Filed 11/30/23 In re Daisy H. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re Daisy H., a Person Coming 

Under the Juvenile Court Law.

 B321581

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

Victor H.,

Defendant and Appellant.

 (Los Angeles County

 Super. Ct. No. 19CCJP07594A)

 

APPEAL from an order of the Superior Court of 

Los Angeles County. Mary E. Kelly, Judge. Affirmed.

Marsha F. Levine, under appointment by the Court of 

Appeal, for Defendant and Appellant Victor H.

Jesse McGowan, under appointment by the Court of 

Appeal, for Respondent Irene I.

Lori Siegel, under appointment by the Court of Appeal, for 

Respondent Minor Daisy H.
2

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Jessica S. Mitchell, Deputy 

County Counsel, for Plaintiff and Respondent Los Angeles 

County Department of Children and Family Services.

_________________________________

INTRODUCTION

Victor H., the alleged father of minor Daisy H., appeals 

from the juvenile court’s June 14, 2022 order denying his request 

for presumed father status.

1 On appeal, Victor argues the 

juvenile court denied him due process by failing to designate him 

as the child’s presumed father and to appoint counsel for him at 

or prior to the jurisdictional and dispositional hearing. Victor 

asserts these alleged errors were prejudicial because they

required him to establish himself as a third presumed parent

later in the proceedings, after the juvenile court found another 

man to be Daisy’s presumed father. We conclude Victor forfeited 

his right to challenge the juvenile court’s earlier paternity rulings 

because he failed to timely appeal those rulings, and no exception 

to the forfeiture rule applies. We further conclude the juvenile 

court did not err in denying Victor’s request to be found a third 

presumed parent, because he did not have an existing parental 

relationship with Daisy. We accordingly affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

I. Dependency petition

Irene I. (Mother) is the mother of Daisy (born July 2015) 

and Beverly S. (born December 2017). In the children’s 

1 We refer to the minors and their relatives by their first 

names to protect the minors’ personal privacy. (See Cal. Rules of 

Court, rule 8.401(a)(2), (a)(3).)
3

respective birth certificates, Victor is listed as the father of Daisy, 

and Javier is listed as the father of Beverly. 

As of November 2019, when the Los Angeles County 

Department of Children and Family Services (DCFS) first 

became involved with the family, Mother and Javier were living 

together and had been in a relationship for about three years. 

Both Daisy and Beverly resided with Mother and Javier, and 

Daisy referred to Javier as her “daddy.” Mother reported Victor 

was incarcerated, but provided no other information as to his 

whereabouts.

On November 25, 2019, DCFS filed a dependency petition 

for Daisy and Beverly under Welfare and Institutions Code2

section 300, subdivisions (a) and (b). As amended, the petition 

alleged the children were at substantial risk of harm because 

(1) Mother and Javier engaged in a violent physical altercation 

with Javier’s ex-girlfriend in the children’s presence; (2) Mother 

had a history of substance abuse and was a current abuser of 

methamphetamines; and (3) Victor had a history of substance 

abuse and drug-related convictions. In its detention report, 

DCFS listed Victor’s last known address as an address in 

Huntington Park, California. 

II. Detention hearing

Referee Robin Kesler presided over the November 26, 2019

detention hearing, and Judge Mary Kelly presided over the 

subsequent hearings. At the detention hearing, Mother 

submitted a parentage questionnaire for Daisy in which she 

indicated that Victor was present at the child’s birth and signed 

2 Unless otherwise stated, all further undesignated statutory 

references are to the Welfare and Institutions Code.
4

the birth certificate naming him as the father, that Victor had 

openly held himself out as the father, and that Victor had 

received the child into his home. During the hearing, the court 

inquired about Daisy’s parentage. When asked about the last 

time she saw Victor, Mother replied, “Maybe like 2016.” When 

asked if Victor provided any financial assistance or child support 

for Daisy, Mother responded, “That I know of, I don’t know.” 

Mother denied that she knew Victor’s relatives or had social 

media contact with them. She also denied that Victor visited 

Daisy. 

The court found Victor to be an alleged father of Daisy, and

stated it would make further inquiry once Victor appeared in 

court and the child’s birth certificate was obtained. The court 

ordered that Daisy remain released to Mother, and that DCFS 

conduct a due diligence search for Victor. The court found Javier 

to be the presumed father of Beverly, and ordered that Beverly

remain released to Mother and Javier. The court set the 

adjudication hearing for February 4, 2020. 

III. Jurisdictional and dispositional hearing

On January 23, 2020, DCFS filed its jurisdictional and 

dispositional report. In its due diligence search, DCFS learned

that Victor was in custody at a federal prison in Mendota, 

California. He was scheduled to be released on August 11, 2020. 

