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Name: In re John M.
Case #: B243107
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 06/21/2013

Father could not be considered the noncustodial nonoffending parent for purposes of section 361.2 where he shared custody of the minor and there were allegations sustained that he engaged in a pattern of domestic violence. Father was incarcerated at the time of the removal of the minor from mother due to her substance abuse. An amended petition was subsequently filed which also contained allegations concerning father regarding past domestic violence. The court sustained the amended petition and removed the minor. At the hearing, father did not object to any of the orders or request custody of the minor. On appeal, father argued that there was insufficient evidence to support the jurisdictional findings because his history of domestic violence did not pose a current risk of harm to the minor, especially since mother’s location was unknown. The appellate court rejected the argument, finding that the parents’ history of domestic violence evidenced an ongoing pattern which presented a risk to the minor’s emotional and physical health. Even if mother were not present, father’s violent outbursts could put a young minor at risk. Father also argued that the minor should have been placed with him as the noncustodial parent under section 361.2. The appellate court found this issue forfeited, as father did not request custody of the minor. Even if the issue had not been forfeited, father was not entitled to consideration under section 361.2 because he was neither nonoffending nor noncustodial. Father was not merely a parent with whom the child was not residing at the time of the dependency; rather, mother and father shared custody of him. The dependency court sustained allegations against father based on his domestic violence history with mother. Therefore, father did not stand in the same shoes as those who were nonoffending but incarcerated.