Filed 10/30/26 In re M.B. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re M.B., a Person Coming Under the
Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND D088241
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ04859A)
Plaintiff and Respondent,
v.
A.W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Alejandro Morales, Judge. Affirmed.
Jacob I. Olson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Damon M. Brown, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Natasha Edwards, Deputy County Counsel, for Plaintiff
and Respondent.
INTRODUCTION
M.B. has been involved in the dependency system since 2023, when she
was seven months old. At that time, she was removed from the care of her
mother C.B. (Mother) due to substance abuse and neglect concerns. M.B.’s
paternity was not determined during this prior dependency proceeding, and
she was eventually returned to Mother and jurisdiction was terminated.
More recently, in 2025, the San Diego County Health and Human
Services Agency (Agency) filed a new petition under Welfare and Institutions
Code1 section 300, subdivision (b), alleging then-two-year-old M.B. was at
risk due to Mother’s substance abuse. M.B. was detained out of Mother’s
care. Although the man to whom Mother was married during the prior
proceedings and these proceedings was listed as an alleged father on the
petition, M.B.’s paternity continued to be uncertain. At the initiation of the
current dependency proceedings, Mother stated under penalty of perjury that
M.B.’s father was “unknown” to her. And, as the dependency case proceeded,
mother identified at least two other men as possibly being M.B.’s father. The
Agency undertook efforts to locate and provide notice to all three possible
fathers that Mother had identified.
1 Further statutory references are to the Welfare and Institutions Code
unless otherwise indicated. All rule references are to the California Rules of
Court.
2
It was not until just before the six-month review hearing, however, that
Mother provided a new possible father’s name to the Agency. This took place
approximately eight months after M.B. was detained and removed from
Mother’s care. The court added this individual, A.W., to the petition as an
alleged father. The Agency immediately conducted search efforts and, after
Mother eventually provided some additional information, was able to locate
and contact him. Genetic testing demonstrated A.W. is M.B.’s biological
father.
A.W. thereafter filed a section 388 petition in which he requested that
the juvenile court vacate all of its prior findings as to the reasonableness of
the search and provision of notice to M.B.’s alleged fathers, and that it set a
new jurisdictional hearing. After a prima facie hearing on the section 388
petition, the court denied it. The court concluded the inquiry into M.B.’s
parentage had been completed in good faith and with diligence, and that the
court therefore had met the necessary standards for inquiring into parentage.
On appeal, A.W. asserts that the juvenile court erred in summarily
denying his section 388 petition. He argues that he set out a prima facie case
that the court failed to satisfy its duty of inquiry regarding parentage under
section 316.2 and rule 5.625, which then led the Agency’s search efforts to be
unreasonable. In A.W.’s view, the court should have inquired further of
Mother after she informed the court that she was unaware of M.B.’s father’s
identity. The lack of further inquiry, he asserts, demonstrated the court
failed to fulfill its duty of inquiry. In A.W.’s view, the asserted error
prejudiced him, because if a “compliant inquiry” had been made, “it is
reasonably probable Father would have been identified, noticed, and brought
into the case before jurisdiction and disposition, with the attendant
opportunity to establish presumed-father status and to receive services
3
measured from that earlier point rather than at the threshold of the 12-
month review.”
We affirm the court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prior Dependency Proceedings
When M.B. was seven months old, she was removed from Mother’s care
due to Mother’s substance abuse. At that point in time, the Agency’s petition
listed R.C.F. as M.B.’s alleged father. R.C.F. was the father of M.B.’s
siblings, however, Mother had reported to the Agency that M.B. had a
different father—C.F.
At that time, Mother identified two men as M.B.’s possible father—C.F.
and R.C.F. Mother was married to R.C.F., but she was not sure if he was
M.B.’s biological father; she indicated that C.F. could be. Genetic testing
completed during this initial dependency proceeding eventually excluded C.F.
as M.B.’s biological father. In April 2024, the court placed M.B. back in
Mother’s care and terminated dependency jurisdiction.
B. The Current Dependency Proceedings
1. The Detention Phase
A year later in April 2025, the Agency received a referral regarding
Mother using illegal substances in the family home. The Agency began an
investigation, and after a social worker arrived at the home, Mother was
arrested for being under the influence. Then-two-year-old M.B. and her
seven-month-old sibling C.B. were taken into protective custody.
During initial interviews, Mother told the Agency that R.C.F. was
listed as M.B.’s father on her birth certificate because she was married to him
when M.B. was born. However, she asserted R.C.F. was not M.B.’s biological
4
father, and she told the Agency “she does not know who the father [of M.B.]
is.” R.C.F. was listed on the petition as M.B.’s alleged father.
