In re Jesus G.

Filed 10/17/06 In re Jesus G. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

This appeal has been taken after the issuance of an order terminating parental rights to twin boys, Jesus G. and Juan G. (born August 2004).[1] Appellants Nestor T. (father) and Juanita T.[2] (mother) claim that the juvenile court erred in denying Nestor’s Welfare and Institutions Code section 388[3] motion seeking presumed father status. Specifically, Nestor asserts that he must be deemed a presumed father because he filed a voluntary declaration of paternity and DNA testing proved that he was the twins’ biological father. Respondent Department of Health and Human Services (Department) asserts that his declaration was invalid because it did not conform to statutory requirements. He counters that if the Department is correct that the declaration is invalid, then the order must be reversed because he was deprived of his Sixth Amendment right to effective assistance of counsel.

Nestor also alleges that the Department deprived him of his right to due process by thwarting his efforts to have contact with his sons. Finally, he contends that he was not provided timely notice of the proceedings as required by section 316.2, subdivision (b). We conclude that termination of appellants’ parental rights is supported by the evidence and that the court did not err in any respect. We also conclude that Nestor did not receive ineffective assistance of counsel. We therefore affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY[4]

Juanita and Nestor met in October 2003 and had unprotected sexual relations three or four times over a period of about three months before Nestor terminated their relationship and subsequently moved from Eureka to Los Angeles. One of his reasons for terminating the relationship was his concern about Juanita’s drug use. Juanita later learned she was pregnant and suspected that Nestor was the father. Nestor testified that in May 2004 his aunt and cousin in Eureka telephoned him while he was in Los Angeles and told him that Juanita was pregnant and that he could be the father. He did not contact Juanita or do anything to assist her while she was pregnant.

The twins were born four to six weeks premature. There was evidence that they were exposed to illegal drugs in utero. “In September 2004, the Social Services Division of the Humboldt County Department of Health and Human Services (Department) petitioned under section 300 to establish the twin minors as dependents of the juvenile court. . . . On September 16, 2004, the court ordered the minors detained. The Department placed them in foster care.” Nestor is not listed as the father on the twins’ birth certificates, however, he is listed as the alleged father on the Department’s section 300 petitions.[5] The court submitted a paternity inquiry to the Humboldt County Department of Child Support Services on September 14, 2004.

Shortly after the twins were born, Juanita asked Nestor’s cousin, Luis, to tell him about the children’s birth. Juanita told Luis that it was possible that the babies were Nestor’s. Luis did call Nestor to pass along the information, but he did not contact Juanita, nor did he or his family offer her any assistance.

In its detention report filed September 16, 2004, the Department stated that Juanita had given a social worker the contact information for Nestor’s aunt. The social worker called the aunt’s home three or four times, but he was unable to obtain a telephone number or address for Nestor. The social worker learned that he had previously lived at the aunt’s home but was now living in Los Angeles. According to the report, the social worker was later informed that he was in Mexico. An address was requested but none was given. The Department initiated an absent parent search on September 24, 2004. The juvenile court did not send notice of the dependency proceedings to Nestor’s last-known address (his aunt’s residence).

“At a contested jurisdictional hearing held October 21, 2004, the court sustained the allegations of the petition, with certain amendments, and established dependency jurisdiction over the minors pursuant to section 300, subdivision (b). The court found [Juanita] had ‘self-reported a long history of drug abuse.’ At the time of the minors’ birth she had ‘no supplies’ for their care, and neither the minors’ father nor any other relative was currently available to support her.”

At the dispositional hearing on February 2, 2005, the judge found that Nestor’s status as a father was that of an “alleged” father. The court ruled that he should be denied reunification services and should not be given any further notice or information regarding dependency proceedings.

According to Luis, Nestor had left Eureka and moved to Los Angeles in January of 2004. Nestor remained in Los Angeles, working under an employment contract, until November 2004 when he returned to Eureka. Upon his return, they went looking for Juanita but could not find her. During this period, Juanita was living in San Mateo and later was incarcerated in the local jail. Luis testified that it did not occur to him or Nestor to look for Juanita in jail. Nor did they call Child Protective Services to try to find out what had happened to the twins.

