In re John M. CA2/1

Filed 5/23/13 In re John M. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
In re JOHN M., a Person Coming Under B243107
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK34003)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOHN M., SR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Sherri
Sobel, Juvenile Court Referee. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jessica S. Mitchell, Senior Associate County Counsel.
——————————
John M., Sr. (father), appeals the dependency court’s jurisdictional and
dispositional order denying him custody of his son John M. (John). Father, who was
incarcerated at the time of John’s detention and who was the subject of an amended
petition, argues that Welfare & Institutions Code section 361.21 provides that a
noncustodial parent is entitled to placement consideration without regard to whether such
parent is offending or nonoffending. Conceding that, in dependency court, he did not
raise the possibility of John’s placement with him, father argues nonetheless there was no
forfeit. Father also argues that insufficient evidence supports the jurisdictional findings
against him. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 21, 2012, DCFS filed a petition alleging that Toni R. (mother) had
bipolar disorder, a 25-year history of substance abuse, and was a current daily abuser of
heroin, alcohol, and prescription medication. The petition alleged two counts against
mother under section 300, subdivision (b).
The detention report stated that John was placed in foster care, and that John’s
older sibling, J.R., had been removed from mother’s care in 1998 and adopted as a result
of mother’s substance abuse in 2002. At the time of J.R.’s detention, mother and father
had custody of John, but father was in prison. John’s parents’ home was in an unsanitary
and unsafe condition, with no utilities and no bed for the minor to sleep on. Mother, in
addition to a history of substance abuse, had a history of arrests and convictions for drug
related offenses, including possession of a controlled substance.
Department of Children and Family Services (DCFS) received the current referral
on January 28, 2012 based on mother’s treatment at an emergency room for pain in her
left elbow. Mother admitted to emergency room staff that she was injecting heroin into
her left arm. After mother’s discharge from the hospital, DCFS assessed John’s parents’
home for a safety plan. On February 1, 2012, the social worker conducted an
1All statutory references herein are to the Welfare & Institutions Code unless
otherwise indicated.
2
unannounced home visit, and mother admitted she used heroin daily. Mother also took
numerous medications for her bipolar disorder. On February 6, 2012, during a follow-up
visit, the social worker found the home in disarray, and instructed mother to clean and
purchase groceries.
On February 15, 2012, John’s maternal grandfather Kenneth R. informed DCFS
that John was in the custody of paternal aunt Anna M. against the orders of DCFS, and
mother had disappeared. Father was incarcerated in Wasco State Prison.
Anna told DCFS that she had been sober for the past seven years, and had room to
care for John. Kenneth was unwilling to care for John. Anna told the social worker that
she had previously cared for John because mother was unable to care for him due to her
substance abuse. John told DCFS that he did not want to reside with Kenneth.
At the February 21, 2012 hearing, the court found that father was John’s presumed
father. Mother, whose location remained unknown, was ordered to a drug treatment
program with random testing, and given once a week monitored visitation. On March 13,
2012, Christina O., John’s adult paternal cousin, was given the right to make educational
decisions for John.
On March 20, 2012, DCFS filed an amended petition, adding the allegations under
section 300, subdivisions (a) and (b) that Kenneth had physically abused John by hitting
him with a belt on the buttocks, and that mother failed to protect John. The petition
further alleged under section 300, subdivision (b) that father had a history of substance
abuse, including heroin, and that mother and father had a history of engaging in verbal
altercations.2
DCFS’s March 20, 2012 detention report stated that John remained in foster care
placement. Mother had an extensive criminal background dating from 1986 including
2 The allegation against father, b-4, alleged that: “The child[’s] . . . mother . . . and
father . . . have a history of engaging in verbal and physical altercations. The father
currently remains incarcerated due to the domestic violence. Such domestic violence by
the parents endangers the child’s physical health and safety and places the child at risk of
physical harm, damage, and danger.”
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arrest and convictions for various drug offenses, prostitution, disorderly conduct, and
robbery. DCFS’s jurisdictional report dated March 20, 2012 added that John was doing
well in his placement. Father was in prison for a July 2011 altercation with mother in
front of father and mother’s apartment, at which time mother sustained injuries to her
face and head. Neighbors told the paternal aunt that mother threw herself on the car and
would not let father leave. Mother told police the mirror broke off and hit her face.
