” ( Cynthia D., at pp. 253–254, 19 Cal.Rptr.2d 698, 851 P.2d 1307, fns. omitted.) In arguing that the juvenile court terminated his parental rights in violation of due process, father relies on Santosky v. Kramer and a trio of appellate opinions distinguishing Cynthia D.: Gladys L,supra, 141 Cal.App.4th 845, 46 Cal.Rptr.3d 434, Frank R., supra, 192 Cal.App.4th 532, 121 Cal.Rptr.3d 348, and In re Z.K. (2011) 201 Cal.App.4th 51, 133 Cal.Rptr.3d 597 ( Z.K.). In Gladys L., supra, 141 Cal.App.4th 845, 46 Cal.Rptr.3d 434, the minors became dependents of the juvenile court after being removed from their mother's custody.
(See Jonathan P., supra, 226 Cal.App.4th at p. 1254, fn. 11, 172 Cal.Rptr.3d 846 ; see also Suhey G., supra, 221 Cal.App.4th at p. 743, fn. 22, 164 Cal.Rptr.3d 772.) A noncustodial parent's remedy under the circumstances here is to seek modification of the juvenile court's disposition order under section 388. (In re Z.K. (2011) 201 Cal.App.4th 51, 71, 133 Cal.Rptr.3d 597 (Z.K. ).) In Z.K. , the court recognized that “[s]ection 361.2 is designed to apply at the disposition phase of the dependency proceeding, when the court first elects to remove the child from the custody of the custodial parent.
" (Cynthia D., at pp. 253-254, fns. omitted.) In arguing that the juvenile court terminated his parental rights in violation of due process, father relies on Santosky v. Kramer and a trio of appellate opinions distinguishing Cynthia D.: Gladys L, supra, 141 Cal.App.4th 845, Frank R., supra, 192 Cal.App.4th 532, and In re Z.K. (2011) 201 Cal.App.4th 51 (Z.K.). In Gladys L., supra, 141 Cal.App.4th 845, the minors became dependents of the juvenile court after being removed from their mother's custody.
Thus far no appellate decision has disagreed with the holding in Gladys L. and many have followed it. (See, e.g., In re T.G. , supra , 215 Cal.App.4th at pp. 23-24, 155 Cal.Rptr.3d 1 ; G.S.R. , supra , 159 Cal.App.4th 1202, 1211, 72 Cal.Rptr.3d 398 ; Frank. R. , supra , 192 Cal.App.4th at p. 537, 121 Cal.Rptr.3d 348 ; In re Z.K. (2011) 201 Cal.App.4th 51, 64-65, 133 Cal.Rptr.3d 597 ( Z.K. ).) For example, in Frank R. , the appellate court reversed an order terminating a nonoffending, noncustodial presumed father's parental rights on the ground the juvenile court had never made a finding of unfitness or detriment against him.
“‘[P]arents have a fundamental interest in the care, companionship, and custody of their children.’ [Citation.]” (In re Z.K. (2011) 201 Cal.App.4th 51, 64.) Thus, “a nonoffending parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent’s choices will be ‘detrimental to the safety, protection, or physical or emotional well-being of the child.’
We have recently held that, as a matter of constitutional law, "a court may not terminate a nonoffending, noncustodial . . . presumed father's parental rights" even at a late stage in the dependency proceedings "without finding, by clear and convincing evidence, that awarding custody to the parent would be detrimental." (In re T.G. (2013) 215 Cal.App.4th 1, 20, fn. omitted [noncustodial father who appeared prior to jurisdictional hearing, but who was unable to obtain presumed father status until after permanency planning]; see also In re Z.K. (2011) 201 Cal.App.4th 51, 56-58, 65-66 (Z.K.) [noncustodial mother who did not receive notice of dependency case until shortly before § 366.26 hearing]; In re Frank R. (2011) 192 Cal.App.4th 532, 534-536, 539 [noncustodial presumed father who never sought custody]; In re Gladys L. (2006) 141 Cal.App.4th 845, 847-849 [noncustodial father who had disappeared for three years during dependency proceeding].) B. Section 361.2
2. ICPC Father cites In re Z.K. (2011) 201 Cal.App.4th 51 for the proposition that an ICPC is not necessary when placing a child with a parent. An ICPC is a compact among California and other states to facilitate cooperation in the placement and monitoring of dependent children.
The juvenile court must make the detriment finding by clear and convincing evidence." (In re Z.K. (2011) 201 Cal.App.4th 51, 70, italics in original.) "It is not the nonoffending parent's burden to show that [he] is capable of caring for [his] child.
) "Due process requires that a finding of detriment be made by clear and convincing evidence before terminating a parent's parental rights. [Citation.]" (In re Z.K. (2011) 201 Cal.App.4th 51, 65 (Z.K.).) If the requirements of Santosky were ignored or for some other reason the safeguards embedded in the dependency scheme do not establish parental unfitness and detriment, due process prohibits an appellate court from affirming an order terminating the parental rights of that parent.
We, thus, turn our attention to the application of section 361.2. Section 361.2 establishes the procedures a court must follow for placing a dependent child following removal from the custodial parent pursuant to section 361. (In re Z.K (2011) 201 Cal.App.4th 51, 70, 133 Cal.Rptr.3d 597; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820, 46 Cal.Rptr.2d 198.) When a juvenile dependency court orders removal of a minor under section 361, the court first must determine whether there is a parent who wants to assume custody who was not residing with the minor at the time the events that brought the minor within the provisions of section 300 occurred.