Filed 4/21/17 In re E.R. CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re E.R., a Person Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY,

Plaintiff and Respondent,

v.

J.R.,

Defendant and Appellant.



G054152

(Super. Ct. No. 16DP0571)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Craig E. Arthur, Judge. Affirmed.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Joyce Riley, Deputy County Counsel, for Plaintiff and Respondent.

* * *

J.R. (mother) appeals from the court’s orders taking dependency jurisdiction over her son, 11-year-old E.R., and removing him from her physical custody. She contends the court erred by proceeding with the noticed jurisdiction hearing in her absence. She also challenges the evidentiary support for the court’s jurisdictional findings and dispositional order removing E.R. from her home. We affirm.

FACTS

On May 28, 2016, in connection with E.R.’s altercation with M. (a younger boy), mother stabbed M.’s father and was arrested for assault with a deadly weapon. The details of the May 28 incident are as follows. Then eight-year-old M. was at a park with two friends when then 10-year-old E.R. walked up to M., shoved him to the ground, and kicked him in the back. Either M. or his friend Z.L. told M.’s father Vernell about E.R.’s hitting M.
A confrontation then ensued between Vernell and E.R. Witnesses offered three different versions of the encounter. According to M., Vernell, and M.’s friend S.G., Vernell confronted E.R. verbally but made no physical contact with him, and E.R. then responded by punching Vernell in the face. According to E.R. (but contrary to the physical evidence), he was riding his bike when Vernell chased after him, pulled him off his bike, grabbed his shirt with two hands, and lifted him up so his toes were barely touching the ground. E.R. stated “he was scared so he punched Vernell in the face one time.” According to mother, she heard a commotion and, from her apartment window, saw Vernell pull E.R. off his bike.
Mother ran out of her apartment with a large, serrated butcher knife. Vernell heard mother yell, “Get the fuck out my son’s face! I’ll fucking kill you.” Mother stabbed Vernell in the upper back. Vernell ran away. Mother said, “Come on,” “Where you going, come back,” and “Messing with my kid, nobody fucks with my kid.” Vernell ran back to his apartment and called 911. Vernell was transported by paramedics to a local hospital for treatment of the stab wound, which was bleeding. Mother was arrested for assault with a deadly weapon.
Mother left E.R. in the care of her neighbor. But within two days, E.R. was placed at Orangewood Children and Family Center (Orangewood). The neighbor told Orange County Social Services Agency (SSA) that E.R. had not been following her rules and had called her 10-year-old daughter a bitch. The neighbor said E.R. had behavior problems at school and maybe mother could use a parenting class.
SSA interviewed E.R. at Orangewood. E.R. stated that his father B.C. (father) lived in Fort Worth, Texas, but E.R. did not know father’s address or phone number. E.R. reported that his last contact with father was three years ago when E.R. moved with mother from Texas to California because “father would not leave mother alone.” E.R. stated he did not want to live with father because father was “mean” to mother, although father had never abused E.R.
SSA interviewed mother in jail. Mother stated she and E.R. had moved from San Diego County to Orange County 10 months earlier after learning that Orange County had good schools. But mother has no friends or family in Orange County. Mother was surprised that her neighbor would not care for E.R., because mother “had always been there to help the neighbor with her children.” Mother stated she and E.R. left Texas three years ago to escape father’s domestic violence. Mother said she last contacted father in August 2015. She stated she could not give SSA father’s telephone number because she did not have access to her cell phone where the number was saved. Mother said she feared for E.R.’s and her own safety if father were located and contacted. Several times, mother said E.R. would not be safe with father or father’s family. She stated the steppaternal grandfather had sexually abused his daughter when the daughter was in middle school, and that father would leave E.R. at the paternal grandparents’ home for days at a time. She also said E.R. could “not be placed with [mother’s] family as [mother had been] molested as a child by her older brother.”
