In re Isayah C

In In re Isayah C. (2004) 118 Cal.App.4th 684, the reviewing court held that a parent who has not been found unfit to care for his child "generally enjoys the right to make reasonable decisions about where and with whom the child will reside." (Id. at p. 697.) There, "no allegations under section 300 were ever established as to the father." (Id. at p. 695.) While the father was incarcerated at the time of detention, he was nonetheless a "non-offending" custodial parent under California law. (Id. at p. 691-692.) Thus, there was no legal basis for removing the child from the father's custody and rejecting out of hand the father's request that the child be placed during his incarceration with his niece and nephew in Redding. As the reviewing court explained, the applicable statute, given the father's status as a non-offending custodial parent, was section 361, subdivision (c), which bars the court from removing the child absent clear and convincing evidence that the non-offending custodial parent was either not able to protect the child from future harm, or could not arrange for the child's care while the parent was incarcerated. Thus, because the lower court failed to make the requisite findings under section 361, subdivision (c), the dispositional order was reversed and the matter remanded for further proceedings. (Id. at p. 696 noting "'there is no 'Go to jail, lose your child' rule in California. '".)