In Re V.F., 69 Cal. Rptr. 3d 159 (Cal. Ct. App. 2007). · Go Syfert
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In Re V.F., 69 Cal. Rptr. 3d 159 (Cal. Ct. App. 2007). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases · …does not, by its terms, encompass the situation of the noncustodial parent at p. 969 ✓
cited 2× by 1 distinct case · …if a noncustodial parent requests custody of a child, the trial court must determine whether placement with that parent would be detrimental to the child. ( 361.2, subd. (a).) ✓
cited 2× by 1 distinct case · …order that the parent become legal and physical custodian of the child, at p. 966 ⚠ not in text
204 citation events (204 in the last 25 years) across 1 distinct court.
Strongest positive: In re K.P. CA4/2 (calctapp, 2026-04-30)
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) In re K.P. CA4/2
Cal. Ct. App. · 2026 · confidence medium
(Compare In re V.F. (2007) 157 Cal.App.4th 962, 970 [“section 361.2 applies to a noncustodial parent without regard to that parent’s status as an offending or nonoffending parent”]; In re Nickolas T., supra, 217 Cal.App.4th at p. 1505 [“We are not persuaded . . . [that] . . . a parent must be both ‘noncustodial’ and ‘nonoffending’ to be considered for placement under section 361.2”] with In re A.A. (2012) 203 Cal.App.4th 597, 608 [“the parent must be both a nonoffending and noncustodial parent in order to be entitled for consideration under section 361.2”]; In re John M. …
discussed Cited as authority (rule) In re M.T. CA5
Cal. Ct. App. · 2025 · confidence medium
Instead, it directs the court to place the child with the parent unless placement would be detrimental to the child.” (In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1504 ; see In re Isayah C. (2004) 118 Cal.App.4th 684, 700 [finding the father’s incarceration not sufficient to show detriment, citing “the case law holding that the juvenile dependency system has no jurisdiction to intervene when an incarcerated parent delegates the care of his or her child to a suitable caretaker”]; In re V.F. (2007) 157 Cal.App.4th 962, 973 [“The mere fact a noncustodial parent is incarcerated does n…
discussed Cited as authority (rule) In re Z.B. CA4/1
Cal. Ct. App. · 2022 · signal: cf. · confidence medium
(Ibid.; cf. In re V.F. (2007) 157 Cal.App.4th 962, 968 [no forfeiture of question of law whether juvenile court at disposition hearing erred by failing to make § 361.2, subd. (a) detriment finding as to noncustodial parent before placing children in foster care].) 17 In Nickolas T., supra, 217 Cal.App.4th 1492 , we addressed a similar question as to whether a mother had forfeited her contention that the juvenile court erred by applying the “best interests” standard at the disposition hearing instead of section 361.2’s presumption of placement with a noncustodial parent absent a finding …
discussed Cited as authority (rule) In re J.N.
Cal. Ct. App. · 2021 · confidence medium
(V.F., supra, at p. 971.) Although there may be circumstances in which the differences between these two detriment standards could yield different results (see id. at p. 973), no such differences would render incarceration an appropriate basis for a detriment finding under one standard but not the other.
discussed Cited as authority (rule) Los Angeles County Department of Children & Family Services v. Jonathan Q.
Cal. Ct. App. · 2016 · confidence medium
(In re S.B., at pp. 1294-1295 [Court of Appeal did not abuse its discretion in considering the mother’s challenge to a visitation order that presented an important question of law]; In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1252 [ 172 Cal.Rptr.3d 846 ]; In re V.F. (2007) 157 Cal.App.4th 962, 967-968 [ 69 Cal.Rptr.3d 159 ].) In view of the significance to the dependency system of the issue presented, we exercise our discretion to address the merits of Jonathan’s appeal. 3.
discussed Cited as authority (rule) Los Angeles County Department of Children & Family Services v. Jacob M.
Cal. Ct. App. · 2016 · confidence medium
(See In re V.F. (2007) 157 Cal.App.4th 962, 967-968 [ 69 Cal.Rptr.3d 159 ] [holding that father did not forfeit his arguments that he was entitled to retain custody of his children under § 361, subd. (c)], superseded on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58 [ 81 Cal.Rptr.3d 918 ].) Because the arguments Father raises are primarily issues of law, we decline to hold that he forfeited his arguments regarding the disposition order.
discussed Cited as authority (rule) In re Julien H. (2×)
Cal. Ct. App. · 2016 · confidence medium
(See In re V.F. (2007) 157 Cal.App.4th 962, 967-968 [holding that father did not forfeit his arguments that he was entitled to retain custody of his children under section 361, subdivision (c)], superseded on other grounds, as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58 .) Because the arguments Father raises are primarily issues of law, we decline to hold that he forfeited his arguments regarding the disposition order.
discussed Cited as authority (rule) In re R.G. CA4/2 (2×) also: Cited "see, e.g."
Cal. Ct. App. · 2016 · confidence medium
(See, e.g., In re V.F., supra, 157 Cal.App.4th at p. 973 [observing that “the better practice is to remand” for a detriment determination 19 under § 361.2, subd. (a)]; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1830 [remanding for a detriment determination under § 361.2, subd. (a)]; In re Kevin N. (2007) 148 Cal.App.4th 1339, 1344-1345 [remanding for a detriment determination under § 361.5, subd. (e)(1)].) “By its terms, section 361 applies to a custodial parent, while placement with a noncustodial parent is to be assessed under section 361.2.” (In re D’Anthony D., supra, 230 Ca…
discussed Cited as authority (rule) In re Jazmin H. CA2/7
