his statutory and constitutional right to notice of
this dependency case and the opportunity to appear and attempt to elevate
his parental status. We grant the petition.
1
BACKGROUND
In June 2025, the Contra Costa County Children and Family Services
Bureau (Bureau) filed a juvenile dependency petition on behalf of Y.L. The
petition identifies Y.L.’s mother as Carolyn L. (mother) and her father as
unknown. Jurisdiction was alleged pursuant to section 300,
subdivision (b)(1)) based on the substantial risk of harm associated with
mother’s untreated mental health issues and negligent failure to obtain
necessary dental treatment for Y.L.
According to the detention/jurisdiction report, mother was homeless,
displayed symptoms of mental illness, had a history of drug abuse, and there
were concerns about domestic violence involving a former boyfriend. Before
the dependency petition was filed, the Bureau attempted to work with
mother to implement a safety plan for Y.L. However, on June 16, 2025,
mother could not be located, and so Y.L. was taken into protective custody
and placed with a maternal relative on an emergency basis.
The Bureau reported that mother did not disclose the name of Y.L.’s
father, but on the very day Y.L. was taken into protective custody maternal
aunts identified him as a man named Andre. Although mother’s siblings
were uncertain of Andre’s last name, an Emergency Response Worker found
his full name the following day, searching child welfare services records
relating to mother. Accordingly, the Bureau reported that on June 17, 2025
it initiated an absent parent search for Andre A.
The Bureau also reported that mother has two older children who were
removed from her custody. O.L., who was an adult, had been raised by a
grandmother, and eight-year-old J.B. lived with his father. Bureau records
pertaining to O.L.’s dependency case indicated that in 2010, O.L. was placed
temporarily in the care of Andre A., who was a family friend.
2
Mother did not appear at the detention hearing held on June 20, 2025.
County Counsel reported that Andre A. was an alleged father, and that the
Bureau would continue to try to find him if they had “enough information to
do the absent parent search.” The court made findings to detain Y.L. from
mother and ordered weekly supervised visitation.
The jurisdiction hearing was initially scheduled for July 11, 2025.
Mother’s counsel appeared without her, and the matter was continued for a
contest later that month. On July 28, mother appeared at the contested
hearing and submitted to jurisdiction pursuant to amended allegations that
she had delayed getting dental treatment for Y.L due to untreated mental
health issues. During the hearing, the juvenile court examined mother to
establish that she was knowingly and voluntarily admitting the amended
allegations, confirmed that mother understood she would be entitled to “a
minimum” of 12 months of reunification services, and reviewed with her the
potential consequences if she failed to reunify with Y.L. The court did not
ask mother about the identity or whereabouts of Y.L.’s father.
The disposition hearing was set for early September 2025. The Bureau
recommended adjudging Y.L. a dependent and offering family reunification
services to mother. As to paternity, the disposition report described Andre A.
as an alleged father who is not named on Y.L’s birth certificate. The Bureau
reported that mother had been unable to provide identifying information for
the child’s father, and that it would “continue to make efforts to identify,
locate and contact Andre [A.], in the event additional information is
provided.”
The disposition hearing was continued at the request of the Bureau,
and continued again for a contest. The contested hearing was held on
November 5, 2025. Mother did not appear. Y.L. was adjudged a dependent
3
and removed from the custody of mother; reunification services were ordered
for mother; and the matter was continued for a six-month review.
The six month review was set for April 22, 2026. The Bureau filed a
status report recommending that the court terminate mother’s services and
set another review hearing. Mother had been absent throughout the
reunification period, was reportedly still homeless, and the Bureau was
unable to locate her. As to Andre A., the Bureau reiterated that it would
“continue to make efforts to identify, locate, and contact [him] in the event
additional information is provided.”
On April 22, 2026, the date of the review hearing, the Bureau filed a
Request to Change Court Order pursuant to section 388, requesting that the
court terminate mother’s reunification services so that the Bureau could
proceed with “assessing permanency options.” At the hearing, the court
clarified that the Bureau was seeking to shorten the standard 12-month
reunification period by having the court immediately terminate mother’s
services. In light of that request, the six month review was set for a contest,
to be heard in conjunction with the section 388 petition.
