In re J.D.

Filed 1/13/10 In re J.D. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Douglas Hatchimonji, Judge. Affirmed.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Father L.D.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Mother K.S.

Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

* * *

L.D. (father) and K.S. (mother) appeal from the juvenile courts order terminating parental rights and freeing their children, J.D. (born in 1997) and I.D. (born in 1998), for adoption. They contend the court violated fathers due process rights by terminating his parental rights without finding he was an unfit parent. For the reasons expressed below, we affirm the order terminating parental rights.

I

Factual and Procedural Background

In January 2007, Garden Grove police responded to a report of mother entering a car without the owners permission. Investigating officers found her confused and mentally unstable. She complained she heard demons and skeletons speaking in her head. Authorities involuntarily hospitalized her (Welf. & Inst. Code,  5150; all statutory references are to this code) and took J.D. and I.D. into protective custody, along with their younger half siblings.

Mother informed Orange County Social Services Agency (SSA) and the juvenile court she married father in 1998, while pregnant with I.D. Father was not listed on the childrens birth certificates and mother stated he never provided financial support or care for the children, although he publicly held himself out as their father. She claimed she did not know fathers current whereabouts, but stated he had been living in Tijuana, Mexico. SSA conducted an absent parent search but could not locate him. The court found father to be the childrens alleged father and that SSA had exercised due diligence to locate him. SSA placed the children with the maternal grandmother.

In March 2007, mother pleaded no contest to SSAs amended dependency petition alleging mother failed to protect J.D. and I.D. ( 300, subd. (b).) The petition specifically alleged the following: (1) mother had been involuntarily hospitalized as a risk to herself or others and therefore was unable to care for her children; (2) she and the stepfather had an ongoing abusive relationship with histories of physical violence in the childrens presence; (3) the stepfather had a misdemeanor conviction for cohabitant abuse;[1] (4) mother had a history of substance abuse and it remained an unresolved problem that impaired her ability to protect her children; (5) the couple frequently left the children unattended; and (6) the stepfather inappropriately struck the children.

The petition also alleged fathers whereabouts were unknown and he had failed to maintain a relationship with the children, provide for the childrens ongoing care, and has failed to protect the children from harm. The court found SSA exercised due diligence to locate him and that notice had been provided to all parties. The court entered fathers default. After mother entered her no contest plea, the juvenile court formally removed the children from her custody, finding it would be detrimental to the children to vest custody with the parents. ( 361, subds. (c)(1)(5).)

As of May 16, 2007, mother had tested positive for amphetamines and methamphetamine and missed numerous drug tests. A court-appointed psychological evaluator diagnosed her with a psychotic disorder possibly induced by illegal substances.

By July, mother had tested negative for drugs and appeared to be complying with her case plan. SSA directed mother to enroll in the countys dual-diagnosis perinatal drug program.

By early August, mother had failed to participate in the perinatal program beyond the orientation and missed all of her scheduled drug tests. SSA discovered she and the stepfather, who had done nothing to comply with the case plan, had been living with the maternal grandmother in violation of court orders. When the social worker arrived at the grandmothers home, the couple fled out a rear door with the half siblings, and tried to take J.D. and I.D. from their school. Mother believed the social worker was against her and informed her mother she was taking my kids. The stepfather took the half siblings, apparently to Mexico, and they never returned.

SSA removed J.D. and I.D. from the grandmothers home. The court found by clear and convincing evidence that returning the children to the parents would create a substantial risk of detriment to their physical and emotional well being. ( 366.21, subd. (e).) Although SSA recommended termination of reunification efforts, the court continued reunification efforts to March 2008 for a 12-month review.

The children were placed in a new foster home in November 2007. Mother visited the children sporadically and stopped participating in case plan activities. Mother failed to inform SSA of her whereabouts, spending much of her time in Tijuana, apparently with the stepfather. She relocated to Tijuana in April 2008.

At the 12-month review in May 2008, the court found by clear and convincing evidence that returning the children to their parents would create a substantial risk of detriment to their physical or emotional well being. The court terminated reunification services and scheduled a section 366.26 hearing (.26 hearing) for August 28, 2008. The juvenile court directed SSA to attempt to locate the parents and provide notice of the scheduled .26 hearing.