Cal. Ct. App. · 2016 · confidence medium
A. Summary of Relevant Statutes “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). (§§ 361, subd. (c), 361.2, subd. (a).)” (In re V.F. (2007) 157 Cal.App.4th 962, 969 (V.F.).) Section 361, subdivision (c) describes several circumstances under which a child may be removed from the physical custody …
discussed Cited as authority (rule) San Diego County Health & Human Services Agency v. Alejandro G.
Cal. Ct. App. · 2016 · confidence medium
Here, the court failed to apply those factors, “instead applying a generalized best interest test unguided by the relevant statutory criteria.” (In re R.T., supra, 232 Cal.App.4th at p. 1300 .) “When the proceedings take place under an inappropriate statute, even one requiring similar findings, the parties are not afforded the opportunity to tailor their case to the correct statute, and the trial court cannot fulfill its responsibility to make findings of fact within the provisions of that statute.” (In re V.F. (2007) 157 Cal.App.4th 962, 973 [ 69 Cal.Rptr.3d 159 ], superseded by statu…
discussed Cited as authority (rule) In re A.O. CA2/7
Cal. Ct. App. · 2016 · confidence medium
(See In re D’Anthony D. (2014) 230 Cal.App.4th 292, 301 [if “sustained jurisdictional allegations disqualified father from obtaining custody under section 361.2’s purported ‘nonoffending’ parent requirement . . ., the heightened clear and convincing standard would disappear, having been supplanted by the lower preponderance standard used to make the earlier jurisdictional findings”]; In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1504-1507 ; In re V.F. (2007) 157 Cal.App.4th 962, 966 [“section 361.2 does not distinguish between an offending and nonoffending parent”].) 5 Althoug…
discussed Cited as authority (rule) San Bernardino County Children & Family Services v. B.H.
Cal. Ct. App. · 2016 · confidence medium
(Adrianna P., at pp. 53-54, citing Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 628-629 [ 53 Cal.Rptr.2d 41 ]; R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1271 [ 65 Cal.Rptr.3d 444 ] (R.S.); In re V.F. (2007) 157 Cal.App.4th 962, 973 [ 69 Cal.Rptr.3d 159 ] (V.F.), superseded by statute on other grounds as stated in Adrianna P, at pp. 57-58.) Accordingly, the parents maintained that the bypass provisions of section 361.5 do not apply to a noncustodial parent.
discussed Cited as authority (rule) In re A.B. CA1/3 (2×) also: Cited "see"
Cal. Ct. App. · 2015 · confidence medium
In the absence of a finding of detriment, the court must place the child with the noncustodial parent. (§ 361.2, sub. (a).)” (V.F., supra, at p. 970.) “The court ‘may’ at that point retain jurisdiction and order reunification services for the parent [or legal guardian] from whom the child was removed, or it ‘may’ order the former noncustodial parent to become the legal and physical custodian of the child and terminate jurisdiction over the child. (§ 361.2, sub. (b)(1) & (3).)” (In re Ryan K. (2012) 207 Cal.App.4th 591, 594, fn. 4 .) “ ‘[W]hen the juvenile court terminates i…
discussed Cited as authority (rule) In re Audrey C. CA2/3
Cal. Ct. App. · 2015 · confidence medium
(In re V.F., supra, at p. 973.) Accordingly, we reverse the disposition order as to mother and remand the case to the juvenile court to consider and make proper findings under section 361.2, subdivision (a).
examined Cited as authority (rule) In re K. H. CA2/3 (3×) also: Cited "see"
Cal. Ct. App. · 2015 · confidence medium
(See In re V.F., supra, at p. 969.) By contrast, section 361.2 is not a removal statute.
discussed Cited as authority (rule) In re M.N. CA1/3 (2×) also: Cited "see"
Cal. Ct. App. · 2015 · confidence medium
In the absence of a finding of detriment, the court must place the child with the noncustodial parent. (§ 361.2, subd. (a).)” (V.F., supra, at p. 970.) “The court ‘may’ at that point retain jurisdiction and order reunification services for the parent from whom the child was removed, or it ‘may’ order the former noncustodial parent to become the legal and physical custodian of the child and terminate jurisdiction over the child. (§ 361.2, subd. (b)(1) & (3).)” (In re Ryan K. (2012) 207 Cal.App.4th 591, 594, fn. 4 (Ryan K.); see In re Karla C. (2010) 186 Cal.App.4th 1236, 1243 (K…
examined Cited as authority (rule) In re Tanner B. CA2/7 (3×) also: Cited "see, e.g."
Cal. Ct. App. · 2015 · confidence medium
(In re Abram L. (2013) 219 Cal.App.4th 452, 462 (Abram L.), citing In re V.F. (2007) 157 Cal.App.4th 962, 967-968 (V.F.), superseded by statute on other grounds, as recognized in In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1503 .) As the court concluded in Abram L., supra, 219 Cal.App.4th at page 462 , the arguments raised here are primarily issues of law.
discussed Cited as authority (rule) In re B.B. CA2/8
Cal. Ct. App. · 2015 · confidence medium
(See, e.g., D’Anthony D., supra, 230 Cal.App.4th at p. 301 [rejecting the contention “that an implicit ‘nonoffending’ requirement can be invoked to preemptively deny a noncustodial parent consideration for custody without assessing whether the placement would pose a detriment to the child under section 361.2, subdivision (a)”; constitutional due process “requires a detriment finding by clear and convincing evidence before a noncustodial parent can be denied placement under the statute”]; In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1504 [§ 361.2, subd. (a) does not exclude fro…
discussed Cited as authority (rule) In re S.F. CA2/1
Cal. Ct. App. · 2015 · confidence medium
