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In a published opinion, the Fourth District Court of Appeal, Division Two, returned four children to the custody of their mother.

The court ruled that San Bernardino Superior Judge Cara Hutson improperly found that the mother had a history of mental health problems and engagement in domestic violence when deciding that the children should be put under county care.

The San Bernardino County Children and Family Services Department (CFS) filed for custody in August, arguing that the mother should have known about the father’s history of alcohol abuse, and that she had mental health problems that limited her ability to provide care. 

Hutson found no evidence that the mother had mental health problems—but amended the department’s claim to say that the mother had a history of mental health problems, and found that claim to be true. She also amended the domestic violence allegation against the mother to say the mother had a history of domestic violence. 

The mother had told a social worker in August that she had been diagnosed with depression and anxiety in 2020. 

The Court of Appeal found no evidence that her diagnoses affected her ability to adequately care for the children, quoting the 2017 case In re A.L.: “The law is settled that harm may not be presumed from the mere fact of a parent’s mental illness.”

The mother was arrested for domestic violence in July 2023. She hit the father of her children, and removed the keys from his ignition—when he was drunkenly driving their children. 

The Court of Appeal found that past incidents of domestic violence alone cannot make the case for removing children:

“Physical violence between a child’s parents may support the exercise of jurisdiction under (the law) but only if there is evidence that the violence is ongoing or likely to continue,” the Court of Appeal wrote, citing the 2011 case In re. Daisy.

Record evidence did not show another situation apart from the July incident in which the mother perpetrated domestic violence, the Court of Appeal found. The father accused her of being violent, but did not reference other times in which she was beyond the July incident.

CFS cited video evidence of the mother being verbally aggressive toward the father in front of the children. Those videos, however, were never introduced into evidence. 

“From this record, there is no non-speculative basis to determine whether mother’s behavior in the videos crossed the line from rude or profane to demonstrating a substantial risk of physical harm or illness to the children,” the Court of Appeal wrote.

The Court of Appeal did not reverse the court’s findings that the children should be removed from their father’s custody.

The opinion was filed June 7, and certified for publication July 3.

Fourth District Court of Appeal, Division Two, Justice Michael Raphael wrote the opinion, which Justices Art McKinster and Frank Menetrez joined.

Superior Court Case No. J298091-96

Appellate Case No. E082619 

Thomas Shinton of Rancho Cucamonga’s Johnson & Shinton represented the mother.

County Counsel Tom Bunton and Deputy County Counsel Joseph Barrell represented CFS.

Read the opinion here.

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