I. BACKGROUND

B.S. (mother) gave birth to C.S. (child) in July 2019. Both tested positive for

methamphetamine. Within days, plaintiff and respondent San Bernardino County

Children and Family Services (CFS) filed a section 300 petition alleging, among other

things, a failure to protect the child due to mother’s substance abuse. (See § 300, subd.

(b)(1).) At the detention hearing, mother identified a man named Joshua as the father,

1 Undesignated statutory references are to the Welfare and Institutions Code.

2 and when asked by the court whether anyone else could be a father, she additionally

identified a man named Russell. She did not identify defendant and appellant P.R. as a

father. The child’s birth certificate lists no father. Although the section 300 petition

named Joshua as an alleged father and made allegations against him as well, the juvenile

court later found him to be a nonparty. Neither Joshua nor Russell is part of this appeal.

At a combined jurisdiction and disposition hearing in October 2019, the juvenile

court ordered family reunification services for mother. At the six-month review hearing,

CFS reported that mother never submitted to drug testing or engaged in court ordered

services, so the court terminated the reunification services. Mother also is not part of this

appeal.

P.R. (father) first appeared in court at a September 2020 notice review hearing.

When the court asked whether it was possible he was the child’s father, he answered yes.

The court appointed counsel for father and ordered paternity testing. The court also

informed father that the section 366.26 hearing to terminate parental rights over the child

had been scheduled for January 2021.

A. The January 2021 Section 366.26 Hearing

In its report submitted for the section 366.26 hearing, CFS stated that father had

not completed testing and that he had notified CFS in November 2020 “to report he had

not been able to contact his attorney to arrange the paternity test.”

3 At the hearing, father requested more time to get tested, contending that although

CFS was supposed to contact him and arrange for testing, it never did. The juvenile court

allowed father to testify so that it could determine whether father or CFS had “dropped

the ball” as to testing.

Father testified that he was told he would be contacted with instructions as to how

to get a paternity test where he lived in Arizona, but no one ever contacted him. On

direct examination, he stated to his counsel: “I made contact with your office, and you

got back to me. I made contact with County Counsel and also with child services.

Basically, I was told I was doing everything I was supposed to be doing, but nobody

could tell me where I was supposed to go for paternity testing or what the issuing party

would be.”

Importantly, father was asked about his knowledge of (and attempts to contact) the

child. The following exchange took place on direct examination:

“Q. Now, when did you first find out that you were possibly—or that this lady

had a baby?

“A. I found out she had a baby—I found out she was pregnant, I want to say—oh,

geez. Well, I understood she was pregnant. I’m not sure of the time frame, but it was

prior to her having had the child.

“Q. Have you—did you speak to her in July of 2020?

“A. Yes, I did.

“Q. And tell us the substance of that phone call.

4 “A. Well, she had contacted me, and, basically, had asked me if I remembered

about when we started hanging out, and I was like, ‘Well, not off the top of my head.

Why? What’s up?’ And she sent me a picture of the child. When she did that, I pretty

much figured out what she was getting at, and then did the numbers in my head after I

asked her how old the child was. And I was like, ‘Well, yeah, actually, that is very

possible.’

“Q. Did you ever ask her if you could see the child?

“A. I was, kind of, getting towards it, but she had informed me that she did not

have the child. That the child was not in her custody. That CPS [sic] had been involved

and gave her an opportunity to leave the child with a family member.

“Q. Did you find out who that family member was?

“A. Yes. Her niece.

“Q. Did you contact that family member?

“A. I attempted to on Facebook. I sent them a message, basically, asking about

the next court date, like when it was so I could be present. And, to my understanding,

they never even read the message. I was never responded to. I was never told anything,

and so I, basically, tried my best to figure out who [mother’s] case manager was from the

time she told me, and I have been in contact with her until I came here in September

when you were assigned to me as my attorney. I have been in contact with your office

trying to leave it as a court matter, not trying to go beyond my means, like just showing

5 up randomly at somebody’s house. And I’m allegedly the father, so that can be looked

at—I don’t know. I might take it the wrong way. I mean it’s—

“Q. Do you want to be recognized as the father?

“A. If she is my child, yes, sir.”

Following additional testimony from father and argument from the parties, the

juvenile court continued the hearing until the following month to allow father to get

tested. Before making its ruling, however, the court expressed concern that father’s

appearance may have been part of a tactic to delay the termination hearing, emphasized

the fact that father knew mother was pregnant, and stated its belief that the results of the

paternity test would ultimately make no difference. It stated: “My recollection . . . was

that there was going to be an issue of where [d]ad tested because he was out of state, and

the [d]epartment was going to help set that up. So that is kind of—now it sounds like the

[d]epartment wasn’t really aware of that. I have all the great concerns that—you know, I

frankly, have a doubt that he is even the father, and it sounds like this smacks of the

typical, [m]other’s-time-ran-out-and-now-they’re-going-to-terminate-parental-rights-so-

let-me-find-a-guy-and-here-he-comes-and-delay-delay-delay tactic. And he is not even a

Kelsey S. father because there was an indication he knew when she was pregnant but

didn’t take action at all.[2] So, you’re right. There is no FR. There is nothing like that.

