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Name: In re Michael S.
Case #: B269598
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 09/30/2009

Welfare and Institutions Code section 361, subdivision(c)(1) does not preclude juvenile court from removing minor from only one of two previously custodial parents. The minor was living with mother, father, and mother’s three other children at the time of the dependency proceedings. The dependency proceedings were initiated when the Department received a referral concerning possible sexual abuse of the minor’s half-sibling while mother was in the hospital for injuries suffered when father pushed her into a bathtub. Mother admitted previous injuries from domestic violence by father. The Department filed a petition and returned the minor to mother with a restraining order issued by the court which restricted father’s contact with them. At a jurisdiction/disposition hearing, the court found jurisdiction and removed the minor from father only, issuing a permanent restraining order. The restraining order required father to move immediately from the family home. On appeal, father did not challenge the jurisdictional findings, but argued that section 361, subdivision (c)(1) does not permit removal from just one custodial parent. He contended that because the court ordered the minor to remain in mother’s custody with restrictions on father’s contacts, there was a reasonable alternative to removal. The appellate court rejected the argument and affirmed. The statute does not preclude the possibility of ordering both removal of a parent from the home and removal of the child from one parent. Although the statute does not expressly identify the possibility of keeping a child in one custodial parent’s home and removing custody from the other parent, the court did not read it to foreclose that possibility as a matter of law, particularly in light of the different living situations it might confront.