California
Appeals
Standard of Review
Statutory Construction

Standard of Review Statutory Construction question of law,  review de novo. In re Adrianna P D052400
 

Appellants contend the juvenile court erred as a matter of law when it determined that it was without authority to deny services to a noncustodial parent pursuant to section 361.5 where that parent requested placement but the court denied the request under section 361.2, subdivision (a).  Appellants assert section 361.2 is primarily a placement statute and argue that when a child is placed in out-of-home care,section 361.5 governs the grant or denial of reunification services to both the custodial parent and the noncustodial parent.  More particularly, they contend the provisions of section 361.5 that permit the court to bypass family reunification services apply to a noncustodial parent.

            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 (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 Court (1996) 45 Cal.App.4th 619, 628-629 (Robert L.); R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1271 (R.S.); In re V.F. (2007) 157 Cal.App.4th 962, 973 (V.F.).)  Accordingly, respondents assert that the bypass provisions of section 361.5 do not apply to a noncustodial parent.

            This issue presents a pure question of law, which we review de novo.  (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)

            As a matter of first impression, we conclude section 361.5 governs the grant or denial of reunification services to a noncustodial parent who has not assumed custody of his or her child under section 361.2, subdivision (b).  We reach this conclusion for several reasons.  First, on its face, section 361.2 addresses the court's authority to grant or deny reunification services to a noncustodial parent only where a noncustodial parent assumes custody of the child.  (§ 361.2, subd. (b).)  It does not specifically address the court's authority to grant or deny services to a noncustodial parent whose request for custody has been denied under section 361.2, subdivision (a).  

            Second, respondents' application of Terry H. and Robert L., both decided in a different factual context, are clearly distinguishable and of little value in deciding the issues presented here.  Moreover, in view of subsequent statutory changes, the dichotomy created by these cases between a custodial and noncustodial parent is no longer necessary or tenable.  Rather, where the court has removed the child from the physical custody of a parent under section 361 and has determined it would be detrimental to place the child with a noncustodial parent under section 361.2, the court must order the Agency to provide reunification services to the child's mother and statutorily presumed father,[4] unless it determines that a statutory bypass exception applies under the relevant provisions of section 361.5.  (§ 361.5, subds. (b), (c) & (e)(1).) 

            Third, in view of the clear public policy favoring family reunification and the equally clear policy disfavoring services where the reunification process would not be safe for the child, or would not benefit the child and waste limited public resources, we do not believe the Legislature intended to leave a "gap" in the statutory framework concerning the grant or denial of services to a noncustodial parent.  (See, generally, In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1239, 1242; In re Alanna A. (2005) 135 Cal.App.4th 555, 563, 566; In re Jesse W. (2007) 157 Cal.App.4th 49, 59; 42 U.S.C. §§ 621, 622, 629a, 629b, 5106a(b)(2)(A)(xvi) [federal law requires reunification services except in specified circumstances].) 

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