California Welfare and Institutions Code Section 361
Where a child has been removed from a parent's care under Welfare and Institutions Code section 361, and the child is not placed with a noncustodial parent or relative, the social worker may place the child in the approved home of a nonrelative extended family member (NREFM). (In re R.T. (2015) 232 Cal.App.4th 1284, 1298-1299; Samantha T. v. Superior Court (2011) 197 Cal.App.4th 94, 108 (Samantha T.).)
Section 362.7 defines an NREFM as "an adult caregiver who has an established familial relationship with a relative of the child, as defined in section 361.3, subdivision (c)(2), or a familial or mentoring relationship with the child."
A relative is "an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship, including stepparents, stepsiblings, and all relatives whose status is preceded by the words 'great,' 'great-great,' or 'grand,' or the spouse of any of these persons even if the marriage was terminated by death or dissolution." ( 361.3, subd. (c)(2).)
"'Affinity'" means the connection existing between one spouse or domestic partner and the blood or adoptive relatives of the other spouse or domestic partner. (Cal. Rules of Court, rule 5.502(1).) (Further rule references are to the California Rules of Court.)
See also rule 5.502(34): "'Relative' means:
"(A) An adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship. This term includes:
"(i) A parent, sibling, grandparent, aunt, uncle, nephew, niece, great-grandparent, great-aunt or -uncle (grandparents' sibling), first cousin, great-great-grandparent, great-great-aunt or -uncle (great-grandparents' sibling), first cousin once removed (parents' first cousin), and great-great-great-grandparent;
"(ii) A stepparent or stepsibling; and
"(iii) The spouse or domestic partner of any of the persons described in subparagraphs (A)(i) and (ii), even if the marriage or partnership was terminated by death or dissolution; or
"(B) An extended family member as defined by the law or custom of an Indian child's tribe. (25 U.S.C. 1903(2).)"
Welfare and Institutions Code Section 361, subdivision (c), provides in pertinent part:
"A dependent child shall not be taken 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, unless the juvenile court finds clear and convincing evidence of any of the following circumstances ... : (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody. ... The court shall consider, as a reasonable means to protect the minor, each of the following: (A) The option of removing an offending parent or guardian from the home. (B) Allowing a nonoffending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm."
The foregoing provision has been understood as permitting removal on broader grounds than "substantial danger to the physical health." (Rule 5.695(d)(1) removal from parental custody permissible where there is clear and convincing evidence that "there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child, or will be if the child is returned home, and there is no reasonable alternative means to protect that child ..."; see In re H.E. (2008) 169 Cal.App.4th 710, 718-722 86 Cal. Rptr. 3d 820.)
"The elevated burden of proof for removal from the home ... reflects the Legislature's recognition of the rights of parents to the care, custody and management of their children, and further reflects an effort to keep children in their homes where it is safe to do so. (See In re Jasmine G. (2000) 82 Cal.App.4th 282, 288 98 Cal. Rptr. 2d 93; see also In re Henry V. (2004) 119 Cal.App.4th 522, 525 14 Cal. Rptr. 3d 496 ... .)
By requiring clear and convincing evidence of the risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child's safety, section 361, subdivision (c) demonstrates the 'bias of the controlling statute is on family preservation, not removal.' (In re Jasmine G., supra, at p. 290.) Removal 'is a last resort, to be considered only when the child would be in danger if allowed to reside with the parent.' (In re Henry V., supra, at p. 525.)" (In re Hailey T. (2012) 212 Cal.App.4th 139, 146 151 Cal. Rptr. 3d 1.)
The protections of section 361, subdivision (c), apply when the Department seeks to remove a minor from parental custody subsequent to disposition. (See In re T.W. (2013) 214 Cal.App.4th 1154, 1163 154 Cal. Rptr. 3d 669.)
"When the court orders removal pursuant to Section 361, the court shall order the care, custody, control, and conduct of the child to be under the supervision of the social worker who may place the child in any" of a number of specified placements. ( 361.2, subd. (e).) One of the placement options is "the home of a noncustodial parent." ( 361.2, subd. (e)(1).)
"When 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. 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." ( 361.2, subd. (a).) If the child is placed with a previously noncustodial parent, the court has a number of available options, including but not limited to ordering reunification services for the parent from whom the child is being removed or ordering family maintenance services solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision. ( 361.2, subd. (b)(3).)
The "clear and convincing" standard specified in section 361, subdivision (c), governs the trial court but it is not the standard for appellate review. (In re Walter E. (1992) 13 Cal.App.4th 125, 139 17 Cal. Rptr. 2d 386; Crail v. Blakely (1973) 8 Cal.3d 744, 750 106 Cal. Rptr. 187, 505 P.2d 1027.)
"We review an order removing a child from parental custody for substantial evidence in a light most favorable to the juvenile court findings. ." (In re Miguel C. (2011) 198 Cal.App.4th 965, 969 129 Cal. Rptr. 3d 684; see In re A.E. (2014) 228 Cal.App.4th 820, 826 175 Cal. Rptr. 3d 629.)
Under Welfare and Institutions Code section 361, subdivision (c)(1), the court cannot remove a dependent child from parental custody unless "there is or would be a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being" if returned home, and there are no reasonable means to protect the child's physical health without removing the child from parental custody. (See also In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.)
When the court determines whether a child may be safely maintained in the parent's physical custody, it may consider the parent's past conduct and current circumstances and the parent's response to conditions that gave rise to juvenile court intervention. (In re Cole C. (2009) 174 Cal.App.4th 900, 917; In re S.O. (2002) 103 Cal.App.4th 453, 461; see In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1043-1044.)
The court also considers whether there are any reasonable protective measures and services that can be put into place to prevent the child's removal from the parent's physical custody. ( 361, subd. (c)(1); see 202, subd. (a), 16500.5, 16501, 16501.1; title 42 U.S.C. 629, 629a.)
The court must make orders for the care and custody of a child adjudged a dependent child. ( 361, subd. (a).)
When a child is ordered removed from his or her parents, the court must place the child under the supervision of the social worker, who may make any one of four specified placements. ( 361.2, subd. (e).)
The only placement option relevant here is: "the approved home of a nonrelative extended family member nonrelated extended family member (NREFM) as defined in Section 362.7." ( 361.2, subd. (e)(3).)
"In 1995, recognizing the importance of continuity of community, school, church and friends to dependent children who have been removed from their families, the Legislature enacted section 362.7, which permits a county welfare department to place a dependent child in the home of a NREFM. " (In re Michael E. (2013) 213 Cal.App.4th 670, 674; Samantha T. v. Superior Court (2011) 197 Cal.App.4th 94, 108.)
Section 362.7 defines a NREFM as "any adult caregiver who has an established familial or mentoring relationship with the child. The county welfare department shall verify the existence of a relationship through interviews with the parent and child or with one or more third parties. The parties may include relatives of the child, teachers, medical professionals, clergy, neighbors, and family friends."