On June 1, SSA filed a dependency petition under Welfare and Institutions Code section 300, subdivisions (b) and (g).
On June 2, a detention hearing was held, but mother was in custody and was not transported to it. The court appointed counsel for mother. The court found there was a substantial risk of detriment to E.R. if he were returned to his parents, and that reasonable efforts had been made to eliminate the need for his removal from mother’s custody. The court ordered E.R. to be detained, ordered reunification services for the parents, and trailed the hearing to June 3 for mother to be transported to court.
On June 3, mother was again not present for the hearing. She had been released from jail after being bailed out by father. (Mother had phoned father after she was arrested and asked him to provide money to bail her out.) The court ordered that its temporary detention orders remain in force, and scheduled a contested jurisdiction hearing. The court ordered that mother’s visits be monitored, noting that mother had dramatically escalated the May 28 incident “from somebody yelling . . . to knives” and that mother might present a flight risk.
In a June interview with SSA, E.R. reported he had been suspended from school over a physical altercation with another student. When asked where mother got a knife so quickly, E.R. responded, “She’s always on the ready because there’s a lot of . . . bad people out there.” He reported he and mother never have friends over at the house. He also stated that “mother has been hurt by people in her life and doesn’t ‘want too much involvement with people.’” E.R. stated he desired to live with mother and only visit father.
E.R.’s teacher said he was a good student and she enjoyed having him in her class.
In SSA’s July 7 jurisdiction/disposition report, the agency reported that in 2007, a family law court in Texas had designated father and mother as joint managing conservators of E.R., with mother the conservator with the child’s primary residence. The family law court had also ordered visitation rights for father. E.R.’s paternal aunt stated that sometimes mother would not allow father to see E.R.
After requesting the Texas Attorney General for father’s contact information, SSA reached father by telephone on June 9. Father indicated he had regular visits with E.R. without needing to enforce the Texas court’s visitation orders until mother and E.R. moved to California. The paternal grandfather had passed away and the paternal grandmother (a former deputy sheriff) lived with father. Father was employed as a railroad engineer and conductor. Father, who has joint legal custody of E.R., stated he was able and willing to have E.R. in his care. By the time of the jurisdiction/disposition report, father was having monitored telephone calls on a daily basis with E.R. whenever E.R. was available.
Mother had no relatives in California. She was unemployed and received food stamps, child support payments from father, and a housing voucher from Texas. She told SSA, “I feel you should feel [E.R.’s] safe with his mom.” In May 2015 in San Diego County, mother had searched for a domestic violence shelter; she and E.R. were homeless and living in her car at the time.
On June 16, mother told SSA she wanted E.R. to live with father for at least the summer or the length of her potential six-month “incarceration for ‘defending herself and her son.’” Mother wanted justice for E.R., and said she was going to press charges against Vernell “for grabbing [E.R.] by the shirt.” Mother was “confused as to why [E.R.] cannot return to her care and asked why false information was provided to the Court.” Mother agreed to participate in counseling, parenting, and anger management programs. According to the visitation monitor, mother’s visits with E.R. were going well.
E.R. stated he wanted to live with father in Texas, explaining he had a better relationship with father now.
Father agreed to participate in individual counseling. But he felt no need to participate in a domestic violence program, explaining that the domestic violence incident had occurred over 10 years ago and that a child protection agency had investigated and declined to refer him to a domestic violence program.