However, after leaving a party in their car, father hit mother with his fists repeatedly,
causing injuries to mother’s head. John, who was not in the car at the time, believed
mother had simply cut her head on the car’s mirror. John stated his parents were “[v]ery,
very super nice.” John had seen mother hit father with her hand, and denied that mother
and father threw objects at each other. John admitted that Kenneth had disciplined him
with a belt. John did not know whether his parents used drugs or alcohol.
John told the social worker mother and father fought at home. Mother sometimes
slapped father because they were mad at each other. Although the parents yelled at each
other, John did not know why they were angry. John denied that father hit mother.
When his parents were fighting, John would go in the other room and try to ignore them.
DCFS further reported that mother’s location remained unknown. DCFS had
located father in Vacaville State Prison, and attempted to contact him, but had not
received a response. Christina told DCFS that John’s parents had been involved with
each other “‘on and off’” for “‘at last 10 years.’” Christina believed father was
incarcerated for hitting mother. Kenneth denied hitting John, and told DCFS father was
in prison for hitting mother.
John’s Individualized Education Program (IEP) stated that John performed near
grade level academically, but had difficulty relating to his peers due to limited social
skills. John engaged in argumentative behavior, was defiant, and had poor control of his
anger. John lacked focus and was inattentive, demonstrated significant impairment in his
social-emotional function, with resulting adverse effect on his educational performance.
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However, John was very verbal and could carry on a conversation with an adult
regarding many topics, and had good background knowledge.
On March 19, 2012, Christina’s home was approved under the Adoption and Safe
Family Act (ASFA), and John was placed in her home.
Father’s arrest report from the July 25, 2011 incident disclosed that a neighbor
stated she called the police at 12:30 a.m. The neighbor also stated that when the police
arrived they found mother bleeding from the head. Mother and father denied any
wrongdoing, but mother admitted to police they had been fighting and father had been
drinking. Father had ordered her to get into the car and drove off very fast. They went to
a party where father continued drinking and after they left to go home, father hit mother
on the head, and continued to hit her after they got home.
At the March 20, 2012 hearing, the court set the matter for jurisdictional hearing
on April 24, 2012. On April 13, 2012, at a progress hearing, father’s counsel announced
that father wanted to be present at the April 24, 2012 hearing. At the April 24, 2012,
hearing father appeared through counsel, who requested to continue the matter. The
court granted a four-week continuance to May 22, 2012.
DCFS filed an information for the May 22, 2012 hearing, to wit: Father had told
DCFS he was willing to comply with a reunification plan and that he was scheduled to be
released from prison on July 24, 2012. Father denied any domestic violence between him
and mother, and stated that mother had lied about the incident. According to father, he
and mother were in the car arguing when mother pulled the wheel, causing father to
sideswipe a tree. The mirror broke off and hit mother’s head. Father denied that
Kenneth physically disciplined John. Father was aware of mother’s bipolar diagnosis
and he had attended some counseling with her. Father denied drug use, but admitted to
drinking beer.
On May 22, 2012, father was not present at the hearing and remained in custody
despite a removal order permitting him to attend the hearing. The court continued the
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matter to July 3, 2012. At the July 3, 2012 hearing, father, although there was a removal
order, was again absent. The court continued the matter to July 30, 2012.
At the July 30, 2012 hearing, father was present in court. Father requested the
court to dismiss the allegations against him. He argued the July 25, 2011 incident was a
“one-time” occurrence and father denied being the perpetrator and asserted that John,
who was not present at the incident, had told social workers that mother was the
aggressor in his parents’ fights. Father had no record of current drug use. The court
sustained allegation b-4 against father based upon domestic violence with mother. The
court found there was an immediate danger to John’s physical and emotional well being
if returned to his parents, and ordered John removed from his parents’ custody. The court
denied reunification services to mother based upon her failure to reunify with J.R. The
court ordered reunification services for father consisting of random drug testing, with
father to enter a program if he gave a positive test. The court also ordered anger
management, parenting class, individual counseling, and monitored visitation two times
per week. Father did not object at the hearing to any of these orders, or request custody
of John.