SSA located a possible address for father in the child support enforcement database, and sent notice of the .26 hearing to him by certified mail. On June 9, SSA personally served him at the same Tijuana address. The court found SSA had exercised due diligence to locate and provide the parents with notice of the proceedings.

In July 2008, the children were placed with nonrelated extended family members they had known since January 2007. The couple desired to adopt the children. On August 28, the court continued the .26 hearing to October 20.

Mother told the social worker, Norma Avila, she recently disclosed to father she was close to losing her parental rights. He became very upset with her and asked what he could do to get his children back. On October 14, father contacted the social worker.

Father told Avila he lived with mother for about three years. When they separated in 2000, they had a verbal agreement allowing him to visit with the children twice a month during the daytime. Between 2004 and January 2007, mother brought the children to visit him in Tijuana at the maternal grandmothers home. He also supplied weekly child support money. In January 2007, mother stopped bringing the children to visit without explanation. He tried to contact mother to no avail. He had not heard from mother until about a month and a half earlier when she informed him of the court proceedings. He did not know the children were dependents of the court.

Father appeared in court on October 20, 2008, on a special one-day visa with an attorney obtained through the Mexican consulate. The court found he was the childrens presumed father and appointed counsel. Father requested visitation. The court authorized SSA to arrange visitation after the childrens therapist discussed the issue with the children. The court continued the .26 hearing to December 8.

The children, upon learning about their father, became excited and wanted to talk to him. They estimated it had been five years since they had seen him. During a second therapy session, apparently in early November 2008, they spoke to father using a speakerphone. The children seemed happy and excited but did not seem to remember him. After the call, they said they wanted to visit and talk to him again. Both children reported they missed their real family and would like to live with them.

J.D. reported mother, who visited the children weekly, directed her to tell the social worker that J.D. wanted to live with mother. Mother told J.D. if she lived with father, mother would come get them. J.D. was afraid mother would come get her and reported that mother threatened to kill herself if they did not go back with her. J.D. was afraid mother was living with the stepfather, who frightened both children. The children told the therapist they understood they could not live with mother, they would like to continue visits with their parents, but they wanted to continue living with the foster parents because this family is comfortable.

After father resurfaced, both children woke up at night crying, explaining they missed their parents and siblings and felt insecure in their foster family. The social worker limited further contact with father, believing it made the children anxious and affected them negatively.

In November 2008, father told the social worker mother stopped bringing the children to visit about two years earlier. He visited the maternal grandparents and great-grandparents a few times, but did not receive any information on how to contact her and the children. He explained he worked for an optical company, the same one that had employed the maternal grandmother and mother, and could provide for the children. When the social workers effort to directly contact father at the workplace failed, father and the employer provided conflicting explanations concerning his absence from the office. The social worker also asserted father lied about his employment history and she found several discrepancies concerning fathers contacts with the children.

The court continued the .26 hearing to February 2009. The social worker reported the children had a difficult time over the holidays. They missed mother, who continued to have weekly monitored visits. They asked about the progress of court proceedings and when the adoption would take place, explaining they were tired of waiting. The children told the therapist they wanted their foster family to adopt them even though they enjoyed visits with mother, and they would like to see father at least once before the adoption.

On February 23, 2009, the court found a prima facie case of changed circumstances and set a hearing on fathers section 388 petition seeking custody of the children[2] to coincide with the .26 hearing scheduled for March 11, 2009. The court declined to order visits with father pending the outcome of the section 388/.26 hearing. On February 25, the court authorized father to appear and testify telephonically at the combined hearing.

The foster parents reported the children had stopped asking about father and stated they wanted this to be over and get adopted. The children disclosed for the first time mother and the stepfather lived with them while they were placed with the maternal grandmother from February to August 2007, and they frequently traveled to Tijuana. They witnessed the stepfather strike mother.

At the hearing commencing March 11, Sandra Carrillo testified she employed father beginning in August 2008. She had last seen him five years earlier at a hospital where one of his children had been taken after suffering a serious head injury. She had employed the maternal grandmother for 14 years until the grandmother quit in February 2008. Mother briefly worked for Carrillo in 2007, although mother told the social worker she was working for Carillo in November 2008. Carillo last saw the children four years earlier.