Prior to the detention hearing, Mother completed a paternity inquiry
form as to both M.B. and C.B. under penalty of perjury in which she declared
she did not know the identity of M.B.’s father. She also stated that C.F. had
been genetically excluded as M.B.’s biological father. Mother listed C.F. as
possibly being C.B.’s father, however, and then also listed another name,
F.B., as another possible father to C.B.2 Elsewhere on the form, Mother
indicated she had married R.C.F. in April 2020 and was not divorced from
him.
C.F. also filed a paternity inquiry form with the court and claimed to be
father to both children. C.F. indicated he was not M.B.’s biological father,
but he explained that he had resided with M.B. between September and
December 2024, and Mother had told him he was M.B.’s father.
The detention hearing for M.B. and C.B. took place on April 15, 2025.
At that time, C.F. appeared for the hearing; however, R.C.F. was the only
alleged father identified in M.B.’s petition. The court found that the Agency
had made “reasonable efforts to locate and notice father [R.C.F.] for [M.B.’s]
case.”
At the detention hearing, the juvenile court reflected on Mother’s
responses on the parentage form and further inquired about M.B.’s
parentage. The court said, “For [M.B.’s father], you wrote ‘unknown.’ But
there is a [R.C.F.] as a possible father. Is he an individual that could be the
father?” Mother responded that R.C.F. was her husband at the time M.B.
2 C.F. was later confirmed to be C.B.’s biological father.
5
was born, and the court asked whether she was married to him “around
2020,” to which Mother responded affirmatively.
At the hearing, C.F. orally requested to have his paternity status
elevated to presumed father as to M.B. He contended M.B. referred to him as
“ ‘Daddy’ ” and he lived with both children from September to December
2024. Mother objected to C.F.’s request, arguing he never lived with her or
the children.
Later at the hearing, the Agency’s attorney noted that C.F. had
previously been determined not to be M.B.’s biological father. Because of his
request to be elevated to the status of her presumed father, however, the
court agreed it was proper to add C.F. to M.B.’s petition as an alleged father.
The court deferred C.F.’s request to elevate his status and to determine other
issues that involved questions regarding M.B.’s parentage until the next
hearing.
The juvenile court made a prima facie finding on the petition, detained
the children out of parental care, and ordered supervised visitation for
Mother and C.F. The court found reasonable search efforts had been made to
locate and notify the father of the proceedings, but it also ordered the Agency
to continue to search for and notify the alleged father on the petition, R.C.F.
2. The Jurisdictional and Dispositional Phase
The Agency submitted a report in advance of the jurisdiction and
disposition hearing that was set for May 6, 2025. After the detention
hearing, the Agency continued to inquire with Mother about the identity of
M.B.’s father. The Agency had reviewed M.B.’s birth certificate, but it “does
not identify a father.” C.F. had been genetically excluded as M.B.’s father,
and Mother continued to state that she was unsure of the father’s identity.
In late April 2025, Mother mentioned to a social worker that M.B.’s father
6
could be F.B. She told the Agency that she had no contact or other
identifying information for him, however.
The Agency also reported the steps it had taken to locate alleged father
R.C.F., which included, but was not limited to, calling at least three
telephone numbers possibly linked to him, mailing notification letters to
multiple of his last known addresses via certified mail, and conducting an
updated search with the Department of Justice and the Consolidated Lead
Evaluation & Reporting system. The Agency also provided an update of its
search efforts to find F.B.
At the continued jurisdiction and disposition hearing on June 9, 2025,
C.F. requested that he be struck from M.B.’s petition. The court agreed to
strike him from M.B.’s petition, leaving R.C.F. as the sole alleged father. The
Agency continued to make efforts to locate R.C.F., but those remained
unsuccessful. The Agency reported that it had received a telephone call from
F.B., whom Mother had identified as a potential father to M.B. He reported
he had received a parent notification letter, but he informed the Agency he
did not know Mother.
The contested jurisdiction and disposition hearing took place on
July 14, 2025. At that point, counsel for the Agency asked the juvenile court
to address M.B.’s paternity and to further clarify whether Mother was
married to R.C.F. at the time of M.B.’s birth and whether she remained
married to him. The juvenile court directly inquired with Mother on this
topic, and mother confirmed she and R.C.F. were married in 2020, and she
was only currently in the initial stages of moving forward with a divorce. The
juvenile court found R.C.F. to be M.B.’s presumed father. The court further
found the Agency made diligent efforts to locate R.C.F.
7
At this point, the juvenile court sustained the petition as to M.B.,
removed her from Mother’s custody, placed her in a licensed foster home or
relative or non-related extended family home, and ordered supervised
visitation and reunification services for Mother.
