In re V.F.

• Decision Date: 07 December 2007
• Docket Number: No. D050824.,D050824.
• Citation: 69 Cal.Rptr.3d 159,157 Cal.App.4th 962
• Court: California Court of Appeals Court of Appeals
• Parties: In re V.F. et al., Persons Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Scott F., Defendant and Appellant.

69 Cal.Rptr.3d 159

157 Cal.App.4th 962

In re V.F. et al., Persons Coming Under the Juvenile Court Law.

San Diego County Health and Human Services Agency, Plaintiff and Respondent, v. Scott F., Defendant and Appellant.

No. D050824.

Court of Appeal, Fourth District, Division 1.

December 7, 2007.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, Gary C. Seiser and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.

Carl Fabian, under appointment by the Court of Appeal, for Minors.

IRION, J.

Scott F. appeals orders of the juvenile court under Welfare and Institutions Code section 361, subdivision (c)(1).¹ Scott contends the court erred when it removed his children from his custody at the disposition hearing without considering whether he could make appropriate arrangements for the children's care while incarcerated.

We conclude when a noncustodial parent is incarcerated, the court must proceed under section 361.2 to determine whether the incarcerated parent desires to assume custody of the child. Unlike section 361.5, section 361.2 does not distinguish between an offending and nonoffending parent, and the court applies section 361.2 without regard to the characterization of the parent as offending or nonoffending. If a noncustodial incarcerated parent seeks custody, the court must determine whether placement with that parent would be detrimental to the child's safety, protection, or physical or emotional well-being in view of the parent's ability to arrange appropriate care for the child. (In re Isayah C. (2004) 118 Cal.App.4th 684, 700, 13 Cal.Rptr.3d 198 (Isayah C.).)

Although this record may support a finding that placement with the noncustodial incarcerated father would be detrimental to the children, we decline to make implied findings where the trial court has not considered the appropriate statutory provision. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1824, 46 Cal.Rptr.2d 198 (Marquis D.).) Instead, we reverse the dispositional orders as to Scott and remand the case to the trial court to consider and make proper findings under section 361.2, subdivision (a). (Marquis D., at p. 1830, 46 Cal.Rptr.2d 198.)

I

FACTUAL AND PROCEDURAL

BACKGROUND

Scott is the presumed father of V.F., U.F., and O.F., and alleged father of M.F. (together, children).² On January 26, 2007, the San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of the children, who were then seven, five, two and one years old. The petitions alleged the children had suffered, or there was a substantial risk they would suffer, serious physical harm or illness as a result of their mother's long history of child neglect and methamphetamine abuse. (§ 300, subd. (b).) The Agency also filed petitions alleging Scott and the children's mother were incarcerated and unable to arrange adequate care for the children. (§ 300, subd. (g).)

Scott started using methamphetamine at age 15 and struggled with addiction throughout his adult life. His criminal record dated to March 1998, when he was 19 years old. He had been convicted on charges of petty theft with a prior offense, burglary and brandishing a weapon, and served jail time in 2001, 2002 and early spring 2004. Scott was incarcerated in May 2004, and sentenced to 13 years incarceration on convictions that included robbery with the personal use of a firearm and possession of a firearm by a felon.

At the jurisdiction hearing on April 27, 2007, the court admitted the Agency's reports into evidence. Scott did not cross-examine the social worker or present affirmative evidence. The court granted the Agency's motion to dismiss the allegations of the petition filed under section 300, subdivision (g) because the children's mother was no longer incarcerated. The court sustained the petitions under section 300, subdivision (b).

At the disposition hearing, Scott contested the Agency's recommendation to deny reunification services to him. The social worker testified the recommendation was based on the length of Scott's incarceration, his extensive criminal history, his use of a weapon to commit a crime, his failure to complete and return a prison packet to the social worker and his lack of relationships with the three youngest children. The Agency initiated procedures to place the children with a relative who lived out of state.

The court removed the children from parental custody under section 361, subdivision (c), and placed the children in foster care.³ The court offered a plan of reunification services to the children's mother, and denied Scott reunification services under section 361.5, subdivisions (b)(12) and (e)(1).

