Filed 5/22/14 In re V.F. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and pa rties from citing or relying on opinions not certified for pu blication 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA In re V.F., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,

v. JORGE O., Defendant and Appellant. D064874
(Super. Ct. No. SJ12618A)

APPEAL from orders of the Superior Co urt of San Diego County, Carol Isackson, Judge. Affirmed.

Sahyeh S. Riopelle, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy Count y Counsel, for Plaintiff and Respondent.2 Jorge O. appeals orders denying his request for presumed father status, denying his petition for modification under Welfare and Institutions Code section 388, 1 and terminating his parental rights to his minor daughter, V.F. He also argues the juvenile court improperly required a section 388 modifi cation petition to address a due process violation based on inadequate notice and that the l ack of notice mandated automatic reversal of the court's prior orders. We affirm the orders.
FACTUAL AND PROCEDUR AL BACKGROUND Jorge is the biological father of now 12-y ear-old V.F. As a teenager, V.F.'s mother, Crystal F., gave birth to V.F. in Ponce, Puerto Rico. Before V.F.'s bi rth, and for a time after, Crystal lived with Jorge's mother in Ponce, wh ile Jorge lived and worked in Florida. Jorge visited Crystal at his mother's home for two weeks when V.F. wa s born. Before V.F.'s first birthday, Crystal and V.F. left Ponce to live with Crystal's father in Los Angeles, California. When Crystal was 17, her father was arrest ed and she became a dependent of the Los Angeles County Juvenile Court. A voluntary dependency case was opened for V.F. at that time, but she was not made a dependent of the court. Crystal's own dependency proceeding was closed after she turned 18. Thereafter, she lived a transien t lifestyle alternating between living in Los Angeles, San Diego, and Mexico. Throughout V.F.'s li fe, Crystal had frequent run-ins with child prot ective services, but V.F. and Crysta l's younger two children, J.G. and Miguel G., Jr., remained in Crystal's care. In 2010, Crystal, J.G. and Miguel, Jr., m oved to Rosarito, Mexi co, with the younger children's father, Miguel G., Sr. Crystal left V.F. with a frie nd in Los Angeles to finish the

1 Statutory references are to the Welfare a nd Institutions Code unle ss otherwise noted.3 school year. V.F. was traumatized by being le ft alone in the United States and eventually Crystal came back to take V.F. to Rosarito. In early 2011, Crystal moved back to San Diego to avoid losing benefits she was receiving, leav ing the three children with Miguel, Sr., in Rosarito. Shortly thereafter, Miguel, Sr., abr uptly left Rosarito for Zacatecas, Mexico. In June 2011, the Mexican social service agency, Desarro llo Integral de la Familia (DIF) received reports the family's home was in unlivable condition a nd Crystal was abusing drugs. DIF removed V.F., J.G., and Miguel, Jr., from the home and placed them in a shelter in Tijuana. DIF workers fo und the family's trailer in deplor able condition. It had no running water, food, refrigerator, stove, electricity, or ba throom. Feces littered th e trailer's floor. In July, DIF contacted the international liaison of the San Diego County Health and Human Services Agency (Agency) and th e children were expatriated to th e United States and placed at Polinsky Children's Center. Crystal's wher eabouts were unknow n at the time. The Agency filed a petition in the juvenile court under section 300, subdivisions (b) and (d) on behalf of V.F. alleging Crystal was unable to protect or provide adequate care for V.F.
and that V.F. had been sexua lly abused by Miguel, Sr. 2 In interviews with the Agency's social workers, V.F. reported that Crystal abused ma rijuana and methamphetamine in her presence. V.F. also told social workers she was physic ally and sexually abused by Miguel, Sr., and sexually abused by another adult male who lived in the garage of a prior family home in Los Angeles. V.F. told DIF's soci al worker this man raped her re peatedly and gave her a sexually transmitted disease. V.F. also reported she w itnessed physical violen ce between Crystal and