Juanita learned that Nestor was looking for her and came to his aunt’s apartment to meet with him in March 2005. She gave him the phone number for social worker Jennifer McGuire, telling him that Ms. McGuire could arrange for him to see the twins. Because he does not speak English, Luis telephoned Ms. McGuire the next day on Nestor’s behalf.

Luis testified that Nestor questioned whether he was the twins’ father. He wanted proof that he was their biological father before becoming involved. Ms. McGuire told Luis how Nestor could arrange for paternity testing and legal representation. Luis was able to exchange information with Ms. McGuire, even though they spoke in English. The Department’s status report dated April 18, 2005 indicates that Nestor requested paternity testing on March 28, 2005. The report states that Nestor had not contacted the Department requesting visitation or any other services.[6]

“On April 18, 2005, the date initially set for the first six-month status review, [Juanita] appeared and requested a contested hearing. By this time she was in custody at the county jail awaiting sentencing on an auto theft charge, her third felony conviction.”

“The juvenile court held the continued six-month review hearing on May 10, 2005, and on that date found [Juanita] had not complied with her case plan, ordered termination of her reunification services, and set the matter for hearing to select a permanent plan for the minors pursuant to section 366.26. On May 13, 2005, [Juanita] filed a notice of intent to file a writ petition to review this order.” The writ was denied on August 10, 2005.

On May 16, 2005, the Department sent Nestor notice of the 366.26 hearing by certified mail to his aunt’s address in Eureka, where he was living. By mid-June, DNA testing was completed and he learned that he was the biological father of the twins. On July 1, 2005, a social worker personally served Nestor with a notice in Spanish regarding the section 366.26 hearing date. Nestor appeared in court on August 29, 2005, and the court appointed counsel. The section 366.26 hearing was continued so that the court could determine his oral request to be given presumed father status. The court and the parties apparently treated this request as a section 388 petition.

At the hearing on the petition, a social worker testified that the children had been placed with their current foster parents since their discharge from the hospital, and that they look to the foster parents as their primary caregivers. The social worker opined that there would be a “potential for detriment” to the twins if they were moved from their foster home. The social worker also testified that language and cultural differences between the foster parents and Nestor might also cause detriment to the twins.

On November 30, 2005, the court found that “there was no prevention by the department for the father’s involvement in the case and services were not omitted due to any language barriers.” The court also determined that Nestor was not a presumed father nor was he a father under the rationale of Adoption of Kelsey S. (1992) 1 Cal.4th 816. The court found that he knew when Juanita was pregnant and knew when the children were born but did not follow up to determine whether she or the children needed his emotional or financial support. He also did not ask his extended family to provide any support for Juanita.

The court acknowledged that, in hindsight, the Department probably “could have done more” to reach out to Nestor, but concluded that the Department did nothing to prevent him from “coming forward and becoming involved in the children’s’ life.” The court noted that he received accurate information regarding the dependency proceedings in March 2005 but “even at that time he did nothing to act.”

On November 30, 2005, the court found insufficient grounds to justify granting Nestor’s 388 petition. The court declined to order family reunification services for him, finding that there was no showing that such services would be in the best interest of the minors. At the 366.26 hearing held on December 12, 2005, the court advised him that he had no standing in the case and he left the courtroom. Appellants’ parental rights were terminated. This appeal followed.

DISCUSSION

I. Denial of Presumed Father Status

Nestor claims that the juvenile court erred in denying his section 388 petition for presumed father status and in terminating his parental rights. He argues that because he established his paternity through genetic testing and by filling out a voluntary declaration of paternity,0 “his parenthood cannot be questioned.”

A. Section 388

Under section 388, a person with an interest in a dependent child may petition the court to change, modify, or set aside a previous court order.[7] The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence and that the proposed modification is in the child’s best interest. (§ 388, subds. (a), (c);[8] In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)

“[U]p until the time the section 366.26 hearing is set, the parent’s interest in reunification is given precedence over a child’s need for stability and permanency.” (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) “Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” (Id. at p. 309.) “The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue.” (Ibid.) Accordingly, Nestor was required to demonstrate that awarding him presumed father status would be in the twins’ best interests.