Victor also had an extensive criminal record, including prior

convictions for possession and use of a controlled substance. 

Mother stated that she ended her relationship with Victor due to 

his drug use and gang activity. DCFS’s report included a notice 

of hearing and proof of service, which indicated that it sent Victor 

notice of the February 4, 2020 adjudication hearing via certified 

mail at his place of incarceration. The notice advised Victor that 
5

he had a right to be present at the hearing and to be represented 

by an attorney. 

At the February 4, 2020 adjudication hearing, both Mother 

and Javier appeared with their respective counsel. The juvenile 

court began by stating that it had an off-the-record discussion 

with the parents, “explaining that [Victor] is in a federal 

correctional facility in Mendota, California. The [dependency] 

investigator has been trying to reach [Victor] but has not been 

successful. All parties agree that bifurcating is not practical in 

this matter even though [Victor] is only named in one count. So 

we’ve discussed as a plan to . . . ask the social worker to reach out 

to [Victor] and determine whether or not [he] would like an 

attorney.” The court ordered DCFS to report back on whether it 

was able to make contact with Victor and whether he wished to 

have counsel appointed. The court continued the adjudication 

hearing.

In a last minute information for the court (LMI) report filed 

on March 9, 2020, DCFS indicated that it had interviewed Victor 

by telephone in February 2020 at the federal prison. Victor 

stated that he had not had any contact with Mother since his 

detention, and before then, he had only limited contact with 

Mother and Daisy. He admitted he had a history of substance 

abuse and drug-related convictions. He also told DCFS that he 

wanted to have a relationship with Daisy and to have counsel 

appointed to represent him. 

On March 10, 2020, the juvenile court held a progress 

report hearing. DCFS’s counsel informed the court that Victor 

was in federal custody and wanted the appointment of counsel. 

The court specially appointed attorney Ken Nielsen as a friend of 

the court to reach out to Victor. The record does not disclose, 
6

however, whether Nielsen made any attempt to do so. Due to the 

COVID-19 pandemic, the adjudication hearing was again 

continued. 

In May 2020, Mother informed the children’s social worker

that Victor had called her demanding to see Daisy, and that 

Mother was disturbed by the call. The social worker then 

contacted Victor at the telephone number provided by Mother, 

and tried to advise him that DCFS had to monitor any contact he 

had with Daisy. Victor interrupted, however, and stated that he 

knew his rights, he was not the offending parent, and he would 

not be told when and where to see his daughter. Victor refused 

the social worker’s request that they meet about the case and told 

her not to call him again. The dependency investigator also 

reached out to Victor via text message, but he did not reply. 

On May 19, 2020, the dependency investigator learned Victor had 

been released to a halfway house in Los Angeles, and left a 

telephone message for his case manager. 

In June 2020, Mother reported to DCFS that Victor 

continued to harass her and make demands to see Daisy. 

The dependency investigator again attempted to contact Victor, 

but he refused to engage in conversation or to meet to discuss the 

next court hearing and a visitation schedule for Daisy. Instead, 

Victor became angry and accused the dependency investigator of 

making false allegations to keep him from his child. The 

dependency investigator also contacted the halfway house again

and received confirmation that Victor continued to reside there. 

For the next scheduled hearings held on June 30, 2020 and 

August 19, 2020, DCFS sent Victor notices of the hearings via 

certified mail at his halfway house address. Victor did not, 

however, appear for either of those hearings. 
7

After several continuances, the adjudication hearing was 

set for January 11, 2021. While the record does not disclose 

when Victor left the halfway house, DCFS stated in a LMI report 

filed on November 19, 2020 that Victor’s whereabouts were then

unknown. On that date, DCFS sent Victor notice of the 

January 11, 2021 hearing via certified mail at his former

Huntington Park address.

On January 11, 2021, the juvenile court held a combined 

jurisdictional and dispositional hearing. Victor did not appear

and was not represented by counsel at the hearing. The court 

sustained the counts in the section 300 petition related to 

substance abuse by Mother and Victor, and dismissed the counts

related to domestic violence involving Mother and Javier. 

The court declared Daisy and Beverly dependents of the court 

under section 300, subdivision (b), ordered the children released

to the home of Mother and Javier under the supervision of DCFS, 

and granted Mother and Javier family maintenance services. 

The court bypassed reunification services for Victor, stating that 

“although [Victor] did surface recently, he has remained 

whereabouts unknown. So the court has no basis to impose 

reunification services for him.” 

The corresponding minute order for the January 11, 2021 

hearing showed that the deputy court clerk served both Victor 

and Mother with a notice of entry of the minute order and appeal 

rights form via regular mail, although the mailing addresses used 

were not listed. Victor did not file an appeal from the January 

11, 2021 jurisdictional and dispositional orders.