“In making a finding of detriment, the court may consider any jurisdictional findings that may relate to the noncustodial parent under section 300, as well as any other evidence showing there would be a protective risk to the child if placed with that parent.” (In re V.F. (2007) 157 Cal.App.4th 962, 970 (V.F.).) Leaving S.F. in mother’s care is by far the most serious issue raised by DCFS and demonstrates poor judgment on father’s part, as do his threats and his refusal to participate in reunification services.
discussed Cited as authority (rule) Los Angeles County Department of Children & Family Services v. Christian D.
Cal. Ct. App. · 2014 · confidence medium
(Nickolas T., supra, 217 Cal.App.4th at p. 1504; John M., supra, 217 Cal.App.4th at p. 421.) Nonetheless, “[i]n a few decisions, reviewing courts have used the phrase ‘nonoffending noncustodial parent’ as shorthand for ‘a parent. . . with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300.’ ” (In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. 4 [ 69 Cal.Rptr.3d 159 ] (V.F.) [rejecting use of phrase because “nonoffending” does not appear in the text of § 361.2]; see, e.g., In re Joshua G. (20…
discussed Cited as authority (rule) In re Emilio M. CA4/1
Cal. Ct. App. · 2014 · confidence medium
As this court has noted, "[s]ection 361 addresses a child's removal 'from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated.' (§ 361, subd. (c).)" " '[T]here can be no removal of custody from a parent who does not have custody in the first place.' " (In re B.L. (2012) 204 Cal.App.4th 1111, 1116-1117 ; In re Abram L. (2013) 219 Cal.App.4th 452, 460 [children could not be removed from father's custody under § 361, subd. (c)(1) because they were not residing with him when the petition was initiated].); In re V.…
discussed Cited as authority (rule) Los Angeles County Department of Children & Family Services v. Christopher M.
Cal. Ct. App. · 2014 · confidence medium
(See, e.g., In re Nicholas T. (2013) 217 Cal.App.4th 1492, 1504 [ 159 Cal.Rptr.3d 521 ] [§ 361.2, subd. (a) does not exclude from consideration for placement a noncustodial parent with a history of prior involvement with child dependency proceedings]; In re V.F. (2007) 157 Cal.App.4th 962, 966 [ 69 Cal.Rptr.3d 159 ] [“section 361.2 does not distinguish between an offending and nonoffending parent . . .”], superseded by statute on other grounds, as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58 [ 81 Cal.Rptr.3d 918 ].) But even assuming that section 361.2, subdivision (a) doe…
discussed Cited as authority (rule) In re Christopher M. CA2/8
Cal. Ct. App. · 2014 · confidence medium
(See, e.g., In re Nickolas T. (2013) 217 Cal.App.4th 1492, 1504 [§ 361.2, subd. (a) does not exclude from consideration for placement a noncustodial parent with a history of prior involvement with child dependency proceedings]; In re V.F. (2007) 157 Cal.App.4th 962, 966 [“section 361.2 does not distinguish between an offending and nonoffending parent”], superseded by statute on other grounds, as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44 , 57–58.).
discussed Cited as authority (rule) In re E.P. CA1/5
Cal. Ct. App. · 2014 · confidence medium
(In re V.F. (2007) 157 Cal.App.4th 962, 966, fn. 2 , superseded on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44 , 57–58.) 1 FACTUAL AND PROCEDURAL BACKGROUND Detention, Jurisdiction, and Disposition Mother was incarcerated, awaiting trial on burglary charges, when daughter was born in March 2011.
discussed Cited as authority (rule) In re Miguel P. CA2/2
Cal. Ct. App. · 2013 · confidence medium
(E.g., In re M.C. (2011) 195 Cal.App.4th 197, 224 [“Under . . . section 361.2, placement of the dependent child with a nonoffending, noncustodial parent must be the juvenile court’s firs[t] priority if that parent requests the placement”]; In re Karla C. (2010) 186 Cal.App.4th 1236, 1245 [under § 361.2, “[i]f there is no showing of detriment, the court must order the [Department] to temporarily place the child with the nonoffending noncustodial parent”]; but see In re Nickolas T. (2013) 217 Cal.App.4th 1492 , 1504–1506 [finding a parent need not be both nonoffending and noncustodi…
discussed Cited as authority (rule) In re Abram L.
Cal. Ct. App. · 2013 · confidence medium
(In re V.F. (2007) 157 Cal.App.4th 962, 969 (V.F.) [section 361, subdivision (c) “ „ “does not, by its terms, encompass the situation of the noncustodial parent” ‟ ”].) The statute governing father‟s request that the children be placed in his custody was section 361.2.
discussed Cited as authority (rule) Los Angeles County Department of Children & Family Services v. Abel L.
Cal. Ct. App. · 2013 · confidence medium
(In re V.F. (2007) 157 Cal.App.4th 962, 969 [ 69 Cal.Rptr.3d 159 ] (V.F.) [§ 361, subd. (c) “ ‘ “does not, by its terms, encompass the situation of the noncustodial parent” ’ ”].) The statute governing father’s request that the children be placed in his custody was section 361.2.
examined Cited as authority (rule) In re Maxwell J. CA2/2 (3×)
Cal. Ct. App. · 2013 · confidence medium
(In re V.F., supra, at p. 966.) At the disposition hearing, custody was removed from both subdivision (b)(1) states that if the court places the child with that parent it may “[o]rder that the parent become legal and physical custodian of the child,” “provide reasonable visitation by the noncustodial parent” and “[t]he court shall then terminate its jurisdiction over the child.” Section 361.2, subdivision (c) requires the court to make a finding either in writing or on the record of the basis for its determination under subdivision (a). 11 parents pursuant to section 361, subdivisi…
discussed Cited as authority (rule) San Diego County Health & Human Services Agency v. Patrick S.
Cal. Ct. App. · 2013 · confidence medium
(In re Isayah C., supra, 118 Cal.App.4th at p. 700; In re V.F. (2007) 157 Cal.App.4th 962, 966 [ 69 Cal.Rptr.3d 159 ].) This principle applies when the parent is unavailable because of his or her service in the military.