SSA recommended E.R. be placed in father’s care. Specifically, the agency recommended that the court sustain the petition, declare dependency, release E.R. to father, and terminate dependency proceedings with exit orders. The family services worker opined that mother appeared “to have mental health issues that contribute to her isolating [herself] and the child from family members and friends.” Mother was taking prescription pain medication and marijuana on a daily basis and had been prescribed antidepressants and anti-anxiety medication. Mother appeared to lack insight into her own behavior and “to blame others for her behaviors.” Nonetheless, she appeared to be a loving, affectionate, and concerned parent. Meanwhile, father had “been forthcoming and cooperative” with SSA.
At the July 7 pretrial hearing, mother and father made their first appearances. The court found father was E.R.’s presumed father. Mother, father, and SSA requested that E.R. be released to father. Mother’s counsel stated “mother fully supports placing with the father as he has absolutely no criminal record and he’s currently working with the . . . railroad, [and] we believe that he’s a good father and that the child would benefit from that placement.” E.R. wanted to be released to father’s custody. E.R.’s counsel requested that father be ordered to “live scan” in Texas and that SSA try to get any “police call logs from father’s residence” and confirm father’s home was suitable. The court ordered SSA to obtain any criminal history concerning father and to evaluate his home. The court further ordered the parents (who were present in court) to return for trial on August 24. The court continued in force SSA’s authority to release E.R. to a parent, relative, or suitable adult as deemed appropriate.
SSA released E.R. to live with father in Texas. On July 21, a Texas social worker told SSA that E.R. had his own bedroom in father’s clean home, and that E.R. was “happy and enjoying being with extended family, such as his paternal grandmother, aunts and cousins.” E.R. was enrolled at a local elementary school in Texas.
On August 16, mother was remanded back to jail. SSA submitted a transportation order for mother to be transported to court on August 24 for the joint jurisdiction and disposition hearing.
At the August 24 jurisdiction and disposition hearing, father made a telephonic appearance. But mother was not present, despite being ordered to return for the trial and despite SSA submitting a transportation order for her. No explanation was offered for mother’s absence. Mother’s counsel had had no contact with her since the pretrial hearing on July 7.
Mother’s counsel moved for a continuance. But both SSA’s and E.R.’s counsel objected to the motion. The court denied the continuance motion because mother had been ordered to return to court that day and the court had heard no good cause for a continuance.
No testimony was given at the hearing. The court admitted into evidence SSA’s reports. Father’s counsel argued that allegation g-2 of the petition (alleging father’s failure to provide for E.R.’s support) should be modified or stricken since father’s whereabouts were known and he was currently providing for E.R.’s support and protection. As to allegation b-7 of the petition, father denied ever abusing crack when he and mother were together. Counsel for father, mother, and E.R. each “submitted” as to jurisdiction. A form entitled “Stipulation re Proposed Orders and Findings re Adjudication and Disposition” included mother’s counsel’s handwritten notation, “on the record,” next to his initials for both jurisdiction and disposition. The court found the allegations in the petition were true, other than the g-2 allegation, which the court struck by interlineation amending the petition.
As to disposition, mother’s counsel orally “submitted on the reports.” Father’s counsel submitted. E.R.’s counsel reported “we did see” E.R. in Texas on July 29: “Everything was looking great at that time. The child indicated that he enjoyed Texas, that he wanted to stay there, that he enjoyed being with his family and he is fine not coming back to California.”
The court declared E.R. a dependent of the court. It found that mother’s custody of E.R. would be detrimental to him under section 361, subdivision (c)(1); that reasonable efforts had been made to eliminate the need for removal of custody from mother’s home under section 361, subdivision (d); and that it was in E.R.’s best interests to grant father custody. The court removed physical custody of E.R. from mother and vested it with father. The court issued exit orders granting legal custody to mother and father. The court granted mother visitation every other weekend when not incarcerated, and once a month when incarcerated. The court then terminated jurisdiction over E.R.

