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Name: In re V.F.
Case #: D050824
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/07/2007

Where noncustodial parent is incarcerated, court must still determine whether parent desires to assume custody and whether placement would be detrimental to the child. The minors were removed from both parents, and father, the noncustodial parent, was denied services pursuant to section 361.5, subdivisions (b)(12) and (e)(1). On appeal, father contended that the minors should not have been removed from him, as he was the noncustodial parent, and that he should have been treated as the nonoffending parent and allowed to retain custody of the children under section 361, subdivision (c)(1). The appellate court agreed and reversed the orders. If a noncustodial incarcerated parent seeks custody, the court must determine whether placement with that parent would be detrimental to the child’s safety or well-being in view of the parent’s ability to arrange appropriate care for the child. Although the record may have supported a finding that placement with father would be detrimental to the child, the appellate court declined to make implied findings where the trial court had not considered the appropriate statutory provision.