Filed 5/23/13; pub. order 6/21/13 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re JOHN M., a Person Coming Under 

the Juvenile Court Law.

 B243107

 (Los Angeles County

 Super. Ct. No. CK34003)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

JOHN M., SR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Sherri 

Sobel, Juvenile Court Referee. Affirmed.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and 

Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and 

Jessica S. Mitchell, Senior Associate County Counsel.

——————————
2

John M., Sr. (father), appeals the dependency court‘s jurisdictional and 

dispositional order denying him custody of his son John M. (John). Father, who was 

incarcerated at the time of John‘s detention and who was the subject of an amended 

petition, argues that Welfare & Institutions Code section 361.21 provides that a 

noncustodial parent is entitled to placement consideration without regard to whether such 

parent is offending or nonoffending. Conceding that, in dependency court, he did not 

raise the possibility of John‘s placement with him, father argues nonetheless there was no 

forfeit. Father also argues that insufficient evidence supports the jurisdictional findings 

against him. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On February 21, 2012, DCFS filed a petition alleging that Toni R. (mother) had 

bipolar disorder, a 25-year history of substance abuse, and was a current daily abuser of 

heroin, alcohol, and prescription medication. The petition alleged two counts against 

mother under section 300, subdivision (b).

The detention report stated that John was placed in foster care, and that John‘s 

older sibling, J.R., had been removed from mother‘s care in 1998 and adopted as a result 

of mother‘s substance abuse in 2002. At the time of J.R.‘s detention, mother and father 

had custody of John, but father was in prison. John‘s parents‘ home was in an unsanitary 

and unsafe condition, with no utilities and no bed for the minor to sleep on. Mother, in 

addition to a history of substance abuse, had a history of arrests and convictions for drug 

related offenses, including possession of a controlled substance.

Department of Children and Family Services (DCFS) received the current referral 

on January 28, 2012 based on mother‘s treatment at an emergency room for pain in her 

left elbow. Mother admitted to emergency room staff that she was injecting heroin into 

her left arm. After mother‘s discharge from the hospital, DCFS assessed John‘s parents‘ 

home for a safety plan. On February 1, 2012, the social worker conducted an 

 

1 All statutory references herein are to the Welfare & Institutions Code unless 

otherwise indicated.
3

unannounced home visit, and mother admitted she used heroin daily. Mother also took 

numerous medications for her bipolar disorder. On February 6, 2012, during a follow-up 

visit, the social worker found the home in disarray, and instructed mother to clean and 

purchase groceries.

On February 15, 2012, John‘s maternal grandfather Kenneth R. informed DCFS 

that John was in the custody of paternal aunt Anna M. against the orders of DCFS, and 

mother had disappeared. Father was incarcerated in Wasco State Prison.

Anna told DCFS that she had been sober for the past seven years, and had room to 

care for John. Kenneth was unwilling to care for John. Anna told the social worker that 

she had previously cared for John because mother was unable to care for him due to her 

substance abuse. John told DCFS that he did not want to reside with Kenneth.

At the February 21, 2012 hearing, the court found that father was John‘s presumed 

father. Mother, whose location remained unknown, was ordered to a drug treatment 

program with random testing, and given once a week monitored visitation. On March 13, 

2012, Christina O., John‘s adult paternal cousin, was given the right to make educational 

decisions for John.

On March 20, 2012, DCFS filed an amended petition, adding the allegations under 

section 300, subdivisions (a) and (b) that Kenneth had physically abused John by hitting 

him with a belt on the buttocks, and that mother failed to protect John. The petition 

further alleged under section 300, subdivision (b) that father had a history of substance 

abuse, including heroin, and that mother and father had a history of engaging in verbal 

altercations.2

DCFS‘s March 20, 2012 detention report stated that John remained in foster care 

placement. Mother had an extensive criminal background dating from 1986 including 

 

2 The allegation against father, b-4, alleged that: ―The child[‘s] . . . mother . . . and 

father . . . have a history of engaging in verbal and physical altercations. The father 

currently remains incarcerated due to the domestic violence. Such domestic violence by 

the parents endangers the child‘s physical health and safety and places the child at risk of 

physical harm, damage, and danger.‖
4

arrest and convictions for various drug offenses, prostitution, disorderly conduct, and 

robbery. DCFS‘s jurisdictional report dated March 20, 2012 added that John was doing 

well in his placement. Father was in prison for a July 2011 altercation with mother in 

front of father and mother‘s apartment, at which time mother sustained injuries to her face 

and head. Neighbors told the paternal aunt that mother threw herself on the car and 

would not let father leave. Mother told police the mirror broke off and hit her face. 

