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Name: In re Patrick S., III
Case #: D063016
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/15/2013

A new dispositional hearing was required where Father was improperly denied custody of minor under section 361.2. When minor was 11 months old, Mother left Father, taking minor with her. Mother did not maintain contact with Father. Father searched for minor, paid child support, and maintained medical coverage for him. When the minor was 13 years old, he was detained in protective custody due to Mother’s mental health condition. Father was notified and flew to California from Washington state where he lived with his wife and two young children. The minor was placed in foster care at detention, but the Department had discretion to begin a trial visit with Father, whose home had been found to be appropriate. The minor told the social worker he did not want to live with Father, he liked his high school and did not want to move, and that his father was in the Navy and would be gone for three months, leaving him with stepmother. He also stated that he liked his foster parents and wanted to stay with them. He was developing a relationship with his father, but found the younger siblings in the home annoying. The court refused Father’s request for custody. On appeal, Father argued that there was not substantial evidence to sustain a finding of detriment under section 361.2, subdivision (a). The appellate court agreed and reversed. Although the minor of his age was entitled to have his wishes considered, a child’s preference is not the deciding factor in a placement decision. Also, Father’s deployment was not a detriment factor, because there was an adequate plan for minor’s care during the deployment. Preservation of the family is the preferred permanency plan.