examined Cited as authority (rule) San Diego County Health & Human Services Agency v. B.T. (4×) also: Cited "see"
Cal. Ct. App. · 2013 · confidence medium
(In re V.F. (2007) 157 Cal.App.4th 962, 968 [ 69 Cal.Rptr.3d 159 ] (V.F.).) Here, the parties agreed that section 361.2 did not apply and persuaded the juvenile court to apply a different standard and burden of proof, thus altering the statutory framework that governs placement of a dependent child under the California dependency scheme.
discussed Cited as authority (rule) Los Angeles County Department of Children & Family Services v. John M.
Cal. Ct. App. · 2013 · confidence medium
Nonetheless, father argues the issue was not waived because the claim presents a pure question of *420 fact that can be decided on undisputed facts, citing In re V.F. (2007) 157 Cal.App.4th 962, 968 [ 69 Cal.Rptr.3d 159 ].
discussed Cited as authority (rule) Los Angeles County Deparment of Children & Family Services v. Emma M.
Cal. Ct. App. · 2013 · confidence medium
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.” (In re V.F. (2007) 157 Cal.App.4th 962, 965-966 [ 69 Cal.Rptr.3d 159 ].) If a noncustodial, incarcerated parent seeks custody of the child, the court must determine whether placement with that parent would be detrimental to the child’s safety, protection, or physical or emotional well-being. (§ 361.2, subd. (a).) Among the factors in determining detriment are the noncus…
discussed Cited as authority (rule) Los Angeles County Department of Children & Family Services v. R.G.
Cal. Ct. App. · 2012 · confidence medium
Removal on any ground not involving parental consent, abandonment or institutionalization requires a finding, by clear and convincing evidence, there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if the child were returned home, and there are no reasonable means of protecting the child without depriving the parent of custody.” (In re V.F. (2007) 157 Cal.App.4th 962, 969, fn. 5 [ 69 Cal.Rptr.3d 159 ].) We review a dispositional order removing a child from parental custody for substantial evidence.
discussed Cited as authority (rule) Riverside County Department of Public Social Services v. A.B.
Cal. Ct. App. · 2012 · confidence medium
(In re V.F. (2007) 157 Cal.App.4th 962, 971 [ 69 Cal.Rptr.3d 159 ]; R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1271 [ 65 Cal.Rptr.3d 444 ].) Failure to object to noncompliance with section 361.2 in the lower court results in forfeiture.
discussed Cited as authority (rule) Santa Clara County Department of Family & Children's Services v. R.S.
Cal. Ct. App. · 2011 · confidence medium
(See In re V.F. (2007) 157 Cal.App.4th 962, 973 [ 69 Cal.Rptr.3d 159 ]; In re Marquis D. (1995) 38 Cal.App.4th 1813, 1824-1826 [ 46 Cal.Rptr.2d 198 ].) The same cannot be said, however, of another familiar barrier to appellate reversal: the rule of harmless error.
discussed Cited as authority (rule) Los Angeles County Department of Children and Family Services v. Irene V.
Cal. Ct. App. · 2011 · confidence medium
(In re Adrianna P. (2008) 166 Cal.App.4th 44, 55 [ 81 Cal.Rptr.3d 918 ]; In re V.F. (2007) 157 Cal.App.4th 962, 973 [ 69 Cal.Rptr.3d 159 ].) If it refuses to make such a placement under section 361.2, the juvenile court must find, by clear and convincing evidence, that it would be detrimental to the child to give custody to the noncustodial parent.
discussed Cited as authority (rule) In Re Karla C.
Cal. Ct. App. · 2010 · confidence medium
"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)." ( In re V.F. (2007) 157 Cal.App.4th 962, 969 [ 69 Cal.Rptr.3d 159 ], fn. omitted, superseded on other grounds as stated in In re Adrianna P. (2008) 166 Cal.App.4th 44, 57-58 [ 81 Cal.Rptr.3d 918 ] ( Adrianna P. ).) "[S]ection 361.2 governs the child's …
discussed Cited as authority (rule) In Re Rebecca S.
Cal. Ct. App. · 2010 · confidence medium
Although we agree that Father waived the issue by failing to raise it in the juvenile court, we will exercise our discretion to consider the issue. (2) "[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]" ( In re S.B. (2004) 32 Cal.4th 1287, 1293 [ 13 Cal.Rptr.3d, 90 P.3d 746], fn. omitted.) However, "application of the forfeiture rule is not automat…
discussed Cited as authority (rule) Los Angeles County Department of Children & Family Services v. Robert S. (2×)
Cal. Ct. App. · 2010 · confidence medium
Although we agree that Father waived the issue by failing to raise it in the juvenile court, we will exercise our discretion to consider the issue. “[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]” (In re S.B. (2004) 32 Cal.4th 1287 , 1293 [ 13 Cal.Rptr.3d, 90 P.3d 746], fn. omitted.) However, “application of the forfeiture rule is not autom…
discussed Cited as authority (rule) D.C. v. Harvard-Westlake School (2×)
Cal. Ct. App. · 2009 · confidence medium
(See In re V.F. (2007) 157 Cal.App.4th 962, 968 [ 69 Cal.Rptr.3d 159 ]; Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 948, fn. 14 [ 43 Cal.Rptr.3d 468 ].) “ ‘ [U]nconscionability has both a “procedural” and a “substantive” element,’ the former focusing on ‘ “oppression” ’ or “surprise” ’ due to unequal bargaining power, the latter on ‘ “overly harsh” ’ or ‘ “one-sided” ’ results .... ‘The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse …
examined Cited as authority (rule) San Diego County Health & Human Services Agency v. Esther M. (3×)
Cal. Ct. App. · 2008 · confidence medium
(Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 628-629 [ 53 Cal.Rptr.2d 41 ] (Robert L.); R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1271 [ 65 Cal.Rptr.3d 444 ] (R.S.); In re V.F. (2007) 157 Cal.App.4th 962, 973 [ 69 Cal.Rptr.3d 159 ] (V.F.).) Accordingly, respondents assert that the bypass provisions of section 361.5 do not apply to a noncustodial parent.
