In re E.T. CA2/2
B269842
| Cal. Ct. App. | Oct 4, 2016Background
- DCFS filed a section 300 petition alleging Mother and her boyfriend used methamphetamine and marijuana, endangering three children (E.T., 7; Eli, 5; Cesar, 4 months). The petition contained no allegations against Father.
- At referral, Mother admitted methamphetamine use; children were removed from Mother and placed with the boyfriend's relative. Father visited the children intermittently and sometimes housed them at his parents’ home; he had no permanent address earlier but later lived with his sister.
- DCFS interviewed Father several times; he denied current drug use but was reluctant or failed to complete multiple requested drug tests and gave evasive excuses. He had steady employment by December and his sister was willing to house the children.
- At disposition, the juvenile court removed the children from Father’s custody and ordered reunification services and six random drug tests for Father.
- Father appealed, arguing removal was improper because the children did not reside with him when the petition was filed, placement with him should have been considered under section 361.2, and the drug-testing order was unlawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether children may be removed from Father under §361(c) | DCFS did not defend removal on appeal; at trial the court relied on §361(c) authority to remove | Father: removal improper because children did not reside with him when petition was filed | Reversed removal: §361(c) applies only to parent with whom child resides at petition initiation; Father’s children did not live with him then |
| Standard for placing children with noncustodial parent (§361.2) | DCFS implicitly: placement not appropriate (no position on appeal) | Father: court should have applied §361.2 and placed children with him unless clear-and-convincing evidence of detriment | Remanded: court must apply §361.2, weigh factors, and make clear-and-convincing detriment finding on the record before denying placement |
| Whether court may order drug testing of nonoffending parent | DCFS: testing is within court’s discretion to protect children’s welfare | Father: testing not tied to conditions that led to jurisdiction; improper under §362(d) | Affirmed: court reasonably ordered six drug tests given allegations, Father’s evasions, and children’s exposure to drug use |
Key Cases Cited
- In re Dakota J., 242 Cal.App.4th 619 (2015) (§361(c) removal limited to parent with whom child resides at petition filing)
- In re Abram L., 219 Cal.App.4th 452 (2013) (remand required when court applies §361 instead of §361.2 for noncustodial parent placement)
- In re C.M., 232 Cal.App.4th 1394 (2014) (burden on opposing party to prove by clear and convincing evidence that placement with nonoffending parent is detrimental)
- In re Luke M., 107 Cal.App.4th 1412 (2003) (detriment evaluation requires weighing all relevant factors to determine net harm)
- In re Marquis D., 38 Cal.App.4th 1813 (1995) (reversal where §361 applied instead of §361.2 for placement decision)
- In re A.E., 168 Cal.App.4th 1 (2008) (standards of review for orders requiring services/examination of court discretion)
- In re Jasmin C., 106 Cal.App.4th 177 (2003) (court has wide latitude to order services for child’s well-being following jurisdiction)
- In re Rodger H., 228 Cal.App.3d 1174 (1991) (dispositional orders may consider social worker’s study and other material evidence)
- In re Briana V., 236 Cal.App.4th 297 (2015) (court may make dispositional orders affecting a nonoffending parent once jurisdiction is established)
- In re I.A., 201 Cal.App.4th 1484 (2011) (same)