In re J.M.P.

Filed 4/23/07 In re J.M.P. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from the order of the Superior Court of Los Angeles County, Sherri S. Sobel, Referee. Affirmed.

Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

__________________________

INTRODUCTION

The children who are the subject of this dependency proceeding, sisters J.M.P. and J.A.P., were detained from their mother L.P. and her husband, statutorily presumed father Jose P., in February 2005. The girls biological father, Rodrigo R., sought to have his paternity established. The juvenile court (1) found Jose P. was entitled to presumed father status and Rodrigo had not overcome that statutory presumption, (2) on that basis denied Rodrigo family reunification services, and (3) relieved Rodrigos attorney on the ground that he lacked standing to appear. We affirmed those rulings in a previous appeal (B184876 consolidated with B185887). In particular, we held that Rodrigo had not carried his burden under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) to be entitled to presumed father status.

After voluntarily undergoing parenting and domestic violence prevention classes and regularly visiting the children, Rodrigo brought a petition for modification under Welfare and Institutions Code[1] section 388. In the petition, he sought again to be declared a presumptive father under Kelsey S., reunification services, and unmonitored visits with the girls. The juvenile court denied the petition and terminated parental rights. Rodrigo brings this second appeal contending he should be given Kelsey S. status now, where L.P. and Jose have failed to reunify. We disagree with Rodrigo and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts leading to the earlier appeal

We refer to our previous opinion for much of the background. L.P. is the mother of the two girls and an older daughter who is Joses biological child and is not a party to this appeal. Mother and Jose were married before any of the children were born and remained married throughout this dependency. Jose is named on the birth certificates as the father of the three girls and believed he was their father. Rodrigo was mothers boyfriend. The girls were detained because of L.P.s and Joses drug use and neglect.

After the girls were detained, Rodrigo declared his willingness to take custody of them. However, the Department of Children and Family Services (the Department) placed the children in foster care. The juvenile court sustained a section 300 petition naming Jose and L.P. as the offending parties. The court awarded L.P. and Jose reunification services. It denied reunification services to Rodrigo because he was not the presumed father ( 361.5, subd. (a)), but allowed Rodrigo monitored visits at least once a week.

Jose filed a paternity petition asking for a judgment identifying him as J.M.s and J.A.s father. The court ordered genetic testing of Jose and Rodrigo. Thereafter, Rodrigo filed a petition asking for a judgment of his paternity of the girls. The genetic testing results revealed that Jose was not the biological father of J.M. or J.A., but there was a 99.99 percent probability that Rodrigo was.

Rodrigo filed a section 388 petition in June 2005, seeking a declaration that he was the father of J.M. and J.A. pursuant to Kelsey S. and asking for reunification services. Rodrigo asserted he had an ongoing relationship with L.P. from before J.M.s 2002 birth and J.A.s 2004 birth to February 2005.

The juvenile court denied Rodrigos section 388 petition. We affirmed that ruling. Of relevance to this appeal, we held that Jose was entitled to the conclusive presumption of paternity found in Family Code section 7540[2] and met the requirements for the rebuttable presumption of paternity in Family Code section 7611, subdivision (a).[3] Hence, if Rodrigo could also demonstrate entitlement to the rebuttable presumption under Family Code section 7611, subdivision (d), then the court would have to weigh the conflicting presumptions to determine which presumption is founded on the weightier considerations of policy and logic so that it would control[]. (Fam. Code,  7612, subd. (b).)

However, we held, Rodrigo did not qualify as a presumed father so as to trigger the weighing process. (Fam. Code,  7612, subd. (b).) He did not meet the conditions listed in subdivision (d) of section 7611 of the Family Code, under which the man qualifies as a presumed father if he receives the child into his home and openly holds out the child as his natural child. Looking at Rodrigos conduct both before and after the girls birth, we held that substantial evidence supported the juvenile courts conclusion on conflicting evidence that Rodrigo did not carry his burden to establish by a preponderance of the evidence that he received J.M. and J.A. into his home and openly and publicly acknowledge his paternity. The only time the girls saw Rodrigo was when they accompanied L.P. on her irregular trysts with him after a fight with Jose. They never lived with Rodrigo. Rodrigo did not support the girls, rather Jose was the only home and father they knew.