DISCUSSION
I. Sufficiency of Findings Under Section 300, Subdivision (b)
Father argues that insufficient evidence supports the jurisdictional findings against
him because his history of domestic violence did not pose a current risk of harm to John
because John was never actually at risk of harm by father’s past conduct: John was not
present when father beat mother; the July 2011 incident was isolated and had occurred
over a year earlier; John reported that both of his parents were very nice; John was not a
toddler at the time of the hearing, and thus less at risk if he were present during violence
between mother and father; and mother, whose location was unknown, could not fight
with father and thus there was no longer a risk of domestic violence proximate to John.
At the jurisdictional hearing, the dependency court’s finding that a child is a
person described in section 300 must be supported by a preponderance of the evidence.
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(§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) We review
the dependency court’s jurisdictional findings for substantial evidence, and review the
evidence in the light most favorable to the dependency court’s findings and draw all
reasonable inferences in support of those findings. (Elijah R. v. Superior Court (1998)
66 Cal.App.4th 965, 969.) “Section 300, subdivision (b) provides a basis
for . . . jurisdiction if the child has suffered, or there is a substantial risk the child will
suffer, serious physical harm or illness caused by the parent’s inability to provide regular
care for the child because of the parent’s mental illness, developmental disability or
substance abuse.” (In re James R. (2009) 176 Cal.App.4th 129, 135.)
A jurisdictional finding under section 300, subdivision (b) requires “(1) neglectful
conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious
physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In
re Rocco M. (1991) 1 Cal.App.4th 814, 820.) “Subdivision (b) means what it says.
Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there
must be evidence indicating that the child is exposed to a substantial risk of serious
physical harm or illness.” (Id. at p. 823; In re Alysha S. (1996) 51 Cal.App.4th 393, 399.)
“In evaluating risk based upon a single episode of endangering conduct, a juvenile
court should consider the nature of the conduct and all surrounding circumstances. It
should also consider the present circumstances, which might include, among other things,
evidence of the parent’s current understanding of and attitude toward the past conduct
that endangered a child, or participation in educational programs, or other steps taken, by
the parent to address the problematic conduct in the interim, and probationary support
and supervision already being provided through the criminal courts that would help a
parent avoid a recurrence of such an incident. The nature and circumstances of a single
incident of harmful or potentially harmful conduct may be sufficient, in a particular case,
to establish current risk depending upon present circumstances.” (In re J.N. (2010) 181
Cal.App.4th 1010, 1025–1026.) We must have a basis to conclude there is a substantial
risk the parent’s endangering behavior will recur. (Id. at p. 1026.)
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We disagree with father’s analysis. The parents’ history of domestic violence
evidences an ongoing pattern that, while not yet causing harm to John, presented a very
real risk to John’s physical and emotional health. Both parents hit each other; verbal
altercations were frequent; and father engaged in reckless driving with mother in the car.
The fact that mother’s location is not known does not reduce the risk to John because
father could engage in angry and violent behavior toward John without mother being
present. John’s age would do little to protect him from father’s violent outbursts.
Finally, the severity of the July 2011 incident is not lessened by the fact it was isolated
and in the past; indeed, father was incarcerated for his conduct during that incident that
resulted in mother’s injury.
II. Placement with Father as Noncustodial Parent
Father argues that the dependency court, which proceeded under section 361 in
removing John from his custody, erred in failing to apply section 361.2 because although
father was incarcerated at the time, he could have arranged for Anna to look after John
until father was released from prison. Father contends section 361.2, which does not
explicitly limit its reach to nonoffending parents, therefore provides a noncustodial parent
is entitled to placement consideration without regard to whether such parent is offending
or nonoffending. Conceding that he did not raise the possibility of John’s placement with
him pursuant to section 361.2 in the dependency court, father argues the issue was
nonetheless not forfeited.
A. Forfeiture
At the outset, a parent’s failure to raise placement under section 361.2 in the
dependency court forfeits the issue. (See, e.g., In re A.A. (2012) 203 Cal.App.4th 597,
605.) Father did not raise the issue at any of the scheduled (and continued) jurisdictional
and dispositional hearings, thereby forfeiting the issue under In re A.A., at page 605.