The social worker testified mother was currently visiting the children with a monitor twice a week for two hours each visit. The childrens positive interactions with mother during visits showed they shared a close emotional bond. The children missed their mother, half siblings, and maternal grandmother, and occasionally expressed a desire to reunite with their family. The children sometimes expressed sadness, especially during the holidays in December 2008. The children did not feel fully a part of the foster family, but expressed excitement about the family adopting them.

Mother told the social worker father was in Tijuana but did not provide a specific address. Avila reviewed the service file for fathers contact information. She did not contact the Mexican consulate or ask the maternal grandmother for fathers address, but instead relied on SSAs search unit.

The social worker arranged for only one telephone contact with father in a therapeutic setting. Afterward, the childrens anxiety increased and they began crying at night. The social worker therefore did not facilitate additional contact because she felt it would add to the childrens emotional burden given all the changes and loses [sic] they [had] gone through. The social worker did not believe J.D.s adoption and separation from her maternal relatives would cause her to suffer severe emotional distress.

Father testified telephonically that he lived with the children and mother in Tijuana from 1997 to 2000. After he separated from mother, he moved in with the paternal grandmother and the children visited and stayed overnight every weekend. Mother moved to the United States in 2004. She agreed to bring the children to Tijuana every two weeks, and kept her agreement until January 2007. The children did not spend the night. Mother took them to the maternal grandmothers home and he picked them up there. They visited the park and ate out.

Mother stopped bringing the children to visit father. He admitted he didnt really put out a full-out effort to find them, but tried to contact maternal relatives at their home and workplace. Mother visited the paternal grandmother while father worked. He believed everything was fine. Around November 2007, Mother brought pictures of the children showing they looked healthy and happy. He did not suspect a problem.

He first learned mother had lost custody in early August 2008 when mother came to his house and told him. He resented that mother hid the fact she used drugs. Alarmed, he contacted Carrillo and she helped him contact authorities. He did not speak to the social worker until November. He voluntarily took parenting classes in Mexico. Father testified he was employed and able to support and care for the children in his home.[3] He did not believe the children required protection from mother because [i]n our culture, everything is different, but he would abide by the courts orders. He loved his children with all [his] heart. He said he found his current job when he answered an advertisement. He was aware the maternal grandmother worked for the same employer.

I.D., now 10 years old, testified in chambers that he called his foster parents Mom and Dad. He wanted them to be his forever family, a place he could live and feel like Im home. They took care of him like he was their own child, and made good choices for him. He did not remember father, who left when I.D. was two years old. Fathers phone call upset him. He did not like talking to father because I dont really know him that much. And he left, and Ive never seen him since . . . I was five. I.D. missed his mother sometimes and liked visiting her because he got to see part of my family members . . . . He wanted to continue seeing her and his grandmother. But he acknowledged they made the wrong choices and that really scared me . . . . He also missed his younger half siblings and felt sorry for them. He was aware that after he got adopted officially . . . we cant visit our mom. He explained when I see her [mother], . . . Im confused. Why are we here if were with this family? And I kind of feel sad when were with her.

Eleven-year-old J.D. testified she did not know which family she preferred. She had no memories of father, and was really disappointed she did not receive more calls from him. She wanted to visit with father, and to continue seeing her mom because she loved her, and wanted to see her grandmother and maintain contact with other family members.

Mother testified she and father married in 1998 and separated in 2000. She continued to live in Mexico and every week the children visited and spent the night with father. She moved to Anaheim in 2004 and took the children to Tijuana like once a month. They initially agreed father would have biweekly visitation with the children but the stepfather was angry when she took the children to Mexico. She scaled back the visits to once a month and did not provide father with her contact information. After January 2007, she avoided father, but saw the paternal grandmother on three occasions and told her the children were doing well. She did not tell father about the dependency case because she wanted to finish her case plan and regain custody of the children. The current case stemmed from a nervous breakdown she suffered after she disclosed to the stepfather she had given up their newborn child to adoption without his knowledge in 2002. The stepfather beat her in front of the children.

