Filed 5/15/14 In re Miguel A. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re MIGUEL A. et al., Persons Coming
Under the Juvenile Court Law.
                                                                 D064941
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. J514-548ABC)
         Plaintiff and Respondent,

         v.

S.L. et al.,

         Defendants and Appellants.


         APPEALS from orders of the Superior Court of San Diego County, Cynthia

Bashant, Judge. Affirmed in part; reversed in part; and remanded with directions.



         Donna Balderston Kaiser, under appointment by the Court of Appeal, for

Defendant and Appellant R.O.

         Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and

Appellant S.L.
       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.

       Julie E. Braden, under appointment by the Court of Appeal, for Minors.

       S.L. challenges the sufficiency of the evidence supporting the juvenile court's

jurisdictional findings regarding her three children under Welfare and Institutions Code

section 300, subdivision (b),1 and its removal of those children from her custody under

section 361. R.O., the children's father, contends the court erred by declining to award

custody to him under section 361.2 without first determining it would be detrimental to

do so. We conclude below that substantial evidence supports the juvenile court's

jurisdictional findings and removal of the children from S.L. However, we also conclude

the juvenile court erred in failing to consider whether awarding custody of the children to

R.O. would be detrimental to them, as was required by section 361.2. We reverse the

orders in that respect and otherwise affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       S.L. suffers from bipolar disorder and has an extensive criminal history that began

when she was arrested on drug charges at age 18. In 2002 she gave birth to Miguel while

serving a 10-and-a-half-month sentence for violating parole. The San Diego County

Health and Human Services Agency (Agency) commenced dependency proceedings

concerning Miguel due to S.L.'s incarceration and inability to arrange for Miguel's care.

The court declared Miguel a dependent and placed him in foster care.



1      All further statutory references are to the Welfare and Institutions Code.
                                               2
        While incarcerated, S.L. underwent drug treatment and other reunification

services, including further substance abuse treatment, therapy, and anger management.

Once paroled, S.L. and R.O. moved into a sober-living apartment and married, and S.L.

gave birth to Ricardo in 2003. Although S.L. struggled with her reunification plan

requirements, she made sufficient progress that the juvenile court returned Miguel to her

care in January 2004 and terminated jurisdiction in August 2004. Raquel was born in

2006.

        R.O. was in and out of federal custody between 2008 and 2010; when he was not

incarcerated, R.O. lived with S.L. and the children.

                             The Initial Petition in This Case

        R.O. was arrested in March 2012 and charged with robbery, obstructing a police

officer, and solicitation to commit murder. Thereafter, S.L. stopped taking the

medication for her mental health issues and fell back into drug use, which " 'intensified' "

and " 'aggravated' " her behaviors. In March 2013, the children were living with their

paternal grandmother, H.S., who enrolled them in school. However, within a few

months, they moved to Riverside with S.L. to the home of their maternal grandfather,

Raymond L.

        In May 2013, Riverside County's child welfare services agency (Riverside)

received a report that S.L. was behaving erratically, including having verbal arguments

with Raymond and causing property damage to his home, and that the children had not

attended school "in a while." Riverside received a second report four days later

indicating that police were called several times due to S.L. causing property damage, S.L.

                                             3
was verbally abusive to the children and threw a broom at Miguel, Raymond was in the

process of evicting S.L., and the children had been away from school for the past 30 days.

       In June 2013, Riverside received two additional reports. The first indicated that

drug paraphernalia was found in the bathroom S.L. and her children had used at

Raymond's house, and although police were notified, they were unable to locate S.L. The

second indicated S.L. had left residential drug treatment at Kiva and that S.L. was

observed screaming and swearing at the children. She also was stopped from squeezing

Miguel's face so hard he cried intensely, but said " '[W]ell, if he doesn't shut the fuck up

I'm really going to hurt him.' " Although the children begged to stay at Kiva, and Kiva

staff encouraged her to stay, S.L. took the children and left.

       Thereafter, S.L. rebuffed Riverside's attempts to help her and Riverside eventually

closed its referrals due to S.L.'s lack of cooperation and its inability to locate the children.

At some point, S.L. returned to San Diego with the children and began living illegally in

an apartment that had no electricity or running water.

       In July, the Agency received a report that S.L. had been verbally and physically

abusive to her children (kicking and slapping them and pulling their hair), and that she

had failed to provide them with food. By the time of the report, the property manager for

the apartment complex had succeeded, with police assistance, in evicting S.L., and the

Agency was unable to contact her despite multiple attempts.

