APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. (Super. Ct. No. EJ2858).
The opinion of the court was delivered by: McCONNELL, P. J.
CERTIFIED FOR PUBLICATION
Willie S. appeals a juvenile court judgment terminating his parental rights over Jason J. and choosing adoption as the preferred permanent plan. Willie contends he is a father within the meaning of Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), and thus the court violated his due process rights by terminating his parental rights without making an express finding of unfitness. Alternatively, he contends the court may not terminate the parental rights of a mere biological father absent a finding of unfitness. Additionally, he challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship to adoption is inapplicable. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)*fn1 We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Shanna M. is Jason and Kathryn M.'s mother, and Jamal J. was Shanna's live-in boyfriend. On February 21, 2007, Shanna called 911, believing Jamal had attempted to drown one-year-old Jason in the bathtub. Shanna walked into the bathroom and "saw Jamal over Jason and Jason's eyelids were blue and he was lethargic," and she heard Jamal say "that's what you get for breaking my cigarettes." (Italics omitted.) When police arrived, they noted a strong marijuana odor, and thus they requested a toxicology screen for the children. They also arrested Jamal for domestic violence based on Shanna's report that he had hit her two to three weeks earlier. He remained incarcerated throughout the proceedings.
Jason tested negative for drugs, but the examining doctor found a bruise on his left thigh consistent with nonaccidental injury. The San Diego County Health and Human Services Agency (the Agency) removed the children from the home and filed dependency petitions on their behalves. Jason's petition alleged he had been exposed to violent confrontations in which Jamal punched Shanna in the head several times, giving her a black eye, and Jason was found with injuries consistent with abuse or neglect. Shanna named Jamal as Kathryn's father and Willie as Jason's father.
Shanna told the social worker she had used marijuana and crystal methamphetamine, but she voluntarily joined Narcotics Anonymous and had been clean for four months. She admitted, however, the recent use of alcohol. Shanna's sister Nina advised the social worker that Jamal had abused Shanna other times. Shanna would make Jamal leave the house, but she would always let him return. The social worker later learned Shanna tested positive for methamphetamine when she gave birth to Kathryn a few months earlier.
Willie reported to the social worker that "he loves his son and he wants what is best for [Jason] and he believes his son should be with his mother. He said he is not in a position to be his son's caregiver but if the mother does not get him back right away he would like for Jason to be with his aunt Nina." Willie "used very affectionate . . . words . . . when describing Jason and stated the mother told him that Jason was his son when Jason was little. He stated in the beginning Jason did not look like him but now he does however, he would still like to take a paternity to know for sure if he is Jason's father."
Jamal signed a paternity declaration that stated Shanna told him he is Jason's father. Willie signed a paternity declaration that stated the same thing. Willie's declaration also stated he had neither lived with nor supported Jason, he did not agree to have his name on the birth certificate and he was unsure of whether he was the father. The court appointed an attorney for him and ordered genetic testing. The test established Willie's paternity, and on June 6, 2007, the court entered a judgment of paternity. At the jurisdiction and disposition hearing, the court declared the children dependents and placed them in a relative's care, and ordered reunification services for Shanna.
At a June 27, 2007, hearing, the court authorized reunification services for Willie. He did not attend the hearing but his attorney advised the court he was opposed to participating in any services. The attorney stated Willie told him, "I'm not in a position to request custody today. I'm not working and I'm just not in a position to physically take custody." The court advised the attorney that if Willie did not participate in services, it could hinder any later attempt to obtain custody.
Willie telephoned the social worker on September 13, 2007, and stated he felt no need to participate in counseling, a parenting class or substance abuse education or treatment, as outlined in his case plan. "He stated that he would like placement, but that he had done services several years back with another child, and he felt that the Agency was using his past against him, and setting up obstacles for him." On September 21 the social worker called him, and he reported he was in Dallas, Texas looking for a job. He did not mention Jason or any plans to reunify with or care for him. On October 3 the social worker spoke with Willie again and he was still in Dallas. He had heard the Agency was considering placing both Jason and Kathryn with Jamal's family, and he objected to that possibility insofar as Jason was concerned. Willie told the social worker he was interested in placement, and she reminded him "about the [A]gency's expectations for services, and [that it had] questions as to why he did not request placement early on." Willie responded that before he knew Jason was his son "he did not want to get attached to [the] child, and then learn that it was not his, because that would be 'too devastating.' " Willie said he would participate in services if it would result in Jason's placement with him. However, he never did so.
In an October 16, 2007, report for the six-month review hearing, the Agency recommended the termination of reunification services and the scheduling of a permanency planning hearing under section 366.26. Shanna was not in compliance with any component of her reunification plan and Willie remained in Dallas. The Agency learned Willie was charged with a drug offense in 2001, he completed a drug treatment program in 2004, and it "appears [he] is a registered gang member until 2018."
The court continued the six-month review hearing to December. It also ordered Shanna to enroll in SARMS.
On November 5, 2007, sometime after moving back to San Diego, Willie called the social worker and requested a visit with Jason. The Agency provided him with supervised visits.
The court again continued the six-month review hearing. In December 2007 the Agency filed a supplemental petition under section 387, explaining the children's placement with a relative was no longer appropriate because Shanna had taken the children from the relative's home. The Agency placed the children in foster care.
In a December 2007 report, the Agency noted Shanna was not in compliance with her case plan. The report advised that Willie "continues to deny the protective issues regarding the mother. He feels the mother is a 'good mom' and he does not understand why he would be expected to protect the child from the mother. He states the [A]gency is victimizing the mother 'for reaching out for help.' He was offered services, but declined them, saying he has done services before with his daughter, and he does not need to do them now."
On June 4, 2008, a combined hearing was held on the section 387 petition and six-month review. Shanna did not attend and her whereabouts were unknown. Willie's attorney explained he was absent because he had a new job. The attorney advised the court that Willie had "changed his position and is now asking for custody of his son." Willie sought a continuance but the court denied it, commenting that he "sat on the sideline the entire time here. He never formally requested custody. He is not engaged in services . . . ." The court explained it was Willie's burden to show changed circumstances: "[I]f he can show evidence he is ...