We rejected Rodrigos contention that he qualified as a presumed father under Kelsey S. That case requires an unwed biological father to promptly attempt to assume full parental responsibilities, and in particular show  a willingness himself to assume full custody of the child -- not merely to block [the] adoption by others.  (Kelsey S., supra, 1 Cal.4th at p. 849.) If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities -- emotional, financial, and otherwise -- his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent. (Ibid.; accord In re Julia U. (1998) 64 Cal.App.4th 532, 540-541.) We held Rodrigo presented no evidence of any inclination to assume parental responsibilities until the dependency commenced. (Kelsey S., supra, at p. 850.) The record showed Rodrigo sat back and allowed Jose to be viewed by the girls as their father, to fully support the girls financially throughout their lives,[4] to provide them with a home, and to demonstrate a parental attachment to the children. Jose provided the only sense of familythe girls knew, whereas Rodrigo only developed a real relationship with the girls independent of mother after the girls detention. Our opinion became final in August 9, 2006.

2. Subsequent facts leading to the present appeal

While the earlier appeal was pending in this court, the juvenile court terminated reunification services for both L.P. and Jose in the fall of 2005 and ordered the Department to search for an adoptive home for the children and their older sister. All three children had been together since birth and had never been separated. They had been placed together in a foster home in January 2006, and were doing well. They are a very close sibling group[5] and love each other. Jennie and J.M. take care of J.A. in any way that they can. The Department opined the girls were highly likely to be adopted.

By the time of the section 366.26 hearing (for which Rodrigo received notice), in January 2006, the Department had not formally identified an adoptive family, although it was working with paternal aunt S.L. on adoption, and had allowed her to have monitored visits with the girls. The juvenile court stated on the record that it owed Rodrigo an apology as he was the only parent who had visited the children regularly. However, the court had done what the law required. The court invited Rodrigo to file a section 388 petition. It reappointed counsel to aid Rodrigo in this process and asked for points and authorities addressing (1) Rodrigos status, and (2) whether the girls could be placed in his care regardless of his status.

3. Rodrigo files a second section 388 petition seeking a declaration under Kelsey S.

Rodrigo filed his section 388 petition asking the court again for Kelsey S. status and reunification services for him and J.M. and J.A. As changed circumstances, Rodrigo asserted that he had enrolled on his own in parenting and domestic violence classes in September 2005. He stated he visited the children two hours per week, he was employed, and had a place for the children to live. It was in the childrens best interest to change the courts previous order, Rodrigo asserted, because the girls had had regular contact with him since birth and were not in an adoptive home. Rodrigo argued that he had a right as a Kelsey S. father to reunification services. He argued his liberty interests were violated by not being allowed to develop a relationship with the girls and so reunification services should be given to him as a biological father pursuant to section 361.5, subdivision (a).

Rodrigo attached a report from Michael La-Bleu, Ph.D., assistant director of the Human Progress Institute, which showed that Rodrigo was attending 52-week domestic violence prevention and parenting programs. That report showed that Rodrigos progress after 17 domestic violence classes was poor. (Italics added.) At first, Rodrigo showed little interest in the topics. Later, he was argumentative with the counselor and made demeaning and degrading comments about women. After a private talk with his counselor, Rodrigo began to cooperate and bond with the group. Apparently, this conduct was not unusual because new clients often require an adjustment period.

A social worker reported that Rodrigo was very agitated, annoyed, defensive, and threatening with her when she took over the case. He threatened to quit his domestic violence classes if they did not actually help him in his efforts to have the children placed with him. The Department reported L.P.s belief that Rodrigo filed his section 388 petition as payback because she no longer wanted a relationship with him. Another social worker reported that whenever she spoke to Rodrigo, the topic was never about the children, but about Rodrigos opinion of L.P. and Jose. Rodrigo never expressed a desire to provide the girls with a loving, nurturing home, and never outlined a plan for having them live with him.