“The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O., supra, 8 Cal.4th 398, 415.) “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ [Citations]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) “The denial of a section 388 motion rarely merits reversal as an abuse of discretion.” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.) Having reviewed the record summarized above, we conclude the court did not abuse its discretion in denying Nestor’s petition.

B. Presumed Father Status

Preliminarily, we note Nestor asserted in the court below that he qualified as a father under the rationale of Adoption of Kelsey S., supra. The court disagreed, and he does not raise this argument again on appeal. Additionally, the court found that he was not a presumed father under Family Code section 7611, subdivision (d), a ruling that he also does not challenge on appeal. His sole argument with respect to presumed father status is that the juvenile court erred in denying his section 388 motion because DNA testing established that he was the twins’ biological father and because he had filed a voluntary declaration of paternity.

Under California law, there are at least three different classes of fatherhood: alleged, biological or natural, and presumed. “A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status . . . . [Citations.] 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.” (In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.)

These classifications have a significant impact on a father’s rights in dependency proceedings: “[A] biological father is not entitled to custody . . . or reunification services . . . if he does not attain presumed father status prior to the termination of any reunification period . . . .” (In re Zacharia D., supra, 6 Cal.4th 435, 454.) Case law underscores that “mere biological fatherhood, unaccompanied by a parent-child relationship, is worth little in the dependency context.” (In re Joshua R. (2002) 104 Cal.App.4th 1020, 1029, italics omitted.)

Family Code section 7611 sets forth the circumstances under which a man will be presumed to be a child’s natural father. A man is generally presumed to be a child’s father in the following situations: (1) if he and the child’s mother have executed voluntary declarations of paternity pursuant to Family Code section 7570, et seq., (2) if the child is born while he is married to child’s mother or while he and the mother are attempting to be married (Fam. Code, § 7611, subds. (a)-(c)), or (3) if he “receives the child into his home and openly holds out the child as his natural child.” (Id., subd. (d).)

C. Voluntary Declaration of Paternity

Nestor argues that he must be granted presumed father status because he filed a voluntary declaration of paternity pursuant to Family Code section 7570, et seq. We disagree.

A properly filed voluntary declaration of paternity “shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court . . . .” (Fam. Code, § 7573.) The voluntary declaration must be executed on a form developed by the Department of Child Support Services. (Fam. Code, § 7574, subd. (a).)[9] In addition to other requirements, a voluntary declaration must contain a statement by the mother that the man signing the declaration is the only possible father, as well as a statement by the father that he is the biological father. (Fam. Code, § 7574, subd. (b)(5), (6).) A voluntary declaration of paternity entitles the man who signs it to presumed father status. (Fam. Code, § 7611.)

Family Code section 7571 contemplates that a voluntary declaration of paternity will be executed in the hospital shortly after the birth of a child to an unmarried woman. Subdivision (a) provides, in part: “[U]pon the event of a live birth, prior to an unmarried mother leaving any hospital, the person responsible for registering live births . . . shall provide to the natural mother and shall attempt to provide, at the place of birth, to the man identified by the natural mother as the natural father, a voluntary declaration of paternity . . . . Staff in the hospital shall witness the signatures of parents signing a voluntary declaration of paternity and shall forward the signed declaration to the Department of Child Support Services within 20 days of the date the declaration was signed.” (Italics added.) One of the purposes of this form is to allow for an unwed father to be named on his child’s birth certificate.

“If the declaration is not registered by the person responsible for registering live births at the hospital, it may be completed by the attesting parents, notarized, and mailed to the Department of Child Support Services at any time after the child’s birth.” (Fam. Code, § 7571, subd. (d).) “Except as provided in [Family Code] Sections 7575 [rescission or motion to set aside declaration], 7576 [effect of declaration made on or before December 31, 1996], and 7577 [effect of minor’s declaration], a completed voluntary declaration of paternity, as described in Section 7574 [form requirements], that has been filed with the Department of Child Support Services shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity issued by a court of competent jurisdiction.” (Fam. Code, § 7573, italics added.)