2 Petitions were also filed on behalf of J.G. and Miguel, Jr. Crystal and Miguel, Sr.'s, parental rights were ultimately te rminated as to these minors. They are not subjects of this appeal.4 Miguel, Sr., including episodes in which Miguel, Sr., cut Crystal w ith an ice pick and threw a pan with hot oil at her. As a result of th e abuse, V.F. was referred to Rady Children's Hospital's Trauma Focused Counseling. The Agency located Crystal before the detention hear ing and she identified Jorge as V.F.'s father. Crystal stated she had not been in contact with Jorge for over 10 years and did not have his address or telepho ne number. Though not known to the Agency at the time, the middle name Crystal provided for Jorge was inco rrect. DIF provided th e Agency w ith V.F.'s birth certificate, which listed Ponce as V.F.'s place of birth and did not list any father. At the detention hearing, a Parentage Inquir y form was completed for Crystal that listed "George" O. as V.F.'s father and stated that at Jorge's reque st genetic testing had been done confirming Jorge was V.F.'s father. She provide d a birth date for Jorge (which later proved incorrect), but not an address or phone numbe r. Crystal and Jorge were never married and neither Crystal nor V.F. had lived with him at his home, but Jorge had "provided baby supplies before" V.F.'s birth. At the hearing, the j uvenile court ordered the Agency to conduct a reasonable search to locate and no tify Jorge of the proceedings. For the jurisdiction hearing, the Agency reported Crystal had not provided sufficient information to conduct a search for Jorge. In the same repor t, the Agency stated V.F. believed her father still lived in Puerto Rico. At the contested jurisdic tion hearing, the juvenile court made a finding that reasonable search efforts were made to locate and notic e V.F.'s father. The court also assumed jurisdiction over V.F., J.G., and Miguel, Jr., and declared them dependents of the juvenile court. The court removed the three children from Crystal' s care and ordered the Agency to provide reunification services to Crystal. The child ren were placed together in a5 licensed foster home. A month late r, Crystal gave birth to another child, Bella G. In a separate proceeding, Bella was declared a dependent of the juvenile c ourt and was placed in the same foster home as V.F., J.G., and Miguel, Jr. For the six-month review hear ing in February 2012, the Ag ency reported it submitted an updated parent search request fo r Jorge and that the last search failed to obtain an address for him. At the review hearing, the juvenile court found notice had been give n as required by law. Because Crystal had visited the children regula rly and participated in services, the court continued reunification services. For the 12-month review hearing, the Agency made the same report it had made for the six-month review concerni ng its efforts to locate Jorge. The juvenile court again found notice had been given as re quired by law and ordere d the continuation of reunification services for Crystal. In this tim e frame, V.F. and her half siblings were moved from their initial foster home to a prospective adoptive home. In November 2012, counsel for V.F. and her half siblin gs filed a section 388 petition seeking to terminate Crystal's services and set a permanency planning hearing. Crystal had failed to participate in services , had not visited with the children, and had been arrested. The Agency's report for the hearing on the petition stated a parent search for Jorge could not be completed because they did not have a known city in which to conduct the search. The report also stated Crystal believed Jorg e could be in Florida or Puerto Rico, but that she could not provide a specific city. The juvenile court he ld an evidentiary hear ing on the modification petition in January 2013. The co urt terminated reunification se rvices and set a permanency planning hearing for May 2013. Although the court had ordered minors' counsel to provide6 notice to the parents when it se t the evidentiary hearing on the petition, the court made no notice findings with respect to Jorge in its order. Beginning in January 2013, V.F., who ha d been seeing a therapist regularly since September 2012, began to show improvement in both her emotional health and her progress at school. The night terrors and emotional outbur sts she suffered from lessoned, and she stopped anxious nail biting that had ofte n left her fingers bleeding. Then, in May 2013, Crystal requested to see the children. A visit was schedul ed for the next month so that V.F. could first finish the school year. By the time of the vis it, the children had not se en Crystal for almost a year. When V.F. was told she would be seei ng Crystal, she became extremely emotional and anxious. Crystal failed to show up for the visit and, as a result, V.F. experienced an emotional set back. Her night terrors and nail biting returned . She also began acting out more at home and became depressed and withdrawn at school. Th e minors' counsel filed another section 388 petition on behalf of V.F. and her half siblings, this time seek ing to terminate all visitation with Crystal. V.F.'s therapist submitted a letter in su pport of the petition descri bing V.F.'s behavior. In the therapist's opinion, visita tion with Crystal or the introduc tion of Jorge into V.F.'s life would only cause further trauma. In April 2013, an Agency s earch clerk located an address for Jorge in Ponce and sent a letter there. Jorge responded immediately an d the Agency obtained a continuance of the permanency planning hearing to provide Jorg e with notice. Once in contact, Jorge immediately expressed his desire to bring V.F. to Ponce to live with him and his wife. Jorge also requested an attorney and to be kept informed of the proceedings.7 Jorge told the Ag ency's social worker he had last se en V.F. after her birth and had only received sporadic phone calls and text messages from Crystal since then. Jorge said that he sent money to Crystal for V.F. when she was you ng, but stopped at Crysta l's request so that she would be eligible for governmental assistance . Jorge had two other children from a previous marriage who resided in the United States with th eir mother and he and his current wife were expecting a baby in the fall.
Counsel was appointed for Jorge, who requeste d Jorge's parental status be elevated from an alleged father to a presumed father under Family Code section 7611, subdivision (d) or, alternatively, under Adoption of Kelsey S. (1992) 1 Cal.4th 816 ( Kelsey S. ). 3 Jorge and V.F. also completed genetic testing confirming Jorge wa s V.F.'s biological fathe r. Jorge then filed a motion to set aside the juvenile court's reasona ble search effort finding at the jurisdiction hearing and all subsequent orde rs, arguing his due process rights were violated by the Agency's failure to make an adequate effort to locate hi m. The Agency opposed the motion, arguing the proper vehicle to challenge the court's orders was a section 388 petition fo r modification. At a special hearing on the motion, the court agreed w ith the Agency and requ ired Jorge to file a section 388 petition to address the alleged due process violation. Jorge filed the petition that day, again requ esting the juvenile court set aside its prior reasonable search efforts finding, all other notice findings made as to him, and that the court order a new jurisdiction and disposition hearing. The court found Jorge had made a prima facie showing of changed circumst ances and best interests and set an evidentiary hearing on his