There is no 388. He is not even taking action now, right?

2 In Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), our Supreme Court considered “whether the father of a child born out of wedlock may properly be denied the right to withhold his consent to his child’s adoption by third parties despite his diligent

6 “But the law does require that when they come forward, we’re supposed to

determine who the natural father is. That’s in the law. And I ordered that. And, you

know, what I’m gathering from the [d]epartment is they didn’t understand that they were

supposed to give him a referral for where to test, and they had contact with him, so that is

kind of my dilemma. I don’t think it affects the outcome of the case, based on everything

I’ve just said. I don’t think it affects the outcome of the case, but I think I’m required to

make that determination, or try to, before I do the .26.”

B. The February 2021 Section 366.26 Hearing

The day before the rescheduled section 366.26 hearing, CFS filed the results of the

paternity test, which stated that father’s probability of paternity was 99.99%.

At the hearing, father’s counsel stated that father was running late because he was

driving in from Arizona. Father’s counsel requested a continuance, stating that father

wanted to get custody of the child and expressed interest in taking an active role. The

juvenile court noted that “I did take testimony last time from him” and that “I don’t think

I believed that he was a Kelsey S. father[.] I don’t think there is evidence of that.” When

the court asked father’s counsel whether he had “something to support that” he might be

a Kelsey S. father, counsel replied no.

and legal attempts to obtain custody of his child and to rear it himself, and absent any showing of the father’s unfitness as a parent.” (Id. at p. 821-822.) It held that, “under these circumstances, the federal constitutional guarantees of equal protection and due process require that the father be allowed to withhold his consent to his child’s adoption and therefore that his parental rights cannot be terminated absent a showing of his unfitness . . . .” (Id. at p. 822.) “While Kelsey S. was decided in the context of adoption, appellate courts have extended it to dependency proceedings.” (In re D.S. (2014) 230 Cal.App.4th 1238, 1244.)

7 A brief time later, the court stated: “I think I commented before I did not believe

he was a Kelsey S. father, or that he met that standard. I still believe that today. And the

child has been with this prospective adoptive family now, and it’s not in the best interest

to break that bond with who the child really knows as her parents. [¶] . . . [¶] And I think

the child’s been there since about two, three weeks old. So that is the child’s home.

That’s the child’s parent. That’s who the child—it would be a severe detriment to the

child to remove now and delay the case and chances for permanence on the off chance

that [d]ad might be able to do something to get the child back. It seems unfair to the

child to their stability to do that.” On that basis, it denied father’s request for a

continuance. It proceeded to terminate mother and father’s parental rights over the child.

II. ANALYSIS

Father contends on appeal that the undisputed failure to provide him with

statutorily required notice under section 316.2 requires reversal. Following oral

argument, we asked the parties to submit supplemental letter briefs addressing the

unbriefed issue of whether the trial court erred in denying father’s request for a

continuance at the February 2021 section 366.26 hearing. We conclude that the denial

was an abuse of discretion.

“The juvenile court has the power to ‘control all proceedings during the hearings

with a view to the expeditious and effective ascertainment of the jurisdictional facts and

the ascertainment of all information relative to the present condition and future welfare of

the person upon whose behalf the petition is brought.’ [Citations.] Although

8 continuances are discouraged in dependency cases [citation], the juvenile court may

continue a dependency hearing upon a showing of good cause, provided the continuance

is not contrary to the interest of the child. [Citations.] We review an order denying or

granting a continuance for abuse of discretion.” (In re Emily D. (2015) 234 Cal.App.4th

438, 447-448.) “[W]hen a trial court’s decision rests on an error of law, that decision is

an abuse of discretion.” (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737,

746.)

Here, the trial court denied father’s request for a continuance at the February 2021

hearing because it concluded that father was not a Kelsey S. father. This conclusion was

in turn based on its statement, made at the January 2021 hearing, that “there was an

indication [father] knew when [mother] was pregnant but didn’t take action at all.” We

believe this is based on a misreading of Kelsey S.; information triggering a father’s

Kelsey S. duties should include information indicating a father knew of the pregnancy as

well as some reason to know that the child is his. After properly taking Kelsey S. into

account, there is simply too little information on this record to determine one way or the

other whether father ultimately could satisfy Kelsey S.

In Kelsey S., our Supreme Court held that a biological father who “promptly

comes forward and demonstrates a full commitment to his parental responsibilities—

emotional, financial, and otherwise” has a due process right against “allowing the state to

terminate his parental rights on nothing more than a showing of the child’s best interest.”

(Kelsey S., supra, 1 Cal.4th at p. 849.) As it went on to explain, a court should consider

9 “all factors relevant to” whether a father has met this standard. (Ibid.) “The 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.’ [Citation.] A court

should also consider the father’s public acknowledgement of paternity, payment of

pregnancy and birth expenses commensurate with his ability to do so, and prompt legal

action to seek custody of the child.” (Ibid., fn. omitted.)