Nonetheless, father argues the issue was not waived because the claim presents a pure
question of fact that can be decided on undisputed facts, citing In re V.F. (2007) 157
Cal.App.4th 962, 968. Further, father asserts that nothing in section 361.2 requires the
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parent to raise the issue to be considered for custody, instead the statute directs the court
to consider whether there is a noncustodial parent desiring custody. Finally, because the
trial court used the wrong statutory framework in making findings under section 361, his
trial counsel could not lodge reasonable objections.
We find some merit to father’s contention that the statutory language, which
commands the court to consider a noncustodial parent for placement, precludes forfeiture
by the failure to raise the issue in the dependency court. However, the purpose of the
forfeiture doctrine is to avoid the situation in which father acknowledges he finds himself
here—bereft of a factual record on which to make a compelling argument tailored to the
requirements of a different statute. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
Thus, we conclude father forfeited the issue by his failure to raise it in the dependency
court, which would have permitted the court to determine the applicability of section
361.2 and rule on the issue with an adequate record and argument.
B. “Nonoffending” Is a Requirement of Section 361.2
Nonetheless, putting aside father’s forfeiture of placement under section 361.2, we
find on the merits that father was not entitled to consideration under section 361.2
because he was neither nonoffending nor noncustodial.
Section 361.2, subdivision (a), provides in part that “[w]hen a court orders
removal of a child pursuant to Section 361, the court shall first determine whether there is
a parent of the child, with whom the child was not residing at the time that the events or
conditions arose that brought the child within the provisions of Section 300, who desires
to assume custody of the child.” The section provides that “[i]f that parent requests
custody, the court shall place the child with the parent unless it finds that placement with
that parent would be detrimental to the safety, protection, or physical or emotional well-
being of the child.” (§ 361.2, subd. (a).) If the parent wants the child placed with him,
the court must do so unless there is clear and convincing evidence of detriment. (In re
Marquis D. (1995) 38 Cal.App.4th 1813, 1829.)
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Under section 361.2, subdivision (a), the court examines whether it would be
detrimental to temporarily place a child with the nonoffending noncustodial parent; under
subdivision (b), the court decides whether that placement should be permanent and
whether the court’s jurisdiction should be terminated. (In re Austin P. (2004) 118
Cal.App.4th 1124, 1131.) “[T]he Legislature envisioned a two-step process: under
[section 361.2]: subdivision (a), the court examines whether it would be detrimental to
temporarily place a child with the nonoffending noncustodial parent; under subdivision
(b), the court decides whether that placement should be permanent and whether the
court’s jurisdiction should be terminated.” (In re Austin P., at p. 1131.) In assigning
custody of the child to either parent, “the court’s focus and primary consideration must
always be the best interests of the child.” (In re Nicholas H. (2003) 112 Cal.App.4th
251, 268.) If the dependency court finds that placement with the noncustodial parent
would be detrimental, the court proceeds as to that parent as if it were removing the child
from the custodial, offending parent. The court may provide reunification services under
section 361.5, or no services if services are not warranted. (See In re Terry H. (1994) 27
Cal.App.4th 1847, 1855; In re Arianna P. (2008) 166 Cal.App.4th 44, 53, 58, fn. 8, 59.)
“‘Our role in construing a statute is to ascertain the Legislature’s intent so [that we
may] effectuate the purpose of the law.’” In that regard, “[w]e consider first the words of
the statute because they are generally the most reliable indicator of legislative intent.” (In
re J. W. (2002) 29 Cal.4th 200, 209.) Where, as here, “‘“the statutory language is
unambiguous, we presume the Legislature meant what it said, and the plain meaning of
the statute controls. [Citation.]” [Citation.] We consider extrinsic aids, such as
legislative history, only if the statutory language is reasonably subject to multiple
interpretations.’” (In re W.B. (2012) 55 Cal.4th 30, 52.)
The word “nonoffending” is not found in the text of section 361 .2. This term first
appeared in the case law in In re Marquis D., supra, 38 Cal.App.4th 1813, where the
court used the term to denote a parent who was not involved in the conduct that caused
removal of the child from a parental home under section 361. (In re Marquis D., at
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p. 1823.) In several subsequent decisions, courts assumed, without deciding, that section
361.2 applied solely to nonoffending parents, and have not analyzed whether the statute
could apply to a noncustodial parent who was also the subject of the current dependency
proceeding and have characterized section 361.2, subdivision (a) as permitting placement
with a “nonoffending noncustodial parent,” as though “nonoffending” is a separate
statutory requirement. (See, e.g., In re Joshua G. (2005) 129 Cal.App.4th 189, 202; In re
Austin P., supra, 118 Cal.App.4th at pp. 1129–1132; In re Isayah C. (2004) 118
Cal.App.4th 684, 700.) While none of those decisions specifically discusses the meaning
of “nonoffending,” it appears that they use “nonoffending noncustodial parent” as
shorthand for the statutory requirement of a parent “with whom the child was not residing
at the time that the events or conditions arose that brought the child within the provisions
of Section 300.” (§ 361.2, subd. (a).)