The contested hearing was set for May 20, 2026. Andre A. appeared at
the hearing with his adult daughter and introduced himself as Y.L.’s father.
The court indicated that counsel would be appointed for Andre at a later
date. Andre stated that he had received a call the previous day, felt “blind-
sided,” and did not know what was “going on.” The court briefly described
the situation; told Andre that an appointed attorney would assist him in
presenting information about paternity; and indicated that the court would
make “some legal decisions . . . regarding that” before going forward. The
court then granted a request by minor’s counsel to continue the hearing as to
the pending contested matters.
4
On June 3, 2026, the court appointed counsel for Andre A., and he
immediately requested visitation. The court responded that visitation was
premature as Andre was only an alleged father, and requested clarification
as to what he wanted. Andre’s counsel responded that Andre did not contest
paternity and would like to be elevated to presumed father status. The court
asked for an “offer of proof,” but those issues were deferred for consideration
at a later hearing.
Prior to the continued hearing on the contested matters, the Bureau
submitted a memorandum to update the court. Mother “continued to remain
largely absent and disengaged with the Bureau.” Y.L.’s caregiver was
unwilling to adopt or to pursue a legal guardianship; the caregiver was
willing to offer a placement for two to four years, but she wanted Y.L. to
reunite with a parent. The Bureau contacted several relatives who were not
interested in a placement, and then made a family finding referral.
The Bureau also reported that the case worker had two telephone
conversations with Andre A. after he appeared at the May 2026 hearing.
When the case worker asked whether Andre had been aware that the Bureau
had an open case pertaining to Y.L., he responded, “ ‘No one ever reached out
to me about the case.’ ” Andre said that mother’s sister had called him and
said mother was not doing well, and then the case worker told him to come to
court.
Andre A. told the social worker that he and mother had not been in a
relationship, but he had known there was a possibility he could be Y.L’s
father. He also shared that he has several other children, ranging in age
from pre-teen to adult, and that he has relationships with all of them. Andre
told the case worker that if Y.L. is his daughter, he wants full custody.
5
The contested review hearing was held on July 1, 2026. Mother did not
appear. Andre A. appeared with counsel. The court addressed pending
matters as follows. First, a paternity test was ordered for Andre after all
parties agreed to the order. Next, the court addressed the Bureau’s section
388 petition. The Bureau argued that mother’s services should be terminated
due to her lack of contact with Y.L. or the Bureau. Minor’s counsel
concurred, while mother’s counsel opposed the petition but submitted the
matter without argument. The court granted the section 388 petition, finding
that mother had not engaged in her case plan at all and that Y.L. needs
permanency and stability.
Next, the court conducted a six-month review. The court made findings
as to mother’s noncompliance with her case plan; the Bureau’s reasonable
efforts to assist mother; and mother’s lack of progress toward alleviating the
problems that led to the dependency. The court also found, among other
things, that Y.L. could not be safely returned to mother and terminated
mother’s services.
Then the court turned to the Bureau’s request to set a section 366.26
hearing, as mother’s services had been terminated. The court granted the
request without inviting argument or otherwise discussing the propriety of
the request. It advised Andre A. that the matter was being set for a section
366.26 hearing and stated: “You must seek an extraordinary writ by filing a
notice of intent to file a writ petition and request for record within seven days
of today’s decision.” The court went on to opine that paternity results would
be back before the section 366.26 hearing date, and that there would be time
to address that issue, either before or at the hearing. The court also proposed
reserving visitation as to Andre A. until after “we figure out the paternity
6
issue.” Andre’s counsel agreed that was “fair,” and the other parties
concurred. The section 366.26 hearing was set for October 7, 2026.
Andre A. filed his notice of intent to file a writ petition on July 9, 2026.