3 As a result of the appointment of conflict co unsel for Jorge, the case was transferred to a different courthouse and new judge.8 petition and on his presumed father request. The hearing was set for the same day as the delayed permanency planning hearing. 4 At the multi-day hearing in September, the court received into ev idence the Agency's reports; Jorge and Crystal's parentage inquiries; 5 Jorge's initial motion, section 388 petition, and trial brief; the Agency's service logs; and the stipulated testimony of the Agency's social worker, the search clerk who lo cated Jorge, and V.F.'s prospe ctive adoptive parent. V.F.'s therapist and Jorge also te stified, both by phone. V.F.'s therapist testified V. F. had not been told that Jorge wanted to establish a relationship with her, but that V.F. had told th e therapist she did not remember him. In her stipulated testimony, V.F.'s prospective adoptive mo ther stated V.F. told her she had talked to Jorge one or two times in the past and that V.F. believed Jo rge was a police officer and had seen a picture of him in uniform. The Agency's report for the jurisdiction hearing also stated V.F., who was nine years old at the time, told a social worker "most of [her] family resides in Puerto Rico" and "she would like to live there . . . ." The therapist and the prosp ective adoptive mother both described th e emotional toll the trauma V.F. experienced in Crystal's care had taken, and the recent negative turn in V.F.'s behavior after Crystal's missed vi sit. The therapist reiterated her belief, outlined in her letter

