Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. JD17916, JD17917
Premo, J.
Alex S. appeals from jurisdictional and dispositional orders made regarding his daughters Arista S. (born 1993) and Amber S. (born 1995) made under Welfare and Institutions Code section 361, subdivision (c)(1). He contends that the juvenile court erred when it removed his children from his custody at the dispositional hearing without considering whether he could make appropriate arrangements for the children’s care while incarcerated. (§ 361.2.) Respondent Santa Clara County Department of Family and Children’s Services (Department) concedes the issue. We agree that the concession is appropriate. We therefore reverse the judgment and remand for a new dispositional hearing.
Further unspecified statutory references are to the Welfare and Institutions Code.
Background
Alex had custody of his daughters pursuant to a 2002 order of the family court arising from the dissolution of his marriage to the girls’ mother, Irene D. In 2005, he went to federal prison, and the family court gave custody to his wife, Linda S. In 2006, Linda was arrested on drug charges and arranged for her adult daughter to care for the girls. Her daughter was unable to do so, and the family court ordered the girls into protective custody, which led to the instant petition. Via counsel, Alex contested jurisdiction and disposition, particularly Department’s resistance to his desire that the girls be placed with Linda. The juvenile court made findings consistent with those necessary for removing the children from Alex’s custody under section 361 and placed the children with the Department.
Discussion
Given that Alex was not a custodial parent, Alex correctly argues that the juvenile court erred when it ordered the girls’ placement after making findings under section 361, subdivision (c), rather than after making findings under section 361.2.
“The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (noncustodial parent). (§§ 361, subd. (c), 361.2, subd. (a).) Section 361, subdivision (c) governs the child’s removal from the physical custody of a parent. ‘ “It does not, by its terms, encompass the situation of the noncustodial parent.” ’ (R.S. v. Superior Court [(2007)] 154 Cal.App.4th [1262,] 1270.) Unlike section 361.5, section 361.2 is not a removal statute. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1422.) Rather, section 361.2 governs the child’s temporary placement with the noncustodial parent and the provision of reunification services to the parents, and also permits the court to grant legal and physical custody of the child to the noncustodial parent. (§ 361.2, subds. (a), (b); see R.S. v. Superior Court, supra, at p. 1270.)” (In re V.F. (2007) 157 Cal.App.4th 962, 969, fns. omitted.)
“When the court has ordered the removal of a child from the custodial parent under section 361, subdivision (c) [if applicable], the court is then required to determine whether there is 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 who desires to assume custody of the child. (§ 361.2, subd. (a).) ‘If 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’ (finding of detriment). (Ibid.; see [In re] Austin P. [(2004)] 118 Cal.App.4th [1124,] 1134-1135.)” (In re V.F., supra, 157 Cal.App.4th at p. 970.)
Thus, “when a noncustodial parent is incarcerated, the court must proceed under section 361.2 to determine whether the incarcerated parent desires to assume custody of the child. . . . 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 V.F., supra, 157 Cal.App.4th at pp. 965-966.)
“Although this record may support a finding that placement with the noncustodial incarcerated father would be detrimental to the children, we decline to make implied findings where the [juvenile] court has not considered the appropriate statutory provision.” (In re V.F., supra, 157 Cal.App.4th at p. 966.)
Disposition
The judgment is reversed. The juvenile court is directed to hold another dispositional hearing to consider and make findings under section 361.2, subdivision (a), in writing or on the record. The remittitur shall be issued forthwith.
WE CONCUR: Rushing, P.J., Mihara, J.