examined Cited as authority (rule) In Re Adrianna P. (4×)
Cal. Ct. App. · 2008 · confidence medium
Relying on prior case law authority, respondents assert section 361.2 addresses the noncustodial parent's circumstances and controls whether reunification services should be provided to that parent, while section 361.5 is "clearly directed to the custodial parent or parents." ( In re Terry H. (1994) 27 Cal.App.4th 1847, 1856 [ 34 Cal.Rptr.2d 271 ] ( Terry H. ).) They contend appellate courts have consistently applied section 361.2 to noncustodial parents and section 361.5 only to custodial parents. ( Robert L. v. Superior *54 Court (1996) 45 Cal.App.4th 619, 628-629 [ 53 Cal.Rptr.2d 41 ] ( Rob…
discussed Cited "see" In re A.R. CA4/3
Cal. Ct. App. · 2024 · signal: see · confidence high
(In re Dakota J. (2015) 242 Cal.App.4th 619, 629 ; see In re V.F. (2007) 157 Cal.App.4th 962, 969 [§ 361, subd. (c) does not address noncustodial parents].) But at the time of the hearing in this case, section 361, subdivision (d) applied the same standard of detriment whether or not the children 10 Section 361.2 addresses the placement of a child with a noncustodial parent if the juvenile court orders the child’s removal from the custodial parent. (§ 361.2, subd. (a).) If the noncustodial parent requests custody, the court must place the child with that parent unless it makes a finding of…
discussed Cited "see" In re Samantha H. CA2/2
Cal. Ct. App. · 2023 · signal: see · confidence high
Mother cites Ward v. Taggart (1959) 51 Cal.2d 736, 742 (Ward), which held that “a change in theory is permitted on appeal when ‘a question of law only is presented on the facts appearing in the record. . . .’” Ward permits, but does not require, consideration of a new theory on appeal where the theory advanced on appeal “does not contemplate any factual situation different from that established by the evidence in the trial court.” (Ibid.; see In re V.F. (2007) 157 Cal.App.4th 962, 968 [“A question of law is not automatically subject to the doctrine of forfeiture.”], superseded …
discussed Cited "see" In re J.S. CA2/7
Cal. Ct. App. · 2021 · signal: see · confidence high
(In re Dakota J. (2015) 242 Cal.App.4th 619, 630 ; see In re V.F. (2007) 4 157 Cal.App.4th 962, 969 [“section 361.2 is not a removal statute”].) Subdivision (a) of the statute provides that, “[i]f a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child.
discussed Cited "see" Los Angeles County Department of Children & Family Services v. Stacey J. (2×)
Cal. Ct. App. · 2015 · signal: see · confidence high
(Abram L., at p. 460; see In re V.F. (2007) 157 Cal.App.4th 962, 969 [ 69 Cal.Rptr.3d 159 ] [noting § 361, subd. (c), “ ‘ “does not, by its terms, encompass the situation of the noncustodial parent” ’ ”].) We conclude the court erred by ordering Dakota and Joseph removed from mother’s physical custody under section 361, subdivision (c), because *630 they were not residing with mother when the Department initiated the petition and had not been residing with her for at least five years.
discussed Cited "see, e.g." In re F.D. CA3
Cal. Ct. App. · 2015 · signal: see also · confidence low
In an appropriate case, all that might be required is a finding such a placement would impair the emotional security of the child.” (In re C.C. (2009) 172 Cal.App.4th 1481, 1490 ; see also In re Luke M., supra, at p. 1425 [a detriment finding may be supported by emotional harm to the child, even if the harm is not attributable to parental conduct].) When the parent seeking custody is incarcerated, the factors in assessing detriment also include “the noncustodial incarcerated parent’s ability to make appropriate arrangements for the care of the child and the length of that parent’s inca…
discussed Cited "see, e.g." In re Madeline C. CA4/1
Cal. Ct. App. · 2015 · signal: see also · confidence medium
(Id. at p. 1830; see also In re V.F. (2007) 157 Cal.App.4th 962, 966 [following In re Marquis D. and remanding case for analysis of detriment to placement with noncustodial parent where trial court failed to consider placement at all].) Here, the juvenile court's factual findings both with respect to Victoria and her half siblings support a jurisdictional finding under section 300, subdivision (b)(1).
discussed Cited "see, e.g." In Re HE (2×)
Cal. Ct. App. · 2008 · signal: see also · confidence medium
On those facts, Isayah C. found it error not to have made findings about Isayah living temporarily with the father's relatives, or the adequacy of the father's efforts in that regard. ( Isayah C., supra, 118 Cal.App.4th at pp. 693-694, 698-699; see also In re V.F. (2007) 157 Cal.App.4th 962, 970-973 [ 69 Cal.Rptr.3d 159 ].) [7] In that context, the opinion stated that subdivision (c)(1) "require[d] a threat to physical safety, not merely emotional well-being, in order to justify removal." ( Isayah C., supra, 118 Cal.App.4th at p. 698 .) The "not merely emotional well-being" language was a dict…
discussed Cited "see, e.g." Humboldt County Department of Health & Human Services v. A.E. (2×)
Cal. Ct. App. · 2008 · signal: see also · confidence medium
(Isayah C., supra, 118 Cal.App.4th at pp. 693-694, 698-699; see also In re V.F. (2007) 157 Cal.App.4th 962, 970-973 [ 69 Cal.Rptr.3d 159 ].) 7 In that context, the opinion stated that subdivision (c)(1) “require[d] a threat to physical safety, not merely emotional well-being, in order to justify removal.” (Isayah C, supra, 118 Cal.App.4th at p. 698 .) The “not merely emotional well-being” language was a dictum unnecessary to anything presented in the case, and two cases cited as support for that notion (ibid.) did not support it.
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.
D050824.
California Court of Appeal.
Dec 7, 2007.
69 Cal. Rptr. 3d 159
Irion.
Published