4 The minors' section 388 pe tition concerning Crystal's vis itation was also set for the same day. 5 A second Parentage Inquiry form was completed for Crystal before the hearing. In the second form, the answers were revised to state th at Jorge lived with Cr ystal and V.F. for two weeks after V.F.'s birth and that when Crystal told Jorge he was V.F.'s father he "got happy." The initial form reported Jorge ques tioned that he was the father and asked for a paternity test. The second form also added that Jorge claimed V.F. as his own by calling her and sending Crystal "a last name request form."9 accompanying the minors' section 388 petition, that reintroduction of either Crystal or Jorge into V.F.'s life would be ve ry destabilizing for V.F. and he r younger half siblings. The therapist also opined that V.F. had a strong bond with her prospective adoptive mother and her younger half siblings. 6 She was hesitant to recommend a delay in the proceedings to allow Jorge to attempt to form a relationship with V.F., especially in light of these important bonds. Jorge testified in Spanish thr ough an interpreter. He confir med he visited Crystal at his mother's home in Ponce for two w eeks when V.F. was born, but ha d not seen either Crystal or V.F. since then. He sent mone y to Crystal for V.F. on a mont hly basis until Crystal left Ponce when V.F. was six months old. Crystal resume d contact with Jorge when V.F. was three and he sent Crystal 200 pesos a mont h through Western Union until V.F. was five. Jorge testified that during this time period he met with an attorney in Florida to try to obta in custody of V.F., but was told he needed more information about Crystal and V.F.'s whereabouts to proceed. Jorge then lost contact with Crys tal again. The next time he heard from Crystal was in 2010. Jorge stated he spoke with V.F. on the phone and she told him she wanted to come to Puerto Rico, where he was living, to visit him. Jo rge asked V.F. where she lived, but claimed she would not tell him. Jorge also testified his uncle was married to Cr ystal's aunt, and he occasionally asked the aunt about Crystal and V.F. Jorge testified he had always wanted a relationship with V.F. and now saw an opportunity for her to live w ith him and his wife. Since learning of the dependency proceeding, he had attempted to have contact w ith V.F. and asked for pi ctures of her. Jorge was prepared to care for V.F. and she would have her own room in his house. He worked full