Clearly the scenarios contemplated by Family Code section 7570, et seq. were not followed in this case. Nestor was not present when the twins were born in the hospital. Therefore, “staff in the hospital” did not witness the parents signing the declaration, which explains why his name does not appear on the twins’ birth certificates. Nor was Nestor’s purported declaration witnessed by a notary public. Rather, it was witnessed by his aunt. Nor is there any evidence that anyone ever filed Nestor’s declaration with the Department of Child Support Services. To the contrary, Nestor attempted to file the form with the court in connection with his section 388 motion. Moreover, as the Department points out, the statement regarding paternity (Judicial Council Forms, form JV-505) that Nestor filed does not meet the requirements of Family Code section 7570 et seq. in that it is not the proper form.[10]

It therefore does not appear that Nestor complied with the requirements for establishing fatherhood via the voluntary declaration of paternity procedures. In fact, it appears that he is using the purported voluntary declaration as an “end run” around the fact that he cannot otherwise meet the requirements for presumed fatherhood under section Family Code section 7611. The court did not err in concluding that Nestor had not attained presumed father status on the basis of his voluntary declaration of paternity.

Even if we were to find the declaration had been properly executed, we question whether this would make a difference in the outcome of this case. In In re Eric E. (2006) 137 Cal.App.4th 252, the biological father claimed that he was entitled to presumed father status because he had filed a voluntary declaration of paternity.[11] As in this case, the father’s motion to be deemed the presumed father was found to have been brought pursuant to a section 388 motion because it was made after the expiration of the reunification period and the setting of a section 366.26 hearing. (In re Eric E., supra, at p. 258.) The court found that the father’s assertion that his voluntary declaration of paternity carried the weight of a judgment of paternity was premature because he could not satisfy the threshold requirement of a section 388 petition, namely, that changing his status to that of a presumed father would be in the best interest of the child. (Id. at p. 262.)

The court below found that it would not be in the twins’ best interests for Nestor to be deemed their presumed father and thereby be awarded reunification services. There was evidence that the twins had bonded with their foster parents, with whom they had resided since they were 10 days old, and that there would be a “potential for detriment” to the twins if they were moved from their foster home.

The circumstances of this case were extremely time-sensitive. “While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response. Once a child is placed in that system, the father’s failure to ascertain the child’s existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any ‘opportunity to develop that biological connection into a full and enduring relationship.’ [Citation.]” (In re Zacharia D., supra, 6 Cal.4th 435, 452.) Under the circumstances of this case, we do not find that the court abused its discretion in denying Nestor’s section 388 motion.

II. Deprivation of Due Process

Nestor argues that the Department deprived him of his right to due process and sabotaged his efforts to achieve presumed-father status. In particular, he contends that the juvenile court failed to insure that he was provided with notice as required by section 316.2.

“Parents have a fundamental and compelling interest in the companionship, care, custody, and management of their children. [Citation.] ‘[T]he state also has an urgent interest in child welfare and shares the parent’s interest in an accurate and just decision. [Citation.]’ [Citation.] To ensure that result, ‘[u]ntil parental rights have been terminated, both parents must be given notice at each step of the proceedings. [Citation.]’ [Citation.] The notice must comport with due process. [Citation.] ‘[D]ue process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” [Citation.]’ [Citation.]” (In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.)

“Due process for an alleged father requires only that the alleged father be given notice and ‘an opportunity to appear and assert a position and attempt to change his paternity status. [Citations.]’ [Citation.] The statutory procedure that protects these limited due process rights is set forth in section 316.2.” (In re Paul H. (2003) 111 Cal.App.4th 753, 760.) “Section 316.2 requires the juvenile court to inquire of the mother the identity of all alleged or presumed fathers at the detention hearing or as soon thereafter as practicable. [Citation.] Each alleged father is entitled to notice that the child is the subject of dependency proceedings. [Citation.] . . . An alleged father is entitled to notice so that he can challenge his paternity status.” (In re Eric E., supra, 137 Cal.App.4th 252, 257.)

Section 316.2, subdivision (b), describes the juvenile court’s duties once an alleged father has been identified. It provides, in part: ‘[E]ach alleged father shall be provided notice at his last and usual place of abode by certified mail return receipt requested alleging that he is or could be the father of the child. The notice shall state that the child is the subject of proceedings under Section 300 and that the proceedings could result in the termination of parental rights and adoption of the child.”