However, after leaving a party in their car, father hit mother with his fists repeatedly, 

causing injuries to mother‘s head. John, who was not in the car at the time, believed 

mother had simply cut her head on the car‘s mirror. John stated his parents were ―[v]ery, 

very super nice.‖ John had seen mother hit father with her hand, and denied that mother 

and father threw objects at each other. John admitted that Kenneth had disciplined him 

with a belt. John did not know whether his parents used drugs or alcohol.

John told the social worker mother and father fought at home. Mother sometimes 

slapped father because they were mad at each other. Although the parents yelled at each 

other, John did not know why they were angry. John denied that father hit mother. When 

his parents were fighting, John would go in the other room and try to ignore them.

DCFS further reported that mother‘s location remained unknown. DCFS had 

located father in Vacaville State Prison, and attempted to contact him, but had not 

received a response. Christina told DCFS that John‘s parents had been involved with 

each other ― ̳on and off‘‖ for ― ̳at last 10 years.‘‖ Christina believed father was 

incarcerated for hitting mother. Kenneth denied hitting John, and told DCFS father was 

in prison for hitting mother.

John‘s Individualized Education Program (IEP) stated that John performed near 

grade level academically, but had difficulty relating to his peers due to limited social 

skills. John engaged in argumentative behavior, was defiant, and had poor control of his 

anger. John lacked focus and was inattentive, demonstrated significant impairment in his 

social-emotional function, with resulting adverse effect on his educational performance. 
5

However, John was very verbal and could carry on a conversation with an adult regarding 

many topics, and had good background knowledge.

On March 19, 2012, Christina‘s home was approved under the Adoption and Safe 

Family Act (ASFA), and John was placed in her home.

Father‘s arrest report from the July 25, 2011 incident disclosed that a neighbor 

stated she called the police at 12:30 a.m. The neighbor also stated that when the police 

arrived they found mother bleeding from the head. Mother and father denied any 

wrongdoing, but mother admitted to police they had been fighting and father had been 

drinking. Father had ordered her to get into the car and drove off very fast. They went to 

a party where father continued drinking and after they left to go home, father hit mother 

on the head, and continued to hit her after they got home.

At the March 20, 2012 hearing, the court set the matter for jurisdictional hearing 

on April 24, 2012. On April 13, 2012, at a progress hearing, father‘s counsel announced 

that father wanted to be present at the April 24, 2012 hearing. At the April 24, 2012, 

hearing father appeared through counsel, who requested to continue the matter. The court 

granted a four-week continuance to May 22, 2012.

DCFS filed an information for the May 22, 2012 hearing, to wit: Father had told 

DCFS he was willing to comply with a reunification plan and that he was scheduled to be 

released from prison on July 24, 2012. Father denied any domestic violence between him 

and mother, and stated that mother had lied about the incident. According to father, he 

and mother were in the car arguing when mother pulled the wheel, causing father to 

sideswipe a tree. The mirror broke off and hit mother‘s head. Father denied that Kenneth 

physically disciplined John. Father was aware of mother‘s bipolar diagnosis and he had 

attended some counseling with her. Father denied drug use, but admitted to drinking 

beer.

On May 22, 2012, father was not present at the hearing and remained in custody 

despite a removal order permitting him to attend the hearing. The court continued the 
6

matter to July 3, 2012. At the July 3, 2012 hearing, father, although there was a removal 

order, was again absent. The court continued the matter to July 30, 2012.

At the July 30, 2012 hearing, father was present in court. Father requested the 

court to dismiss the allegations against him. He argued the July 25, 2011 incident was a 

―one-time‖ occurrence and father denied being the perpetrator and asserted that John, 

who was not present at the incident, had told social workers that mother was the aggressor 

in his parents‘ fights. Father had no record of current drug use. The court sustained 

allegation b-4 against father based upon domestic violence with mother. The court found 

there was an immediate danger to John‘s physical and emotional well being if returned to 

his parents, and ordered John removed from his parents‘ custody. The court denied 

reunification services to mother based upon her failure to reunify with J.R. The court 

ordered reunification services for father consisting of random drug testing, with father to 

enter a program if he gave a positive test. The court also ordered anger management, 

parenting class, individual counseling, and monitored visitation two times per week. 