6 The prospective adoptive mother was committed to ad opting all four children.10 time as a security officer and his wife worked full time at a hospita l. He testified he was aware of V.F.'s mental health needs and had extended fa mily that would help care for V.F. Jorge had also chosen a school and obtained a therapist for V.F. in Ponce. The stipulated testimony of the social work er concerning the Agen cy's initial searches for Jorge was that the initial sear ch request did not identify Ponc e as a possible location. The social worker also stated she had submitted an ad ditional search request in August 2012, but to her knowledge the Agency did no t complete a search or decl aration of due diligence. After the trial concluded, the juvenile cour t found Jorge had not met his burden to show he was a presumed father under either Fami ly Code section 7611 , subdivision (d) or Kelsey S. , and deemed him a biological father. The court found that it was undisputed Jorge held V.F. out as his own, but that he did not receive her into his home. Ra ther, Jorge was a visitor in his mother's home at the time Crysta l and V.F. lived there. With respect to Jorge's claim he was entitled to presumed father status under Kelsey S. , the court found he did not promptly come forward or demonstrate a commitment to his parental responsibilities. On Jorge's section 388 petition, the juve nile court found that although Jorge demonstrated changed circumstan ces based on the evidence of th e Agency's deficient search efforts, he had not established it would be in V.F.'s best interest s to reverse the prior orders and delay the proceedings for the purpose of allowi ng Jorge to attempt to develop a relationship with V.F. The court highlighted the fact that Jorge was involved now only because the Agency finally located him; he took no action to locate V.F. himself. The court further found that because of the trauma V.F. had experienced there was a great potential for harm to V.F. if she11 were removed from her current home. The juve nile court denied Jorge's petition and followed the Agency's recommenda tion to terminate the parental ri ghts of both Jorge and Crystal.
DISCUSSION
I Jorge contends the court erre d by denying his request for pr esumed father status. He asserts he adequately showed he was deserving of such status within the meaning of Family Code section 7611, subdivision (d), or alternatively, under Kelsey S.
A The extent to which a father may participat e in dependency proceedings and a father's rights in those proceedings depe nds on his parentage status. ( In re T.R. (2005) 132 Cal.App.4th 1202, 1209.) Only presumed fathers are entitled to all the rights afforded to parents, including reunification se rvices and custody (absent a fi nding of detriment). (§§ 317, subd. (b), 361.2, subd. (a), 361.5, subd. (a); In re Zacharia D. (1993) 6 Cal.4th 435, 448-449;
In re T.R. , at p. 1209.) A presumed father is de fined under the provisions of the Uniform Parentage Act of 1973 (Fam . Code, § 7600 et seq.). Paternity presumptions are dr iven not by biology, "but by the state's interest in the welfare of the child and the in tegrity of the family." ( In re T.R., supra , 132 Cal.App.4th at p. 1209; In re Nicholas H. (2002) 28 Cal.4th 56, 65.) In the context of dependency proceedings, a presumed father is one who promptly come s forward and shows a full commitment to his parental responsibilities—emotional, financial and otherwise. ( In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802; see also Kelsey S., supra, 1 Cal.4th at p. 849.) "The presumed father's commitment to the child is a key consideration." ( In re T.R. , at p. 1210.)12 A man may achieve presumed father stat us when he "recei ves the child into his . . . home and openly holds out the child as his . . . natura l child." (Fam . Code, § 7611, subd. (d).) In determining whethe r this provision applies, the c ourt considers factors such as whether the man promptly took legal action to obtain custody of the child; whether and how long he cared for the child; whether there is unequivocal evidence he acknowledged the child as his and to what extent he did so; and whethe r his care of the child was merely incidental. ( In re T.R., supra, 132 Cal.App.4th at p. 1211.) The cr iteria for achieving presumed father status is not viewed in a vacuum. ( Ibid. ) Thus, even a man who rece ives a child in to his home and holds the child out as his own will not necessarily qualify as a presumed father if he has acted in a manner incompatib le with parenthood. ( Ibid. ) If a third party thwarts a biological father's attempts to achieve presumed father status under Family Code section 7611, subdivision (d), he may still attain presumed father status if he has made "a full commitment to his parent al responsibilities--emotional, financial, and otherwise . . . ." ( Kelsey S., supra, 1 Cal.4th at p. 849.) In Kelsey S. , the California Supreme Court held the parental rights of a biological father who had ma de timely efforts to fulfill his parental responsibilities could not be termin ated without a finding he was unfit. ( Ibid .) To gain this presumption, a father must demonstrate a full commitm ent to parental responsibilities within a short time after he lear ns the biological mother is pre gnant with his child and must demonstrate a willingness to assume full custody of the child. ( Adoption of Michael H. (1995) 10 Cal.4th 1043, 1060; Kelsey S. , at p. 849.) A man seeking presumed father status, under either Family Code section 7611, subdivision (d) or Kelsey S. has the burden of establishi ng the foundational facts by a13 preponderance of the evidence. ( In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652.) We review the juvenile court's determin ation for substantial evidence. ( Id . at pp. 1650, 1653; In re
J.H. (2011) 198 Cal.A pp.4th 635, 64 6.) In this regard, we do not consider the credibility of witnesses, attempt to resolve co nflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findi ngs, view the record favo rably to the juvenile court's order and affirm the order even if ther e is substantial evidence supporting a contrary finding. ( Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 599-600; In re Spencer
W. , at p. 1650.) The appellant has the burden of showing there is no evid ence of a sufficiently substantial nature to support the court's finding or order. ( In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B The juvenile court found Jorge did not meet the statutory requirement of receiving V.F. into his home. Rather, the cour t found Jorge was merely a visito r in his mother's home at the time of V.F.'s birth. On appeal, Jorge contends the court's ruling was based on an overly strict interpretation of the statute. He argues it was erro r for the court to require he receive V.F. into his own home, and that his receipt of V.F. into hi s mother's home in Pon ce was sufficient. We disagree. Substantial evidence suppor ts the court's finding Jorge did not meet the requirement that he receive V.F. into his home. Rather, V.F. was received into Jorge' s mother's home. Although Jorge was raised in the home, he left his mother's house when he was 22 years old, then moved to Florid a two years later. Jorge did no t return to liv e in Ponce until 2008. Jorge's own testimony was that he visited when V.F. was born, not that he moved back14 into his mother's home. He stated he took time off from his job in Florida as a school custodian for the birth, and stayed only two week s. Jorge has not seen V.F. since that time. 7 Sufficient evidence also supports the juven ile court's finding that Jorge was not entitled to presumed father status under Kelsey S . Jorge's attempts to locate V.F. were meager and he failed to maintain contact with her, only show ing an interest in establishing a parental relationship once contacted by the Agency. Jorge testified he did not know how to locate V.F., and therefore was thwarted in his attempt to se ek custody. However, he sent Crystal money for a period through Western Union, which required at least some knowledge of Crystal and V.F.'s whereabouts. He also stated his uncle was ma rried to Crystal's aunt, showing an additional avenue of information. Despite these connections to V.F., Jorg e took little initiative to become part of her life over the years. These facts suff iciently support the cour t's determination that

