In re Xavier P. CA2/3

Filed 10/27/26 In re Xavier P. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION THREE B351446 In re XAVIER P., a Person Coming Under the Juvenile Court (Los Angeles County Law. Super. Ct. No. 20CCJP00815D) LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.Q., Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Stacy Wiese, Judge. Affirmed. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.  Dawyn Harrison, County Counsel, Jacklyn Louie, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ E.Q., the biological father of minor Xavier P., appeals from a December 2025 juvenile court order denying him presumed father status pursuant to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). E.Q. concedes that he was not meaningfully involved in Xavier’s life before dependency proceedings began, but he contends he was entitled to presumed father status because he promptly sought to intervene in the dependency proceedings as soon as a DNA test established he was Xavier’s biological father. E.Q. further contends Xavier’s mother prevented him from being involved earlier because she told him another man was Xavier’s father. We conclude that substantial evidence supported the juvenile court’s order denying E.Q. presumed father status, and we therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND Detention, Jurisdiction, and Disposition Xavier was born in December 2019. Prior to these proceedings, Xavier was living with his mother M.P. (mother) and his three older half siblings, Isabel G. (born in 2002), Bianca S. (born in 2007), and Destiny R. (born in 2018). Xavier’s half siblings are not subjects of this appeal. In July 2024, police and the Los Angeles County Department of Children and Family Services (DCFS) received a report that mother physically attacked Isabel in Xavier’s and Destiny’s presence. Isabel said mother had been sober for several 2 years but had recently relapsed. Mother had been drunk every day since her relapse and had fought with her boyfriend, E.Q. As a result, Isabel was having a hard time protecting her younger siblings from mother. Six-year-old Destiny told a social worker that the children, mother, and mother’s boyfriend E.Q. had recently gone to the park “and then mommy left and we were [there] with [E.Q.].” E.Q. “was looking for mommy so she doesn’t drive us drunk.” Destiny said she and Xavier spent the night at E.Q.’s house “a lot of days when mommy was gone.” Four-year- old Xavier reported that “[w]e were at [E.Q.’s] house at night. Mommy was breaking stuff. . . . Mommy was drinking beer . . . and the cops came and they took my mommy to jail because she was fighting Isabel.” DCFS filed a dependency petition in August 2024. It alleged that mother engaged in a violent altercation with Isabel in the children’s presence, and the children were prior juvenile court dependents due to mother’s history of domestic violence with her children’s fathers (counts a-1, b-1, j-1); mother had a history of substance abuse and was a current abuser of alcohol (counts b-2, j-2); and mother had mental and emotional problems, including diagnoses of post-traumatic stress disorder, depression, and anxiety (count b-3). Mother identified Jose R. as Xavier’s biological father during her first contact with DCFS and at the August 2024 detention hearing. Mother said Jose had not signed Xavier’s birth certificate, but he had received Xavier into his home and had held himself out as Xavier’s father. Jose submitted a parentage questionnaire stating that he believed he was Xavier’s father, he had established parentage through a voluntary declaration executed in June 2018, and he had supported Xavier 3 financially and held himself out as Xavier’s father. The juvenile court found that Jose was Xavier’s presumed father and ordered Xavier detained from mother and Jose. Xavier and Destiny were placed in foster care. In October 2024, the juvenile court sustained the petition as amended, removed Xavier and Destiny from mother and Jose, denied mother reunification services, and ordered reunification services for Jose. Mother and Jose were permitted monitored visits with the children. Six and 12-month Review Hearings DCFS filed a six-month status report in April 2025. DCFS reported that Jose had not participated in any court-ordered reunification services, and mother and Jose had visited Xavier only sporadically. On April 7, 2025, E.Q. contacted DCFS and said mother had told him he was Xavier’s father. E.Q. did not have a phone, but he said he would come to the six-month review hearing on April 21. He did not do so. That day, the court continued Jose’s reunification services for another six months. E.Q. contacted DCFS again on July 30 and September 4, 2025. He requested a paternity test and said he would like to be involved in Xavier’s life. Xavier and Destiny both said they knew and liked E.Q. On October 6, 2025, the juvenile court ordered a paternity test. At the 12-month review hearing on October 20, 2025, the juvenile court terminated Jose’s reunification services and set a Welfare and Institutions Code section 366.26 hearing.1 1 All subsequent undesignated statutory references