However, In re V.F., supra, 157 Cal.App.4th 962, the Fourth Appellate District
made no such distinction. “[W]hen a noncustodial parent is incarcerated, the
[dependency] court must proceed under section 361.2 to determine whether the
incarcerated parent desires to assume custody of the child. Unlike section 361.5, section
361.2 does not distinguish between an offending and nonoffending parent, and the court
applies section 361.2 without regard to the characterization of the parent as offending or
nonoffending.” (In re V.F., at pp. 965–966.) If a noncustodial, incarcerated parent seeks
custody of the child, the court must determine whether “placement with that parent would
be detrimental to the [child’s] safety, protection, or physical or emotional well-being.”
(§ 361.2, subd. (a).) Among the factors in determining detriment are the noncustodial,
incarcerated parent’s ability to make appropriate arrangements for the care of the child
and the length of that parent’s incarceration. (In re S. D. (2002) 99 Cal.App.4th 1068,
1077; In re Isayah C., supra, 118 Cal.App.4th at p. 700.)
In In re A.A., supra, 203 Cal.App.4th 597, the child was removed from his
mother’s care due to the mother’s drug charges based on section 300, subdivision (b), and
the court placed the child with the father; dependency jurisdiction was terminated.
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However, while mother was incarcerated on the drug charges, a new dependency
proceeding was initiated based upon the father’s physical abuse of the child, and after the
father failed to reunify, the court set a selection and implementation hearing. Mother
filed a section 388 petition seeking reunification services, and argued on appeal that the
court erred in failing to consider her for the child’s placement under section 361.2. (In re
A.A., at pp. 602–604.) The Fourth Appellate District in In re A.A. held that the court was
not required to consider the mother for placement because she was neither nonoffending
nor noncustodial within the meaning of section 361, subdivision (c) and 361.2. (In re
A.A., at p. 604.) Recognizing that although In re V.F., supra, 157 Cal.App.4th 962 had
found the fact of incarceration should not preclude a noncustodial parent from obtaining
custody under section 361.2 where the parent can make arrangements for the child’s care,
In re A.A. distinguished the case before it from In re V.F. on the basis that mother was the
subject of a section 300, subdivision (b) allegation in the current dependency
proceedings. “While an incarcerated parent can avoid jurisdiction under section 300,
subdivision (g) by arranging for his or her child’s care [citations], the same is not true of
a parent whose acts or omissions have led to jurisdictional findings under section 300,
subdivision (b).” (In re A.A., at p. 607.)
Further, In re A.A., supra, 203 Cal.App.4th 597 rejected the core holding of In re
V.F., supra, 157 Cal.App.4th 962 and found that the “[dependency] court should not be
required to consider placing a child with an incarcerated parent who has previously been
the subject of a removal order due to acts or omissions by that parent that brought his or
her child within the description of section 300 and whose custody right has not been
restored. In other words, if the noncustodial status of the incarcerated parent is due to a
prior dependency order removing custody, and there has been no intervening restoration
of the parent’s right to physical custody of the child, the court need not inquire if that
parent desires to have the child placed with him or her.” (In re A.A., at p. 608.) In re
A.A. elaborated: “a parent ‘with whom the child was not residing at the time’ of the
initiation of the dependency, whether or not due to a family law custody order, is
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presumptively entitled to custody because he or she has not been previously found to
pose a risk of harm to the child. It is reasonable to assume the Legislature intended to
require a juvenile court to first consider placement of a child with this class of parent, to
avert the trauma of a foster placement. A parent who is noncustodial because of a prior
finding of detriment is not merely a parent ‘with whom the child was not residing at the
time’ of the events that resulted in the dependency.” (Id. at p. 610.)