IV. Supplemental petition

On June 9, 2021, DCFS filed a supplemental petition for 

Daisy and Beverly under section 387 based on Mother’s alleged 
8

abuse of methamphetamines. In an addendum report filed that 

same date, DCFS indicated that a federal inmate search revealed 

that Victor was incarcerated at the Metropolitan Detention 

Center in Los Angeles, and was scheduled for release on 

September 3, 2021. Mother told DCFS that she did not know any 

details about Victor’s incarceration. Mother also stated that 

Daisy had not seen Victor since she was one or two years old, and 

that Daisy did not have any connection to Victor’s family. 

On June 11, 2021, Javier filed a Statement Regarding 

Parentage (JV-505) form for Daisy. According to Javier, Daisy 

had been living with him since 2016. He told everyone Daisy was 

his daughter, he was involved in her everyday life, and he

provided for all of her needs. Javier also stated that Daisy saw 

him as her father, and that he was the only father she had ever

known. 

In a LMI report filed on June 14, 2021, DCFS advised the 

court that it did not oppose Daisy being released to Javier if he 

was found to be her presumed father. DCFS noted that Javier 

had been raising, supporting, and caring for Daisy for the past 

four years, and that he wanted the child to remain in his custody. 

Daisy referred to Javier as her father and appeared to feel safe in 

his care. 

On June 14, 2021, the juvenile court held a detention 

hearing on the section 387 petition. The court began by 

expressing concern about Victor’s paternity status. The court 

noted that, at the prior detention hearing on the section 300 

petition, Referee Kesler found Victor to be an alleged father only, 

even though Mother’s questionnaire indicated that Victor was 

present at the child’s birth, signed the birth certificate, received 

the child into his home, and supported the child until sometime 
9

in 2016. The court also noted that Javier had been in Daisy’s life 

since then, that Javier held himself out as the child’s father and 

provided her with care and support, and that the child believed 

Javier was her father. The court stated that, if it had made the 

original paternity finding, it would have found Victor “to be a 

presumed father as well,” but Victor “is not represented by 

counsel” and “[t]here’s been no request to revisit that finding.” 

The court found Javier to be the presumed father of Daisy. 

The court detained both Daisy and Beverly from Mother and 

ordered them released to Javier. The court ordered DCFS to 

contact Victor at his place of incarceration to advise him of 

Daisy’s detention and to inquire if he wanted an attorney and 

presumed father status. The court set an adjudication hearing on 

the section 387 petition for September 14, 2021. DCFS sent 

Victor notice of the adjudication hearing via certified mail at his 

place of incarceration. The notice advised Victor that he had a 

right to be present at the hearing and to be represented by an 

attorney. 

In its jurisdictional and dispositional report filed on 

August 30, 2021, DCFS stated that the children remained in 

Javier’s care. Although the dependency investigator had made 

multiple attempts to contact the federal prison, she had not been 

able to speak to anyone there. Mother reported to DCFS that she 

had a history of domestic violence with Victor, and that she 

intended to obtain a restraining order against him once he was 

released from prison. Mother also stated that Daisy considered 

Javier to be her father. 

The adjudication hearing on the section 387 petition was 

continued to September 17, 2021. At the hearing, DCFS’s 

counsel noted that Victor had attempted to call in, and asked that 
10

he be present before proceeding with disposition. Later in the 

hearing, the juvenile court stated, “We thought we had [Victor]. 

I don’t know if he’s having technical difficulties. That is his 

number confirmed by [counsel]. However, he was not able to 

state his name and the court is uncomfortable proceeding in a 

confidential matter without someone being able to state who they 

are.” The court sustained the section 387 petition, ordered that

both Daisy and Beverly remain dependents of the court, and 

released them to Javier under the supervision of DCFS. 

V. Victor’s request for presumed father status

On January 11, 2022, attorney Katherine Mitchell filed a 

walk-on request on Victor’s behalf, seeking the appointment of

counsel for Victor and a DNA test for both Daisy and Beverly. 

The request stated that Victor had been released from 

incarceration, and that he wished to elevate his paternity status 

pending the results of the DNA test. The request attached a 

Statement Regarding Parentage (JV-505) form in which Victor 

indicated that Daisy lived with him from birth until February 

2017, that he told everyone she was his child and was involved in 

her day-to-day childcare activities, and that he sent money for 

her a few times a year until October 2021. Mitchell also filed a 

Notification of Mailing Address (JV-140) form for Victor, which 

reflected that Victor was residing in Anchorage, Alaska. 

