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Name: In re Dakota J.
Case #: B264460
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 11/23/2015

Juvenile court erred by removing minors from mother where minors were not living with mother for several years prior to the dependency petition. Mother had three children: Dakota, Joseph, and Faith. Dakota and Joseph had been living with a relative for six or seven years, and mother saw them only a few hours each week. Faith lived with mother, and became the subject of a dependency action. The juvenile court sustained a petition and removed all three minors from mother. The appellate court reversed the portion of the court’s dispositional order removing Dakota and Joseph from mother’s custody. A juvenile court may not order removal of a parent’s other children when those children were not living with that parent at the relevant time. The Legislature has only authorized removal of a child from the physical custody of the parent “with whom the child resides at the time the petition was initiated.” The error here was not harmless. Although there was sufficient evidence concerning mother’s current inability to care for her children, mother recognized the situation and made arrangements for her boys to live with a relative who has provided them a stable home. Imposing a removal order is not only contrary to the plain language of the statute but is also punitive. While it is often the case that where removal of one child is necessary, removal of all the children is also necessary, it is not always the case. Here, while the removal order as to Faith is well supported by the evidence, Dakota and Joseph have been well cared for, and the Department did not argue otherwise.