Father did not object at the hearing to any of these orders, or request custody of John.

DISCUSSION

I. Sufficiency of Findings Under Section 300, Subdivision (b)

Father argues that insufficient evidence supports the jurisdictional findings against 

him because his history of domestic violence did not pose a current risk of harm to John 

because John was never actually at risk of harm by father‘s past conduct: John was not 

present when father beat mother; the July 2011 incident was isolated and had occurred 

over a year earlier; John reported that both of his parents were very nice; John was not a 

toddler at the time of the hearing, and thus less at risk if he were present during violence 

between mother and father; and mother, whose location was unknown, could not fight 

with father and thus there was no longer a risk of domestic violence proximate to John.

At the jurisdictional hearing, the dependency court‘s finding that a child is a 

person described in section 300 must be supported by a preponderance of the evidence. 

(§ 355, subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) We review 
7

the dependency court‘s jurisdictional findings for substantial evidence, and review the 

evidence in the light most favorable to the dependency court‘s findings and draw all 

reasonable inferences in support of those findings. (Elijah R. v. Superior Court (1998) 66 

Cal.App.4th 965, 969.) ―Section 300, subdivision (b) provides a basis for . . . jurisdiction 

if the child has suffered, or there is a substantial risk the child will suffer, serious physical 

harm or illness caused by the parent‘s inability to provide regular care for the child 

because of the parent‘s mental illness, developmental disability or substance abuse.‖ (In 

re James R. (2009) 176 Cal.App.4th 129, 135.)

A jurisdictional finding under section 300, subdivision (b) requires ―(1) neglectful 

conduct by the parent in one of the specified forms; (2) causation; and (3)  ̳serious 

physical harm or illness‘ to the minor, or a  ̳substantial risk‘ of such harm or illness.‖ (In 

re Rocco M. (1991) 1 Cal.App.4th 814, 820.) ―Subdivision (b) means what it says. 

Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there 

must be evidence indicating that the child is exposed to a substantial risk of serious

physical harm or illness.‖ (Id. at p. 823; In re Alysha S. (1996) 51 Cal.App.4th 393, 399.)

―In evaluating risk based upon a single episode of endangering conduct, a juvenile 

court should consider the nature of the conduct and all surrounding circumstances. It 

should also consider the present circumstances, which might include, among other things, 

evidence of the parent‘s current understanding of and attitude toward the past conduct 

that endangered a child, or participation in educational programs, or other steps taken, by 

the parent to address the problematic conduct in the interim, and probationary support and 

supervision already being provided through the criminal courts that would help a parent 

avoid a recurrence of such an incident. The nature and circumstances of a single incident 

of harmful or potentially harmful conduct may be sufficient, in a particular case, to 

establish current risk depending upon present circumstances.‖ (In re J.N. (2010) 181 

Cal.App.4th 1010, 1025–1026.) We must have a basis to conclude there is a substantial 

risk the parent‘s endangering behavior will recur. (Id. at p. 1026.)
8

We disagree with father‘s analysis. The parents‘ history of domestic violence 

evidences an ongoing pattern that, while not yet causing harm to John, presented a very 

real risk to John‘s physical and emotional health. Both parents hit each other; verbal 

altercations were frequent; and father engaged in reckless driving with mother in the car. 

The fact that mother‘s location is not known does not reduce the risk to John because 

father could engage in angry and violent behavior toward John without mother being 

present. John‘s age would do little to protect him from father‘s violent outbursts. Finally, 

the severity of the July 2011 incident is not lessened by the fact it was isolated and in the 

past; indeed, father was incarcerated for his conduct during that incident that resulted in 

mother‘s injury.

II. Placement with Father as Noncustodial Parent

Father argues that the dependency court, which proceeded under section 361 in 

removing John from his custody, erred in failing to apply section 361.2 because although 

father was incarcerated at the time, he could have arranged for Anna to look after John 

until father was released from prison. Father contends section 361.2, which does not 

explicitly limit its reach to nonoffending parents, therefore provides a noncustodial parent 

is entitled to placement consideration without regard to whether such parent is offending 

or nonoffending. Conceding that he did not raise the possibility of John‘s placement with 

him pursuant to section 361.2 in the dependency court, father argues the issue was 

nonetheless not forfeited.