The results of his paternity test establishing he is Y.L’s biological father were
issued on August 10.1 The following week, Andre A. filed his petition, which
was met with vigorous opposition from the Bureau.
DISCUSSION
Andre A. (father) contends the order setting a section 366.26 hearing
must be reversed because the Bureau and juvenile court violated his
statutory and constitutional right to timely notice of Y.L.’s dependency. The
Bureau acknowledges we “consider de novo whether inadequate notice
violated father’s due process rights.” (In re Mia M. (2022) 75 Cal.App.5th
792, 806 (Mia M.).) The Bureau disputes that in this case father’s notice
rights were violated, and it argues the order setting a section 366.26 hearing
should be affirmed in any event.
When the section 366.26 hearing was set, father was an alleged father,
“a man who may be a child’s father but has not yet established either
presumed father status or biological paternity.” (In re A.H. (2022) 84
Cal.App.5th 340, 350 (A.H.).) Thus, his rights were relatively limited.
Alleged fathers are not entitled to custody, reunification services or
visitation. (Ibid.; In re J.W.-P. (2020) 54 Cal.App.5th 298, 301 (J.W.-P.)
However, an alleged father in a dependency case has the constitutionally
protected right to notice of the proceedings and an opportunity to appear, to
assert a position, and to attempt to elevate his parental status. (A.H., at
1 We grant Andre A.’s unopposed motion for judicial notice of the
results of his paternity test.
7
pp. 350–351; In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.) We conclude
that father’s right to such notice was violated in at least three material ways.
First, section 316.2, subdivision (b) requires that each alleged father in
a dependency case “shall” be provided notice “alleging that he is or could be
the father of the child,” along with specific information pertaining to the
dependency proceeding. (See also Cal. Rules of Court, rule 5.635(g); all rule
references are to these rules.) Here, father was identified as Y.L’s alleged
father at the very beginning of this dependency case, and yet he was not
named in the dependency petition. Nor does the record contain information
about the Bureau’s efforts to locate father, other than the simple assertion
“an Absent Parent Search for Andre [A.] was initiated” but “results have not
been received.” Moreover, we find no indication father was ever provided
with the notice required by section 316.2, even after he appeared at the May
2026 hearing. Failure to provide such notice constitutes error because it
deprives the alleged father of “crucial” information regarding the “process for
elevating his status from alleged father and the consequences of not doing
so.” (J.W.-P., supra, 54 Cal.App.5th at p. 306.)
Second, section 361.2, subdivision (a) required the juvenile court to
conduct an inquiry of mother (and any other appropriate person) as to the
identity and address of all presumed or alleged fathers. The statute provides
for this inquiry to be conducted at the detention hearing, “or as soon
thereafter as practicable.” (Ibid.) Moreover, rule 5.635 “ ‘imposes a
continuing duty on the juvenile court to inquire about parentage at every
hearing from the very beginning of a dependency case until the question of
parentage has been resolved.’ ” (In re A.K. (2024) 99 Cal.App.5th 252, 264
(A.K); see also A.H., supra, 84 Cal.App.5th at p. 364.) In the present case,
mother did not appear at any hearing other than the contested jurisdiction
8
hearing, and unfortunately, the court did not take that opportunity to
conduct any inquiry about the identity or whereabouts of Y.L.’s father. The
blame for that lost opportunity rests also with the Bureau, who failed to
bring the matter to the court’s attention at or before the hearing.
Third, the record shows that father was not afforded any opportunity to
elevate his parental status before the court set the section 366.26 hearing.
On May 20, 2026, father made his first appearance, apparently in response to
the caseworker’s directive of the previous day. Despite having no prior
knowledge of Y.L.’s dependency case, father promptly attempted to assert his
parental rights. But he was not appointed counsel until two weeks later (on
June 3), and no paternity test was ordered for four more weeks (on July 1),
even though Andre had expressed his desire to be elevated to presumed
father status. This delay in ordering a paternity test was significant because
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.” (J.W.-P.,
supra, 54 Cal.App.5th at p. 301.) Then in spite of these delays and instead of
waiting for the paternity test results, the court granted the Bureau’s request
to set the section 366.26 hearing to select a permanent plan for Y.L. before
the standard 12-month reunification period was over.