3. The Six-month Review Hearing Period
In late December 2025, the Agency submitted documentation as to the
parent searches it had undertaken for M.B.’s alleged father F.B. and
presumed father R.C.F. Then, on December 29, 2025, a social worker spoke
with Mother and she offered a new name as M.B.’s father. Mother stated
that neither R.C.F. nor F.B. was the child’s father, and she instead believed
that A.W. was M.B.’s biological father. The social worker asked Mother for
any other information about A.W. beyond his name, such as his birth date,
location, or other identifying information. Mother told the social worker she
did not have any other information about this “currently,” but would “ask
around and will give [the social worker more information] once she knows
something.”
The six-month review hearing took place on January 6, 2026. At that
hearing, the Agency indicated to the court that Mother had very recently
“indicated [A.W.] as a potential father for [M.B.],” and asked the court to “add
him as an alleged father to [M.B.] to the petition.” The Agency also sought
the court’s assistance in inquiring of Mother as to contact information or a
date of birth for A.W. Mother told the court, “So I’m going to make contact
with him tomorrow and reach out to him and see if he is interested in getting
DNA testing and verifying whether he is or isn’t, and making him be aware of
it so that way he can come forward.” The court asked whether Mother had
8
A.W.’s date of birth, and she responded that someone named “Keely does.”3
The court explained why contact and identity information for A.W. was so
important: “Here is our obligation. You may want him to maintain his
privacy, and maybe he doesn’t want to get involved. But our obligation is we
need to identify who the father may be of the child[ ] that is a dependent of
the juvenile court. And then we reach out to that person and say, ‘Hey, you
may not be the father. We don’t know.’ And sometimes they are like, ‘We
don’t care. I don’t want to get involved.’ But we need to hear it from them.
And we have an obligation as a system, if you will, to ensure we are
communicating with any person that may have an interest in the child. And
you have identified him as a potential father. . . . But we have an obligation
to notify that person that proceedings are happening that may involve their
child. . . . So we do have an obligation. So I would appreciate if you let us
know contact information so that we can also do our due diligence, because
we are obligated to do so.”
In response, Mother said she would provide any information to her
attorney. When counsel for the Agency requested A.W.’s birth date, someone
provided that information aloud in court.
The court set a contested six-month review hearing for March 11, 2026.
On January 6, the day of the initial six-month hearing, the Agency
undertook a parent search for A.W. A cell phone number Mother had
provided for A.W. was not in service. The Agency’s search results, however,
revealed a possible address for A.W. in Oceanside, California.
3 The record does not clarify further as to who “Keely” is in relation to
Mother or A.W.
9
Then, on March 4, 2026, Mother provided the Agency with a new
telephone number for A.W. The Agency was able to successfully contact A.W.
and inform him of the March 11, 2026, hearing date.
At the contested six-month review hearing on March 11, the court
appointed counsel to represent A.W. Appointed counsel made a special
appearance to investigate potential due process and notice violations, so that
counsel could then either make a motion or move forward as A.W. wished,
including to establish paternity. The Agency requested that a DNA test take
place to determine A.W.’s possible paternity, and the court ordered that a
genetic test occur despite A.W.’s counsel’s objection.
Although Mother requested that M.B and C.B. be returned to her care
or placed with their maternal grandfather, the court found that a return to
her care would create a substantial risk of detriment, continued M.B.’s
placement out of her home, and ordered continued reunification services for
Mother
A.W.’s genetic test results came back on March 26, 2026,
demonstrating that he is M.B.’s biological father.
4. A.W.’s Section 388 Petition and Hearing
On April 14, 2026, A.W. filed a section 388 petition in which he
requested the juvenile court vacate all prior reasonable search efforts and
notice findings and schedule a jurisdictional hearing anew.
The court held a hearing on A.W.’s section 388 motion just over a week
later. The court considered, as an initial matter, whether A.W. had set out a
prima facie case sufficient for the court to set an evidentiary hearing on the
petition. The court set out its view of the authorities discussed by the parties
and noted that this situation was distinct from Ansley v. Superior Court
(1986) 185 Cal.App.3d 477, in that in Ansley, the identity of the alleged father
10
was known, but the Agency failed to take reasonable steps to locate him and
provide him notice. Similarly, in In re Justice P. (2004) 123 Cal.App.4th 181
(Justice P.), the identity of the alleged father was known, but in that case the
Agency did make good faith efforts to find him but was unsuccessful because
he was unhoused. The court pointed out that in this case, in contrast, “we
didn’t know the identity of Mr. [W.] until [Mother] disclosed it years later,
essentially.”