On January 21, 2022, the juvenile court appointed counsel 

for Victor. On February 8, 2022, the court set a contested 

hearing on Victor’s request for presumed father status, and 

ordered the parties to submit briefing on the matter. On 

March 18, 2022, the court ordered DCFS to assess Victor for 

visits with Daisy, and ordered Victor to make himself available 

for the assessment. Following continuances on April 27, 2022 
11

and May 13, 2022, the contested hearing on Victor’s request for 

presumed father status was set for June 14, 2022. 

In a LMI report filed on April 26, 2022, DCFS stated that it 

had been unsuccessful in assessing Victor for visitation due to his 

lack of communication. Between February and April 2022, the 

social worker repeatedly attempted to contact Victor to discuss 

his availability for visits with Daisy. Victor often did not respond 

to these attempts to reach him. When he did respond, Victor told 

the social worker he was busy and would call back later, but he 

did not do so. 

Both Victor’s counsel and Daisy’s counsel submitted briefs 

regarding the request for presumed father status. Victor claimed

that he qualified as Daisy’s presumed father because he signed 

the birth certificate, received Daisy into his home, and openly 

held Daisy out as his child. He contended that these facts were 

known to the court at the initial detention hearing, and that the 

court erred in failing to designate him as the presumed father at 

that time. He also argued that, although the court previously

found Javier to be Daisy’s presumed father, it should find Victor 

to be a third presumed parent because it would be detrimental to 

the child not to do so. In opposing the request, Daisy’s counsel 

asserted that Victor waived any argument that the court’s prior 

paternity finding was erroneous by failing to timely appeal that 

ruling. Daisy’s counsel further argued that Victor did not qualify 

as a third presumed parent because he did not have an existing 

relationship with Daisy.

On June 14, 2022, the juvenile court held the contested

hearing on Victor’s request for presumed father status. Victor 

was represented by counsel at the hearing, but he did not appear. 

The court denied the request, finding that Victor did not qualify 
12

as a third presumed parent of Daisy. The court explained: 

“[T]his father did have a relationship at one point, but it’s too 

little too late, and the child has an established relationship with 

[Javier]. [¶] [Victor] is the biological father. I am not going to 

elevate him to presumed. I do find that the facts relayed by 

[Daisy’s counsel] are more persuasive. [Victor] was given the 

opportunity to assert himself in this case very early on. [He] did 

not. This case has limped along and . . . in the last six months 

[Victor] has asked to come in and be another father. [¶] So I do 

find that [Victor] is the biological father for the minor, but I do 

not believe that these facts warrant having a third parent. Those 

are reserved for rare circumstances, and . . . I don’t believe it’s 

appropriate. And I don’t believe it’s in the best interest of the 

child to have three parents.”

On June 16, 2022, Victor filed a notice of appeal. In his 

notice, Victor stated that he was appealing the “court’s denial of 

[his] request to be found presumed.” He also checked the box for 

“Other appealable orders relating to dependency,” and specified 

that the appealed order was the “[d]enial of request for presumed 

status.” Victor identified the hearing date of the appealed order 

as January 21, 2022; February 8, 2022; March 18, 2022; April 27, 

2022; May 13, 2022; and June 14, 2022.3 

3 Victor requests that this court take judicial notice of (1) the 

juvenile court’s postappeal orders terminating jurisdiction over 

Daisy and granting sole legal and physical custody to Javier with 

no visitation for Victor, and (2) Victor’s notice of appeal from the 

termination and custody orders. Victor asserts these records are 

relevant to showing that he appealed the termination order as a 
13

DISCUSSION

Although Victor appeals from the juvenile court’s June 14, 

2022 order denying his request for presumed father status, he 

argues the errors underlying that order occurred much earlier in 

the case. Victor contends the juvenile court denied him due 

process by failing to designate him as Daisy’s presumed father 

and to appoint counsel for him at the November 26, 2019 

detention hearing, and then by proceeding with the January 11, 

2021 jurisdictional and dispositional hearing in his absence and 

without representation by counsel. Victor claims these errors

caused him undue prejudice at the June 14, 2022 hearing on his 

request for presumed father status by requiring Victor, rather 

than Javier, to establish himself as a third presumed parent. 

I. Victor cannot challenge the juvenile court’s

November 26, 2019 and January 11, 2021 rulings

DCFS and Mother assert that Victor is procedurally barred 

from challenging the juvenile court’s findings and orders at the 

November 26, 2019 detention hearing and the January 11, 2021

jurisdictional and dispositional hearing because he failed to file a

timely appeal from those rulings, and he cannot show a violation 

of his due process rights that would excuse such failure. 

We agree that Victor forfeited his right to challenge the juvenile 

court’s earlier paternity rulings, and that no exception to the 

forfeiture rule applies in this case.

means of preserving the issues raised in his current appeal. 