With respect to Rodrigos visits with the children, a social worker observed a visit on February 13, 2006. Rodrigo rarely got up from his chair and did not respond to attempts by one child to interact. The visit monitor explained that this was typical behavior of Rodrigo during visits. During another visit in February 2006, Rodrigo did nothing when the girls began fighting, and so the monitor was forced to intervene. Asked if he had learned in his parenting class about how to deal with fighting children, Rodrigo laughed, rolled his eyes, shook his head, ignored the social worker, and refused to answer the question. The foster family agency wrote in a letter on March 1, 2006, that Rodrigos interaction with the girls was limited. (Italics added.) He required prompting before he could give instructions and appropriately set limits.

Pending the hearing, the court granted Rodrigo an additional hour of visits per week. However, his interaction with the children did not improve, despite one anomalous visit when he played for a short time with the girls. Even then, as with other visits, Rodrigo sat down again and merely observed. His interaction was minimal. He did not understand cues the children gave, such as when J.A. no longer wanted to sit on his lap and J.M. did not want to go near him. He also talked about the case in front of the children. S.L., who began monitoring Rodrigos visits in May 2006, reported that Rodrigo played with the girls but did not talk to them much.

Rodrigos progress in his programs was always termed poor, according to his counselor. (Italics added.) Although Rodrigo was in a lot of pain about the situation and doubtless loves his children, Dr. La-Bleu explained that Rodrigo did not demonstrate parenting talent after nine months of classes. He refused to accept any responsibility for the problems the children faced. He remained angry at the Department. After completing 23 of the required 52 sessions domestic violence counseling, Rodrigo continued to struggle and it was questionable whether he could meet the programs goals. Although by then Rodrigo should have been able to translate what he learned into effective parenting strategies, he could not do this.

Dr. La-Bleu explained that Rodrigo demonstratedissues with women that can and will prohibit him from effectively parenting his two daughters. Dr. La-Bleu stated that he did not believe that Rodrigo could effectively parent or even ensure the safety of the children. (Italics added.) According to the doctor, Rodrigos beliefs about the children were  not reality based; he (Rodrigo) believes what he wants to believe and is not in touch with the childs best interest.  (Italics added.) Rodrigo blamed others for his problems. Rodrigo was easily angered; he would improve some, and then regress. He claimed S.L. filled the childrens head with lies about him. The counselor found Rodrigo to be below average in personal maturity, understanding of appropriate parenting skills, and understanding of appropriate parent/child discipline, among other traits.

Rodrigos progress continued to be poor as late as June 2006. Rodrigo still did not understand the nature of violence and abuse, nor the negative effects on children of family disharmony and violence. After 32 weeks of classes, Rodrigo did not stay focused on issues presented in class and did not understand appropriate parent-child communication. His angry and aggressive behavior prevented the program staff from helping him learn emotional management, development, and behavioral changes. Rodrigo still did not see himself as angry and claimed he never argued with L.P. in front of the children. He left his program to enroll in a new one, which had barely begun by the time of the section 366.26 hearing.

Rodrigo filed a declaration denying facts that were raised and addressed in our previous opinion, and challenging the negative reports from the social workers about his visits. Rather than to deny Dr. La-Bleus reports, he simply denied having met with the doctor, explaining his counselor was a woman named Yolanda. He asserted he loved his daughters and was aware of his responsibilities as a parent.

4. The juvenile court denies Rodrigos section 388 petition and terminates parental rights

At the hearing held in June 2006, Rodrigos attorney acknowledged that Rodrigo could not be a presumed father because the juvenile court had already declared Jose to have that status. Nonetheless, counsel argued, the court did have discretion to grant reunification services to Rodrigo as the biological father. The court responded by noting that Rodrigo was already receiving services by way of domestic violence treatment program, regular visitation, and parenting classes throughout the dependency.

