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Name: In re D’Anthony D.
Case #: B251066
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 10/03/2014
Summary

There is no requirement that a noncustodial parent must be nonoffending to be considered for placement under Section 361.2. Appellant was the previously noncustodial father of the two minors, who were removed from their mother’s custody. On appeal, he contended that the juvenile court erred by failing to consider his request for placement under section 361.2. The Department contended that section 361.2 applies to a “nonoffending” parent only, and since the juvenile court had sustained allegations against father, he was not “nonoffending.” The appellate court agreed with father that there is no requirement that a noncustodial parent must be “nonoffending” to be considered for placement under section 361.2. Because a jurisdictional finding need only be made under the preponderance of evidence standard, reading a nonoffending requirement into section 361.2 would effectively undermine the mandate that there be clear and convincing evidence of detriment before placement with a noncustodial parent can be denied. However, here the error was harmless because the evidence showed that father physically abused one of the minors, and the juvenile court found by clear and convincing evidence that placement with father would pose a substantial danger to the children.