Similarly, in In re Isayah C., supra, 118 Cal.App.4th at page 700, the court held
that the dependency court may consider placing a child with a noncustodial, incarcerated
parent under section 361.2 if that parent seeks custody of the child, the parent is able to
make appropriate arrangements for the child’s care during the parent’s incarceration and
placement with the parent is not otherwise detrimental to the child. The Isayah C. court
based its decision on the case law that held the juvenile dependency system has no
jurisdiction to intervene “when an incarcerated parent delegates the care of his or her
child to a suitable caretaker” and there is no other basis for jurisdiction under section
300. (Isayah C., at p. 700.) “At disposition, the length of a parent’s incarceration may be
a factor in determining detriment under sections 361, subdivision (c) and 361.2,
subdivision (a), but a finding of detriment cannot be based solely on the fact a parent is
incarcerated.” (In re Noe F. (2013) 213 Cal.App.4th 358, 369.)
Thus, In re A.A., supra, 203 Cal.App.4th 597 and In re Isayah C., supra, 118
Cal.App.4th 684 recognize that not all bases for dependency court jurisdiction are created
equal. A section 300, subdivision (g) allegation when merely based on incarceration
should not deny a noncustodial parent custody when the parent is able to make
arrangements for the child. An allegation under subdivision (g) is distinct from a section
300, subdivision (b) allegation. Thus, applying this rationale to father here, his status as
an offending parent under section 300, subdivision (b) precludes him from being
considered for custody of John. Father is not merely a parent with whom the child was
not residing at the time of the initiation of the dependency; rather, father and mother
shared custody of John. The dependency court had sustained allegations against Father
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based upon his quarrels and domestic violence history with mother. Thus, Father does
not stand in the same shoes as the parents in In re V.F., supra, 157 Cal.App.4th 962 or In
re Isayah C., who were nonoffending but incarcerated. Further, Father was a custodial
parent until his incarceration for domestic violence separated him from John. As such,
because father’s criminal offense was the cause of his noncustodial status, we do not find
he fits within the purpose of the statute to keep children with their parents if possible.
Nonetheless, father makes numerous arguments why section 361.2 should apply to
him. He asserts that a detriment finding cannot be implied from the record here because
it was not clear that placement with father would be detrimental, and further the court
applied the detriment standard under section 361, not section 361.2. Father points out
that his substance abuse history did not support such a finding as there was no current
history of drug use and father’s domestic violence past was not directed at John. We
need not reach the detriment issue here because under section 361.2, we would not get to
this stage of the analysis due to father’s sustained section 300, subdivision (b) allegation.
Father argues that reading a nonoffending requirement into the language of section
361.2 would frustrate the purpose of the statute to keep the child a parent, any parent, if
possible; with a nonoffending requirement inserted, the dependency court could not
conduct a careful or individualized placement plan, and all parents who have a
jurisdictional finding would never have a chance at custody. We disagree. Parents who
have a section 300, subdivision (g) finding may or may not be awarded custody,
depending on the circumstances. The two-step process envisioned under the statute
permits the court to tailor the custody arrangement with appropriate reunification services
to the parent awarded custody, if necessary; therefore, father’s reading of the statute
ignores this important function of the statute.
Lastly, father argues reading a nonoffending requirement into the statute would
undermine the requirement that there be clear and convincing evidence of detriment
before placement with a noncustodial parent can be denied, while a jurisdictional finding
need only be made under the preponderance of the evidence standard. (See, e.g., In re
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Marquis D., supra, 38 Cal.App.4th at pp. 1827–1829.) Father’s analysis misses the
mark. In re Marquis D. also recognized an implicit nonoffending requirement in section
361.2. As explained in In re Marquis D., “applying a clear and convincing standard of
proof to remove custody from the custodial parent while denying placement with the
noncustodial parent based on a preponderance of the evidence would lead to the
anomalous result that a parent who had no connection with the circumstances that
brought the child within the jurisdiction of the court could have his or her rights
terminated upon a lesser showing than the parent who created those circumstances.” (Id.
at p. 1829, italics added.) In re Marquis D. likewise implicitly recognizes the
nonoffending requirement in section 361.2; thus father, who does not qualify for
application of section 361.2 in the first instance, is not subjected to a lesser standard of
proof than an offending parent.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.
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