DISCUSSION

The court did not err by conducting the jurisdiction hearing in mother’s absence.
Mother argues the court erred by failing to obtain her personal waiver of her due process rights at the August 24 jurisdiction hearing and by allowing her counsel to submit to jurisdiction and disposition on her behalf. She points out she was remanded into custody on August 16. She further contends the court should have granted her counsel’s continuance motion and ordered transportation orders to be given again. She argues her counsel showed good cause for a continuance “because he demonstrated that he did not have [mother’s] authorization to proceed and sign a stipulation on her behalf” and because SSA’s report stated mother was remanded into custody on August 16. Mother contends the alleged errors were prejudicial because no substantial evidence supports the court’s jurisdictional findings and dispositional orders.
A parent is entitled to certain due process rights at the jurisdiction hearing. Under the version of California Rules of Court, rule 5.682(a) in effect on August 24, “[a]t the beginning of the jurisdiction hearing, the petition must be read to those present.” Under former rule 5.682(b), the court must advise the parent, inter alia, of his or her rights to a contested hearing, to call witnesses, and to cross-examine witnesses. Under former rule 5.682(c), the “court must then inquire whether the parent or guardian intends to admit or deny the allegations of the petition. If the parent or guardian neither admits nor denies the allegations, the court must state on the record that the parent or guardian does not admit the allegations.” Under former rule 5.682(e), a parent “may elect to admit the allegations of the petition, plead no contest, or submit the jurisdictional determination to the court based on the information provided to the court and waive further jurisdictional hearing.”
These personal protections afforded to a parent by California Rules of Court, rule 5.682, however, can operate only when a parent is present at the hearing, whether telephonically, by conferencing, or in person. When a parent is absent, the showing required for a continuance is strict. A juvenile court may grant a continuance “only upon a showing of good cause” and must give substantial consideration “to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (§ 352, subd. (a).) Furthermore, “[n]otwithstanding any other provision of law, if a minor has been removed from the parents’ . . . custody, no continuance shall be granted that would result in the dispositional hearing . . . being completed longer than 60 days after the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring such a continuance.” (§ 352, subd. (b).) Here, over 60 days had elapsed between the continued detention hearing on June 3 and the disposition hearing on August 24. Section 352, subdivision (b)’s restrictions on continuances apply to an incarcerated parent. (See D.E. v. Superior Court (2003) 111 Cal.App.4th 502, 512-513.)
“When a parent is absent without good cause at a properly noticed hearing, the court is entitled to proceed in the parent’s absence.” (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1131.) “A parent’s failure to appear will not normally constitute the good cause necessary to justify a continuance [citation], because substantial importance is attached to ‘the child’s need for a prompt resolution of the matter’ [citation].” (Id. at pp. 1131-1132.) “This is especially true where the attorney has not had recent contact with the client [citation].” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017 ed.) § 2.104[5], p. 2-314.) A court may properly treat a parent’s unjustified absence “as a waiver of the right to be present at that hearing and of the benefits of being present. . . . [A]llowing the court to proceed in the parent’s absence should ensure that the court, the minor and the other parties are not unduly disadvantaged.” (In re Vanessa M., at p. 1132.)
Because a “‘judgment or order of the lower court is presumed correct,’” on appeal mother bears the burden of affirmatively showing error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, she must demonstrate the court erred by proceeding with the August 24 hearing. To do so, she must show that exceptional circumstances or good cause (1) caused her failure to appear at the August 24 hearing, and (2) supported a need for her to be present at the hearing. But the only excuse mother offers for her absence at the hearing is that she was “remanded into custody on August 16, and there is no indication in the record that she had met bail and been released prior to” August 24. Thus, mother implies she was in jail on August 24, but does not assert she was denied transportation to the court despite the transportation order submitted by SSA. She did not advise the court in advance (or at any time) she wished to be present at the August 24 hearing. (See Pen. Code, § 2625, subd. (d).) Nor does she assert any reason why it was important for her to be at the hearing. She does not identify any evidence she would have offered to the court. She does not assert she tried, but was unable, to contact her attorney after the July 7 pretrial hearing. She does not assert she would have told her attorney she desired a contested jurisdiction hearing. As discussed later in this opinion, in mother’s challenge to the court’s dispositional order granting physical custody of E.R. to father, mother contends she could have arranged for E.R.’s care on August 24 by having father keep E.R. in father’s home, temporarily, during mother’s incarceration.
Thus, mother’s excuse for her absence can be summarized as follows: On August 24, she may have been in jail, from which she had transportation to the juvenile court, where she might have desired to contest jurisdiction in order to prevent the court from granting physical custody to father. She acknowledges her only proposed arrangement for E.R.’s care was that father should keep E.R. until mother’s release from jail. This, of course, presupposes that father would have agreed to an arrangement that maintained mother as E.R.’s conservator with the child’s primary residence, despite mother’s history of hiding E.R. from father and violating visitation orders, and despite the fact that E.R. wants to stay in Texas with father. Mother’s argument is not compelling.
Prior to August 24, mother was absent at both the June 2 and June 3 detention hearings, even though the June 3 hearing had been trailed to allow her to attend and even though she was not in jail on that date. Given mother’s track record for missing hearings concerning E.R.’s placement, as well as the over 60-day period between his detention and disposition hearings, mother’s showing is insufficient to constitute exceptional circumstances justifying further delay or disruption in E.R.’s young life (which has flourished with father in Texas).
Mother relies on In re Monique T. (1992) 2 Cal.App.4th 1372 and In re S.N. (2016) 2 Cal.App.5th 665 for her assertion that “the court was required to personally advise [her] of her due process rights to a hearing and obtain her personal waiver of those rights.” But in In re Monique T. and In re S.N., the appellant parent was present at the jurisdiction hearing. (In re Monique T., at p. 1375; In re S.N., at p. 671.)
In mother’s reply brief predominantly, she argues the court could have conducted a “contested document trial” with closing arguments in her absence. But mother does not identify any additional evidence (documentary or otherwise) she could have offered at the hearing. Nor did her attorney request to make a closing oral argument. Mother’s counsel’s submission “on the record” to jurisdiction and disposition was not equivalent to a no contest plea to, or an admission of, SSA’s allegations. (In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237-1239.) Rather, upon counsel’s submission on the record, the court was required to “weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case ha[d] been proved.” (In re A.A. (2016) 243 Cal.App.4th 1220, 1236.)
In sum, the court properly conducted the jurisdiction hearing in mother’s absence.