A.W.’s counsel conceded that the paternity inquiry questionnaire
Mother completed under penalty of perjury mirrored the requirements for
paternity inquiry set out in section 316.2, subdivision (a), the statutory
framework the court is to apply with respect to its inquiries about parentage.
Nevertheless, she argued that if the juvenile court had questioned Mother
further about M.B.’s paternity, Mother may have revealed A.W.’s identity
sooner than she ultimately did.
Counsel for the Agency and M.B.’s counsel both argued that A.W. had
failed to make a prima facie showing on the section 388 petition and asked
the court to summarily deny the petition without a further evidentiary
hearing.
The court ultimately agreed with the Agency and counsel for M.B.,
summarily denying A.W.’s section 388 petition after concluding that A.W.
failed to show a sufficient change of circumstances or that the relief
requested would promote M.B.’s best interests. In reaching this conclusion,
the court determined that the court’s initial inquiry of Mother through the
use of the form that Mother completed under penalty of perjury met the
requisite standards, and further, in the court’s view, the court and the
Agency continued to diligently inquire of Mother about M.B.’s paternity
throughout the proceedings. Thus, sufficient good faith efforts to identify
11
M.B.’s father had been made.4 The court thus looked to Justice P. for
guidance, and adopted its reasoning that where good faith efforts to locate a
father, or in this case identify a father, have been made, there is not a
requirement that the court “go back to square one” and it could consider
whether the requested relief made by A.W. would be in M.B.’s best interests.
The court noted that A.W. had not been involved in M.B.’s life, and she had
already been in foster care for an extended period of her short life, and so no
prima facie showing of best interests had been made.
After the court denied the section 338 petition, A.W.’s attorney sought
reunification services and an assessment for custody, but acknowledged that
he “does not want custody,” and instead was “supportive of the mother
reunifying.”5 The court ordered reunification services for A.W., and set the
12-month review hearing for late May 2026.
A.W. filed a notice of appeal on May 27, 2026.
DISCUSSION
A.W. argues that the juvenile court erred by denying his section 388
petition because it erroneously concluded it had conducted a diligent inquiry
of Mother as to the identity of M.B.’s father, as required under section 316.2,
subdivision (a) and rule 5.635. He asserts the court’s inquiry into M.B.’s
parentage was lacking, and this alleged insufficiency in inquiry had the effect
of him not receiving notice of the proceedings until just before the six-month
4 The juvenile court noted that further inquiry of Mother when she
indicated M.B.’s paternity was unknown and attested to that under penalty
of perjury could raise Fifth Amendment implications.
5 In April 2026, A.W. had informed the Agency that he was unhoused
and unable to parent M.B.
12
review hearing.6 In A.W.’s view, because the juvenile court erroneously
concluded it had made a reasonable inquiry into M.B.’s father’s identity, the
court then also improperly considered whether his request for relief in the
section 388 petition was in M.B.’s best interest, and it wrongly summarily
denied his petition.
A. The Relevant Legal Standards
“Section 388 permits the parent of a dependent child to petition the
juvenile court for a hearing to modify an earlier order on the basis of changed
circumstances or new evidence.” (In re N.F. (2021) 68 Cal.App.5th 112, 120.)
The petitioner bears the burden of showing that new evidence or changed
6 A.W. makes oblique references to not receiving notice of the
proceedings at an earlier point in time, and in doing so he hints at the
prospect of a due process violation. But, notably, he does not actually set out
an express due process claim in his appellate briefing. He neither alleges a
lack of diligence in providing him notice, nor asserts that the court’s alleged
failure to fulfill its statutory and rule-based duty to inquire about parentage
itself constituted a due process notice violation. Because A.W.’s challenge is
to the court’s purported failure to satisfy its statutory duty to inquire about
parentage in order to identify him as an alleged father, it is not a claim
identical to those raised in the cases on which he predominantly relies (see
In re R.A. (2021) 61 Cal.App.5th 826, In re Daniel F. (2021) 64 Cal.App.5th
701, In re Mia M. (2022) 75 Cal.App.5th 792), each of which involved a failure
of diligence in locating an already identified alleged father and/or notifying
him about the proceedings. The distinction is important. An alleged father is
someone who, by nature of his identification as a possible father, is entitled to
notice of the proceedings. (See § 316.2, subd. (b) [“[i]f, after the court inquiry,
one or more men are identified as an alleged father” (italics added), each of
those identified men must be provided notice].) An unidentified possible
father has no status, even as an alleged father, in a dependency proceeding,
and he therefore has no entitlement to notice of the proceedings. And absent
an entitlement to a right of notice, the lack of notice cannot constitute a due
process violation. We therefore agree with A.W.’s implicit concession that
due process concerns are not implicated by what occurred here.