are to the Welfare and Institutions Code. 4 E.Q.’s Request for Presumed Father Status In November 2025, DCFS reported that the DNA test results indicated E.Q. was Xavier’s biological father. The same month, E.Q. filed a JV-505 statement of parentage seeking presumed father status, appointment of counsel, and a judgment of parentage. On November 21, 2025, the juvenile court found that E.Q. was Xavier’s biological father and appointed counsel to represent him. Counsel asked the court to find that E.Q. was Xavier’s presumed or Kelsey S. father and to permit him visits with Xavier. Xavier’s counsel objected, arguing that E.Q. did not meet the criteria for presumed father status. The juvenile court deferred findings pending E.Q.’s submission of a written motion. On December 9, 2025, E.Q. filed a motion and section 388 petition seeking to be declared a Kelsey S. father. He filed a supporting declaration stating that he had been romantically involved with mother when Xavier was conceived, supported mother financially during her pregnancy, and believed he was Xavier’s father. He went to the hospital when mother went into labor, but mother did not allow him to attend the birth. Three or four months later, E.Q. visited mother and Xavier, and mother told him that Jose was Xavier’s father. Subsequently, in April 2025, mother told E.Q. that he was Xavier’s father, and E.Q. requested a paternity test in July. E.Q. stated: “I am fully committed to my son, and I was thwarted from demonstrating my commitment to him by his mother. I would like an opportunity to receive custody, or at a minimum, to be provided with family reunification services.” The juvenile court held a hearing on E.Q.’s request to be declared a presumed father in December 2025. Minor’s counsel 5 opposed the request, arguing that Xavier was almost six years old, a section 366.26 hearing had been set, and although E.Q. knew of mother’s pregnancy and Xavier’s birth, he had done little to remain a part of Xavier’s life. DCFS joined minor’s counsel’s argument, urging that E.Q. had not made a full commitment to parental responsibilities at the earliest possible time, had waited more than five years to seek a DNA test, and had failed to attend the April 2025 hearing. E.Q. testified at the December 2025 hearing that after mother found out she was pregnant, he took her to doctors’ appointments and bought her clothes, a stroller, a play pen, and diapers. He went to the hospital when he learned mother was in labor, but mother asked him to leave. He went to see mother again the next day, and she again said he should leave because if social workers learned he had a criminal record, they might take the baby away. E.Q. did not see the baby for several months. During that time, mother sometimes said E.Q. was the baby’s father, and other times said Jose was. E.Q. testified: “She always kept going back and forth telling me that it was and wasn’t. When she would get into a fight with [Jose], then it was my baby. When me and her weren’t getting along, then he wasn’t my baby.” E.Q. finally saw Xavier when he was three or four months old. E.Q. thought Xavier looked like E.Q.’s own baby pictures and asked mother to do a paternity test. They went to the drug store together to buy one, but the drug store did not have any tests. E.Q. saw Xavier one or two more times when he was an infant, and then mother broke off contact with E.Q. for about six months. The only financial support E.Q. provided Xavier after his birth was buying him clothes “like just twice” because he was not sure Xavier was his son. 6  E.Q. spoke to Xavier’s foster mother, Vanessa, once on the phone and told her he believed Xavier was his son. Vanessa said he could ask DCFS for a paternity test. E.Q. eventually called DCFS. He planned to go to the April 2025 hearing, but mother lied to him and told him the court date had been changed. E.Q. did not confirm the date change with the social worker because he believed mother was telling the truth, and he did not contact the social worker again until July because he “was, like, upset and fed up with whether he was mine or not. She had already had another man’s name on him.” He did not go to court to seek a paternity test because he did not know he could. If the juvenile court granted his motion, E.Q. was willing to stay away from mother and to participate in services. The court found that E.Q. was not a Kelsey S. father and denied his requests for visitation and reunification services. The court noted that E.Q. had seen Xavier just a few times as an infant. Once E.Q. learned of the dependency proceedings, he could have immediately come to court and requested a DNA test, but he did not do so. Although E.Q. said mother falsely told him the April 2025 hearing had been rescheduled, “it’s not up to her to tell you and for her to bring you to court. You’re the one seeking parentage in this case. You should have followed up with the social worker . . . . [¶] It’s unfortunate that you believed [mother], but she is not thwarting your efforts to become a presumed father. It was your own lack of effort in this case. After you didn’t attend the hearing in April, you waited until almost three months and then contacted [DCFS] and stated that you wanted a paternity test. [¶] I asked you what happened between April and July, and you said, ‘I was just upset, and I was fed up.’ Again, you gave up. You didn’t try to gain access to 7 Xavier. You waited. You got over that and then in July contacted them. Again, between July 30 and September 4, again, there was no contact between you and [DCFS]. . . . [¶] . . . The court finally ordered a DNA test, and you were found to be the biological father. [¶] Within the last five, almost six years, you haven’t provided for Xavier’s emotional well-being. You have not provided for his financial well-being. You haven’t done anything.” E.Q. timely appealed from the December 17, 2025 order. DISCUSSION I. Presumed, Kelsey S., Biological, and Alleged Fathers Dependency law recognizes several kinds of fathers: presumed, Kelsey S., alleged, and biological. A presumed father is one who marries or tries to marry the child’s mother or “receives the child into his home and holds himself out as the child’s father.” (In re Jayden G. (2023) 88 Cal.App.5th 301, 309; In re Jerry P. (2002) 95 Cal.App.4th 793, 801–802.) A quasi- presumed or Kelsey S. father (see Adoption of Baby Boy W. (2014) 232 Cal.App.4th 438, 442) is one who has been thwarted by the mother or a third party from obtaining presumed parent status, but demonstrates a full commitment to his parental responsibilities to the degree his circumstances allow. (M.M. v. D.V. (2021) 66 Cal.App.5th 733, 743 (M.M.).) A biological father “is one whose paternity of the child has been established but who has not qualified as the child’s presumed father.” (In re Jayden G., at p. 309.) An alleged father is a man who may be the father of the child, but whose biological paternity has not been established or has not achieved presumed father status. (Ibid.) 8  A father’s status is significant in dependency cases because it determines his right to participate in the proceedings. Presumed or Kelsey S. fathers are entitled to reunification services, including visitation. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.) Biological and alleged fathers are not entitled to reunification services, although a juvenile court may order reunification services for a biological father (but not for an alleged father) if it determines such services will benefit the child. (§ 361.5; In re Zacharia D. (1993) 6 Cal.4th 435, 451 (Zacharia D.); In re Kobe A., at p. 1120.) II. The Juvenile Court Did Not Err By Concluding that E.Q. Is Not a Kelsey S. Father To qualify as a Kelsey S. father, a biological father must “ ‘promptly come[] forward and demonstrate[] a full commitment to his parental responsibilities—emotional, financial, and otherwise,’ and must have ‘done all that he could reasonably do under the circumstances,’ despite having been thwarted by a third party from obtaining presumed parent status.” (M.M., supra, 66 Cal.App.5th at p. 743, italics omitted.) In determining whether a biological father has demonstrated the requisite commitment, “ ‘[t]he father’s conduct both before and after the child’s birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate “a willingness himself to assume full custody of the child—not merely to block adoption by others.” ’ ([Kelsey S.], supra, 1 Cal.4th at p. 849, italics in original.) ‘A court should also consider the father’s public acknowledgement of paternity, payment of pregnancy and birth 9 expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.’ [Citation.]” (Zacharia D., supra, 6 Cal.4th at p. 450, fn. 19; see also In re Jason J. (2009) 175 Cal.App.4th 922, 932 [to qualify as a Kelsey S. father, a biological father “must show he promptly stepped forward to assume full parental responsibilities for the child’s well-being, including a financial, emotional or other commitment; the child’s mother thwarted his efforts to assume his parental responsibilities; and he demonstrated a willingness to assume full custody of the child”].) A man who claims presumed or Kelsey S. father status has the burden of establishing the facts supporting his claims by a preponderance of the evidence. (In re E.T. (2013) 217 Cal.App.4th 426, 437; In re T.R. (2005) 132 Cal.App.4th 1202, 1210.) We review the juvenile court’s finding for substantial evidence. (County of Orange v. Cole (2017) 14 Cal.App.5th 504, 509.) However, “[t]he substantial evidence standard of review takes on a unique formulation where, as here, ‘the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals.’ (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) ‘[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.’ (In re I.W., supra, at p. 1528.) Specifically, we ask ‘whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” [Citation.]’ (Ibid.)” (In re S.G. (2021) 10 71 Cal.App.5th 654, 671.) To the extent that Kelsey S. status is a mixed question of fact and law, “we ‘exercise[] [our] independent judgment in measuring [the] facts against [the applicable] legal standard.’ [Citation.]” (Adoption of Emilio G. (2015) 235 Cal.App.4th 1133, 1145.) Substantial evidence supports the juvenile court’s finding that E.Q. is not a Kelsey S. father. E.Q. knew of mother’s pregnancy and provided mother some financial support while she was pregnant, but he provided no further support after she gave birth and told him Xavier was not his child. Although E.Q. suspected mother was not telling him the truth—he testified that when he saw Xavier for the first time at three or four months, he thought Xavier looked just like him as a baby—he did not take any legal action to ascertain Xavier’s paternity or to obtain legal parentage rights. Instead, E.Q. apparently absented himself from Xavier’s life until he and mother resumed dating. Further, although E.Q. apparently was romantically involved with mother when Xavier was detained in August 2024, he waited eight months to contact DCFS and identify himself as a possible biological father. Even then, he did not give the social worker any contact information, did not attend the April 2025 hearing, and waited another three months, until July 2025, to contact DCFS again and to request paternity testing. He sought presumed father status for the first time in November 2025. By that time, Xavier was almost six years old and had been in foster care for 15 months. On this record, the juvenile court reasonably concluded that E.Q. did not “ ‘promptly come[] forward and demonstrate[] a full commitment to his parental responsibilities.’ ” (M.M., supra, 66 Cal.App.5th at p. 743, italics added.) 11  Citing In re D.A. (2012) 204 Cal.App.4th 811, E.Q. contends that he is entitled to Kelsey S. father status because he asserted his parental rights as soon as he learned Xavier was his child. In re D.A. does not support this proposition. In that case, when the mother learned she was pregnant, she told C.R. he might be the father but she was not sure. C.R. said he wanted a paternity test as soon as the child was born, and he offered to help the mother with any expenses associated with the pregnancy, childbirth, or the baby. However, while the mother was still pregnant, she disconnected her phone, leaving C.R. with no way to contact her. He repeatedly attempted to reach the mother by calling the maternal aunt, but the aunt either refused to answer his calls or refused to allow him to speak to mother. (Id. at pp. 814–815.) A few months after the child’s birth, the mother contacted C.R. and allowed him to see the baby. She agreed to take a DNA test to determine if C.R. was the father, and C.R. identified a company to do the DNA test. Before the test was done, however, DCFS detained the child. (Id. at p. 815.) C.R. appeared at the jurisdiction hearing and requested a DNA test, which identified him as the child’s biological father. (Id. at pp. 817–818.) He immediately asked the court for presumed father status, visits, and an opportunity to reunify with the child. (Id. at pp. 818– 820.) The juvenile court denied C.R.’s request, but the Court of Appeal reversed. It explained: “During mother’s pregnancy [C.R.] expressed his desire for a genetic test to determine whether he was the baby’s father, he took mother to prenatal medical appointments, and he offered to help with any associated expenses. His involvement ended only because mother cut off contact with him, the maternal aunt refused to give him any 12 information about mother, and he had no other way of reaching her. After D.A. was born, mother contacted C.R., and he ‘begged’ to meet D.A., did meet him, and again requested a paternity test; none was performed before D.A.’s detention, however, because of mother’s delays. After D.A. was detained and genetic testing determined that [another man] was not D.A.’s biological father, C.R. was present at the very next hearing on September 7, 2010, and informed the court that if he was D.A.’s biological father then he would want to ‘form[] a relationship’ with D.A. and would seek to vacate [the other man’s] paternity status. The genetic test results showing that C.R. is D.A.’s biological father were filed with the court on October 28, 2010. C.R. was present at the hearing on the same day, informed the court that he wished to be determined to be D.A.’s presumed father, and requested visitation. He has been present at every hearing since then. He timely moved to be determined to be D.A.’s presumed father and to set aside [the other man’s] paternity status. He has consistently requested visitation, and he has complied with all orders of the court. In sum, all of the evidence weighs in favor of granting him presumed father status under Kelsey S., and none weighs against.” (In re D.A., supra, 204 Cal.App.4th at pp. 824– 825.) The present case is distinguishable from In re D.A. There, the child was detained as an infant. The father had taken steps to obtain a paternity test before the detention, and he appeared at the jurisdiction hearing and at every subsequent hearing seeking paternity status. (In re D.A., supra, 204 Cal.App.4th at pp. 818, 825.) In the present case, in contrast, Xavier was not detained until he was four-and-a-half years old. Prior to Xavier’s detention, E.Q. did nothing to try to ascertain whether he was 13 Xavier’s father other than once trying to buy a paternity test at a drugstore, and he never