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

[*161] 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[*162] 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[*163] 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[*164] 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 to the custodial parent. Scott concedes the provisions of section 361, subdivision (c) do not apply to him because he had been incarcerated since May 2004, and the children were not residing with him at the time the petitions were initiated in January 2007.

When the court has ordered the removal of a child from the custodial parent under section 361, subdivision (c), the court is then required to determine whether there is a parent with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of section 300 who desires to assume custody of the child. (§ 361.2, subd. (a).) "If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child" (finding of detriment). (Ibid.; In re Austin P. (2004) 118 Cal.App.4th 1124, 1134-1135, 13 Cal.Rptr.3d 616 (Austin P.).)

We do not find it necessary to address the parties' argument whether Scott was properly classified as a "nonoffending parent."[6] Unlike section 361, subdivision (c)(1), the phrase "nonoffending parent" does not appear in section 361.2. We conclude that section 361.2 applies to a noncustodial parent without regard to that parent's status as an offending or nonoffending parent. If a noncustodial parent requests custody of a child, the trial court must determine whether placement with that parent would be detrimental to the child. (§ 361.2, subd. (a).) In making a finding of detriment, the court may consider any jurisdictional findings that may relate to the noncustodial parent under section 300, as well as any other evidence showing there would be a protective risk to the child if placed with that parent. In the absence of a finding of detriment, the court must place the child with the noncustodial parent. (§ 361.2, subd. (a).)

[*165] Section 361.2 is one of the statutes that guides the court and the Agency in determining the child's placement if the child has been removed from the custody of the parent with whom the child resided under section 361. (See In re Terry H. (1994) 27 Cal.App.4th 1847, 1856, 34 Cal. Rptr.2d 271.) As used in section 300 proceedings, the term "placement" connotes where the child shall live during his or her dependency. (Austin P., supra, 118 Cal. App.4th at p. 1131, 13 Cal.Rptr.3d 616; see §§ 361.21, 361.3, 361.4, 362.2, 362.7.)

In Isayah C., supra, 118 Cal. App.4th 684, 700, 13 Cal.Rptr.3d 198, the reviewing court held that the juvenile court may consider placing a child with a noncustodial, incarcerated parent under section 361.2 if that parent seeks custody of the child, the parent is able to make appropriate arrangements for the child's care during the parent's incarceration and placement with the parent is not otherwise detrimental to the child. The Isayah C. court based its decision on the case law that held the juvenile dependency system has no jurisdiction to intervene "when an incarcerated parent delegates the care of his or her child to a suitable caretaker" and there is no other basis for jurisdiction under section 300. (Isayah C., at p. 700, 13 Cal.Rptr.3d 198, citing In re S.D. (2002) 99 Cal.App.4th 1068, 1077, 121 Cal.Rptr.2d 518.) At disposition, the length of a parent's incarceration may be a factor in determining detriment under sections 361, subdivision (c) and 361.2, subdivision (a), but a finding of detriment cannot be based solely on the fact a parent is incarcerated. (In re S. D., at p. 1077, 121 Cal.Rptr.2d 518 [a parent cannot lose custody of a child merely because he or she may have been incarcerated]; In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402, 22 Cal.Rptr.2d 50 (Brittany S.) ["`Go to prison, lose your child'" is not an appropriate legal maxim.].)