13
circumstances exist and that the proposed modification would be in the
child’s best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) “A
parent need only make a prima facie showing of these elements to trigger the
right to a hearing on a section 388 petition and the petition should be
liberally construed in favor of granting a hearing to consider the parent’s
request. [Citation.] [¶] However, if the liberally construed allegations of the
petition do not make a prima facie showing of changed circumstances and
that the proposed change would promote the best interests of the child, the
court need not order a[n] [evidentiary] hearing on the petition.” (In re
Zachary G. (1999) 77 Cal.App.4th 799, 806; rule 5.570.) “In determining
whether the petition makes the necessary showing, the court may consider
the entire factual and procedural history of the case.” (Justice P., supra,
123 Cal.App.4th 181, 189.)
Here, the trial court determined A.W. failed to make a prima facie
showing as to both the first and second prongs of section 388. The crux of
A.W.’s appeal is that the court improperly determined he failed to meet the
prima facie showing on the first prong. As to the first prong, the court
instead found that the record demonstrated “there [were] good faith efforts to
identify potential fathers,” and “throughout the whole process the Court was
engaged in [the] inquiry [as to the parentage of both M.B. and C.B.]” It
therefore concluded the parentage inquiry had been sufficient, and thus A.W.
could not demonstrate, even at the low prima facie standard, any
insufficiency in the court’s inquiry efforts. According to A.W., though, the
court got this wrong because the record demonstrates enough omissions by
the court regarding inquiry into M.B.’s parentage to meet the low prima facie
standard. And it is this determination for which A.W. seeks our review. We
14
therefore must determine the appropriate standard of review to apply to this
question.
The parties disagree as to the proper standard by which this court
should review the trial court’s determination that the court engaged in a
legally-adequate parentage inquiry. It is clear that in most cases, a trial
court’s ruling on a section 388 petition is reviewed for an abuse of discretion.
(See In re E.S. (2011) 196 Cal.App.4th 1329, 1335.) A.W. points out that in
situations in which a parent has utilized the section 388 petition to challenge
a lack of notice and asserted due process violation, a reviewing court will
consider de novo whether the court and Agency failed to undertake
reasonable diligence in locating and providing notice to an already identified
alleged father and thereby violated the alleged father’s due process rights.
(See In re J.H. (2007) 158 Cal.App.4th 174, 183.) A.W. argues this same
de novo standard of review should apply here. In contrast, the Agency argues
that “[t]he juvenile court’s paternity inquiry with the mother is a question of
fact — not a question of law,” rendering de novo review inapplicable.
Although the Agency does not then expressly state the standard of review it
thinks would be appropriate to apply to a question of fact, we assume the
Agency is seeking application of a substantial evidence standard.
In our view, the question of the appropriate standard is slightly more
complicated than the parties acknowledge. It appears that the question the
trial court faced was a mixed question of law and fact. “Selecting the proper
standard of appellate review becomes . . . difficult when the . . . determination
under review resolves a mixed question of law and fact. Mixed questions are
those in which the ‘ “historical facts are admitted or established, the rule of
law is undisputed, and the issue is whether the facts satisfy the [relevant]
statutory [or constitutional] standard, or to put it another way, whether the
15
rule of law as applied to the established facts is or is not violated.” ’ ” (People
v. Cromer (2001) 24 Cal.4th 889, 894.) Stated more succinctly, “ ‘[m]ixed
questions of law and fact concern the application of the rule to the facts and
the consequent determination whether the rule is satisfied.’ ” (Haworth v.
Superior Court (2010) 50 Cal.4th 372, 384.) With mixed questions, a court
looks to see whether the ultimate determination tends more toward the
factual or the legal in deciding the appropriate standard of review: “ ‘If the
pertinent inquiry requires application of experience with human affairs, the
question is predominantly factual and its determination is reviewed under
the substantial-evidence test. If, by contrast, the inquiry requires a critical
consideration, in a factual context, of legal principles and their underlying
values, the question is predominantly legal and its determination is reviewed
independently.’ ” (Ibid.) “[I]n most instances, mixed questions of fact and
law are reviewed de novo—with some exceptions, such as when the applicable
legal standard provides for a ‘ “strictly factual test, such as state of mind.” ’
[Citations.] ‘ “This is so because usually the application of law to fact will
require the consideration of legal concepts and involve the exercise of
judgment about the values underlying legal principles.” ’ ” (Id. at p. 385.)
Applying these considerations here, we note that the “facts” about the
court’s inquiry are not truly in dispute, given they may be gleaned solely from
the record. And, the central question the court determined was whether the
court met its duty of inquiry regarding parentage in light of the undisputed
procedural record. We therefore conclude the question here is predominantly
legal. As a result, we ultimately agree with A.W. that the de novo standard
of review applies to his appellate challenge that the court erroneously
determined that he failed to make out a prima facie showing that there was a
16
failure by the court to satisfy its statutory duty to inquire about M.B.’s
parentage.