We believe that setting a permanency planning hearing when father
had only just appeared, and despite the fact that it appears no meaningful
inquiry as to the paternity of Y.L. had ever been conducted, put father at an
unfair and potentially unsurmountable disadvantage. At the section 366.26
hearing, the issues are limited to determining whether the child is adoptable
and whether terminating parental rights would be detrimental under one of
the statutory exceptions set forth in section 366.26, subdivision (c)(1). (In re
Ninfa S. (1998) 62 Cal.App.4th 808, 811 (Ninfa S.).) The court does not
9
entertain requests for parental custody. (In re Caden C. (2021) 11 Cal.5th
614, 630–631.) “In fact, it is not permissible to order reunification at the
section 366.26 hearing. [Citations.] Indeed, when the court orders the
section 366.26 hearing, . . . the assumption is that the problems that led to
the court taking jurisdiction have not been resolved.” (Id. at p. 630.)
The law appears settled that a juvenile court “does not err by
terminating a biological father’s parental rights when he has had the
opportunity to show presumed father status and has not done so.” (Ninfa S.,
supra, 62 Cal.App.4th. at p. 811; see also In re A.S. (2009) 180 Cal.App.4th
351.) Father was afforded no such opportunity before this section 366.26
hearing was set.
The Bureau contends father’s notice rights were not violated because
his whereabouts were unknown despite the fact that the Bureau exercised
reasonable diligence to locate him. This argument misunderstands the
requirements of “reasonable diligence” and mischaracterizes the record.
“Because parents have a fundamental liberty interest in the
companionship, care, custody, and management of their children, the due
process clause requires child welfare agencies to exercise reasonable diligence
in attempting to locate and notify them of dependency proceedings.” (In re
J.R. (2022) 82 Cal.App.5th 569, 572.) As a corollary to this law, “ ‘[t]here is
no due process violation where a child welfare services agency has exercised
reasonable diligence to provide notice to a parent whose whereabouts are
unknown.” (Mia M., supra, 75 Cal.App.5th at p. 807.) “ ‘On this score,
reasonable diligence “denotes a thorough, systematic investigation and an
inquiry conducted in good faith.” [Citation.] It includes searching not only
“standard avenues available to help locate a missing parent,” but “ ‘specific
ones most likely, under the unique facts known to the [agency], to yield [a
10
parent’s] address.’ ” ’ ” (Id. at pp. 807–808.) “This is no idle command. It
requires a thorough and systematic investigation to protect a parent’s
fundamental liberty interest.” (J.R., at p. 572.)
Applying these standards, we find the Bureau did not exercise
reasonable diligence. It knew father’s first and last name from the outset of
this proceeding, and its own records confirmed that he was a longtime family
friend who had previously cared for mother’s older child. Yet we find no
evidence that the Bureau exercised any diligence in attempting to locate
father. Did it search public databases or social media sites for possible leads?
Did it ask mother’s family members about ways he might be reached?
Attempting to shift the blame for its failure to find father, the Bureau asserts
before this court that “[i]t appears [a maternal aunt] purposefully concealed
Father’s identity and contact information that would have allowed the
Bureau to locate him.” But the only evidence the Bureau cites in support of
this accusation is its report that on the day Y.L. was taken into protective
custody, when the maternal aunts informed the Bureau that Y.L.’s father
was a man named Andre, they were uncertain of his last name. There is no
indication that the aunts were asked at that time whether they knew how to
find an address or telephone number for Andre, nor that the Bureau circled
back after it had found Andre’s last name to see if the maternal aunts could
supply any leads to help them find him. Instead, the reports evince a passive
approach, suggesting the Bureau felt no responsibility to search for Y.L.’s
father unless by chance some information was offered up. In its detention
report the Bureau stated that it had initiated an absent parent search for
Andre A. However, it never reported any results of that search, any steps
taken or roadblocks encountered in the search, or indeed anything to
substantiate that a search had actually occurred. (Cf. In re Daniel F. (2021)
11
64 Cal.App.5th 701, 706 (Daniel F.) [child welfare worker submitted an
“ ‘Absent Parent search request’ ” that was never received or processed].)