       In August and September 2013, S.L. showed up at Polinsky Children's Center

(PCC) wanting to drop off her children. The Agency created a safety plan under which

the children were released to H.S., but nine days later H.S. informed the Agency she

                                               4
could no longer care for the children because she did not want to deal with S.L.'s threats

or the children's behaviors. S.L. initially told the Agency to put the children in foster

care, but eventually picked the children up from H.S.

       S.L. informed the Agency she was receiving services through Parentcare drug

treatment center and the Agency needed to leave her alone, but she was later arrested on a

felony warrant for robbery and hit-and-run accident with property damage. At the time

of the arrest, S.L. and her children were living in a vehicle. The arresting officer

observed that the vehicle and the children were dirty and unkempt and that S.L. exhibited

signs of being under the influence of a controlled substance. One of the officers took the

children, who were crying and hungry, to PCC.

       A social worker interviewed S.L. at Las Colinas Detention Facility. S.L. claimed

she had no idea why she had been arrested and explained that she was participating in

substance abuse treatment because she would " 'do anything and say anything' " to get the

resources she needed, not because she had a substance abuse problem. S.L. refused to

sign releases of information or consent for treatment for the children and asked that they

be placed with H.S.

       A social worker interviewed the children at PCC. They did not disclose any abuse

or neglect and did not know much about alcohol or drugs. The children had little

memory of attending school other than when they were living with H.S. and said S.L.

bought them food with food stamps when they were hungry.

       H.S. told the social worker that S.L. had consistently failed to provide the children

with food or a home and had essentially been living in their vehicle since Raymond asked

                                              5
S.L. to leave his home; she also indicated that their clothes were always dirty and that

Raquel had had lice for some time. H.S. believed S.L. was using drugs due to her

keeping odd hours, the way she smelled after returning home, her considerable weight

loss in a short period of time, and her rapid spending of the $1,300 she received each

month, none of which went for food or housing. According to H.S., S.L. had taught the

children to steal from stores by hiding items in their pants and the children were very

protective of S.L. and would never say anything negative about her.

       Social workers also interviewed two of S.L.'s sisters, T.M. and R.R.. T.M. stated

S.L. did not have a stable home and needed medical help because she was bipolar but did

not take her medication. T.M. also reported S.L. and R.O. had engaged in domestic

violence in front of the children. R.R. expressed concern for the children's well-being

due to S.L.'s homelessness, unemployment, verbal abuse of the children, drug abuse, and

mental health issues. Both sisters indicated a willingness to care for the children only if

S.L. would give up her parental rights.

       In October 2013, the Agency filed petitions on behalf of the children under section

300, subdivision (g), alleging that S.L. and R.O. were incarcerated and unable to arrange

appropriate care for the children. At the detention hearing, the juvenile court detained the

children in out-of-home care and authorized supervised visits with both parents, but

ordered that S.L.'s visits also be closely monitored to minimize the possibility that she

would try to influence the children's potential testimony in her criminal case. The

children's counsel asked the court to amend the petitions and make a prima facie finding

that the children were in need of protection based on S.L.'s substantial neglect of them

                                             6
(§ 300, subd. (b)), as well as both parents' incarceration (§ 300, subd. (g)). The court did

not grant the request, but set the matter for a jurisdiction and dispositional hearing and

warned that "everyone is on notice that both the Agency and minor[s'] counsel are

looking into the possibile [section 300, subdivision (b)] allegations."

                                Initial Jurisdiction/Disposition

       As of the time of the jurisdiction/disposition report, Miguel and Raquel were

detained in separate foster homes and Ricardo was detained at PCC. R.O. had pled guilty

to robbery (with a dismissal of the solicitation to commit murder charge) and was likely

to be in prison for a little over three years.

       R.O. requested that his children be placed together and with H.S.

                            The Amended Petitions and Detention

       In October 2013, the Agency filed amended petitions adding counts under section

300, subdivision (b) based on the police report regarding S.L.'s robbery and hit-and-run

charges. The report stated that on August 5, 2013, S.L stole a phone from a mobile

phone store, hit and scratched the store manager who had pursued her, and struck and

damaged a parked car while fleeing in her vehicle, all in the presence of her children.

       At the detention hearing on the amended petitions, the court found a prima facie

showing under section 300, subdivisions (b) and (g).