A. Forfeiture

At the outset, a parent‘s failure to raise placement under section 361.2 in the 

dependency court forfeits the issue. (See, e.g., In re A.A. (2012) 203 Cal.App.4th 597, 

605.) Father did not raise the issue at any of the scheduled (and continued) jurisdictional 

and dispositional hearings, thereby forfeiting the issue under In re A.A., at page 605. 

Nonetheless, father argues the issue was not waived because the claim presents a pure 

question of fact that can be decided on undisputed facts, citing In re V.F. (2007) 157 

Cal.App.4th 962, 968. Further, father asserts that nothing in section 361.2 requires the 
9

parent to raise the issue to be considered for custody, instead the statute directs the court 

to consider whether there is a noncustodial parent desiring custody. Finally, because the 

trial court used the wrong statutory framework in making findings under section 361, his 

trial counsel could not lodge reasonable objections.

We find some merit to father‘s contention that the statutory language, which 

commands the court to consider a noncustodial parent for placement, precludes forfeiture 

by the failure to raise the issue in the dependency court. However, the purpose of the 

forfeiture doctrine is to avoid the situation in which father acknowledges he finds himself 

here—bereft of a factual record on which to make a compelling argument tailored to the 

requirements of a different statute. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) 

Thus, we conclude father forfeited the issue by his failure to raise it in the dependency 

court, which would have permitted the court to determine the applicability of section 

361.2 and rule on the issue with an adequate record and argument.

B. “Nonoffending” Is a Requirement of Section 361.2

Nonetheless, putting aside father‘s forfeiture of placement under section 361.2, we 

find on the merits that father was not entitled to consideration under section 361.2 

because he was neither nonoffending nor noncustodial.

Section 361.2, subdivision (a), provides in part that ―[w]hen 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.‖ The section provides that ―[i]f 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.‖ (§ 361.2, subd. (a).) If the parent wants the child placed with him, the court must 

do so unless there is clear and convincing evidence of detriment. (In re Marquis D. 

(1995) 38 Cal.App.4th 1813, 1829.)
10

Under section 361.2, subdivision (a), the court examines whether it would be 

detrimental to temporarily place a child with the nonoffending noncustodial parent; under 

subdivision (b), the court decides whether that placement should be permanent and 

whether the court‘s jurisdiction should be terminated. (In re Austin P. (2004) 118 

Cal.App.4th 1124, 1131.) ―[T]he Legislature envisioned a two-step process: under 

[section 361.2]: subdivision (a), the court examines whether it would be detrimental to 

temporarily place a child with the nonoffending noncustodial parent; under subdivision 

(b), the court decides whether that placement should be permanent and whether the 

court‘s jurisdiction should be terminated.‖ (In re Austin P., at p. 1131.) In assigning 

custody of the child to either parent, ―the court‘s focus and primary consideration must 

always be the best interests of the child.‖ (In re Nicholas H. (2003) 112 Cal.App.4th 251, 

268.) If the dependency court finds that placement with the noncustodial parent would be 

detrimental, the court proceeds as to that parent as if it were removing the child from the 

custodial, offending parent. The court may provide reunification services under section

361.5, or no services if services are not warranted. (See In re Terry H. (1994) 27 

Cal.App.4th 1847, 1855; In re Arianna P. (2008) 166 Cal.App.4th 44, 53, 58, fn. 8, 59.)

― ̳Our role in construing a statute is to ascertain the Legislature‘s intent so [that we 

may] effectuate the purpose of the law.‘‖ In that regard, ―[w]e consider first the words of 

the statute because they are generally the most reliable indicator of legislative intent.‖ (In 

re J. W. (2002) 29 Cal.4th 200, 209.) Where, as here, ― ̳―the statutory language is 

unambiguous, we presume the Legislature meant what it said, and the plain meaning of 

the statute controls. [Citation.]‖ [Citation.] We consider extrinsic aids, such as 

legislative history, only if the statutory language is reasonably subject to multiple 

interpretations.‘‖ (In re W.B. (2012) 55 Cal.4th 30, 52.)