II DISCUSSION

A. Introduction

Scott contends the court erred when it removed the children from his custody under section 361, subdivision (c). He argues because jurisdiction was based only on the conduct of the children's mother, he should have been treated as a nonoffending parent and allowed to retain custody of the children under section 361, subdivision (c)(1). Scott also contends the court erroneously removed the children from his custody without a showing, by clear and convincing evidence, that he was unable to arrange for the children's care while he was incarcerated. (§ 361, subd. (c)(5).)

The Agency contends `Scott forfeited the right to claim error as a ground for reversal because he did not specifically assert at trial that he was entitled to retain custody of the children under section 361, subdivision (c)(1) or (5), or that the court was required to make findings under section 361.2. On the merits, the Agency objects to Scott's characterization of himself as a nonoffending parent and argues section 361, subdivision (c) does not apply. Instead, the Agency maintains that section 361.2 governs the court's determination whether there is sufficient detriment to conclude that placement with the noncustodial parent would be detrimental to the child. The Agency acknowledges the court did not proceed under section 361.2, subdivision (a), but argues the court did not err because Scott did not request custody of his children. Alternatively, the Agency argues evidence of detriment to the children is clear, and any necessary findings under section 361.2 may be implied from the record.

In response, Scott contends the issue before this court is whether section 361, subdivision (c)(1) was properly applied. He argues the question is an issue of law that is not forfeited on appeal. Scott posits the court could not order the children's removal from his physical custody under section 361, subdivision (c), and argues the court erred when it did not proceed under section 361.2, subdivision (a). Scott contends he informed the court he was able to make suitable arrangements for the care of his children during his incarceration, and asserts this statement was the "functional equivalent" of a request for custody. Finally, Scott asserts this court cannot imply a finding of detriment under section 361.2, subdivision (a) on review. He maintains there is no evidence to support a finding that placement in his care would be detrimental to the children.

B. Forfeiture

We conclude Scott has not forfeited appellate review as to whether the court properly applied section 361, subdivision (c)(1). "As a general rule, a new theory may not be presented for the first time on appeal unless it raises only a question of law and can be decided on undisputed facts." (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 983, 105 Cal.Rptr.2d 88; see People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 195, 96 Cal.Rptr.2d 463, 999 P.2d 686.) When the facts are not disputed, the effect or legal significance of those facts is a question of law. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799, 35 Cal.Rptr.2d 418, 883 P.2d 960 (Ghirardo).) A question of law is not subject to the doctrine of forfeiture. (People v. Butler (1980) 105 Cal.App.3d 585, 588, 164 Cal.Rptr. 475; Ward v. Taggart (1959) 51 Cal.2d 736, 742, 336 P.2d 534.)

We review applicable legal principles de novo, but apply a deferential standard of review to the court's exercise of discretion and resolution of disputed facts. (Ghirardo, supra, 8 Cal.4th at pp. 800-801, 35 Cal.Rptr.2d 418, 883 P.2d 960.)

C. When the Court Removes a Child from a Custodial Parent Under Section 361, It Must First Make Determinations Concerning the Noncustodial Parent Under Section 361.2

The dependency statutory framework distinguishes between a parent with whom the child was residing at the time the section 300 petition was initiated (custodial parent), and a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the provisions of section 300 (noncustodial parent).⁴ (§§ 361, subd. (c), 361.2, subd. (a).) Section 361, subdivision (c) governs the child's removal from the physical custody of a parent.⁵ "It does not, by its terms, encompass the situation of the noncustodial parent." (R.S. v. Superior Court, supra, 154 Cal.App.4th at p. 1270, 65 Cal.Rptr.3d 444.) Unlike section 361.5, section 361.2 is not a removal statute. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1422, 132 Cal.Rptr.2d 907.) Rather, section 361.2 governs the child's temporary placement with the noncustodial parent and the provision of reunification services to the parents, and also permits the court to grant legal and physical custody of the child to the noncustodial parent. (§ 361.2, subds. (a), (b); see R.S. v. Superior Court, supra, at p. 1270, 65 Cal.Rptr.3d 444.)

Here, the court ordered the removal of the children from the custody of both parents under section 361, subdivision (c) without considering whether the children resided with both parents at the time the petition was initiated. Scott and the Agency acknowledge section 361, subdivision (c) applies only...