“ ‘Social services agencies, invested with a public trust and acting as
temporary custodians of dependent minors, are bound by law to make every
reasonable effort in attempting to inform parents of all hearings. They must
leave no stone unturned.’ ” (Daniel F., supra, 64 Cal.App.5th at p. 711.) In
Daniel F., the record showed that the Agency “made little to no effort” to give
an alleged father notice “until it was poised to terminate parental rights.”
(Id. at p. 715.) The same happened here, or so it appears. If the Bureau
turned a single stone after learning Andre’s last name, we find no evidence of
it in this record.
In re R.A. (2021) 61 Cal.App.5th 826, decided by another division of this
court, provides additional support for our decision. The R.A. court granted a
father’s petition to reverse an order setting a section 366.26 hearing based on
the father’s showing that the agency failed to use reasonable diligence to
locate him. (Id. at pp. 837–840.) In that case, the father’s writ was
consolidated with his appeal from an order denying his section 388 petition to
set aside prior orders and findings on the ground that he was not sufficiently
notified of the dependency proceedings. (Id. at p. 832.) Reversing the
summary denial of the father’s section 388 petition, the R.A. court stated:
“We cannot accept the idea that an agency may completely ignore its duty to
search for a missing parent and then, should the missing parent show up,
rely on the best interest of the child to preclude that parent from
participating in the dependency case.” (Id. at p. 839.)
The Bureau attempts to distinguish R.A., and multiple other cases
confirming that an agency’s failure to provide notice to a parent constitutes
reversible error, on both substantive and procedural grounds. None of those
12
arguments is persuasive. The Bureau is adamant that father could not be
located despite the Bureau’s best efforts to locate him, but it fails to cite
evidence to demonstrate that it made any effort at all.2 The Bureau’s notion
that it had no obligation to search for father unless or until somebody
provided his date of birth or social security number cannot be squared with
the reasonable diligence standards established by the case law.
We are equally unpersuaded by the Bureau’s argument that father’s
writ should be summarily denied because he did not file a section 388 petition
in the juvenile court. According to the Bureau, cases recognizing that a
parent may challenge the agency’s failure to provide adequate notice by filing
a section 388 petition establish that father’s writ petition is procedurally
improper. (Citing, e.g., Mia M., supra, 75 Cal.App.5th 792; A.K., supra, 99
Cal.App.5th 252.) We reject this argument, which overlooks the settled rule
that a “case is not authority for a proposition not considered therein or an
issue not presented by its own particular facts.” (Satten v. Webb (2002) 99
Cal.App.4th 365, 383.) A section 388 petition is unquestionably an
“ ‘appropriate method for raising a due process challenge based on lack of
notice.’ ” (Mia M., at p. 807.) However, we know of no case establishing that
such a petition is the only appropriate method for raising such a challenge,
2 We take particular issue with the Bureau’s representation that “the
Bureau and court frequently discussed efforts to determine paternity and
locate father.” The Bureau refers us to the June 2026 hearing, when father
was appointed counsel. The transcript of that hearing contains no discussion
of the Bureau’s efforts to locate father. The Bureau also references a brief
exchange during the disposition hearing, when it requested that the court
make findings that the Indian Child Welfare Act (ICWA) did not apply.
County Counsel stated that the court had deferred making ICWA findings at
the detention hearing “in hopes that we would be able to locate the father,
and at this time, we have not.” We reject any suggestion that such offhand
remarks establish reasonable diligence.
13
particularly in a case such as this where the Bureau failed to comply with its
statutory duty. (Cf. In re Isabella G. (2016) 246 Cal.App.4th 708, 712 [when
agency failed to complete relative home assessment as required by law,
minor’s relative was entitled to placement hearing without having to file a
section 388 petition].)