The Department concedes that the juvenile court failed to comply with these notice requirements, but contends Nestor had “actual notice” because Nestor was aware of the pregnancy and knew that he might be the twins’ father.[12] Also, he knew in March that the children were dependents and was informed by a social worker regarding the steps he needed to take to become a part of the proceedings. The Department also contends that any error regarding notice was waived by his failure to raise this issue below.

While Nestor fails to respond in his reply brief to the Department’s argument that the issue of notice was not raised below, the record indicates that, in fact, this argument was raised in Nestor’s closing brief filed in the trial court on November 3, 2005. We therefore find it appropriate to consider this issue.

It is uncontroverted that when the twins were detained, Juanita provided the Department with Nestor’s name and the phone number at his last known address. The Department admits that it had the telephone number of Nestor’s aunt and that a social worker was told that ‘appellant had lived there for awhile.” Therefore, the Department merely had to ask the aunt for her address in order to obtain Nestor’s last known address. There is no explanation as to why it did not do so. The first time Nestor received formal notice was for the section 366.26 hearing, and on that occasion a Department social worker served Nestor at his aunt’s home.

“Errors in notice[, however,] do not automatically require reversal. [Citation.] We review such errors to determine whether they are harmless beyond a reasonable doubt.” (In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913.) We note that the juvenile court has discretion to offer a mere biological father reunification services, based on a finding that doing so would benefit the child. (§ 361.5, subd. (a).) Therefore, even a father who has proven his paternity may be denied reunification services.

In In re Paul H., supra, the court of appeal vacated an order terminating an alleged father’s parental rights because the juvenile court failed to comply with section 316.2. The man did appear early in the proceedings, putting the court on notice that he was an alleged father. However, the court did not order paternity testing and his efforts to establish paternity on his own were unsuccessful, in part because he did not have such an order. Under the circumstances of that case, the court found that the alleged father was prejudiced by the juvenile court’s failure to follow the procedures contained in section 316.2. (In re Paul H., supra, 111 Cal.App.4th 753, 762.)

We do not believe that Nestor was prejudiced by the court’s failure to comply with section 316.2. Unlike the alleged father in In re Paul H., he was afforded the opportunity to establish paternity prior to the termination of his parental rights. After his paternity was established, the court below conducted a full hearing on his section 388 motion and made the finding that it would not be in the twins’ best interests to grant him presumed father status or to offer him reunification services. On this record, we cannot say that the outcome in this case would have been different had the court complied with section 316.2.

We also agree with the juvenile court that, while the Department could have done more to insure Nestor’s involvement, it did not prevent him from establishing a relationship with his children. He did not return to Eureka to attempt to find Juanita until November 2004, when the twins were already three months old. He then made several attempts to find her, but she was not living in the area and he had no way of contacting her for the next four months. While her absence was unfortunate, it was not the result of any actions undertaken by the Department.[13]

This is also not a case where the alleged father was unaware that he potentially had paternal rights. The record shows that Nestor was aware that he might be a father even before the twins were born. Therefore, he had the opportunity to step forward and assert his paternity before the dependency proceedings were initiated.

III. Ineffective Assistance of Counsel

Nestor argues that if his voluntary paternity declaration is defective, then his attorney must have provided ineffective assistance. We disagree.

“The test for ineffective counsel is twofold: (1) counsel’s representation falls below an objective standard of reasonableness and (2) the deficiency subjects defendant to demonstrable prejudice.” (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)

As noted, voluntary declaration of paternity forms are designed for use in a different context than the one presented here. The process is intended to be used shortly after a child is born and the forms are to be filed with the Department of Child Support Services, not the juvenile court in a dependency proceeding.

We do not believe that the Legislature could intend such a result as would occur in this case were we to hold that the court erred in not granting Nestor presumed father status under these facts. We do not, however, find that his attorney was deficient in his representation. To the contrary, it appears his attorney attempted to “push the envelope” in an effort to circumvent the likely denial of Nestor’s bid to gain presumed father status.