Mother claimed she told the social worker father was in Tijuana, but Avila told her in April 2007, Its best if we do not talk about him. Mother denied the court solicited information concerning fathers whereabouts, although the reporters transcript reflects the inquiry. Mother initially claimed she gave social workers an address for father, but then conceded she did not provide an address because she did not want him to have the children. She disclosed the proceedings to father after she learned she would not receive further visits so he could do something. She sent him pictures to fool him into thinking the children were with her. During the .26 hearing portion of her testimony, mother explained why her children would benefit by continuing a relationship with her.

The social worker denied mother gave her more detailed contact information for father or that she told mother she should not talk about fathers whereabouts.

The juvenile court denied fathers section 388 petition, finding it would not be in the childrens best interests to grant him custody. The court noted he had not occupied a parental role during the majority of the childrens lives, cited the apparent total lack of a bond between the children and their father, and the drastic and earthshaking change that would result because the children had lived in the United States since 2004. Concerning fathers due process claim, the court concluded father presented no evidence SSA did not exercise due diligence in its efforts to locate him. The court found the children were adoptable and terminated parental rights.

II

Discussion

The Juvenile Court Did Not Violate Fathers Due Process Rights[4]

Father contends the juvenile court violated due process by terminating his parental rights without finding he was an unfit parent: Fathers presumed parent status had been determined after mothers reunification services had been terminated and he was not granted any visitation or other reunification services. . . . Because Father did not receive reunification services, the court failed to make the accompanying findings which generally develop into evidence of unfitness, and such demonstration of parental unfitness was never made.

Father relies on In re Gladys L. (2006) 141 Cal.App.4th 845 (Gladys L.). There, the child became a dependant of the juvenile court while in her mothers custody. The father appeared at the detention hearing, submitted himself to the courts jurisdiction, and the court found him to be the childs presumed father. The father was a nonoffending parent, i.e., the section 300 petition did not allege he abused or neglected the child. The father then disappeared for three years, only reappearing at the .26 hearing. He requested visits with his daughter but the court denied his request, finding it was not in her best interest to have any contact with him. The juvenile court subsequently terminated the fathers parental rights.

The appellate court reversed. Relying on the United States Supreme Court decision in Santosky v. Kramer (1982) 455 U.S. 745, 758, the court observed parents have a fundamental interest in the care, companionship, and custody of their children. (Gladys L., supra, 141 Cal.App.4th at p. 848.) Consequently, due process requires a state to support its unfitness allegations by at least clear and convincing evidence. (Ibid.) After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. [Citation.] But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. [Citation.] (Ibid.) Gladys L. explained Californias dependency system comports with Santoskys due process requirements because the juvenile court must have made prior findings of parental unfitness by clear and convincing evidence by the time parental rights are terminated at a section 366.26 hearing.[5] (Gladys L., at p. 848; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) That requirement was not complied with in Gladys L.: DCFS [Department of Children and Family Services] never alleged that [the father] was unfit and the trial court never made that finding. Due process therefore prohibits the termination of [the father]s parental rights. (Gladys L., at p. 848.)

This case is distinguishable from Gladys L. Unlike the father in Gladys L., father did not appear in the case, submit himself to the jurisdiction of the court and attain presumed father status during the reunification period. Instead, at the detention hearing, the court found father to be a mere alleged father, a status he maintained until after the court scheduled a .26 hearing. As an alleged father, he did not have a current interest in the children because his paternity had not yet been established. (In re O.S. (2002) 102 Cal.App.4th 1402, 1410.) He therefore was not entitled to custody, reunification services, or visitation. (Ibid.) [O]nce the court set a section 366.26 hearing, regardless of whether [he] was a biological or presumed father, he faced a more difficult burden to seek services by showing changed circumstances. [Citation.] [O]nce reunification efforts end, the court looks toward the childs interest in permanence and stability, not the parents interest in maintaining family ties. [Citation.] The proceeding terminating reunification services and setting the section 366.26 hearing is generally the partys last opportunity to litigate the issue of parental fitness or to seek the childs return. [Citation.] . . . [Citation.] [The fathers] ability to gain services at this stage of the proceedings is virtually nonexistent. (Id. at p. 1412.)