Where a parent fails to receive due process notice of juvenile
dependency proceedings, a “ ‘ “fatal defect” ’ ” in the jurisdiction of the
juvenile court mars the dependency judgment. (Mia M., supra, 75
Cal.App.5th at p. 807.) And when a dependency judgment is shown to be
fatally defective, we fail to see why the case ought to proceed to permanency
planning. The Bureau cites no authority precluding the writ relief that
father seeks here. The dependency statute requires that an order setting a
section 366.26 hearing and any “findings subsumed therein” must be
challenged in a petition for extraordinary writ to preserve those issues for a
later appeal. (In re Zeth S. (2003) 31 Cal.4th 396, 413; § 366.26, subd. (l).)
Here, the order setting the permanency planning hearing subsumed findings
that the Bureau and the court had made adequate efforts to locate Y.L.’s
father and provide him with timely notice of the dependency case. Such
findings can properly be challenged by filing a writ to vacate the setting of a
section 366.26 hearing. (In re Suhey G. (2013) 221 Cal.App.4th 732, 742
(Suhey G.).)
The petitioner in Suhey G. was the noncustodial father of a five-year-
old child who had been removed from her mother and placed with a maternal
relative. (Suhey G., supra, 221 Cal.App.4th at p. 735.) The father sought to
vacate two juvenile court orders made at a six-month review hearing during
which the mother’s reunification services were terminated: (1) an order for
the father to be evaluated under the Interstate Compact on the Placement of
14
Children (ICPC); and (2) an order setting a section 366.26 hearing to select a
permanent plan for the child. (Suhey G., at pp. 734–735.) The Suhey G.
court reviewed the petition on the merits, and vacated the order setting the
permanency planning hearing after finding that the petitioner was denied “a
fair opportunity” to request that his daughter be placed with him under
section 361.2, which governs placement of a child with a noncustodial parent
after the child’s initial removal from parental custody. (Suhey G., at p. 735.)
Despite distinctions regarding father’s parental status here, our decision
parallels the relief granted in Suhey G.
Suhey G. recounts the following pertinent facts: The social services
agency made inadequate efforts to locate the minor’s father, who lived in
Idaho, or to serve him with timely notice of the dependency. (Suhey G.,
supra, 221 Cal.App.4th at pp. 743–744.) Consequently, the father had no
opportunity to appear at the disposition hearing and request placement
under section 361.2. (Suhey G. at pp. 743–744; see id. at p.736.) After the
father “[s]erendipitously” learned about the case, he requested custody and
appeared at a six-month review. (Id. at pp. 744, 737.) Following a contested
hearing, the juvenile court terminated the mother’s services, and ordered an
ICPC evaluation of the father. The court also set a section 366.26 hearing,
stating that it believed it was required to set the hearing and that an update
on father’s ICPC evaluation could be considered then. (Id. at p. 738.) Father
then filed his writ petition, which took several months to resolve. In the
meantime more relevant events were reported to the appellate court. Among
other things, a series of abuse allegations against the relative caregivers that
started early in the case were finally addressed by the agency and disclosed
to the juvenile court; and the agency agreed to place the minor with her
15
father, after previously resisting that option without explanation. (Id. at
pp. 738–741.)
In granting the father’s writ, the Suhey G. court found that although
the juvenile court did not abuse its discretion by ordering an ICPC
evaluation, it did err by setting a section 366.26 hearing without requiring
the agency to show that a placement with the father would have been
detrimental to the child under section 361.2. (Suhey G., supra, 221
Cal.App.4th at p. 743.) The court rejected the agency’s argument that the
burden was on the father to file a section 388 petition to have the child placed
with him; because the agency had failed to make adequate efforts to locate
and serve father, the burden remained with the agency to show that a
placement under section 361.2 was not warranted, the appellate court found.