Substantial evidence supports the court’s jurisdictional findings and dispositional order removing E.R. from mother’s physical custody.
Mother challenges the sufficiency of the evidence to support (1) the court’s true findings on the petition’s jurisdictional allegations, and (2) the court’s dispositional order removing E.R. from her physical custody.
“On appeal, the ‘substantial evidence’ test is the appropriate standard of review for both the jurisdictional and dispositional findings.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) “In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports” the jurisdictional findings and disposition. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “‘Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.’” (In re A.S. (2011) 202 Cal.App.4th 237, 244.) “If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] We do not . . . attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion.” (In re Megan S. (2002) 104 Cal.App.4th 247, 250-251.) “The appellant has the burden of showing the finding or order is not supported by substantial evidence.” (Id. at p. 251.)

1. Jurisdiction
Mother challenges the evidentiary support for the court’s jurisdictional findings.
SSA’s petition alleged E.R. came within the court’s dependency jurisdiction under section 300, subdivisions (b) and (g). On August 24, pursuant to the court’s order, the petition was amended by interlineation with the crossing-out of allegation g-2. The court then found true the amended petition’s allegations bringing E.R. within section 300, subdivisions (b) and (g).
As relevant here, a child comes within subdivision (b)(1) of section 300 if “there is a substantial risk that the child will suffer[] serious physical harm or illness[] as a result of the failure or inability of his . . . parent . . . to adequately supervise or protect the child, . . . or by the inability of the parent . . . to provide regular care for the child due to the parent’s . . . mental illness . . . .” Because the petition did not allege E.R. had already suffered serious physical harm, we examine whether, at the time of the jurisdiction hearing, substantial evidence showed a current substantial risk of his suffering serious physical harm or illness. (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure, supra, § 2.84[1], p. 2-268.) As relevant here, a child comes within subdivision (g) of section 300 if “the child’s parent has been incarcerated . . . and cannot arrange for the care of the child . . . .” At a jurisdiction hearing, the court may consider “[a]ny legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court . . . .” (§ 355, subd. (a).)
On appeal SSA concedes no substantial evidence supports allegations b-5 and b-7 of the petition. We agree. We have found no evidence in the record supporting allegation b-7 concerning father’s alleged use of “crack.” Allegation b-5 is identical to allegation g-2 (concerning father’s alleged unknown whereabouts and failure to support E.R.), which the court ordered “stricken” from the petition by interlineation.
Substantial evidence does support the petition’s remaining allegations. We discuss them in numerical order.
Allegation b-1 alleged that (1) mother was arrested for assault with a deadly weapon with great bodily injury likely; (2) 10-year-old E.R. reported “he was in the park near the family’s apartment when he got into a physical altercation with an unknown eight-year-old minor, and then the minor’s father grabbed [E.R.] by his shirt and lifted him off the ground, yelling at him”; and (3) E.R. reported mother “heard the yell, came outside with a knife, and stabbed the minor’s father.” Substantial evidence supports this allegation. Mother was in fact arrested as described and E.R. did indeed make the reports summarized above (irrespective of whether the details of E.R.’s reports were factually true in every detail). For example, as discussed below, E.R.’s statement that Vernell lifted him by his shirt conflicts with the reports of all the other witnesses, as well as the physical evidence.
Allegation b-2 alleged that, upon mother’s arrest, she left E.R. in the care of a neighbor who reported three days later “that she was no longer willing to care for [E.R.] and that [E.R.] had behavior problems and was not following her rules.” Substantial evidence supports this allegation.