Addressing the factors under section 388, the court found no changed circumstances. The court remarked it had never seen such a negative report from a domestic violence counselor. After considering the social workers information about Rodrigos visits with the children, as well as his challenge to the Departments factual evidence, including Dr. La-Bleus comments, the court found it would not be in the childrens best interest to grant Rodrigos petition. The court denied Rodrigos petition. After it terminated L.P.s, Joses and Rodrigos parental rights, Rodrigo filed this appeal.

CONTENTION

Rodrigo contends that the juvenile court erred in denying his section 388 petition.

DISCUSSION

1.      Standard of review

Section 388 allows a parent to petition the court for a hearing to modify or set aside any previous order on the grounds of change of circumstance or new evidence, such that the proposed change would be in the childs best interest.[6]

In ruling on a section 388 petition, the juvenile courts task is to determine whether Rodrigo demonstrated by a preponderance of the evidence that there was new evidence or a change of circumstances such that it was in the childrens best interest to change the previous order denying reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) That is, [i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.] (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529, first italics original, italics added.)

A petition under section 388 is addressed to the juvenile courts sound discretion and on appeal, we will disturb the decision only if there is a clear abuse of that discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

2. The juvenile court did not abuse its discretion in denying Rodrigos section 388 petition

Rodrigos section 388 petition sought a declaration of presumed fatherhood under Kelsey S. and asked for reunification services.

Turning to the first prong of the test under section 388, Rodrigo acknowledges both that Jose is the presumed father and that we affirmed the juvenile courts order declaring Jose the presumed father. Still, Rodrigo argues he has demonstrated a change in circumstances because (1) he has undergone reunification services and has been the only parent to regularly visit the children, and (2) Jose has failed to reunify.

As noted, Kelsey S. will confer on an unwed [biological] father presumptive paternity if he promptly comes forward and demonstrates a full commitment to his parental responsibilities--emotional, financial, and otherwise . . . . (Kelsey S., supra, 1 Cal.4th at p. 849.) To determine whether the biological father has demonstrated such a commitment, courts must consider [t]he fathers conduct both before and after the childs birth . . . . 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.  (Ibid., italics added.) A court should also consider the fathers 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.)

The relevant timeframe for determining presumptive fatherhood is around the childs birth. (In re Elijah V., supra, 127 Cal.App.4th at p. 583.) The man seeking the Kelsey S. presumption must demonstrate a full commitment to his parental responsibilities within a short time after he learned that the biological mother was pregnant with his child. [Citation.] He must also demonstrate a willingness to assume full custody. [Citation.] (Ibid., citing Adoption of Michael H. (1995) 10 Cal.4th 1043, 1055, 1060 & Kelsey S., supra, 1 Cal.4th at p. 849 [A court should also consider the fathers . . . prompt legal action to seek custody of the child. (Italics added.)].)

Rodrigo argues as a change in circumstances that he has regularly visited the children and voluntarily participated in parenting and domestic violence prevention programs. Yet, his participation in services in the period after the dependency was initiated is not a relevant change in circumstances in this case. The only relevant information that Rodrigo could show under the section 388 procedure is new evidence with respect to Rodrigos historical conduct. That is, to make a successful showing under section 388, Rodrigo would have to demonstrate that in the period before and after J.M.s and J.A.s births in 2002 and 2004, he promptly [came] forward and demonstrate[d] a full commitment to his parental responsibilities -- emotional, financial, and otherwise . . . . (Kelsey S., supra, 1 Cal.4th at p. 849, italics added.)

We have already affirmed the juvenile courts ruling that Rodrigo was not entitled to presumed father status under Kelsey S. based on his conduct at the time of the girls birth. We reached our conclusion exactly because Rodrigo did notpromptly come forward after he learned of L.P.s pregnancies with J.M. and J.A. to assume his parental responsibilities, but rather allowed Jose to parent the children. Rodrigo did not publicly claim his paternity until this dependency commenced. Our decision is final and not subject to change absent a showing of extrinsic fraud. (In re Margarita D. (1999) 72 Cal.App.4th 1288, 1294-1295; see City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1065-1068.) Rodrigo does not argue extrinsic fraud in his section 388 petition. In fact, Rodrigos trial counsel conceded that once the [juvenile] court decided who the presumed father is, the court cannot really change its mind and say no, were going to reverse that decision. 