7 The cases Jorge cites do not support his cont ention that the facts here meet the statute's receipt requirement. S.Y. v. S.B. (2011) 201 Cal.App.4th 1023 and In re A.A. (2003) 114 Cal.App.4th 771 both in volved situations where the presum ed parents had demonstrated a full commitment to parenting their children and had established st rong parental bonds despite unconventional living arrangements. (See S.Y. v. S.B., at p. 1032 [The pr esumed parent owned her own separate residence but spent the ma jority of her time in the family home]; In re A.A., at pp.784, 783 ["Although the minor was not receiv ed into [the presumed father's] home . . . on a full-time basis, he was involved with the mi nor from the very begi nning," including visiting the minor every weekend, and on holidays and bi rthdays, and providing financially for the minor's needs.].) In contrast to these cases, Jorge has not seen V.F. since she was two weeks old and has spoken with her on the phone once. Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361 in volved a same-sex couple who lived together at the time their daughter was born. ( Id . at p. 366.) Jorge merely visited Crystal and V.F. one time at V.F.'s birth.15 Jorge did not demonstrate a commitment to paren ting V.F. and, therefore, was not entitled to presumed father status. 8
II Jorge next contends the juvenile court erred by requiring the allege d violation of his due process rights be considered wi thin the structure of a section 388 petition. He argues the Agency's failure to conduct an adequate search constitute d a structural error requiring automatic reversal. Alternatively, he contends the error was not harmless beyond a reasonable doubt. Finally, Jorge argues that even if the court's requirement he file a section 388 petition was appropriate, V.F.'s best interests would be served by returning to the jurisdictional phase of the proceedings. This case illustrates the severe problems th at are created by the Agency's failure to conduct a diligent search for a missing parent at the outse t of a dependenc y proceeding. Jorge's appeal pits his right to notice squarely against the best interests of V.F. Although it is a difficult determination, we conclude the due process violation committed against Jorge does not override the state's interest in providing V.F. with a pe rmanent, stable home, with a caregiver and half siblings she is bonded to, without undue delay.
A Initially, we reject Jorge's contention the juve nile court erred by requiring him to file a section 388 petition to address whether the lack of notice required the court to set aside its prior orders. "A section 388 motion is a proper vehicle to raise a due process challenge based

8 Because we uphold the juvenile court's findi ng that Jorge was not a presumed father, his argument that the juvenile court erred by termin ating his parental right s without a finding of unfitness is moot.16 on lack of notice." ( In re Justice P. (2004) 123 Cal.App.4th 181, 189.) While we agree with Jorge that the juvenile court has the inherent auth ority to set aside its pr ior orders, the statutory mechanism provided by the code is preferred. 9 (See Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 111 ["A statutory mechanism is the preferred means by which to modify a prior order of the court."].) In addition, rega rdless of the procedural mechanism by which the court considers a due process challenge, the minor's best interests are of paramount concern in every dependenc y proceeding. (§§ 202, su bd. (d), 245.5, 300.2.) The juvenile court found th e Agency's initial efforts to locate Jorge were insufficient and, as a result, he was not provided with noti ce of the jurisdiction, disposition or subsequent review hearings. The Agency co ncedes this point. Although th e inadequacy of the Agency's search efforts is undisputed, we must neverthele ss determine the effect of that error, in this case within the framework of section 388. ( In re Dakota H. (2005) 132 Cal. App.4th 212, 222 [where question is one of law, we review claimed constitutional violation de novo]; In re J.H. (2007) 158 Cal.App.4th 174, 183 [no tice errors reviewed de novo].) Jorge argues the error was "structural" and mandates automatic reversal. "[T]he structural error doctrine that has been establishe d for certain errors in criminal proceedings" is not "imported wholesale, or unt hinkingly, into the quite diffe rent context of dependency cases." ( In re James F. (2008) 42 Cal.4th 901, 915-916.) Under the unique facts presented here, we decline to find the inadequacy of the Agency's initial search constituted a structural error. In this case, Jorge did eventually receive notice of the proceedings and the opportunity