Under the facts presented here, however, there is no possible way that we can envision this strategy leading to a successful outcome. Accordingly, we find that Nestor was not prejudiced. As noted, we do not believe that the Legislature intended for parties to use voluntary declarations of paternity in the manner attempted here. Even if counsel had used the correct properly notarized forms, the court below justifiably concluded that elevating Nestor’s status to that of a presumed father would not have been in the twins’ best interest. Thus, Nestor cannot show that he would have received a more favorable result even if counsel had filed the proper forms.

The order is affirmed.

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[1] For the sake of clarity and confidentiality, we will refer to the minor and her parents by their first names. At times, we will refer to the parents collectively as “appellants.”

[2] Juanita has filed a brief joining in the arguments raised by Nestor and raises no new issues. (Cal. Rules of Court, rule 13(a)(5).) She argues that if this court reinstates the father’s rights it must also reinstate hers.

[3] All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

[4] This portion of the opinion is derived, in part, from the earlier writ opinion filed in this case on August 10, 2005 (Juanita T. v. Superior Court of Humboldt County; Humboldt County Dept. of Human Services, Case No. A110387 [nonpub. opn.]). The court takes judicial notice of this opinion. (See Evid. Code §§ 452, subd. (d), 459.) Passages from the earlier opinion are set forth in quotation marks.

[5] Nestor’s last name is incorrectly stated in the Department’s records.

[6] This last statement conflicts somewhat with the testimony of Luis. Luis testified that after his initial contact with Ms. McGuire he called her more than 15 times to try to arrange for Nestor to see the twins. He testified that Ms. McGuire would always tell him that she needed to call the place where they children were being taken care of and that she would call back. Luis testified that she never called back. Nestor testified that it is a Mexican tradition that a father can tell if a child is his by looking at it.

[7] Section 388, subdivision (a), provides, in part: “Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself or herself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court or in which a guardianship was ordered pursuant to Section 360 for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.”

[8] Section 388, subdivision (c), provides, in part: “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 and shall give prior notice, or cause prior notice to be given, to the persons and by the means prescribed . . . .”

[9] Family Code section 7574 provides:

“(a) The voluntary declaration of paternity shall be executed on a form developed by the Department of Child Support Services in consultation with the State Department of Health Services, the California Family Support Council, and child support advocacy groups.

“(b) The form described in subdivision (a) shall contain, at a minimum, the following:

“(1) The name and the signature of the mother.

“(2) The name and the signature of the father.

“(3) The name of the child.

“(4) The date of birth of the child.

“(5) A statement by the mother that she has read and understands the written materials described in Section 7572, that the man who has signed the voluntary declaration of paternity is the only possible father, and that she consents to the establishment of paternity by signing the voluntary declaration of paternity.

“(6) A statement by the father that he has read and understands the written materials described in Section 7572, that he understands that by signing the voluntary declaration of paternity he is waiving his rights as described in the written materials, that he is the biological father of the child, and that he consents to the establishment of paternity by signing the voluntary declaration of paternity.

“(7) The name and the signature of the person who witnesses the signing of the declaration by the mother and the father.”

[10] Judicial Council Forms, form JV-505 is intended for use by alleged fathers who wish (or do not wish) to establish their paternity. By the time Nestor filled out this form, his status as biological father had already been determined by DNA testing.

[11] While the opinion does not reveal at what point the declaration was filed, it likely was filed at the time of birth, as the biological father’s name was placed on the birth certificate. (In re Eric E., supra, 137 Cal.App.4th 252, 256.)

[12] We note that it does appear that the court conducted a paternity inquiry with the Humboldt County Department of Child Support Services as early as September 14, 2004. While it may be that mother identified another man as a potential father, Nestor is the only alleged father whose name appears in the court’s records, including the Department’s initial detention report, which was filed on September 16, 2004.

[13] Under section 361.5, subdivision (a)(2), family reunification services are not to be offered for a period longer than six months once a child less than three years old enters foster care. By the time of the Department’s status report of April 18, 2005, the twins had already been in foster care for over seven months. Nestor’s paternity had not yet been determined and it would be another two months before he would learn that he was the twins’ biological father.