We grant Victor’s unopposed request for judicial notice. (Evid. 

Code, §§ 452, subd. (d), 459, subd. (a).) 
14

A. Victor forfeited his claims by failing to timely 

appeal the January 11, 2021 dispositional order

“ ‘ “[A]n appealable judgment or order is a jurisdictional 

prerequisite to an appeal.” ’ ” (In re J.F. (2019) 39 Cal.App.5th 

70, 74.) In dependency proceedings, appeals are governed by 

section 395, which provides in relevant part that “[a] judgment in 

a proceeding under [s]ection 300 may be appealed in the same 

manner as any final judgment, and any subsequent order may be 

appealed as an order after judgment.” (§ 395, subd. (a)(1); see 

In re A.A. (2016) 243 Cal.App.4th 1220, 1234.) The judgment and 

first appealable order in a dependency case is the dispositional 

order. (In re S.B. (2009) 46 Cal.4th 529, 532; In re A.O. (2015) 

242 Cal.App.4th 145, 148.) “ ‘ “A consequence of section 395 is 

that an unappealed disposition or postdisposition order is final 

and binding and may not be attacked on an appeal from a later 

appealable order.” ’ ” (In re S.B., at p. 532.) 

It is also well-established that “ ‘the timely filing of an 

appropriate notice of appeal or its legal equivalent is an absolute 

prerequisite to the exercise of appellate jurisdiction.’ ” (In re J.F., 

supra, 39 Cal.App.5th at p. 74.) A notice of appeal must be filed 

within 60 days after the juvenile court makes the appealable

judgment or order. (Cal. Rules of Court, rule 8.406(a)(1).) 

“An appeal from the most recent order in a dependency matter 

may not challenge earlier orders for which the time for filing an 

appeal has passed.” (Sara M. v. Superior Court (2005) 36 Cal.4th 

998, 1018.) Accordingly, “ ‘[o]nce the deadline [to appeal] expires, 

the appellate court has no power to entertain the appeal.’ ” (In re 

A.O., supra, 242 Cal.App.4th at p. 148.) 

A notice of appeal is sufficient if it identifies the particular 

judgment or order being appealed. (Cal. Rules of Court, 
15

rules 8.100(a)(2), 8.405(a)(3).) The notice must be “ ‘liberally 

construed so as to protect the right of appeal if it is reasonably 

clear what [the] appellant was trying to appeal from, and where 

the respondent could not possibly have been misled or 

prejudiced.’ ” (In re Joshua S. (2007) 41 Cal.4th 261, 272.) 

Nevertheless, “when a notice of appeal manifests a ‘ “clear and 

unmistakable” ’ intent to appeal only from one order, we cannot 

liberally construe the notice to apply to a different, omitted 

order.” (In re J.F., supra, 39 Cal.App.5th at p. 76.) “ ‘We have no 

jurisdiction over an order not mentioned in the notice of appeal.’ ” 

(Id. at p. 75.)

Here, Victor seeks to challenge the juvenile court’s alleged 

error at the November 26, 2019 detention hearing in failing to 

elevate him to presumed father status and to appoint counsel to 

represent him. He also seeks to challenge the court’s alleged 

error at the January 11, 2021 jurisdictional and dispositional

hearing in asserting jurisdiction over Daisy when Victor was 

neither present nor represented by counsel at the hearing. 

However, Victor did not file an appeal from the January 11, 2021 

dispositional order, and the time for doing so has since expired. 

The unappealed dispositional order is therefore final and binding, 

and cannot be attacked in Victor’s current appeal. 

In addition, Victor’s notice of appeal makes no reference to 

the court’s earlier findings and orders at either the November 26, 

2019 detention hearing or the January 11, 2021 jurisdictional 

and dispositional hearing. Instead, the notice makes clear Victor 

is appealing from the postdispositional order denying his request 

for presumed father status. But Victor did not seek to elevate his 

paternity status until January 11, 2022, one year after the 

jurisdictional and dispositional hearing. Because Victor did not 
16

timely appeal from the juvenile court’s earlier paternity rulings, 

he forfeited his right to challenge the rulings in this appeal.

B. Victor has not shown the due process exception 

to the forfeiture rule should apply

The purpose of the forfeiture rule is “to balance the parents’

interest in the care and custody of their children with the 

children’s interest in the expeditious resolution of their custody 

status.” (In re T.G. (2015) 242 Cal.App.4th 976, 984.) However, 

the forfeiture rule is not absolute, and “must not be applied if 

‘due process forbids it.’ ” (Id. at p. 985; see In re Janee J. (1999) 

74 Cal.App.4th 198, 208.) In most cases, “the forfeiture rule does 

not infringe upon a parent’s due process rights because of the 

numerous safeguards built into the dependency system.” (In re 

T.G., at p. 985.) For the due process exception to the forfeiture 

rule to apply, the parent must show there was a defect in the 

proceedings that “fundamentally undermined the statutory 

scheme” so as to prevent the parent “from availing himself or 

herself of the protections afforded by the scheme as a whole.” 