Fathers reliance on Gladys L. is unavailing for yet another reason. Unlike Gladys L., the section 300 petition here alleged fathers whereabouts were unknown and he had failed to maintain a relationship with the children, provide for the childrens ongoing care, and has failed to protect the children from harm. The juvenile court entered fathers default after it found SSA exercised due diligence to locate and serve him with the petition. Father has not challenged SSAs diligence, the sufficiency of notice or the jurisdictional findings. The juvenile court subsequently found by clear and convincing evidence at the dispositional hearing that removal of the children from the parents custody was necessary and to vest custody with the parents would be detrimental to the children. ( 361, subd. (c)(1)(5).) At subsequent review hearings, the court found by clear and convincing evidence that return of the children to the parents would create a substantial risk of detriment to the childrens physical and emotional well-being. ( 366.21, subd. (e).)

As explained in In re P.A. (2007) 155 Cal.App.4th 1197 (P.A.), these findings established parental unfitness. In P.A., the court found no due process violation under circumstances similar to those in the current case. There, the social services agency filed a dependency petition after P.A.s mother and half sibling tested positive for methamphetamine at the time of the half siblings birth. The mother identified Robert A. as P.A.s father and stated his whereabouts were unknown. The mother failed to reunify with P.A. Before the .26 hearing, the agency located Robert and served him with notice. Robert appeared in court, and stated he maintained a parental relationship with P.A. for her first two years until mother began to abuse drugs and left with the child. In the juvenile court, Robert objected to termination of parental rights, arguing P.A. would be better off in his care, and that the continuing benefit exception to termination of parental rights applied. The juvenile court terminated his parental rights, finding Robert failed to visit P.A. for years at a time and had had very little contact with the child. (P.A., at p. 1207.)

The appellate court in P.A. rejected Roberts due process claim that his parental rights were terminated without the requisite finding he was an unfit parent. Here, the juvenile court made findings that return of P.A. to her parents would be detrimental to the child. At the disposition hearing on February 2, 2005, the juvenile court found by clear and convincing evidence there exists a substantial danger to the children and theres no reasonable means to protect them without removal from the parents custody. (Italics added.) The juvenile court further found DCFS made reasonable efforts to prevent removal, and the custody of the children is taken from the parents and placed in the care, custody, and control of the department for placement with a relative. (Italics added.) (P.A., supra, 155 Cal.App.4th at p. 1212.) The appellate court observed [t]he juvenile court made a second finding of detriment when it denied Robert A. family reunification services under section 361.5, subdivision (b) based on Robert A.s whereabouts being unknown. The social report prepared for the disposition hearing indicated Robert A. had not maintained any involvement in P.A.s life, he had not provided support for the child and he had not seen the child for two and a half years. (Id. at p. 1212.)

The appellate court in P.A. explained that the absence of a parental unfitness finding at the jurisdictional hearing did not violate the parents due process rights because jurisdictional findings are made by a preponderance of the evidence. Therefore, even if the dependency petition had alleged Robert A.s unfitness, the order sustaining the petition would have been inadequate, by itself, to terminate Robert A.s parental rights without a subsequent finding of detriment by clear and convincing evidence. Thus, the absence of a jurisdictional finding that related specifically to Robert A. does not prevent termination of parental rights. To the extent the disposition in In re Gladys L. suggests a sustained dependency petition alleging unfitness of each parent is a necessary precedent to termination of parental rights, we respectfully disagree. (P.A., supra, 155 Cal.App.4th at p. 1212.) The court also noted a child may be declared a dependent if the actions of either parent bring the child within the statutory definitions of dependency. (Ibid., italics added; accord, In re A.S. (Dec. 17, 2009, D054951) ___ Cal.App.4th ___ [2009 WL 4851513].)

Here, father defaulted on allegations of parental neglect, and failed to secure relief from that default. Any requirement of unfitness was established when the juvenile court found it would be detrimental to return the children to the custody of their parents during the reunification period. Once the juvenile court terminated reunification services, family preservation ceased to be of overriding concern and the focus shifted from fathers interest in reunification to the childrens interest in permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 307 (Marilyn H.).) There is little that can be as detrimental to a childs sound development as uncertainty over whether he is to remain in his current home, . . . especially when such uncertainty is prolonged. [Citation.] (In re Sade C. (1996) 13 Cal.4th 952, 988.) Proceedings such as these must be concluded as rapidly as is consistent with fairness . . . . [Citation.] A period of time that may not seem . . . long . . . to an adult . . . can be a lifetime to a young child. [Citation.] Childhood does not wait . . . . (Id. at p. 990; see also In re Phoenix H. (Dec. 21, 2009, S155556) ___ Cal.4th ___ [2009 D.A.R. 17667].) [L]engthy and unnecessary delay in providing permanency for children is the very evil the Legislature intended to prevent. (Marilyn H., supra, 5 Cal.4th at p. 310 [.26 hearing is to be heard within 120 days of setting; burden is on the parent to prove circumstances justifying revival of the reunification issue].)