B. A.W. Has Not Demonstrated the Trial Court Erred in Concluding the
Inquiry Was Legally Adequate
Although we agree with A.W. on the standard of review, we part ways
with him as to the conclusion to be reached upon reviewing de novo the trial
court’s determination that the court acted with reasonable diligence in
inquiring about the identity of individuals who could be determined to be
M.B.’s presumed or biological father.7
A.W. asserts that the court reached the wrong conclusion, and that one
could review this record and instead reasonably conclude the trial court did
not sufficiently fulfill its duty to inquire about parentage under section 316.2
and rule 5.635. Section 316.2, subdivision (a) requires that “[a]t the
detention hearing, or as soon thereafter as practicable, the court . . . inquire
of the mother and any other appropriate person as to the identity and
address of all presumed or alleged fathers.” The statute then identifies
particular subjects to be covered in the inquiry. Among the subjects to be
raised are, for example, “[w]hether a judgment of paternity already exists”;
“[w]hether the mother was married or believed she was married at the time
of conception of the child or at any time thereafter”; whether the mother “was
cohabiting with a man at the time of conception or birth of the child”;
whether a man has “formally or informally acknowledged or declared his
7 Although the trial court did not specify that it was finding that the
court’s parentage inquiry during these dependency proceedings met the
standards set out in section 316.2 and rule 5.635 as a matter of law, the effect
of its ruling is precisely this.
17
possible paternity of the child”; or whether “any man otherwise qualifies as a
presumed father pursuant to Section 7611[8], or any other provision, of the
Family Code.” (§ 316.2, subd. (a).) The fact that one man claims to be a
child’s father does not relieve the court from inquiring about other possible
presumed or alleged fathers. (Ibid.)
While section 316.2, subdivision (a) requires only that the court inquire
about parentage at an early stage in the proceeding, it makes its list of
inquiry questions mandatory. Rule 5.635, which is intended to help
effectuate the determination of parentage that is sought through the duties
imposed in section 316.2, is slightly different. It extends the court’s duty to
inquire “as to the identity and address of any and all presumed or alleged
parents of the child” beyond the initial hearing to additional “hearings
thereafter until or unless parentage has been established.” (Rule 5.635(b).)
But rule 5.635 makes its own list of inquiry questions, which are
substantively the same as the list set out in section 316.2, merely
discretionary: “Questions, at the discretion of the court, may include the
following and others that may provide information regarding parentage: [¶]
(1) Has there been a judgment of parentage? [¶] (2) Was the mother married
or did she have a registered domestic partner at or after the time of
conception? [¶] (3) Did the mother believe she was married or believe she had
a registered domestic partner at or after the time of conception? [¶] (4) Was
the mother cohabiting with another adult at the time of conception? [¶]
8 Family Code section 7611, subdivision (a) provides that “[a] person is
presumed to be the natural parent of a child” if, among other things, “[t]he
presumed parent and the child’s natural mother are, or have been, married to
each other and the child is born during the marriage.”
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(5) Has the mother received support payments or promises of support for the
child or for herself during her pregnancy or after the birth of the child? [¶]
(6) Has a man formally or informally acknowledged parentage, including the
execution and filing of a voluntary declaration of parentage or paternity
under Family Code section 7570 et seq., and agreed to have his name placed
on the child’s birth certificate? [¶] (7) Has genetic testing been administered,
and, if so, what were the results? [¶] (8) Has the child been raised jointly with
another adult or in any other co-parenting arrangement?” (Rule 5.635(b).)
Thus, under rule 5.635, the type and breadth of inquiry questions to pose is
left to the discretion of the trial court. The rule thus allows the court to
assess and consider the unique particulars of the case before determining
which questions would best serve the court’s ultimate goal to determine a
dependent child’s parentage.
A.W. contends that this record demonstrates there was a “failure of the
section 316.2 and rule 5.635 inquiry.” For this, he asserts that the minute
order from the detention hearing “does not reflect that the court inquired of
Mother regarding the parentage” of M.B. And he further questions the
adequacy of the court’s direct questioning of Mother at the
jurisdiction/disposition hearing because the court focused its questions on
Mother’s marriage to R.C.F. Elsewhere, A.W. asserts that the court’s failure
to “pursue[ ]” an “internal inconsistency” in Mother’s parentage questionnaire
responses demonstrated a lack of reasonable diligence.