Rodrigo also argues, as changed circumstances, that Jose has failed to reunify and so the court cannot rely on Joses status as presumed father to deny Rodrigo the status of presumed father. The contentions fail for two reasons. First, Joses failure to reunify is an irrelevant change in circumstance.  [T]here can be only one presumed father. [Citations.]  (In re Jesusa V. (2004) 32 Cal.4th 588, 603.) Jose is the presumed father. He remains in that status notwithstanding his failure to reunify. Rodrigo cannot become a presumed father by the mere fact of Joses conduct, unless Jose prevented Rodrigo from becoming a presumed father. (Kelsey S., supra, 1 Cal.4th at p. 825.) Surely Rodrigo cannot seriously argue that Jose prevented him from becoming a presumed father by the failing to participate in his own reunification services. Second, the juvenile court found Rodrigo was not the presumed father, in large part because Rodrigos own conduct did not entitle him to that status. That is, it denied Rodrigo his requested status irrespective of Jose. Therefore, Rodrigo did not carry his burden to demonstrate new evidence or a change in circumstance under the first prong of section 388.

In any event, Rodrigo has failed to present evidence under the second prong of the section 388 test that it would be in the childrens best interest to grant him presumptive father status or award him reunification services. ( 388; In re Kimberly F., supra, 56 Cal.App.4th 519, 529.) Rodrigo already underwent services, even if they were not ordered by the court. Rodrigo argues that he has rehabilitated himself. Yet, substantial evidence shows otherwise. The record is replete with evidence that Rodrigo failed to learn and apply the information taught in his programs. His progress remains poor after more than half a year of services. He is unable to translate what he learned into effective parenting strategies. Furthermore, he demonstrated issues with women that willprohibit him from effectively parenting his two daughters. (Italics added.) The director of his programs did not believe that Rodrigo could ensure the safety of the children. We are convinced that it manifestly would not be in the childrens best interest to delay permanency for them simply to grant Rodrigo the change he seeks. The juvenile court clearly did not abuse its discretion in denying Rodrigos section 388 petition.

3. Rodrigo is not entitled to the higher scrutiny standard

The thrust of Rodrigos appeal is that because of his actions since the commencement of this dependency, in visiting the children and voluntarily undergoing services, that he has attained an elevated or enhanced status, as something like a biological-plus father, for which he is entitled to more due process than a mere biological father. He cites Santosky v. Kramer (1982) 455 U.S. 745 for the proposition that he has fundamental rights that require protection. In particular, he argues that the juvenile court must find, by clear and convincing evidence, that he is unfit as a parent, before it can terminate his rights.

There is no case law that supports Rodrigos enhanced status contention. As already established, Rodrigo is a biological father. Rodrigo acknowledges, mere biological fathers do not have the full array of due process rights where they have not elevated their status to presumed fatherhood. His status as biological father limits the rights to which he is entitled.  The Family Code and the Welfare and Institutions Code differentiate between alleged, natural, and presumed fathers. [Citation.] [Citation.] (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) The extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status. A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an alleged father. [Citation.] [Citation.] (Ibid., quoting from In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) The distinctions between these various statuses represent a crucial difference for men claiming paternity. Presumed fathers have greater rights than alleged or biological fathers. (In re Zacharia D., supra, at pp. 448-449.) A biological father has limited due process rights compared to the presumed father. While the juvenile court must order reunification services for the presumed father (absent specific findings to the contrary) it has mere discretion to offer a biological father reunifications services if the court finds that the services will benefit the child. ( 361.5, subd. (a).)