(In re Janee J., at p. 208.) Moreover, the defect “must go beyond 

mere errors that might have been held reversible had they been 

properly and timely reviewed.” (Id. at p. 209.) We generally 

review de novo whether a parent has shown a due process 

violation. (In re J.F. (2011) 196 Cal.App.4th 321, 329.) 

Victor contends the juvenile court violated his due process 

rights when it failed to designate him as Daisy’s presumed father 

and to appoint counsel for him prior to adjudicating the 

section 300 petition. According to Victor, the court should have, 

of its own accord, found that he was Daisy’s presumed father 

based on the information provided by Mother at the November 

26, 2019 detention hearing. Victor claims that, if the court had 
17

elevated him to presumed father status at the detention hearing, 

he would have been entitled to the immediate appointment of 

counsel and to custody and reunification services once he 

appeared. We conclude Victor’s due process claim lacks merit.

Dependency law recognizes three categories of fathers: 

alleged, biological, and presumed. (In re H.R. (2016) 245 

Cal.App.4th 1277, 1283; In re D.P. (2015) 240 Cal.App.4th 689, 

695.) The extent of a father’s rights in a dependency proceeding 

depends on his paternal status. (In re D.P., at p. 695.) “A man 

who may be the father of a child but has not established his 

biological paternity, or achieved presumed father status, is an 

alleged father.” (In re H.R., at p. 1283.) “ ‘An alleged father has 

limited due process and statutory rights.’ [Citation.] ‘He is not 

entitled to appointed counsel or to reunification services.’ ” 

(Ibid.) Rather, “ ‘[d]ue process for an alleged father requires only 

that he be given notice and an opportunity to appear and assert a 

position and attempt to change his paternity status.’ ” (Ibid.)

At the detention hearing, or as soon as otherwise 

practicable, the juvenile court must inquire of the mother and 

any other appropriate person as to the identity and address of all 

possible presumed or alleged fathers. (§ 316.2, subd. (a); Cal. 

Rules of Court, rule 5.635(a).) “Once identified, any alleged 

father should receive notice by certified mail of the proceedings 

and the fact that the proceedings could result in the termination 

of parental rights.” (In re H.R., supra, 245 Cal.App.4th at 

p. 1284.) The court is not required, however, to elevate an 

alleged father to presumed father status absent a request. (In re 

O.S. (2002) 102 Cal.App.4th 1402, 1410.) Instead, once an

alleged father “appears at a hearing in dependency matter . . . 

and requests a judgment of parentage on form JV-505, the court 
18

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).) Thus, “[t]o be declared a presumed 

father under Family Code section 7611, a man must ask the 

[court] to make such a determination and establish the existence 

of the foundational facts by a preponderance of the evidence. 

[Citation.] . . . [T]he court cannot sua sponte make such a 

declaration . . . .” (In re O.S., at p. 1410, fn. omitted.) 

In this case, Mother submitted a parentage questionnaire 

for Daisy at the November 26, 2019 detention hearing. Although 

Mother’s responses in the questionnaire suggested that Victor 

qualified for presumed father status, her statements to the court 

during the hearing were more equivocal. When the court 

inquired about Victor’s paternity status, Mother stated that she 

last saw Victor in 2016, that he did not visit Daisy, and that she 

did not know if he provided Daisy with financial assistance or 

support. Based on the information provided by Mother, the court 

stated that it was finding Victor to be an alleged father “at this 

time,” and that it would make further inquiry once Victor 

appeared in the proceedings and the court received a copy of the 

child’s birth certificate. Because Victor’s whereabouts were 

unknown as of the detention hearing, the court ordered DCFS to 

conduct a due diligence search for him. 

After learning that Victor was in a federal prison, DCFS 

provided him with notice of the February 4, 2020 adjudication 

hearing via certified mail at his place of incarceration. When 

Victor was later released from prison to a halfway house in 

Los Angeles, DCFS provided him with notice of the June 30, 2020 

status review hearing and the August 19, 2020 continued 
19

adjudication hearing via certified mail at his halfway house 

address. Each notice advised Victor that he had a right to be 

present at the hearing and to be represented by an attorney. 

Victor did not, however, appear for any of those hearings. DCFS 

also tried to make telephone contact with Victor following his 

release from prison, but in response, he was openly hostile 

toward the social worker, refused to meet to discuss the case, and 

told her not to call him again. The record therefore reflects that, 

prior to the January 11, 2021 jurisdictional and dispositional 

hearing, Victor was given notice of the proceedings and an 

opportunity to appear and attempt to change his paternity 

status, but he failed to avail himself of that opportunity. 