went to court to seek a paternity test when mother refused. Further, although E.Q. was dating mother when Xavier was detained and thus presumably knew of the detention, he waited eight months to contact DCFS, and he appeared in court for the first time more than 15 months after Xavier was placed in foster care. By that time, Xavier was bonded to his caregiver, reunification services had been terminated, and a section 366.26 hearing had been set. Under these circumstances, the juvenile court did not err by concluding that E.Q. was not a Kelsey S. father because he did not promptly demonstrate a commitment to his parental responsibilities. III. The Juvenile Court Did Not Prejudicially Err By Failing to Give E.Q. Notice of the Proceedings E.Q. contends the juvenile court prejudicially erred by failing to give him timely notice of the proceedings as required by section 316.2, subdivision (b). We disagree. Section 316.2, subdivision (b), provides that “each alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child. Judicial Council form Paternity- Waiver of Rights (JV-505) shall be included with the notice.” Form JV-505 instructs that the form should be filled out “[i]f you want the court to decide if you are the child’s parent.” It allows an alleged parent to indicate either that he (1) is not the child’s parent and does not wish to participate in juvenile court proceedings, (2) does not know if he is the child’s parent and 14 requests DNA testing, or (3) believes he is the child’s parent and requests that the court enter a judgment of parentage. If a parent requests a judgment of parentage on Form JV-505, the juvenile court must determine “(1) Whether that person is the biological parent of the child; and [¶] (2) Whether that person is the presumed parent of the child, if that finding is requested.” (Cal. Rules of Court, rule 5.635(h).) In the present case, mother did not identify E.Q. as a possible father when the case began; instead, she stated at the beginning of the case and in a Parentage Questionnaire filed August 21, 2024, that she believed Jose was Xavier’s father. DCFS first learned of E.Q.’s possible parentage when he contacted the social worker in early April 2025 and said he planned to appear at the next court hearing. Eleven days later, on April 18, 2025, DCFS filed a last minute information in which it informed the court of the contact and requested that it order a paternity test. However, E.Q. did not appear at the April hearing, and DCFS had no ability to contact him because he had not provided his phone number or mailing address. E.Q. contacted the social worker again in July, and in early October the social worker walked on a request for paternity testing. The court ordered paternity testing on October 6 and advised the court of the test results on November 13, the same day it received them. E.Q. suggests that had he been provided a Form JV-505 when he first contacted DCFS in April 2025, he likely would have qualified as a presumed parent and received reunification services. We disagree. The purpose of the Form JV-505 is to inform an alleged father of dependency proceedings and to allow him to ask the court to make a parentage finding. But E.Q. was 15 already aware of the dependency action when he contacted DCFS, and he indicated that he intended to appear at the next hearing. When E.Q. did not appear at the April hearing, DCFS could not mail him a Form JV-505 because he had not provided his phone number or mailing address. In any event, even if E.Q. had received and returned the Form JV-505 in April and the juvenile court had immediately ordered DNA testing, E.Q. still could not have established Kelsey S. status because he could not have demonstrated that he “ ‘promptly [came] forward and demonstrate[d] a full commitment to his parental responsibilities’ ” or did “ ‘all that he could reasonably do under the circumstances,’ despite having been thwarted by a third party from obtaining presumed parent status.” (M.M., supra, 66 Cal.App.5th at p. 743, italics omitted.) Although E.Q. suspected he was Xavier’s biological father, knew where mother lived, and had at least intermittent contact with her, he did not act on his suspicions or take any steps to demonstrate a commitment to parental responsibilities for the first five-and-a-half years of Xavier’s life. Under these circumstances, he could not have demonstrated that he was entitled to Kelsey S. status even had he sought it in April 2025. Any delay by DCFS in providing E.Q. with a Form JV-505, therefore, did not prejudice him and is not a ground for reversal. (See In re J.R. (2022) 82 Cal.App.5th 526, 531 [“ ‘We do not reverse dependency cases for harmless error. . . . ‘Thus, a reviewing court should not mechanically set aside an adoption order because of error . . . ; the error must be prejudicial under the proper standard before reversal is appropriate.’ ”].) 16  DISPOSITION The order denying appellant E.Q. presumed father status and reunification services is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ADAMS, P. J. We concur: HANASONO, J. KARNOW, J.* * Retired Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 17