Thus, under the authority of Isayah C., after the court has removed a child from a custodial parent, the court must proceed under section 361.2 to "first determine whether there is a parent ... with whom the child was not residing ... who desires to assume custody of the child," even when a noncustodial parent is incarcerated. (§ 361.2, subd. (a).) "[A] parent may have custody of a child, in a legal sense, even while delegating the day-to-day care of that child to a third party for a limited period of time." (Isayah C., supra, 118 Cal.App.4th at p. 700, 13 Cal.Rptr.3d 198.) Because Scott was not the children's custodial parent, the court should have considered the case under section 361.2. (R.S. v. Superior Court, supra, 154 Cal. App.4th at p. 1265, 65 Cal.Rptr.3d 444.)

Before the court can fashion a placement order under section 361.2, subdivision (b), it must first determine the predicate issues under section 361.2, subdivision (a)—whether the noncustodial parent is seeking custody of the child and, if so, whether placement with that parent would be detrimental to the health, safety or physical or emotional well-being of the child. (See R.S. v. Superior Court, supra, 154 Cal.App.4th at p. 1271, 65 Cal.Rptr.3d 444.)

With respect to custody, Scott contends that his request to the court to allow him to make suitable arrangements for the children's care should be interpreted as a request for custody of the children under section 361.2, subdivision (a). The Agency maintains Scott asked the court to place the children with a relative and did not request custody. For purposes of this discussion, we will assume, without deciding, that Scott's letter to the court, filed March 5, 2007, in which he asserted that he was able to arrange appropriate and adequate[*166] care for the children, constitutes an adequate request for custody of the children. (But see R.S. v. Superior Court, supra, 154 Cal.App.4th at p. 1269, 65 Cal.Rptr.3d 444 [case remanded to the trial court for proceedings under section 361.2 where some evidence in the record indicated the parent was seeking custody of the child].)

In evaluating whether placement with a noncustodial incarcerated parent would be detrimental to the child, the Isayah C. court concluded that an incarcerated parent's plan to send his child to relatives pending his relatively short incarceration, without more, did not constitute a sufficient showing of detriment under section 361.2, subdivision (a) to deny placement to the noncustodial parent.[7] (Isayah C., supra, 118 Cal.App.4th at p. 700, 13 Cal. Rptr.3d 198; see In re S. D., supra, 99 Cal.App.4th at p. 1077, 121 Cal.Rptr.2d 518; In re Aaron S. (1991) 228 Cal.App.3d 202, 212, 278 Cal.Rptr. 861.) In contrast to Isayah C., Scott's circumstances do not suggest this is a case where the only evidence in the record to support a finding of detriment is the parent's relatively short period of incarceration. Thus, we now consider whether this court may properly imply a finding of detriment under section 361.2, subdivision (a).

D. The Trial Court Did Not Consider the Correct Code Provision; Therefore This Court Will Not Make an Implied Finding of Detriment

In Marquis D., supra, 38 Cal.App.4th 1813, 1820-1821, 46 Cal.Rptr.2d 198, the trial court, as here, removed the dependent children from the noncustodial parent under section 361, subdivision (b), a section that did not apply to the parent. This court determined that making implied findings was inappropriate, reversed the dispositional orders, and remanded 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.)

In remanding the case to the trial court, this court in Marquis D. stated: "Implying a finding of detriment under section 361.2[] presupposes the court considered the correct code provision." (Marquis D., supra, 38 Cal.App.4th at p. 1824, 46 Cal. Rptr.2d 198.) This court was not satisfied the juvenile court adequately explored whether placing the children with the noncustodial parent would be detrimental to them within the meaning of section 361.2, subdivision (a) or that implied findings were warranted on the basis of the record. (Marquis D., at p. 1825, 46 Cal.Rptr.2d 198.)

Although this record arguably would support a finding that placement with Scott would be detrimental to the children, we believe the better practice is to remand the matter to the trial court where that court has not considered the facts within the appropriate statutory provision. As this court noted in Marquis D., when the trial court proceeds under section 361.2, subdivision (a), it is required to make a finding of detriment "in writing or on the record of the basis for its determination under subdivisions (a) and (b)." (§ 361.2, subd. (c); Marquis D., supra, 38 Cal.App.4th at p. 1824, 46 Cal.Rptr.2d 198.) Section 361.2, subdivision (c) is directed to the juvenile court, and we do not[*167] believe making express findings is an appropriate task for a reviewing court. This view comports with the long-standing rule that the reviewing court is not the finder of fact. (In re Zeth S. (2003) 31 Cal.4th 396, 405, 2 Cal.Rptr.3d 683, 73 P.3d 541 ["`it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law,'" citing Tupman v. Haberkern (1929) 208 Cal. 256, 262-263, 280 P. 970]; Joshua G, supra, 129 Cal.App.4th at p. 198, 28 Cal. Rptr.3d 213.)