The word ―nonoffending‖ is not found in the text of section 361 .2. This term first 

appeared in the case law in In re Marquis D., supra, 38 Cal.App.4th 1813, where the 

court used the term to denote a parent who was not involved in the conduct that caused 

removal of the child from a parental home under section 361. (In re Marquis D., at 
11

p. 1823.) In several subsequent decisions, courts assumed, without deciding, that section 

361.2 applied solely to nonoffending parents, and have not analyzed whether the statute 

could apply to a noncustodial parent who was also the subject of the current dependency 

proceeding and have characterized section 361.2, subdivision (a) as permitting placement 

with a ―nonoffending noncustodial parent,‖ as though ―nonoffending‖ is a separate 

statutory requirement. (See, e.g., In re Joshua G. (2005) 129 Cal.App.4th 189, 202; In re 

Austin P., supra, 118 Cal.App.4th at pp. 1129–1132; In re Isayah C. (2004) 118 

Cal.App.4th 684, 700.) While none of those decisions specifically discusses the meaning 

of ―nonoffending,‖ it appears that they use ―nonoffending noncustodial parent‖ as 

shorthand for the statutory requirement of 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).)

However, In re V.F., supra, 157 Cal.App.4th 962, the Fourth Appellate District 

made no such distinction. ―[W]hen a noncustodial parent is incarcerated, the 

[dependency] 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.‖ (In re V.F., at pp. 965–966.) 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 noncustodial, 

incarcerated parent‘s ability to make appropriate arrangements for the care of the child 

and the length of that parent‘s incarceration. (In re S. D. (2002) 99 Cal.App.4th 1068, 

1077; In re Isayah C., supra, 118 Cal.App.4th at p. 700.)

In In re A.A., supra, 203 Cal.App.4th 597, the child was removed from his 

mother‘s care due to the mother‘s drug charges based on section 300, subdivision (b), and 

the court placed the child with the father; dependency jurisdiction was terminated. 
12

However, while mother was incarcerated on the drug charges, a new dependency 

proceeding was initiated based upon the father‘s physical abuse of the child, and after the 

father failed to reunify, the court set a selection and implementation hearing. Mother 

filed a section 388 petition seeking reunification services, and argued on appeal that the 

court erred in failing to consider her for the child‘s placement under section 361.2. (In re 

A.A., at pp. 602–604.) The Fourth Appellate District in In re A.A. held that the court was 

not required to consider the mother for placement because she was neither nonoffending 

nor noncustodial within the meaning of section 361, subdivision (c) and 361.2. (In re 

A.A., at p. 604.) Recognizing that although In re V.F., supra, 157 Cal.App.4th 962 had 

found the fact of incarceration should not preclude a noncustodial parent from obtaining 

custody under section 361.2 where the parent can make arrangements for the child‘s care, 

In re A.A. distinguished the case before it from In re V.F. on the basis that mother was the 

subject of a section 300, subdivision (b) allegation in the current dependency proceedings. 

―While an incarcerated parent can avoid jurisdiction under section 300, subdivision (g) by 

arranging for his or her child‘s care [citations], the same is not true of a parent whose acts 

or omissions have led to jurisdictional findings under section 300, subdivision (b).‖ (In re

A.A., at p. 607.)

Further, In re A.A., supra, 203 Cal.App.4th 597 rejected the core holding of In re 

V.F., supra, 157 Cal.App.4th 962 and found that the ―[dependency] court should not be 

required to consider placing a child with an incarcerated parent who has previously been 

the subject of a removal order due to acts or omissions by that parent that brought his or 

her child within the description of section 300 and whose custody right has not been 

restored. In other words, if the noncustodial status of the incarcerated parent is due to a 

prior dependency order removing custody, and there has been no intervening restoration 

of the parent‘s right to physical custody of the child, the court need not inquire if that 

parent desires to have the child placed with him or her.‖ (In re A.A., at p. 608.) In re A.A. 

elaborated: ―a parent  ̳with whom the child was not residing at the time‘ of the initiation 

of the dependency, whether or not due to a family law custody order, is presumptively 
13

entitled to custody because he or she has not been previously found to pose a risk of harm 

to the child. It is reasonable to assume the Legislature intended to require a juvenile court 

to first consider placement of a child with this class of parent, to avert the trauma of a 

foster placement. A parent who is noncustodial because of a prior finding of detriment is 

not merely a parent  ̳with whom the child was not residing at the time‘ of the events that 

resulted in the dependency.‖ (Id. at p. 610.)