Allegations b-3 and g-1 allege that mother is currently in jail, cannot provide for E.R.’s safety, support, and protection, and is unavailable to provide appropriate care. Substantial evidence supports this allegation (to the extent it alleges mother cannot personally care for E.R. while incarcerated), since mother was remanded into custody on August 16. Furthermore, as discussed below, substantial evidence also supports this allegation with respect to mother’s inability to arrange for E.R.’s care.
Allegation b-4 alleged that mother “may have unresolved mental health issues” and that the neighbor had reported mother was taking medication for anxiety. Substantial evidence supports this allegation. Moreover, mother admitted the truth of this allegation. She admitted using medical marijuana on a daily basis, and being prescribed antidepressants and anxiety medication.
Allegation b-6 alleged that mother and father have a history of domestic violence, that mother reported a physical altercation had occurred in 2008 where father kicked and pushed mother, causing bruises on her face, and that mother further reported father continually called her names and yelled at her, and had threatened to kill her in the past, approximately three years ago. Substantial evidence supports this allegation.
But we must still determine whether substantial evidence supports the court’s ultimate true finding (1) that under section 300, subdivision (b), there was a current substantial risk, at the time of the jurisdiction hearing, that E.R. would suffer serious physical harm due to mother’s failure or inability to supervise or protect him adequately, and/or her inability to provide regular care for him due to her mental illness, or (2) that under section 300, subdivision (g), at the time of the jurisdiction hearing, mother was incarcerated and could not provide, or arrange for, E.R.’s care or support. A “true finding under one subdivision is sufficient for the juvenile court’s jurisdiction.” (In re D.P. (2015) 237 Cal.App.4th 911, 917.) As to subdivision (b) of the statute, we consider allegations b-1 through b-4 and b-6 as a whole, analyzing whether substantial evidence supports the court’s ultimate finding E.R. came within section 300, subdivision (b). “‘The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.) We conclude substantial evidence supports the court’s taking jurisdiction over E.R. under both subdivisions (b) and (g) of the petition.
We begin with the incident that brought E.R. into the dependency system. The sequence of events on May 28 chronicled an ongoing risk of harm to E.R. both before and after mother’s appearance on the scene. The incident began when an unsupervised E.R. bullied and became involved in a physical altercation with M., who was there with two friends. When Vernell confronted E.R. about E.R.’s hitting M., E.R. punched the adult in the face. E.R. then tried to hit Vernell again. Although E.R. asserted Vernell lifted him by his shirt, three officers reported E.R.’s shirt was not torn or stretched out and that the shirt showed no other signs consistent with E.R.’s story, suggesting that E.R., without sufficient provocation and using poor judgment, hit a much larger man. Thus, even before mother’s arrival, E.R. was at risk of suffering physical harm due to mother’s failure to supervise him adequately.
Mother then escalated the volatile situation by charging out from her apartment with a large serrated knife, without regard to the physical risk to E.R. of introducing a deadly weapon into the altercation. Mother contends she acted to protect E.R. But the evidence viewed favorably to the court’s findings suggests mother displayed more than just a maternal instinct to protect her child. Her enraged behavior reveals poor judgment, a volatile temper, and a paranoid perspective. Her perceptions and reactions may have been influenced by her mental health issues and medications. She told police that Vernell spoke quietly to E.R., pulled him off his bike, and grabbed his throat, causing mother to think “Vernell was trying to ‘kill’” E.R. But Mother was the only witness to say that Vernell even touched E.R.’s throat. When Vernell saw mother approaching him with a knife, he tried to run away, but mother chased and eventually stabbed him (according to E.R.’s version of events). All the while, mother yelled taunting provocations at Vernell, including a threat to “fucking kill” him. Vernell sustained a four-centimeter-long by five-centimeter-deep wound which required medical treatment at a hospital. “A parent’s past conduct is a good predictor of future behavior.” (In re T.V. (2013) 217 Cal.App.4th 126, 133.)
