Filed 5/15/14 In re Miguel A. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,

v. S.L. et al., Defendants and Appellants. D064941
(Super. Ct. No. J514-548ABC)

APPEALS from orders of the Superior Court of San Die go County, Cynthia Bashant, Judge. Affirmed in part; revers ed in part; and rema nded with directions.

Donna Balderston Kaiser, under appoin tment by the Court of Appeal, for Defendant and Appellant R.O. Patti L. Dikes, under appointment by th e Court of Appeal, for Defendant and Appellant S.L.2 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 ch ildren 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, c ontends the court erred by declining to award custody to him under section 361.2 without first determinin g it would be detrimental to do so. We conclude below that substantia l evidence supports the juvenile court's jurisdictional findings and removal of the child ren from S.L. However, we also conclude the juvenile court erred in failing to consider whether awarding cust ody 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 PROCEDUR AL 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 (Age ncy) commenced dependency proceedings concerning Miguel due to S.L.'s incarcerati on and inability to arrange for Miguel's care. The court declared Migue l a dependent and placed him in foster care.

1 All further statutory references ar e to the Welfare and Institutions Code.3 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 term inated 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 ch arged 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 behavi ors. In March 2013, the ch ildren 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 ag ency (Riverside) received a report that S.L. was behaving erra tically, 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 re ceived a second report four days later indicating that police were called several times due to S.L. causing property damage, S.L.4 was verbally abusive to the children and th rew 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 r eceived two additional reports. The first indicated that drug paraphernalia was found in the bath room 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 dr ug treatment at Kiva and that S.L. was observed screaming and swearing at the childre n. She also was stopped from squeezing Miguel's face so hard he cried in tensely, 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 attemp ts to help her and Riverside eventually closed its referrals due to S.L.'s lack of coop eration 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 Ag ency received a report that S.L. had been verbally and physically abusive to her children (kicki ng and slapping them and pullin g their hair), and that she had failed to provide them with food. By th e time of the report, the property manager for the apartment complex had succee ded, with police assistance , in evicting S.L., and the Agency was unable to contact he r despite multiple attempts. In August and September 2013, S.L. sh owed up at Polinsky Children's Center (PCC) wanting to drop off her children. The Agen cy created a safety plan under which the children were released to H.S., but nine days later H. S. informed the Agency she5 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 to ld 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, bu t she was later arrested on a felony warrant for robbery a nd hit-and-run accident with pr operty damage. At the time of the arrest, S.L. and her children were liv ing 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 influen ce 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 La s Colinas Detention Facility. S.L. claimed she had no idea why she had been arrested a nd explained that she was participating in substance abuse treatment beca use she would " 'do anything a nd say anything' " to get the resources she needed, not becau se she had a substance abuse problem. S.L. refused to sign releases of information or consent for tr eatment 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 dr ugs. 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 stam ps when they were hungry. H.S. told the social worker that S.L. ha d consistently failed to provide the children with food or a home and had essentially been living in their vehicle since Raymond asked6 S.L. to leave his home; she also indicated th at their clothes were always dirty and that Raquel had had lice for some time. H.S. believed S.L. was usi ng 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 rapi d spending of the $1,300 she received each month, none of which went fo r 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 anythi ng 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 reporte d S.L. and R.O. had engaged in domestic violence in front of the children. R.R. ex pressed concern for the children's well-being due to S.L.'s homelessness, une mployment, 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 he r 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 deten tion hearing, the juven ile court detained the children in out-of-home care and authorized supervised visits w ith 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 poten tial 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 them7 (§ 300, subd. (b)), as well as both parents' in carceration (§ 300, subd. (g)). The court did not grant the request, but set the matter for a jurisdiction and disp ositional 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/di sposition report, Migu el and Raquel were detained in separate foster hom es and Ricardo was detained at PCC. R.O. had pled guilty to robbery (with a dismissal of the solicitation to commit mu rder 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 Agen cy filed amended petitions ad ding counts under section 300, subdivision (b) based on the police report regarding S.L.'s r obbery and hit-and-run charges. The report stated that on Augus t 5, 2013, S.L stole a phone from a mobile phone store, hit and scratched the store ma nager who had pursued her, and struck and damaged a parked car while fleeing in her vehicl e, all in the presence of her children. At the detention hearing on the amende d 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 di spositional hearing, all three children were placed in separate foster homes, although Migu el's foster mother ha d just requested his placement elsewhere because of unt reated mental health issues and discipline problems at8 school. The court received the Agency's re ports in evidence a nd heard arguments of counsel. S.L. presented no affirmative evid ence. The court dismissed the section 300, subdivision (g) counts and found the counts filed under se ction 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 cour t 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 supp orts 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 juven ile 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 secti on 300, subdivision (b), the Agency must show by a preponderance of the evidence th at the parent's neglectful co nduct has caused the child to suffer serious physical harm or illness, or cr eates a substantial risk that the child will suffer such harm or illness. (§§ 300, subd. (b), 355, subd. (a).)9 Under section 361, subdivision (c)(1), cu stody 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 substa ntial 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 ev idence' test is the appropri ate 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 th e credibility of witnesses, atte mpt to resolve conflicts in the evidence or weigh the evid ence. Instead, we draw a ll reasonable inferences in support of the findings, view the record favora bly 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 Suppo rts 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 sp oke with S.L. on th e phone suspected she10 was under the influence; and the officer w ho 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. al so 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 partic ipation in substance abuse treatment, also suggest she was using drug s and alcohol again. Substantial evidence also sh owed S.L.'s untreated ment al health problems were contributing to her instability. S.L.'s sist er reported S.L. was bipolar and needed treatment. And Raymond report ed 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 a busive to the children. She had been seen yelling profanities at her children, squeezing Miguel's face a nd throwing a broom at him, kicking and slapping the child ren, and pulling their hair. S.L.'s instability resulted in exceedingly poor parental decisi onmaking 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 shoplif t 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 th e children in the vehicle. When S.L. was arrested, police observed th e children appeared unke mpt, were wearing11 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 he r children at PCC, her request that the children be placed in foster car e, and her request that a sist er care for the children for a few months were illustrative of S.L.'s inability to supervis e 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 on ly a single drunk driving incident that the appellate court deemed insu fficient to justify jurisdiction. Similarly, S.L.'s criminal activity in her children's pres ence, 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 absenc e from school and the mother's untreated mental health issues. Finally, while we agree with S.L. th at "homelessness and poverty are not grounds for jurisdiction," the circumstances of this ca se show that homelessness and poverty were not the basis for the juvenile court's jurisdictional findings. S.L. argues her children provided statem ents substantiating that she adequately cared for them. But under a substantial ev idence review, we determine whether the evidence supports the juvenile court's findi ngs, not whether other evidence would support