Similarly, in In re Isayah C., supra, 118 Cal.App.4th at page 700, the court held 

that the dependency 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.) ―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 Noe F. (2013) 213 Cal.App.4th 358, 369.)

Thus, In re A.A., supra, 203 Cal.App.4th 597 and In re Isayah C., supra, 118 

Cal.App.4th 684 recognize that not all bases for dependency court jurisdiction are created 

equal. A section 300, subdivision (g) allegation when merely based on incarceration 

should not deny a noncustodial parent custody when the parent is able to make 

arrangements for the child. An allegation under subdivision (g) is distinct from a section 

300, subdivision (b) allegation. Thus, applying this rationale to father here, his status as 

an offending parent under section 300, subdivision (b) precludes him from being 

considered for custody of John. Father is not merely a parent with whom the child was 

not residing at the time of the initiation of the dependency; rather, father and mother 

shared custody of John. The dependency court had sustained allegations against Father 
14

based upon his quarrels and domestic violence history with mother. Thus, Father does 

not stand in the same shoes as the parents in In re V.F., supra, 157 Cal.App.4th 962 or In 

re Isayah C., who were nonoffending but incarcerated. Further, Father was a custodial 

parent until his incarceration for domestic violence separated him from John. As such, 

because father‘s criminal offense was the cause of his noncustodial status, we do not find 

he fits within the purpose of the statute to keep children with their parents if possible.

Nonetheless, father makes numerous arguments why section 361.2 should apply to 

him. He asserts that a detriment finding cannot be implied from the record here because 

it was not clear that placement with father would be detrimental, and further the court 

applied the detriment standard under section 361, not section 361.2. Father points out 

that his substance abuse history did not support such a finding as there was no current 

history of drug use and father‘s domestic violence past was not directed at John. We need 

not reach the detriment issue here because under section 361.2, we would not get to this 

stage of the analysis due to father‘s sustained section 300, subdivision (b) allegation.

Father argues that reading a nonoffending requirement into the language of section 

361.2 would frustrate the purpose of the statute to keep the child a parent, any parent, if 

possible; with a nonoffending requirement inserted, the dependency court could not 

conduct a careful or individualized placement plan, and all parents who have a 

jurisdictional finding would never have a chance at custody. We disagree. Parents who 

have a section 300, subdivision (g) finding may or may not be awarded custody, 

depending on the circumstances. The two-step process envisioned under the statute 

permits the court to tailor the custody arrangement with appropriate reunification services 

to the parent awarded custody, if necessary; therefore, father‘s reading of the statute 

ignores this important function of the statute.

Lastly, father argues reading a nonoffending requirement into the statute would 

undermine the requirement that there be clear and convincing evidence of detriment 

before placement with a noncustodial parent can be denied, while a jurisdictional finding 

need only be made under the preponderance of the evidence standard. (See, e.g., In re 
15

Marquis D., supra, 38 Cal.App.4th at pp. 1827–1829.) Father‘s analysis misses the mark. 

In re Marquis D. also recognized an implicit nonoffending requirement in section 361.2. 

As explained in In re Marquis D., ―applying a clear and convincing standard of proof to 

remove custody from the custodial parent while denying placement with the noncustodial 

parent based on a preponderance of the evidence would lead to the anomalous result that 

a parent who had no connection with the circumstances that brought the child within the 

jurisdiction of the court could have his or her rights terminated upon a lesser showing 

than the parent who created those circumstances.‖ (Id. at p. 1829, italics added.) In re 

Marquis D. likewise implicitly recognizes the nonoffending requirement in section 361.2; 

thus father, who does not qualify for application of section 361.2 in the first instance, is 

not subjected to a lesser standard of proof than an offending parent.

DISPOSITION

The order is affirmed.

JOHNSON, J.

We concur:

MALLANO, P. J.

ROTHSCHILD, J.
16

Filed 6/21/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re JOHN M., a Person Coming Under 

the Juvenile Court Law.

 B243107

 (Los Angeles County

 Super. Ct. No. CK34003)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

JOHN M., SR.,

Defendant and Appellant.

 CERTIFICATION AND

 ORDER FOR PUBLICATION

The opinion in the above-entitled matter filed May 23, 2013, was not certified for 

publication in the Official Reports. For good cause it now appears that the opinion 

should be published in the Official Reports and it is so ordered.

MALLANO, P. J. ROTHSCHILD, J. JOHNSON, J.