After the stabbing, mother “grabbed” E.R. and led him back to their apartment. For around three minutes, mother did not respond to an officer’s pounding on her door and his loud commands to open it. E.R. said “he and his mom were in shock and scared as they remained in their apartment.” Mother told E.R., “If I go to jail, make sure you don’t go to juvenile or foster care.” This parental instruction to a 10-year-old boy — who had no relatives in California — illustrates mother’s inability properly to supervise and protect him. Had the boy obeyed mother’s command and tried to resist the authorities when they took him to Orangewood, or to run away from the facility, the consequences could have been tragic.
SSA reported that mother’s mental and emotional problems, along with her daily prescription medications and marijuana taken for pain, anxiety and depression, may have altered “her thinking and ability to parent the child safely.” The record reflects mother’s wary outlook and her alienation from her relatives. SSA reported she seemed “to have convinced [E.R.] that there are many dangerous people in his family and in the community.” E.R. described the isolated life he lived with mother. According to E.R., mother never attended his school concerts “‘because it[’s] all white faces and then my mom.’” Mother’s isolation may have resulted in her denial of E.R.’s school misbehavior and bullying problems. Her failure to supervise E.R. in this regard created a risk of E.R. suffering physical harm in his social interactions.
Mother’s mental health issues and distrust of people, along with her domestic violence history with father, left her with no options for E.R.’s care when she was first arrested, other than her neighbor who refused to care for E.R. after a few days. Mother had no family or friends in California. She stated E.R. should not be placed with extended maternal or paternal family, citing sexual abuse by various members and that the maternal grandmother “‘is really violent, mental.’”
Mother argues that, by August 24, she was able to arrange for E.R.’s care because she “was willing to have [father] take care of [E.R.], and [father] was willing to do so.” But on appeal mother contends “custody of [E.R. should be] returned to her.” She argues she “never indicated she was willing to have [father] take full physical custody of” E.R. Rather, “she was willing to have [father] care for [E.R.] during any period of [her] incarceration.” But mother does not assert that father agreed (or would have agreed on August 24) to this temporary arrangement. Rather, her opening brief acknowledges that father came “to the Orange County dependency court, and asked for custody.” Indeed, as early as July 7, father knew that SSA was recommending that the court release E.R. to him and terminate the dependency proceedings. In SSA’s July 7 report, the agency’s assessment and evaluation (immediately preceding its recommendation that father have physical custody of E.R.) does not even mention mother’s opinion on the subject. In sum, substantial evidence supports SSA’s allegation that mother herself could not arrange for the care of E.R. for the period of her incarceration.
Had the court declined to take jurisdiction over E.R. and left him in mother’s physical custody (assuming she was not incarcerated), the parents’ domestic violence history contributed toward a risk of E.R. suffering physical harm. E.R. had witnessed domestic violence by father in Houston, showing it occurred in the child’s presence. Mother told SSA father had threatened to kill her about three years earlier. The absence of domestic violence incidents within the last three years — when father could not locate mother and E.R. — does not demonstrate the problem has resolved itself.
In sum, substantial evidence supports the court’s finding that E.R. came within subdivisions (b) and (g) of section 300.

