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Name: In re Andrew S.
Case #: B268361
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 08/15/2016

Juvenile court erred by sustaining section 300, subdivision (b) petition based on father’s incarceration as well as removing minor from his custody under section 361, subdivision (c). Presumed father Jonathan was incarcerated for a burglary conviction when the minors were removed from their mother. He was due to be released in September 2015. A petition was sustained in July 2015, which alleged physical abuse and neglect by mother pursuant to section 300, subdivisions (a), (b), and (j). As to Jonathan, the petition alleged that father failed to provide the minors with the necessities of life, pursuant to section 300, subdivision (b). The minors were removed from both parents. The appellate court reversed the jurisdiction finding and removal order as to Jonathan and remanded the matter to juvenile court to reconsider Jonathan’s request for custody of the children under the proper standard for noncustodial parents, in light of the current circumstances. Although Jonathan was incarcerated, there was no evidence that the minors lacked adequate food or shelter, or that mother, along with family support, had failed to meet their needs. A parent’s incarceration may provide a basis for dependency jurisdiction under section 300, subdivision (g), but only if the parent cannot arrange for the care of the child. The Department failed to show that Jonathan could not arrange for the minors’ care. Further, the juvenile court removed the minors from Jonathan’s care under section 361, subdivision(c), which only governs removal from the custodial parent. Jonathan’s request for custody should have been evaluated under section 361.2, subdivision (a), and it should be considered under that section upon remand should Jonathan still desire custody of the minors.