                                   Jurisdiction/Disposition

       As of the time of the jurisdiction and dispositional hearing, all three children were

placed in separate foster homes, although Miguel's foster mother had just requested his

placement elsewhere because of untreated mental health issues and discipline problems at

                                                 7
school. The court received the Agency's reports in evidence and heard arguments of

counsel. S.L. presented no affirmative evidence. The court dismissed the section 300,

subdivision (g) counts and found the counts filed under section 300, subdivision (b) true

by clear and convincing evidence. The court declared the children dependents of the

court and removed them from parental care under section 361, subdivision (c)(1). Over

the Agency's objection, the court placed Miguel and Ricardo with H.S. and Raquel with a

paternal aunt. The court ordered unification services be provided.

       Each parent timely appealed.

                                        DISCUSSION

                                               I.

                                       S.L.'S APPEAL

       S.L. contends insufficient evidence supports the juvenile court's jurisdictional

findings and dispositional orders removing custody of the children from her. We

disagree in both respects.

A.     Applicable Legal Principles

       At the jurisdictional hearing, the juvenile court determines whether the child is

described by one or more subdivisions of section 300. (In re J.K. (2009) 174 Cal.App.4th

1426, 1432.) Under section 300, subdivision (b), the Agency must show by a

preponderance of the evidence that the parent's neglectful conduct has caused the child to

suffer serious physical harm or illness, or creates a substantial risk that the child will

suffer such harm or illness. (§§ 300, subd. (b), 355, subd. (a).)



                                               8
       Under section 361, subdivision (c)(1), custody of a dependent child may not be

removed from his or her parents unless the court finds there is clear and convincing

evidence that 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 that there

are no reasonable means to protect the child's physical health without removing the child.

(Ibid.; In re J.K., supra, 174 Cal.App.4th at p. 1433.)

       "On appeal, the 'substantial evidence' test is the appropriate standard of review for

both the jurisdictional and dispositional findings." (In re J.K., supra, 174 Cal.App.4th at

p. 1433.) "We do not pass on the credibility of witnesses, attempt to resolve conflicts in

the evidence or weigh the evidence. Instead, we draw all reasonable inferences in

support of the findings, view the record favorably to the juvenile court's order, and affirm

the order even if other evidence supports a contrary finding." (In re T.V. (2013) 217

Cal.App.4th 126, 133.) "The appellant has the burden of showing there is no evidence of

a sufficiently substantial nature to support the findings or order." (Ibid.)

B.     Substantial Evidence Supports the Juvenile Court's Jurisdictional Findings

       Substantial evidence demonstrates S.L.'s erratic behavior and instability put her

children at risk. S.L. had a history of drug abuse and drug charges — including a

previous dependency case involving Miguel — and credible evidence suggested she

likely had relapsed. For example, Raymond found paraphernalia and possible drugs in

the bathroom S.L. and her children used; H.S. observed behaviors suggesting S.L. was

using drugs; a Riverside social worker who spoke with S.L. on the phone suspected she



                                              9
was under the influence; and the officer who arrested S.L. stated she was exhibiting

behaviors indicating she was under the influence.

       S.L.'s own statements also suggest she had relapsed. Although S.L. told one

social worker that "she ha[d] been clean and sober from alcohol, meth and pot for 6

years," a few weeks later she admitted to a different social worker that she had used

marijuana and consumed alcohol much more recently. S.L. also told her arresting police

officer that she drank alcohol. S.L.'s statement that alcohol and amphetamine were her

drugs of choice, and her half-hearted participation in substance abuse treatment, also

suggest she was using drugs and alcohol again.

       Substantial evidence also showed S.L.'s untreated mental health problems were

contributing to her instability. S.L.'s sister reported S.L. was bipolar and needed

treatment. And Raymond reported S.L. was stable when on medication, but went off

medication after R.O. was incarcerated in 2012.

       S.L. was also verbally and physically abusive to the children. She had been seen

yelling profanities at her children, squeezing Miguel's face and throwing a broom at him,

kicking and slapping the children, and pulling their hair.

       S.L.'s instability resulted in exceedingly poor parental decisionmaking that put the

children at risk. She and the children lived illegally in an unsanitary apartment that had

no running water or electricity. S.L. taught her children to shoplift and had her children

with her when she stole the cell phone, which resulted in a physical altercation in close

proximity to the children and a hit-and-run accident with the children in the vehicle.

When S.L. was arrested, police observed the children appeared unkempt, were wearing

                                             10
dirty clothes, had stained teeth, and were hungry.2 And S.L. left paraphernalia, and

possibly drugs, accessible to the children at Raymond's house.

