Los Angeles County Department of Children & Family Services v. John M.
217 Cal. App. 4th 410
| Cal. Ct. App. | 2013Background
- DCFS filed a petition alleging mother had bipolar disorder and a long history of heroin and other substance abuse, with two counts under §300(b).
- John M. was placed in foster care; his older sibling had previously been removed and adopted due to mother’s substance abuse; father was incarcerated.
- DCFS reported persistent parental dysfunction, including domestic violence between mother and father and mother’s ongoing drug use; John’s home life was unsafe and unsanitary.
- An amended petition added allegations that Kenneth physically abused John and that mother failed to protect; father had a history of substance abuse and domestic violence with mother.
- During hearings in 2012, the court found immediate danger to John and removed him from both parents; reunification services were ordered for father (random drug testing, anger management, etc.) and not for mother.
- The court sustained a §300(b) allegation against father and ordered reunification services; father did not object to the dispositional orders and did not request custody at that time.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of §300, (b) findings | Father argues past violence does not present current risk. | Father contends evidence shows no ongoing risk to John. | Substantial evidence supported ongoing risk; findings affirmed. |
| Placement with noncustodial parent under §361.2 | Father should be considered for custody despite incarceration. | Section 361.2 applies to noncustodial nonoffending parents; father is offending and custodial status matters. | Father forfeited by not raising earlier; even if considered, he does not qualify under §361.2 due to being an offending custodial parent. |
| Nonoffending requirement under §361.2 | Statute should apply regardless of offender status to keep child with parent where possible. | Nonoffending requirement is implicit in case law for §361.2 eligibility. | Court sustained nonoffending requirement; father not eligible because he was an offending parent and shared custody prior to incarceration. |
| Detriment standard under §361.2 | Detriment analysis under §361.2 should be considered for placement. | Detriment analysis not reached due to §361.2 inapplicability given offending status. | Detriment analysis not necessary since §361.2 applicable only to eligible nonoffending/noncustodial parents; not met here. |
Key Cases Cited
- In re Marquis D., 38 Cal.App.4th 1813 (Cal. App. 1995) (implies nonoffending requirement in §361.2)
- In re A.A., 203 Cal.App.4th 597 (Cal. App. 2012) (court may deny placement with incarcerated parent where not nonoffending or not eligible for §361.2)
- In re V.F., 157 Cal.App.4th 962 (Cal. App. 2007) (incarceration does not preclude §361.2 consideration if proper care arrangements exist)
- In re Isayah C., 118 Cal.App.4th 684 (Cal. App. 2004) (allows §361.2 consideration for incarcerated noncustodial parent if non-detrimental)
- In re Austin P., 118 Cal.App.4th 1124 (Cal. App. 2004) (two-step process under §361.2; placement vs. termination; focus on best interests)
- In re J.N., 181 Cal.App.4th 1010 (Cal. App. 2010) (risk assessment considering present circumstances and parent’s efforts)
- In re Noe F., 213 Cal.App.4th 358 (Cal. App. 2013) (length of incarceration may be factor in detriment analysis under §361)