We also recognize that different issues, evidence and argument may arise at trial depending on the applicable statute. When the proceedings take place under an inappropriate statute, even one requiring similar findings, the parties are not afforded the opportunity to tailor their case to the correct statute, and the trial court cannot fulfill its responsibility to make findings of fact within the provisions of that statute. (Cf. In re Gladys L. (2006) 141 Cal.App.4th 845, 848-849, 46 Cal. Rptr.3d 434.)

Here, although the court made findings of detriment under sections 361, subdivision (c) and 361.5, subdivision (b), it did not consider whether placement with Scott would be detrimental to the children under section 361.2, subdivision (a) and applicable case law. (Isayah C., supra, 118 Cal. App.4th at p. 700, 13 Cal.Rptr.3d 198; In re S.D., supra, 99 Cal.App.4th at p. 1077, 121 Cal.Rptr.2d 518; Brittany S., supra, 17 Cal.App.4th at p. 1402, 22 Cal.Rptr.2d 50.) For the reasons expressed, we decline to imply a finding of detriment.

In conclusion, we agree with our colleagues in the Second District that where there is a noncustodial parent, "the juvenile court [is] bound to apply the provisions of section 361.2, not section 361.5." (R.S. v. Superior Court, supra, 154 Cal. App.4th at p. 1271, 65 Cal.Rptr.3d 444.) The mere fact a noncustodial parent is incarcerated does not relieve the court of its obligation to determine whether the incarcerated parent is seeking custody of the child and, if so, whether placement with that parent would be detrimental to the child. (§ 361.2, subd. (a); Isayah C., supra, 118 Cal.App.4th at pp. 696-699, 13 Cal.Rptr.3d 198; In re S. D., supra, 99 Cal.App.4th at p. 1077, 121 Cal.Rptr.2d 518; Brittany S., supra, 17 Cal.App.4th at p. 1402, 22 Cal.Rptr.2d 50.) Although Scott's prior, current and foreseeable circumstances may support a finding that placement with him would be detrimental to the children, that determination is properly made by the trial court after the parties have had an opportunity to be heard on the issue.

DISPOSITION

The orders as to Scott F. are reversed. The trial court is directed to hold a hearing to consider and make findings under section 361.2, subdivision (a) in writing or on the record.

WE CONCUR: O'ROURKE, Acting P.J., and AARON, J.

1 Unless otherwise specified, statutory references are to the Welfare and Institutions Code.
2 The children's mother does not appeal and is mentioned only when relevant to the issues raised in this appeal.
3 Minors' counsel informs us the children were placed with the out-of-state relative in June 2007.
4 In a few decisions, reviewing courts have used the phrase "nonoffending noncustodial parent" as shorthand for "a parent ... with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300." (§ 361.2, subd. (a); see, e.g., In re Joshua G. (2005) 129 Cal.App.4th 189, 202, 28 Cal.Rptr.3d 213 (Joshua G.); Austin P., supra, 118 Cal.App.4th at p. 1129, 13 Cal. Rptr.3d 616.) Although the phrase "nonoffending parent" appears in section 361, subdivision (c)(1), it does not appear in the text of section 361.2. We believe the better shorthand phrase is simply "noncustodial parent." (See R.S. v. Superior Court (2007) 154 Cal. App.4th 1262, 1270-1271, 65 Cal.Rptr.3d 444.)
5 Section 361, subdivision (c) provides that a child may not be removed from the parent's physical custody during dependency proceedings, except for a temporary detention period, unless clear and convincing evidence supports a ground for removal specified by the Legislature. Removal on any ground not involving parental consent, abandonment or institutionalization requires a finding, by clear and convincing evidence, there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child if the child were returned home, and there are no reasonable means of protecting the child without depriving the parent of custody. (Ibid.; In re Henry V. (2004) 119 Cal.App.4th 522, 525, 14 Cal. Rptr.3d 496; see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253, 19 Cal.Rptr.2d 698, 851 P.2d 1307.) A nonoffending parent may be allowed to retain physical custody of the child if he or she presents an acceptable safety plan to the court. (§ 361, subd. (c)(1).)

If the custodial parent is incarcerated and the court has not made a finding of detriment under section 361, subdivision(c)(1), the Agency must show, by clear and convincing evidence, that the parent cannot arrange for the care of the child before the court may remove the child from that parent's custody. (§ 361, subd. (c)(5).)

6 The Agency asserts that Scott should be classified a "nonprotecting parent." We find no reference to the phrase "nonprotecting parent" in the Welfare and Institutions Code or in applicable case law. (See, e.g., In re Javier G. (2006) 137 Cal.App.4th 453, 461, 40 Cal.Rptr.3d 383 [phrase "nonprotecting parents" refers to participants in a treatment program designed for the spouses of perpetrators of sexual abuse on children].)
7 The Isayah C. court acknowledged there was a "lack of factual clarity" regarding whether the father was a custodial or noncustodial parent. (Isayah C., supra, 118 Cal. App.4th at p. 699, 13 Cal.Rptr.3d 198.) However, it determined the trial court erred under both sections 361, subdivision (c) and 361.2, subdivision (a) when it did not consider whether the father was able to arrange appropriate care for the child during the father's incarceration. (Isayah C., at p. 699, 13 Cal. Rptr.3d 198.)