But in our view, the procedural record here demonstrates the trial
court engaged in repeated and adequate inquiry into M.B.’s parentage. First,
in connection with the detention hearing, the court asked Mother to complete
the form parentage inquiry questionnaire. This questionnaire asks about all
of the topic areas identified in section 316.2 and requires the declarant to
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attest to the truthfulness of the answers under penalty of perjury. A.W.’s
attorney acknowledged at the section 388 petition hearing that the document
sets out all of the required topics about which a court must inquire at the
detention hearing. Thus, this form operated as if the court had Mother
testify under oath about these same topics. By asking Mother to complete
this form in connection with the detention hearing, the court met its duty
under section 316.2 to inquire about all of the topics identified in
section 316.2, subdivision (a) at the detention hearing.
But the record demonstrates that the inquiry went beyond having
Mother complete the questionnaire. For example, the Agency asked Mother
about M.B.’s parentage in preparation for the detention hearing. Mother’s
responses to the Agency suggested that R.C.F. was listed on M.B.’s birth
certificate, but Mother also stated she was not sure who M.B.’s biological
father was. This was consistent with Mother’s responses to the court’s
parentage questionnaire.
And, contrary to A.W.’s assertion, the court also verbally inquired
about M.B.’s parentage and Mother’s responses on the form. The court noted
that Mother had written that M.B.’s father was “unknown,” and then it asked
Mother about the man listed as her husband when M.B. was conceived, and
whether he “could be the father.” Mother did not state that R.C.F. could not
be M.B.’s biological father, and instead offered a response that suggested he
could be M.B.’s presumed father. The court then specifically questioned
Mother about whether she was married to R.C.F. in 2020, which would have
been when M.B. was conceived, and Mother answered in the affirmative.
Mother also told the court she was still presently married to R.C.F. At no
point did Mother offer or suggest knowledge of a different possible father or
stray from her declaration that she did not know the identity of M.B.’s father.
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The court further discussed M.B.’s possible parentage later during the
detention hearing. C.F., who had been excluded as M.B.’s biological father,
was nevertheless requesting to be elevated to presumed father status as to
both children, a request based on his assertion he had lived with M.B. and
her sibling. The court, reviewing the record, noted that C.F. had been listed
as an alleged father of M.B. in the prior dependency proceeding but had been
stricken as an alleged father once the DNA test ruled him out as her
biological father. Because of C.F.’s request for presumed father status, the
court added him to M.B.’s petition as an alleged father. Thus, the court was
broadly inquiring about M.B.’s parentage—beyond focusing on any single
alleged father—in an attempt to gather sufficient information to allow it to
make a parentage determination.
And the court’s inquiry into parentage continued beyond the detention
hearing, both through Agency contact with Mother as well as questioning at
the jurisdiction and disposition hearing. For example, a week prior to the
original May 6, 2025, date for the jurisdiction and disposition hearing, the
Agency spoke with Mother and discussed M.B.’s parentage. Mother repeated
what she had stated before, i.e., that “[M.B.’s] father is unknown,” but she
identified F.B. as someone who “could possibly” be her father.9 And then, at
the contested jurisdiction and disposition hearing on July 14, 2025, the court
once again verbally inquired with Mother on the issue of M.B.’s parentage.
The court sought to better understand the details of Mother’s marriage to
R.C.F. in connection with M.B.’s still-undetermined parentage. The court
thereafter proposed elevating R.C.F. to presumed father status, given Mother
9 The Agency followed up with F.B., locating him and notifying him of
the dependency proceedings.
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was married to him at the time of M.B.’s birth. None of the attorneys
objected, and the court made a finding consistent with the presumption
created in Family Code section 7611, subdivision (a) that R.C.F. was M.B.’s
presumed father.
Yet, despite all of the discussion about identifying and locating any
possible alleged fathers and questions about whether any of these men were
in a position to be elevated to presumed father status throughout the
proceedings, it was only just before the six-month review hearing that Mother
provided the Agency with the name of a new possible biological father she
had never mentioned before. A.W. blames the court’s insufficient inquiry for
this delay. But the record demonstrates the court repeatedly inquired about
M.B.’s parentage, and the topic of M.B.’s paternity was an issue raised and
discussed at every substantive hearing. The record makes clear that the
court was seeking to identify anyone who might possibly have a parental
interest in M.B., whether by biology or pursuant to law, and that its ultimate
goal was to finally settle the issue of M.B.’s parentage.
