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Name: In re Adam H.
Case #: B298289
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 12/06/2019

Reversal for a new disposition hearing was required where juvenile court removed minor from noncustodial father under section 361, subdivision (c), instead of section 361.2, subdivision (a). The minor was removed from his mother’s care and custody due to abuse by mother and due to the conditions in her home. The Department filed a petition alleging mother’s substance abuse and emotional abuse, and father’s criminal history. At the time of the detention hearing, the Department had not located father. When father appeared, he asked for custody of Adam. He was employed and living with his fiancee. He tested negative for drugs. The court sustained the petition, but dismissed the allegation concerning father. The Department opposed placement with father because Adam was just beginning to get to know him. The juvenile court removed Adam from the custody of both parents under section 361, subdivision (c). Father appealed, arguing that the court applied the wrong statute: since father was a noncustodial parent, the court should have evaluated whether Adam should have been placed with him under section 361.2. The Department conceded the error, but argued it was harmless. The appellate court reversed the orders. Section 361.2 governed father’s request that Adam be placed in his custody. Since Adam did not live with father, the court was required under section 361.2, subdivision (a), to place Adam with father unless such placement would be detrimental to his well-being. The juvenile court’s comments at the hearing show that the court only found that it would be premature to place Adam with father. The minor was doing well in his father’s care during unmonitored visits. The appellate court declined to decide whether the record supported a finding of detriment. Instead, it remanded to the juvenile court to consider the facts within the appropriate statutory provision.