San Diego County Health & Human Services Agency v. Scott F.

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 *966 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 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 determing detriment are the noncustodial, incarcerated parent’s ability to make appropriate arrangements for the care of the child and the length of that parent’s incarceration. (In…