A.W. nevertheless complains that the court’s follow-up questions of
Mother focused on her marriage to R.C.F., rather than on possible other
alleged fathers. A.W.’s contention that Mother would have identified him as
a possible father earlier in the proceeding if the court had only continued to
ask Mother if she knew the identity of M.B.’s biological father is nothing but
conjecture. Mother had repeatedly stated she did not know who the father
was, and Mother was aware the court was seeking to identify M.B.’s father,
as the topic of M.B.’s parentage came up at every hearing. She at no point
prior to the six-month review hearing amended her initial response or even
hinted or otherwise suggested that she might know of any additional names
for the Agency to locate. Given Mother’s declaration under penalty of perjury
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that she was unaware of M.B.’s biological father along with multiple
statements consistent with her declaration, it was not unreasonable for the
court to give credence to the idea that Mother did not know the identity of
M.B.’s biological father. And, given this, it was also reasonable for the court
to conclude that continually questioning Mother on her knowledge or lack of
knowledge was not only a futile exercise, but an exercise that might raise
Fifth Amendment implications and result in futility due to possible objections
on this ground.
A.W.’s complaint about the court’s direct inquiry as to the details of
Mother’s marriage, as opposed to repeated questioning about other possible
fathers, is also not well-taken. The court properly focused on Mother’s
marriage to R.C.F. under the very statutory framework on which A.W. relies.
Both section 316.2 and rule 5.635 include the topic of whether a mother was
married or believed she was married when the child was conceived. (See
§ 316.2, subd. (a)(2); rule 5.635(b)(2) & (3).)10 In order for a court to assess
whether there is an individual who would meet the criteria for a presumed
“natural parent” under Family Code section 7611, the court would need
10 In contrast, neither section 316.2 nor rule 5.635 indicate the court
should inquire about parentage by asking a mother to provide the names of
the men with whom she had sexual intercourse near the time of the child’s
conception. The questionnaire Mother completed, which includes a question
about other men with whom a mother had sexual intercourse during the
relevant period, thus implements a broader inquiry into parentage than the
statute or rule requires. And, to the extent that A.W.’s argument that the
court did not do enough to inquire of Mother suggests that the court should
have directly asked Mother even after she completed the questionnaire about
the identity of the men with whom she had sexual intercourse with during
the relevant period, A.W. would be seeking a level of inquiry that is not
required by statute or rule.
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information about the mother’s marriage, including the dates of the
marriage. Given the presumption of Family Code section 7611 and the
information Mother had provided in her questionnaire and to the Agency, the
court reasonably focused on questions about Mother’s marriage to R.C.F. The
court’s continued questioning about M.B.’s parentage, even if it did not
immediately lead to the identification of M.B.’s biological father,
demonstrates the court’s diligence in fulfilling its inquiry duty.
We also find unpersuasive A.W.’s contention that the court failed in its
duty of inquiry because it did not press Mother further on what he contends
was an “inconsistency” in Mother’s answers in the parentage questionnaire.
He contends that Mother’s statement that M.B.’s father was “unknown” was
inconsistent with her check-marking a box later on the form indicating that
she had not been “having sexual intercourse with anyone else.” But what
A.W. fails to acknowledge is that Mother had identified two possible
biological fathers in connection with M.B.’s sibling C.B. in that section, and
she appeared to be referring to one of those possible fathers to C.B. in the
section in which she answered the question about whether she was “having
sexual intercourse with anyone else.” In this section, Mother indicated with
her responses that (1) she did not know who M.B.’s biological father was;
(2) she had been having sexual intercourse with C.F., whom she identified as
a possible father to sibling C.B., between 2021 and 2025; and (3) she had not
been having sexual intercourse with other men during the time she was
having sexual intercourse with C.F. Read this way, there was no
inconsistency in Mother’s responses that called out to be further explored.
Ultimately, A.W.’s position is that the court did not fulfill its duty of
inquiry because, in his view, the court should have asked Mother more
directly who the father could be. But the court continued to ask questions of
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Mother identified in rule 5.635 and relevant to the particulars of this case in
trying to determine parentage. The court took on with diligence and good
faith the complicated exercise of determining parentage in the face of
extremely limited information, and it was clear to everyone involved that the
court was trying to identify any possible father to M.B. The record thus
reveals that the court’s repeated inquiries as to M.B.’s parentage complied
with the court’s duties set forth in section 316.2 and rule 5.635.
We therefore see no error in the trial court’s determination that A.W.
failed to set out a prima facie showing that the court did not properly
discharge its duty of inquiry under section 316.2 and rule 5.635. Instead, the
record demonstrates the court succeeded in meeting its initial and continuing
duty to inquire about M.B.’s parentage during this dependency proceeding,
and it acted diligently in trying to identify all potential fathers, whether
biological or legal.
DISPOSITION
The trial court’s order denying A.W.’s section 388 petition is affirmed.
BERMÚDEZ, J.
WE CONCUR:
BUCHANAN, Acting P. J.
CASTILLO, J.
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