9 Contrary to Jorge's contention, Code of Civil Procedure section 473, subdivision (d) does not apply to depe ndency proceedings. ( David B. (1994) 21 Cal.App.4th 1010, 1017.)17 to participate and attempt to elevate his parental status. Therefore, we conclude the lack of compliance with notice requirements did not render the juvenile court's prior orders void in the absence of prejudice. (See In re J.H. , supra , 158 Cal.App.4th at p. 183 ["errors in notice do not automatically require reversal but are subj ect to the harmless bey ond a reasonable doubt standard of prejudice"]; In re Jesusa V. (2004) 32 Cal.4th 588, 625 [goal of resolving dependency acti ons expeditiously woul d be thwarted if proceeding had to be redone without a showing the new proceeding woul d have a different outcome]; In re James F., supra, 42 Cal.4th at p. 918 [procedural errors in dependen cy cases should not automatically be treated as structural defects requiring automatic reversal].) 10
B As both parties point out, it is simply not possible to know what the outcome would have been if the Agency conducted a diligent search for Jorg e at the outset of the proceeding. Placing emphasis on the minor's best interests and Jorge's status as a biological (not a presumed) father, we conclude the due pro cess violation was harm less beyond a reasonable doubt. Because Jorge was not a presumed father his right to establish a re lationship with V.F. was limited. (See In re Sarah C. (1992) 8 Cal.App.4th 964, 972 [" the father's rights flow from his relationship (or attempted relationship) to th e mother and/or child and not merely from his

10 (Cf. In re Jasmine G. (2005) 127 Cal.App.4th 1109, 11 16 [error was reversible per se where Agency never attempted to give mother notice of selection and implementation hearing at which her parental rights were terminated despite knowing her address and having repeated contact with her]; In re Claudia S. (2005) 131 Cal.A pp.4th 236, 250-251 [reversible error where court conducted all hearings, then termin ated reunification serv ices, without any notice to the parents or children, all of whom were out of the country].)18 status as the biological father "].) "When an unwed father de monstrates a full commitment to the responsibilities of parenthood by '[coming] forward to partic ipate in the rearing of his child,' [citation], his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he '[acts] as a father toward his children.' [Citation.] But the mere existence of a biological link does not merit equivalent constitutional protection." ( Lehr v. Robertson (1983) 463 U.S. 248, 261.) If the biological father grasps the opportun ity to develop a relati onship with the child and "accepts some measure of responsibility for th e child's future, he may enjoy the blessings of the parent-child relationshi p and make uniquely valuable contributions to the child's development. If he fails to do so, the Fede ral Constitution will not au tomatically compel a State to listen to his opinion of wher e the child's best interests lie." ( Lehr v. Robertson, supra , 463 U.S. at p. 262; see also Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 943 ["[T]he biological father of a child born to a woman married to another man has no liberty interest in establishing a relationship with the child."].) As evidenced by the juvenile court's finding that Jorge was not a pr esumed father, Jorge failed to grasp his opportunity to become a parent to V.F. Jorge had ample opportunity to take a more active role in V.F. 's life. He maintained sporadic c ontact with Crystal, but never took any step to see V.F. Jorge testif ied that when he was living in Florida, he contacted an attorney but was told he needed more in formation to pursue custody of V.F. However, in the same time period he stated he was sending Crystal small sums of money for V.F. , indicating he had at least knowledge of their location. He also had a connection to V.F. through his uncle's marriage to Crystal's aunt, but on ce he lost contact with Crystal he failed to use this connection19 to locate V.F. Jorge's right to an opportun ity to develop a relationship with V.F. was, therefore, minimal. 11 The juvenile court found that delaying the termination of parental rights in order to provide Jorge with an o pportunity to form a relationship with V.F., a man she had never really known, was not in V.F.'s best interests. Jorge presented no evidence suggesting a different finding would have been made ha d he appeared earlier. As a me re biological father, Jorge was not entitled under the depende ncy statutes to reunification serv ices or custody (absent a finding of detriment). (§§ 317, subd. (b), 361.2, subd. (a), 361.5, subd. (a); In re Zacharia D., supra, 6 Cal.4th at p. 448; In re T.R., supra, 132 Cal.App.4th at p. 1209.) While it would have been within the juvenile court's discretion to provide reunification services and placement to Jorge had he been present at the be ginning of the pr oceeding, there was no requirement they be provided. If services were not provided to Jorg e, the case would have proceeded the same and there is no prejudice. Even if services had been provided, the like lihood Jorge would have ultimately obtained cust ody of V.F. is too small to wa rrant a finding of prejudice. At the start of the proceedi ngs, V.F. was a severely trauma tized child with substantial emotional needs. Crystal was in itially successful with her case plan and her reunification with