2 We note it is not the fact of S.L.'s arre st, but the circumstances that led to it, that support the court's jurisdictional finding. ( In re S.D . (2002) 99 Cal.Ap p.4th 1068, 1077 ["There is no 'Go to jail, lose you r child' rule in California."].)12 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 Suppo rts the Juvenile Cour t's Dispositional Orders The same substantial evidence that supp orted the court's jurisdictional findings also supported the court's dispositional orders . The conditions that supported jurisdiction remained unabated (apart from S.L.'s incarc eration). 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 omissi ons have led to jurisdictional findings under section 300, subdivision (b)." ( In re A.A. (2012) 203 Cal.Ap p.4th 597, 607; In re T.V. , supra , 217 Cal.App.4th at p. 1 37.) Accordingly, we see no error in the court's dispositional orders rem oving custody from S.L.13 II.
R.O.'S APPEAL R.O. contends the court erred by rem oving custody from him — a noncustodial parent — without first making a finding of detr iment 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 th at parent requests custody, the court shall place the child with the parent unless it finds that placement with th at parent would be detrimental to the safety, protection, or physical or emot ional well-being of the child." (§ 361.2, subd. (a), italics added.) The court must specify its basis fo r finding detriment either in writing or on the record. (§ 361.2, subd. (c); In re Isayah C. (2004) 118 Ca l.App.4th 684, 701.) "An incarcerated parent has the same right as other parents to be given the opportunity to request custod y 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 [s ection 361.2] and by failing to make a finding it would be detrimental to constructively pl ace 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.14 However, "[i]mplying a finding of detriment under section 361.2 . . . presupposes the court considered the corr ect code provision." ( In re Marquis D. (1995) 38 Cal.App.4th 1813, 1824.) Because that did not occur here, we reve rse the jurisdictional and dispositional orders in this regard and remand the matter for the juve nile 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 placem ent of the children with R.O. as a noncustodial parent. We remand with directions to that court to conduc t 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.