       Finally, S.L.'s two attempts to leave her children at PCC, her request that the

children be placed in foster care, and her request that a sister care for the children for a

few months were illustrative of S.L.'s inability to supervise the children.

       This extensive pattern of S.L.'s conduct distinguishes her case from In re J.N.

(2010) 181 Cal.App.4th 1010, 1022-1023, which involved only a single drunk driving

incident that the appellate court deemed insufficient to justify jurisdiction. Similarly,

S.L.'s criminal activity in her children's presence, apparent drug abuse, and physical and

verbal abuse of the children demonstrate a risk of serious physical harm or illness to the

children that was lacking in In re Janet T. (2001) 93 Cal.App.4th 377, 390, which

focused on the children's absence from school and the mother's untreated mental health

issues. Finally, while we agree with S.L. that "homelessness and poverty are not grounds

for jurisdiction," the circumstances of this case show that homelessness and poverty were

not the basis for the juvenile court's jurisdictional findings.

       S.L. argues her children provided statements substantiating that she adequately

cared for them. But under a substantial evidence review, we determine whether the

evidence supports the juvenile court's findings, not whether other evidence would support




2     We note it is not the fact of S.L.'s arrest, but the circumstances that led to it, that
support the court's jurisdictional finding. (In re S.D. (2002) 99 Cal.App.4th 1068, 1077
["There is no 'Go to jail, lose your child' rule in California."].)
                                              11
a different finding. (In re T.V., supra, 217 Cal.App.4th at p. 133.) Here, there is ample

evidence to support the jurisdictional findings.

C.     Substantial Evidence Supports the Juvenile Court's Dispositional Orders

       The same substantial evidence that supported the court's jurisdictional findings

also supported the court's dispositional orders. The conditions that supported jurisdiction

remained unabated (apart from S.L.'s incarceration). And because the court made its

jurisdictional findings under the heightened clear and convincing evidence standard,

those findings meet the higher evidentiary burden required of dispositional orders

removing custody.

       Citing In re S.D., supra, 99 Cal.App.4th at page 1079, S.L. suggests that the court

erred by removing custody from her because she was amenable to having the children

remain with R.O.'s relatives. However, S.L.'s reliance is misplaced because that case

involved jurisdictional findings rather than dispositional orders. Further, while it is true

that a court cannot assume jurisdiction over a child under section 300, subdivision (g) in

cases where the incarcerated parent has made arrangements for the child's care, "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. (2012) 203 Cal.App.4th 597, 607; In re T.V.,

supra, 217 Cal.App.4th at p. 137.) Accordingly, we see no error in the court's

dispositional orders removing custody from S.L.




                                             12
                                              II.

                                       R.O.'S APPEAL

         R.O. contends the court erred by removing custody from him — a noncustodial

parent — without first making a finding of detriment as required by section 361.2. We

agree.

A.       Applicable Legal Principles

         When a juvenile court orders removal of a child from a custodial parent under

section 361, the court must then determine if there is a noncustodial parent who desires

custody. (§ 361.2, subd. (a).) "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), italics added.) The court must specify its basis for finding detriment either in

writing or on the record. (§ 361.2, subd. (c); In re Isayah C. (2004) 118 Cal.App.4th 684,

701.) "An incarcerated parent has the same right as other parents to be given the

opportunity to request custody under section 361.2." (In re A.A., supra, 203 Cal.App.4th

at p. 606.)

B.       Analysis

         The Agency concedes the "juvenile court erred in not considering [R.O.] as a

noncustodial father under [section 361.2] and by failing to make a finding it would be

detrimental to constructively place the children in his care." Indeed, the record is devoid

of the express findings required by section 361.2, subdivision (c). The Agency suggests

this court can remedy the deficiency by making an implied finding of detriment.

                                             13
However, "[i]mplying a finding of detriment under section 361.2 . . . presupposes the

court considered the correct code provision." (In re Marquis D. (1995) 38 Cal.App.4th

1813, 1824.) Because that did not occur here, we reverse the jurisdictional and

dispositional orders in this regard and remand the matter for the juvenile court to conduct

the analysis required by section 361.2.

                                       DISPOSITION

       The jurisdictional and dispositional orders are reversed to the extent the juvenile

court failed to consider placement of the children with R.O. as a noncustodial parent. We

remand with directions to that court to conduct the analysis required by section 361.2. In

all other respects, the orders are affirmed.


                                                                                  IRION, J.

WE CONCUR:



          HUFFMAN, Acting P.J.



                       HALLER, J.




                                               14