In his appellate brief, Victor asserts the record does not 

contain proof that he received actual notice of the January 11, 

2021 jurisdictional and dispositional hearing or his right to 

appeal the orders made at that hearing. Victor notes that, at the 

time of the hearing, DCFS reported that his whereabouts were 

again unknown, but instead of conducting a new due diligence 

search, DCFS sent him notice of the hearing at his last known 

address as of November 2019. Victor also notes that, following

the jurisdictional and dispositional hearing, the court clerk 

served him with a copy of the minute order from the hearing, 

along with an advisement of his right to appeal, but did not list 

his address in the certificate of mailing. 

To the extent Victor is claiming on appeal that either notice 

was defective because his whereabouts were then unknown, the 

proper remedy would have been to file a section 388 petition.

“When an alleged father claims that a lack of notice of the 

proceedings caused him to fail to achieve presumed father status 

prior to expiration of the reunification period, his remedy is to file 
20

a section 388 petition.” (In re Daniel F. (2021) 64 Cal.App.5th 

701, 712; see In re Justice P. (2004) 123 Cal.App.4th 181, 189 

[“[a] section 388 motion is a proper vehicle to raise a due process 

challenge based on lack of notice”].) Victor did not file any such

petition. While Victor did file a request for presumed father 

status later in the case, he did not contend that he was unable to 

do so earlier because he lacked notice of the proceedings. 

Instead, he claimed that “[h]e was unable to appear for most of 

the proceedings in this case because he was incarcerated and had 

no counsel, although he was noticed of the court hearings and 

indicated a desire to have counsel appointed.” On this record, 

Victor has not shown a due process violation based on lack of 

notice that excused his failure to file a timely appeal. 

We also reject Victor’s claim that the forfeiture rule does 

not apply because the juvenile court denied him due process 

when it failed to appoint counsel for him prior to adjudicating 

the section 300 petition. At the time of the January 11, 2021 

jurisdictional and dispositional hearing, Victor was an alleged 

father only. An alleged father generally is not entitled to 

appointed counsel, “except for the purpose of establishing 

presumed fatherhood.” (In re J.O. (2009) 178 Cal.App.4th 139, 

147.) Whether a parent has a due process right to counsel in a 

dependency proceeding is determined on a case-by-case basis, 

requiring the court to balance the private interests at stake, the 

government’s interest, and the risk that the procedures used will 

lead to an erroneous decision. (In re O.S., supra, 102 Cal.App.4th 

at p. 1407, citing Lassiter v. Department of Social Services (1981) 

452 U.S. 18, 31–34.) We also consider “whether the presence of 

counsel would have made a ‘determinative difference’ in the 

outcome of the proceeding and if the absence of counsel rendered 
21

the proceedings fundamentally unfair.” (In re Claudia S. (2005) 

131 Cal.App.4th 236, 251.) “[A] court deciding whether due 

process requires the appointment of counsel need not ignore a 

parent’s plain demonstration that [he or] she is not interested in 

attending a hearing.” (Lassiter, at p. 33.) 

Based on the totality of the record, we conclude the juvenile 

court did not violate due process by failing to appoint counsel for

Victor earlier in the proceedings. Victor first communicated that 

he wanted the appointment of counsel in February 2020 when 

DCFS interviewed him while he was in federal custody. While

the court ordered an attorney to reach out to Victor as a friend of 

the court in March 2020, the record is silent on whether counsel 

complied with the order. By May 2020, however, Victor had been 

released from prison and was residing in a halfway house. DCFS 

contacted Victor in May and June 2020 to discuss the next court 

hearing and visitation with Daisy, but Victor refused to cooperate 

and said he would not be told when and where he could see his 

child. Although Victor was given notice of the next two court 

hearings, he did not attend either hearing or take any action to 

elevate his paternity status at that time. Victor also did not visit 

Daisy following his release from prison, and Mother reported

Daisy had not seen Victor since she was one or two years old. 

After the January 11, 2021 jurisdictional and dispositional 

hearing, Victor waited another year before asking the court to 

appoint counsel for him and find him to be Daisy’s presumed 

father. In the meantime, Javier requested and was granted

presumed father status based on his established parental 

relationship with Daisy. Under these circumstances, the court’s 

failure to appoint counsel for Victor earlier in the case did not 
22

deny him due process, and thus, does not provide an exception to 

the forfeiture rule. 