(Id. at pp. 743–745.) The court also found that the agency had failed to
provide the juvenile court with accurate information about its inadequate
search efforts, or about the mounting abuse allegations against the relative
caregivers. (Id. at pp. 745–746.) Most importantly for our purposes, the
appellate court concluded the juvenile court had erred by setting a section
366.26 hearing when the record demonstrated the agency had failed to
facilitate reunification of the child with her father. (Id. at p. 746.)
As in Suhey G., this record clearly shows that the Bureau failed in its
obligation to conduct a reasonable search for a dependent child’s father, and
failed to disclose these deficiencies to the juvenile court. The juvenile court in
this case also appears to have assumed it had no choice but to set the section
366.26 hearing once it terminated services to the parent from whom the child
was removed. Under these circumstances, setting the section 366.26 hearing
deprived father of a sufficient opportunity to seek to elevate his parental
status. Like the petitioner in Suhey G., father has demonstrated that he can
16
proceed by writ to vacate the section 366.26 hearing, even in the absence of a
section 388 petition.
The Bureau also argues that father’s notice challenge is forfeited
because he did not object when the juvenile court set the section 366.26
hearing. We disagree that the issue has been forfeited given the facts
presented to us. The Bureau’s apparent misunderstanding of its obligation to
conduct a reasonable search for Y.L.’s father tainted this entire proceeding,
such that it was pushing to accelerate the setting of the section 366.26
hearing, even as the court was still appointing counsel for father. The
juvenile court then set the section 366.26 hearing without eliciting the views
of father’s counsel, after addressing only with the other parties the contested
matters that arose during the period father’s notice rights had been violated.
The court also made comments that could reasonably be construed as
directing father to challenge the setting of the section 366.26 hearing by filing
a writ petition, which is exactly what he did. Under these circumstances, we
do not insist on the prerequisite of a formal objection to the setting of the
section 366.26 hearing.
Finally, the Bureau argues that any error in failing to give father
notice was harmless because it is not reasonably likely he would have
achieved presumed father status “even if he appeared early in the
dependency.” The Bureau bases this contention on the facts that father was
not married to mother or present at Y.L.’s birth, and had not previously
supported Y.L. or been involved in her life. But the Bureau cites no authority
that any of these are prerequisites for achieving presumed father status.
Here, the day after the Bureau’s case worker communicated with father for
the first time, father appeared in court and attempted to assert his parental
rights and to establish that he is Y.L’s biological father. “ ‘[B]iological
17
fatherhood does not, in and of itself, qualify a man for presumed father
status’ ” (A.H., supra, 84 Cal.App.5th at p. 349), but as the Bureau
acknowledges, biological fathers may receive reunification services where the
juvenile court determines this to be in the best interests of the child.
(§ 361.5.) Here, where the child’s existing caregiver does not wish to pursue
adoption or guardianship but hopes Y.L. will reunify with a parent, we think
it is entirely possible the juvenile court would determine that reunification
services for father are in Y.L.’s best interest. We cannot assume, based on a
“ ‘dearth of information’ ” about father, that if he had been afforded counsel
and established paternity earlier in this case, he would not have received
reunification services or have otherwise been able to protect his parental
rights. (In re Daniel F., supra, 64 Cal.App.5th at p. 716; see also In re Paul
H. (2003) 111 Cal.App.4th 753, 761–762.)
In sum, father has established that he had a right to notice of Y.L.’s
dependency case, that this right was violated, fatally undermining the
dependency judgment, and that it was therefore premature for the juvenile
court to have set this case for permanency planning before it received the
results of the paternity test and gave father a chance to present evidence that
Y.L.’s best interests lay in him receiving reunification services.
DISPOSITION
Let a peremptory writ of mandate issue directing the juvenile court to
vacate its July 1, 2026 order setting a section 366.26 hearing. The
respondent court is further directed to hold a status review hearing to
address the recent appearance of a biological father who was previously
denied notice of the dependency proceeding. Our decision is final as to this
court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
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TUCHER, P. J.
WE CONCUR:
FUJISAKI, J.
RODRÍGUEZ, J.
Andre A. v. Superior Court (A176996)
19