Father does not contend the court abused its discretion in denying his section 388 petitions. (In re Stephanie M. (1994) 7 Cal.4th 295, 317-318 [burden of proof on moving party to show by a preponderance of the evidence based on new evidence or changed circumstances that change is in the best interest of the child; after termination of reunification services, parents interest in the care, custody, and companionship of the child are no longer paramount and focus shifts to the needs of the child for permanency and stability; rebuttable presumption that continued foster care is in the best interest of the child]; cf. In re Kimberly F. (1997) 56 Cal.App.4th 519.)[6] Nor do the parents contend the children were not adoptable or that an exception to termination of parental rights applied. (See, e.g.,  366.26, subd. (c)(1)(B)(i).) We discern no basis to reverse the juvenile courts order terminating parental rights.

III

Disposition

The juvenile courts order terminating parental rights is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] The stepfather was arrested soon after SSA intervened because he failed to enroll in a court-ordered domestic violence program. Local authorities released him into federal immigration custody in March 2007.

[2] According to a February 23, 2009, minute order, father filed a motion/petition on December 8 seeking custody, and a second petition for telephonic contact and visitation on January 20, 2009. Our record does not contain file-stamped copies of these petitions.

[3] In conjunction with his section 338 petition, counsel supplied a social study report prepared by the Mexican social services agency (DIF) reflecting father had an adequate home, did some voluntary drug testing, and took a parenting course.

[4] The parties did not raise this due process claim in the juvenile court. Mothers counsel did argue mother kind of[] corroborated the fathers testimony that he was not on actual notice, so I think theres some due process issues here. But father did not make a due process claim concerning notice in the juvenile court. (See In re Justice P. (2004) 123 Cal.App.4th 181, 188-189 [no due process violation where there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings].) The parties argument on appeal concerns a different aspect of due process. SSA does not argue the parents forfeited this constitutional issue by failing to raise it in the juvenile court. We therefore exercise our discretion to address the merits.

Also, mother asserts she is an aggrieved party and also has standing to raise the due process issue because had the court applied the law correctly, . . . it is entirely likely that the minors would have been permanently placed with him . . . [allowing mothers] parental rights to remain [intact]. Because father raises the issue, there is no reason to decide whether mother has standing to raise the issue on her own. (But see In re Anthony P. (2000) 84 Cal.App.4th 1112, 1117.)

[5] In 1969, the California Legislature dropped the parental unfitness standard requiring instead the termination of parental rights of awarding custody to the parent would be detrimental to the child. (In re Dakota H. (2005) 132 Cal.App.4th 212, 224, fn. 3.)

[6] Father argued mother lied to him and he was unaware of the proceedings until after the reunification period, and the juvenile court apparently accepted this position. But discrepancies in the testimony undermined the parents credibility. For instance, while both children expressed curiosity about their father once he came forward, the childrens reaction during the initial phone call at the therapists office and their testimony revealed father was basically a stranger to them. It appears unlikely the children were visiting father monthly as recently as January 2007, as both parents claimed. And, as the court noted, if visits did suddenly cease in January 2007, father admitted he made little effort to discover what happened to his children. Other evidence suggested the parents might be colluding to prevent termination of parental rights, including fathers serendipitous employment with Carrillo, who was close to the maternal relatives. As SSA argued below, the children were in protective custody because father was not present to protect or care for them. Father was a sidelines father who abandoned his children with mother and accordingly had no relationship with the children that outweighed the bond they had established with the prospective adoptive parents. The court was understandably concerned by fathers testimony he did not believe the children needed protection from mother. Coupled with evidence mother had told J.D. she would retrieve the children if they were placed with father, the court could reasonably conclude it was not in the childrens best interests to be placed with father in Mexico, and therefore effectively beyond the courts jurisdiction.