Seeming to rely solely on the fact that father was aware that mother was pregnant

at some point before the child was born, the juvenile court stated at both section 366.26

hearings that father was not a Kelsey S. father. In our view, however, when Kelsey S.

makes reference to the point in time when a father “knows or reasonably should know of

the pregnancy,” it refers to when the father both knew or should have known the mother

was pregnant and had some reason to know that the child was his. In Kelsey S., this

inquiry was uncomplicated; the mother and father were not married, but there was no

dispute that the father knew, as soon as he learned of the pregnancy, that it was his child

that the mother planned to place for adoption. (In re Kelsey S., supra, 1 Cal.4th at p.

822.) Here, the situation is more complicated, or at least the record is undeveloped.

Father testified that he had learned mother was pregnant at some point before the child’s

birth. But there is nothing in the record showing, for example, that he also learned at that

10 time how far along the pregnancy was, so as to trigger some question in his mind as to

whether he might be the father. Indeed, his testimony was that he only had cause to think

about the relevant timelines (when he “did the numbers”) after the child’s birth. Nothing

in the record shows that this was any sort of unreasonable delay on his part.

This case is unlike In re Zacharia D. (1993) 6 Cal.4th 435, where the record

showed that (1) the father engaged in at least a dozen acts of sexual intercourse with the

mother over a two week period, (2) the father testified that the possibility of the mother

being pregnant with his child “‘didn’t occur to [him],’” (3) the father knew where the

mother was living and “‘could have found her,’” (4) the father “had not requested that

[the child] visit him in jail, request[] any reunification services, or taken either a

parenting or drug rehabilitation class” even after filing a complaint to establish a parental

relationship, and (5) the father’s “articulated impetus for coming forward was not one

based on [the child’s] needs and interests, but rather on [the mother’s] impending loss of

parental rights.” (Id., supra, 6 Cal.4th at pp. 442-443, 452, 455.) On those facts, the

Supreme Court concluded that the father was not a Kelsey S. father.

The facts here are quite different, to the extent they can be determined from the

undeveloped record. We have practically no information on father’s “emotional” or

“financial” commitment toward nurturing a parental relationship with the child. (See

Kelsey S., supra, 1 Cal.4th at p. 849.) What information there is, however, suggests that

father was willing and able to do what he could to establish the relationship. After the

child had been born and mother sent father a picture of the child, father asked mother

11 how old the child was and “did the numbers in [his] head.” After realizing that it was

“very possible” he was the father, father attempted to contact mother’s niece, who was

caring for the child. When he did not receive a response, he contacted mother’s case

manager. He then personally appeared at a live court hearing, despite living in Arizona,

and asked for a paternity test. Father then sought to get tested but could not, and the

court later concluded, it seems, that the failure to test was not father’s fault. At the

February 2021 hearing, father attempted to drive in from Arizona again.3 Although more

information is needed in order to fully determine whether father “demonstrates a full

commitment to his parental responsibilities—emotional, financial, and otherwise,” the

steps father has taken so far do suggest, at a minimum, “‘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.)

We place no stock in the fact that, at the February 2021 hearing, the court asked

father’s counsel whether he had “something to support that” father was a Kelsey S. father,

to which counsel replied no. By that point, father’s counsel had already sought a

continuance, noting that father wanted to get custody of the child and had expressed

interest in taking an active role. A continuance may have helped gather additional

information on father’s ability to establish presumed father status under Kelsey S.,

information that counsel would not have had ready to present to the court at a hearing

taking place one day after positive paternity test results were filed.

3 Because the hearing appears to have concluded before father appeared, it is not clear whether father ever reached the courthouse.

12 Because the juvenile court denied father’s request for a continuance at the

February 2021 hearing based on an incorrect reading of what Kelsey S. requires, its ruling

was based on an error of law and was thus an abuse of discretion. (People v. Superior

Court (Humberto S.), supra, 43 Cal.4th at p. 746.) Accordingly, we conditionally reverse

to allow father to present to the juvenile court whether he is a Kelsey S. father, entitled to

reunification services and custody, or otherwise entitled to other relief. (See In re

Zacharia D., supra, 6 Cal.4th at pp. 454-455 [reviewing father’s request for custody and

visitation rights to child even while noting that “a biological father is not entitled to

custody under section 361.2, or reunification services under section 361.5 if he does not

attain presumed father status prior to the termination of any reunification period”].)

Although “[w]e recognize and regret the procedural and emotional difficulty of undoing

this fundamental error at this stage of the process,” “we cannot allow the process to

continue on the path toward termination of parental rights without further review in the

trial court.” (In re G.S.R. (2008) 159 Cal.App.4th 1202, 1215.)

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III. DISPOSITION

The order terminating father’s parental rights is conditionally reversed, and the

matter is remanded to the juvenile court for the limited purpose of determining whether

father is a presumed father or entitled to other relief. If the juvenile court determines that

father is not a presumed father or entitled to other relief, the order terminating father’s

parental rights shall be reinstated.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

RAMIREZ

P. J.

McKINSTER J.

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