2. Disposition
Based on mother’s arguments above, i.e., that the court’s jurisdictional findings are unsupported by substantial evidence, mother concludes that the court’s dispositional order removing E.R. from her care and custody lacks sufficient evidentiary support.
Section 361, subdivision (c) states, “A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence” that 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 . . . physical custody.” (Id. subd. (c)(1).) “The parent need not be dangerous and the child need not have been actually harmed for removal to be appropriate. The focus of the statute is on averting harm to the child.” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) “In this regard, the court may consider the parent’s past conduct as well as present circumstances.” (Ibid.) “Although the court must consider alternatives to removal, it has broad discretion in making a dispositional order.” (Id. at p. 918.) Upon removal, if a noncustodial parent requests custody of the child the court must place the child with the noncustodial 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).)
The court’s jurisdictional findings are prima facie evidence E.R. cannot safely remain in mother’s care. (§ 361, subd. (c)(1).) In addition to those findings, the record amply illustrates the risk of emotional harm to E.R. in mother’s physical custody. (Ibid. [includes danger to minor’s “emotional well-being”].) Mother’s mental health issues have contributed to her isolating E.R. “from family members and friends”; she seemingly convinced him of the “many dangerous people in his family and in the community.” She also convinced E.R. that his “father was bad, while quickly convincing the child that he was mistaken and that his father [was] not bad.” Mother appeared “to lack insight into her own behavior;” she sincerely wished to “to protect [E.R.] from outside harm.” She instilled in E.R. a “you-and-me-against-the-world” mentality and imposed a lonely home life. In contrast, once E.R. moved to father’s home in Texas, he enjoyed socializing with his extended family.
The record reveals E.R. engaged in bullying behavior or had physical altercations with other children on occasions besides the May 28 incident. For example, his school suspended him for one such incident. M.’s friend called E.R. a bully. E.R. himself stated, “I don’t start fights, I just finish them.” Yet mother seemed to be either unaware or unconcerned about E.R.’s aggressive behavior. When SSA told mother about the neighbor’s comments concerning E.R.’s behavior problems, mother said, “That doesn’t sound like [E.R.] He told me nothing happened.” Mother described E.R. “as not a violent kid.” Her ignorance of or nonchalant attitude about E.R.’s social problems with his peers was a form of parental neglect that put E.R. at risk of suffering physical and emotional harm.
Finally, mother argues no substantial evidence supports the court’s finding reasonable efforts were made to prevent or eliminate the need to remove E.R. from her home on August 24. She asserts that “a legitimate alternative to removal existed in this case,” opining that E.R. could have lived with father in Texas pending the outcome of mother’s criminal trial and “through completion of her incarceration, if any.” As discussed above, however, this alternative presupposes father’s agreement to this temporary placement. Furthermore, the alternative that E.R. live with father required the removal of E.R. from mother’s home on August 24.
In sum, substantial evidence supports the court’s dispositional order removing E.R. from mother’s care.

DISPOSITION

The postjudgment order is affirmed.




IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.