As a consequence of these differing statuses, the juvenile court may terminate a biological fathers parental rights without offending due process even absent a finding of his unfitness. (See In re Ariel H. (1999) 73 Cal.App.4th 70 [unwed, biological fathers consent to adoption unnecessary and termination of his parental rights did not violate his constitutional rights where he did not attain presumed-father status].) The reason is that  the mere existence of a biological link does not merit . . . constitutional protection (Lehr v. Roberson [(1983)] 463 U.S. [248,] 261); rather, the federal Constitution protects only the parental relationship that the unwed father has actively developed by  com[ing] forward to participate in the rearing of his child  [citation] and act[ing] as a father [citation]. (Adoption of Michael H., supra, 10 Cal.4th at pp. 1052, 1055.) [T]he unwed [biological] fathers constitutional interest is merely inchoate [citation] and does not ripen into a constitutional right that he can assert . . . unless he proves that he has promptly come[] forward and demonstrate[d] a full commitment to his parental responsibilities . . . . [citation] under Kelsey S. (Id. at p. 1052; italics added.)[7]

Our Supreme Court stated emphatically with respect to the statutory framework for presumed, biological, and alleged fathers found in former Family Code section 7611:  We reiterate and emphasize the narrowness of our decision. The statutory distinction between natural fathers and presumed fathers is constitutionally invalidonly to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities. Our statutes . . . are constitutionally sufficient when applied to a father who has failed to make such a showing. (Kelsey S., supra, 1 Cal.4th at pp. 849-850, italics added.) Later,the court noted that the statutory distinctions between biological and presumed father may be unconstitutional as applied to a biological father who is precluded from attaining presumed father status but comes forward early in dependency and displays necessary Kelsey S. commitment.[8] (In re Zacharia D., supra, 6 Cal.4th at p. 451.)

Here, as noted above, although Rodrigo came forward early in the dependency, he did not demonstrate the necessary commitment under Kelsey S. and no one prevented him from so doing. Rather, he repeatedly displayed disdain for the process and a preoccupation with his anger toward L.P. In fact, he did not request in this petition that the children be placed with him or that he become a foster parent. He never presented the social workers with a plan for having the girls live with him or expressed a desire to provide them with a safe and loving home. Having failed to demonstrate his entitlement to presumed-father status, Rodrigos constitutional interest remained inchoate and unoffended by the termination of his parental rights. The juvenile court did not violate any constitutional rights by failing to make a fitness finding under the stricter standard at the section 366.26 hearing. We wish to note, however, that the juvenile court invited Rodrigos latest section 388 petition to afford him the opportunity once again to demonstrate he was the presumed father; it appointed counsel for him to aid him in this process; it asked for additional briefing; it gave him notice of the section 366.26 hearing and the opportunity to argue his motion; and it considered his later filed declaration. In so doing, the juvenile court manifestly provided him due process.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise noted.

[2] Family Code section 7540 provides, Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.

[3] Family Code section 7611 provides, A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions:

(a) He and the childs natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.

(b) Before the childs birth, he and the childs natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: . . . .

(c) After the childs birth, he and the childs natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid . . . .

(d) He receives the child into his home and openly holds out the child as his natural child.

[4] Rodrigo asserts that even mother admitted that Rodrigo gave her money for the children. However, what the Departments report states is that mother indicated that since DCFS involvement, [Rodrigo] became more involved with the children financially and emotionally. Such a statement is not evidence that Rodrigo supported the children; rather it indicates that he was motivated by the dependency to give more money to mother than he had previously.

[5] J.M.P. and her older sister Jennie were found to be a bonded sibling group.

[6] Section 388 states, Any parent . . . having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . . [] . . . [] (c) If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .

[7] The Kelsey S. principles apply to dependency cases. (In re Jerry P. (2002)95 Cal.App.4th 798, 797.)

[8] Neither In re Gladys L. (2006) 141 Cal.App.4th 845, 849 nor Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, cited by Rodrigo, is relevant here. In Gladys L., the father had been found to be the presumed father and his due process protections followed from that finding. (In re Gladys L., supra, at p. 847.) As a presumed father, he had a fundamental interest in the care, companionship, and custody of his children. Due process required that the state find parental unfitness before it could terminate presumed fathers parental rights. (Id. at p. 848.) Cynthia D. established the standard of proof required to terminate parental rights. (Cynthia D., supra, at p. 245.)