Citing In re Christopher L. (2022) 12 Cal.5th 1063, Victor 

argues the forfeiture rule does not apply where a parent raises 

a due process claim based on the failure to appoint counsel. In In 

re Christopher L., our Supreme Court considered whether a 

juvenile court’s violation of an incarcerated father’s right under 

Penal Code section 2625 to be present and represented by counsel 

at the jurisdictional and dispositional hearing was structural

error or subject to a harmless error analysis. (In re Christopher 

L., at p. 1069.) The Supreme Court concluded that the error did 

not require automatic reversal. (Ibid.) In its opinion, the 

Supreme Court did not consider the timeliness of the father’s

appeal or whether the forfeiture rule applied. While the Court of 

Appeal did briefly address the issue of forfeiture in its opinion, it 

declined to decide whether the father forfeited his due process 

claims by not timely raising them, and instead concluded that, 

even if he did, it would exercise its discretion to address the 

merits of his appeal. (In re Christopher L. (2020) 56 Cal.App.5th 

1172, 1183, fn. 4.)

We conclude the forfeiture rule applies in this case. 

The totality of the record demonstrates that Victor was provided 

with notice and an opportunity to appear in court and assert a 

position on his paternity status, long before the juvenile court 

adjudicated the section 300 petition and found Javier to be 

Daisy’s presumed father. Victor has not shown that the court’s 

failure to elevate him to presumed father status or to appoint 

counsel for him earlier in the proceedings prevented him from 

meaningfully participating in the case, and availing himself of 

the protections afforded by the dependency scheme. Because 
23

Victor has not shown the type of fundamental error that would 

support an exception to the forfeiture rule, his challenges to the

juvenile court’s earlier paternity rulings are not cognizable in this 

appeal.

II. The juvenile court did not err in denying Victor’s 

January 11, 2022 request for presumed father status 

At the time Victor filed his request for presumed father 

status on January 11, 2022, the juvenile court had made a prior 

finding that Javier qualified as Daisy’s presumed father. In 

seeking to elevate his own paternity status, Victor did not 

contend that Javier failed to satisfy the requirements for 

presumed fatherhood. Rather, Victor claimed that he also 

qualified as Daisy’s presumed father, and thus, should be 

designated a third presumed parent. The court denied the

request on the grounds that Victor did not have an existing

relationship with Daisy sufficient to entitle him to third parent 

status under Family Code section 7612, subdivision (c). We 

conclude the juvenile court did not err in denying Victor’s 

request.

Family Code section 7612, subdivision (c) states, in 

relevant part, that “[i]n an appropriate action, a court may find 

that more than two persons with a claim to parentage under this 

division are parents if the court finds that recognizing only two 

parents would be detrimental to the child.” This statutory 

provision, however, is limited in scope. It “ ‘allows a court to 

recognize three parents only in “rare cases” where a child truly

has more than two parents.’ [Citation.] Specifically, ‘ “an 

appropriate action” for application of section 7612, subdivision (c) 

requires a court to find an existing, rather than potential, 

relationship between a putative third parent and the child, such 
24

that “recognizing only two parents would be detrimental to the 

child.” ’ ” (M.M. v. D.V. (2021) 66 Cal.App.5th 733, 742.) Absent 

an existing relationship with the child, a parent cannot be 

recognized as a third presumed parent. (In re L.L. (2017) 

13 Cal.App.5th 1302, 1317.) We review a juvenile court’s findings 

under section 7612, subdivision (c), for substantial evidence. 

(M.M. v. D.V., at p. 744.) 

In this case, there was substantial evidence to support the 

finding that Victor did not qualify as a third presumed parent of 

Daisy under Family Code section 7612, subdivision (c). DCFS 

first became involved with the family in November 2019 when 

Daisy was four years old. Victor was incarcerated at the time, 

and Daisy did not have any contact with him. According to 

Mother, Daisy had not seen Victor since the child was one or two 

years old, and she considered Javier to be her father. In May 

2020, following his release from prison, Victor began contacting 

Mother demanding to see Daisy, but he refused to meet with 

DCFS to arrange a visitation schedule. In March 2022, while 

Victor’s request for presumed father status was pending, the 

juvenile court ordered DCFS to assess Victor for visitation. Over 

the next two months, DCFS repeatedly attempted to contact 

Victor about visiting Daisy, but he never made himself available

for visitation and instead claimed that he was busy.

On this record, the evidence was sufficient to support the 

finding that Victor did not have an existing parental relationship 

with Daisy, as required for a third presumed parent under 

Family Code section 7612, subdivision (c). The juvenile court 

accordingly did not err in denying Victor’s request for presumed 

father status. 
25

DISPOSITION

The juvenile court’s June 14, 2022 order denying Victor’s 

request for presumed father status is affirmed.

VIRAMONTES, J.

WE CONCUR:

GRIMES, Acting P. J.

WILEY, J.