11 In all but one case that Jorg e relies on where defects in notic e resulted in a reversal, the parents whose rights were at issue were mothers or presumed fathers. (See In re Justice P., supra, 123 Cal.App.4th at p. 187 [presumed father]; In re Jasmine G., supra, 127 Cal.App.4th at p. 1112 [mother]; In re Claudia S., supra, 131 Cal.App.4th at p. 241 [mother and presumed father]; In re DeJohn B. (2000) 84 Cal.App.4t h 100, 102 [mother]; In re B.G. (1974) 11 Cal.3d 679, 682 [mother].) In the one case that di d not involve a presumed father or mother, Ansley v. Superior Court (1986) 185 Cal.App.3d 477, the father's status was not set forth in the opinion and the merits of his claimed due process viola tion were not before the court. Rather, the appellate court issued a writ of mandate directing the juvenile co urt to vacate its order refusing to hear the father's section 38 8 petition based on lack of notice an d to proceed to the merits of his petition. ( Id . at p. 491.)20 V.F. seemed probable. Jorge provided no eviden ce he would have sought custody of V.F. in 2011 when she was detain ed or that he would have been ab le to care for her at that time, especially in light of the emoti onal turmoil that was created by her abuse. Jorge testified he moved back to Ponce in 2008 but, until 2012, had custody of his two other children. He did not state if he was employed at that time, what his housing was like then, or whether he could have adequately cared for V.F. In light of this evidence, we conclude the Agency's failure to provide notice to Jorg e at the outset of the case was harmless.
C It follows that the juvenile court did not a buse its discretion in finding that returning the case to the jurisdictional stage in order to provide Jorge w ith the opportunity to establish a relationship with V.F. was not in her best inte rests. Under section 388, the party petitioning the court to set aside a previous order has th e burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence, a nd the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether setting aside a previous court order is in the child's best interests is a question within the sound discretion of the juvenile court. ( In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The or der will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by ma king an arbitrary, capricious or patently absurd dete rmination. When two or more in ferences reasonabl y can be deduced from the facts, we have no authority to reweigh the evidence or substitute our decision for that of the juvenile court. ( In re Stephanie M. , at pp. 318-319.) In ruling on a modification21 petition, the court may consider the entire fact ual and procedural hist ory of the case. ( In re Justice P., supra, 123 Cal.App.4th at p. 189.) At the time V.F. was taken into protective custody, she had been severely abused and was in dire need of protection. More than a year after she was detained, at the time she was placed in the home of the pros pective adoptive mother, she re mained extremely emotionally scarred by the trauma she experienced in Crystal' s care. Once in her current placement, her emotional health improved, she began to catch up to her own grade level at school and she formed a close parent-child bond with her ca regiver. The emotional upheaval caused by Crystal's missed visit suggested the introduction of Jorge into her life would cause similar upheaval. Further, V.F. was strongly bonded to her half siblings, who the caregiver was committed to adopting. These facts supported the court's finding that placing V.F. on a separate track from her half siblings, one she wo uld fear might separate her from them, was not in V.F.'s best interests. Jorge argues it is in V.F.'s best interests to place her with her biological father, where she would be surrounded by her paternal family and new half sibling. "[A] primary consideration in determining th e child's best interest is th e goal of assuring stability and continuity. [Citation.] 'When custody continues over a significan t period, the child's need for continuity and stability assumes an increasingly important ro le. That need will often dictate the conclusion that maintenance of the current a rrangement would be in the best interests of that child.' " ( In re Stephanie M., supra, 7 Cal.4th at p. 317.) Here, the trial court properly focused on V.F.'s need fo r stability, continuity and permanen cy, regardless of Jorge's wishes. ( Id . at pp. 317-318; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1507.) We cannot second22 guess the juvenile court's findings in this regard and conclude the court did not abuse its discretion by finding delaying permanency to allo w Jorge to attempt to establish a relationship with V.F. was not in her best interests.
DISPOSITION The orders are affirmed.

M C CONNELL, P. J. WE CONCUR:

NARES, J.

HALLER, J.