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Name: In re Isayah C.
Case #: A103022
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 05/12/2004

The two-year old minor, Isayah, was removed from his mother, who had a history of substance abuse, and placed with his father. Two siblings who had different fathers, were placed in foster care. Isayah’s father was later arrested and Isayah was taken to the same foster home as his brother. An amended petition alleged that father was incarcerated and unable to arrange for Isayah’s care. The petition was found true, and the court followed the recommendation in the disposition report that both children be placed with a maternal aunt. On appeal, father argued that the trial court’s order was not supported by findings sufficient to justify removal of the minor. The appellate court agreed and reversed the dispositional order. The question before the court was whether appellant had failed to demonstrate he could protect Isayah from harm and whether, as an incarcerated parent, he was unable to arrange for Isayah’s care. The court did not find by clear and convincing evidence that these conditions existed, nor does the state of the evidence permit an implication that these conditions existed. There was no dispute that appellant met the criteria set forth in section 361.2, subdivision(a), or that he requested custody of Isayah. The fact that appellant could not personally care for Isayah until he was released from custody, and would be sending the minor to live with suitable relatives for a short period of time, is not a sufficient showing of detriment. With regard to detriment, the court assumed the trial court was referring to the “substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor” contained within section 361, subdivision (c) (1). The court held that second clause of this sentence in subdivision (c)(1) requires that there be no means by which the minor’s physical health can be protected. Emotional damage to the minor, in the absence of potential physical harm, is not covered by subdivision (c)(1), because it was intended to be covered by a different subdivision — (c)(3). There was no showing on how placement of the minor with appellant or his relatives would threaten the minor’s physical health. Remand is necessary for the trial court to determine the proper result in light of the current situation of Isayah’s family.