Filed 8/18/26 In re A.W.-C. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.W.-C., Person Coming Under the
Juvenile Court Law.
E087681
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, (Super.Ct.No. J306729)
Plaintiff and Respondent, OPINION
v.
J.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Reversed.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and
Appellant.
Laura Feingold, County Counsel and David R. Guardado, Deputy County Counsel
for Plaintiff and Respondent.
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INTRODUCTION
J.C. (father) challenges the sufficiency of the evidence supporting the juvenile
court’s dispositional order removing his child, A.W.-C. (the child), from his custody.
San Bernardino County of Children and Family Services (CFS) concedes there was
insufficient evidence to support the court’s removal order. We agree and reverse the
order.
FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2025, CFS filed a petition pursuant to Welfare and Institutions
Code1 section 300, subdivisions (b) (failure to protect), (g) (no provision for support),
and (j) (abuse of sibling), on behalf of the child who was 10 months old at the time. The
petition alleged that the child’s mother, T.W. (mother), had a substance abuse issue and
an untreated mental illness which affected her ability to adequately parent the child; also,
mother’s whereabouts were unknown, and she failed to reunify with the child’s three
half-siblings. As to father, the petition alleged that he knew or reasonably should have
known the child was at risk if left in mother’s care.
The social worker filed a detention report recommending the court detain the
child. The report stated that CFS received a referral after mother was admitted to the
hospital on December 2, 2025, for methamphetamine use and congestive heart failure
“chest pain.” Mother said she had four children, including the child, and disclosed that
her first three children were taken away due to her drug usage. Mother said the maternal
1 All further statutory references will be to the Welfare and Institutions Code
unless otherwise noted.
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grandmother (the MGM) had custody of those three children, and they resided where she
(mother) currently lived. When the reporting party started questioning her, mother
jumped out of the bed and started yelling that “they” were going to take away her baby
just like the others. Mother left the hospital against medical advice.
On December 4, 2025, the social worker made an unannounced visit to the
MGM’s home, where mother was reportedly living with the child. As she approached the
house, she could hear a baby inside the residence. The social worker knocked on the
door, but no one answered. While standing at the front door, the social worker called the
number listed for mother and a man answered and said that was not her number. The
social worker left.
The social worker noted that mother had a previous referral when she tested
positive for methamphetamines when the child was born, but CFS was unable to locate
her and the child. The social worker also reported that mother had three other children
with whom she failed to reunify, and one of them was adopted. The other two were
under a legal guardianship with the MGM.
Due to mother’s substance abuse, failure to reunify with her other children, and
potential attempt to evade CFS, the social worker obtained a detention warrant. The
social worker went to the MGM’s home to serve the warrant. Father answered the door
and said mother was not there. The social worker explained that, due to concerns of
mother’s ongoing drug use and the fact that no one answered the door before, she
obtained a warrant. Father admitted that he did not answer the door earlier. He was
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served with the warrant and then he requested that the child be placed with the MGM and
said he would move out in order to ensure the placement.
The social worker later conducted a phone interview with father, who said he had
lived with the maternal family for two years. He said mother did not live with them and
denied being in a relationship with her. Father admitted he smoked marijuana but only
did so outside the home while the MGM cared for the child. Father said mother had been
at the home the prior week to inform the family about her medical problems. He said the
maternal family always supervised mother when she visited the child. When the social
worker asked why he had not filed for custody, father said he did not know how to go
about getting custody. He said his family was his support system, and they lived down
the street. Father provided the social worker with mother’s phone number, but, as of the
writing of the report, the social worker had been unable to reach her.
The court held a hearing on December 9, 2025, and both father and mother were
present. The court detained the child in foster care.
Jurisdiction/Disposition
On January 7, 2026, the social worker filed a jurisdiction/disposition report
recommending that the court dismiss the allegations that father knew the child would be
at risk if left in mother’s care (b-2) and that mother’s whereabouts were unknown (g-4)
but find the remaining allegations against mother true. The social worker further
recommended that the court remove the child from mother’s custody, grant custody to
father, issue a custody order, and dismiss the dependency.
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The social worker interviewed father again, and he reportedly said mother did not
live in the home and he had been the child’s primary caretaker since her birth. Father
said he had lived with the maternal relatives since December 2023, and they did not allow
mother in the home due to her history of substance abuse. Father added that the MGM
had legal guardianship of the child’s half-siblings, who also lived in the home; therefore,
the family and mother had established boundaries, as they had to abide by orders from
CFS and the court. Father said he had not maintained contact with mother since the
child’s birth and denied that he had allowed her access to the child. He also denied
having witnessed mother actively engage in substance use.
Father reiterated that he had no knowledge of the “court system” with regard to
filing for custody and said he would have filed for custody before CFS’s involvement if
he knew how. Father said he had been protective of the child since birth and expressed
that he was willing to take full custody and care of her. He indicated that mother used the
maternal family’s address for mailing purposes only. The social worker noted that father
was not interviewed by CFS prior to removal of the child; thus, he had not been granted
the opportunity to demonstrate his protective capacity.
The social worker also interviewed mother, who admitted to having an untreated
substance abuse issue and said she was unable to reunify with her three other children
because of it. Mother added that she was diagnosed with severe depression, anxiety,
bipolar disorder, schizophrenia, and post-traumatic stress syndrome. She confirmed that
she did not visit the child or her other children at father’s address and that she respected
and abided by CFS’s regulations and the court’s orders, since she did not want to
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jeopardize her children’s residence. Mother said she was romantically involved with
father at the time of the child’s conception, acknowledged that he was present for the
birth and listed on the birth certificate, and that he had cared for the child on his own
since birth. Mother said father was fully capable of caring for the child and specified that
he was extremely protective of her. She denied having contact with father and reported
that he did not allow her access to the child. Mother said that she last saw the child
shortly after her birth, and that father had denied her access to the child since learning of
her (mother’s) substance use.
The social worker reported that, on December 29, 2025, she visited father’s home
to assess its suitability. The MGM and maternal uncle K.D. (the maternal uncle) were
home, and they expressed their support of father and the child. They said they had
accepted him into their family since the child’s birth, and he was a responsible, loving,
and caring father. They stressed that he was employed and had always provided for the
child. They had no concerns about father’s ability to provide adequate care for her and
said they assisted him with childcare when needed. The MGM and the maternal uncle
confirmed that mother did not visit the family home and was not allowed on the property
due to her substance abuse and involvement with CFS.
The social worker observed that the home was clean and organized, there were no
safety hazards, and there was plenty of food there. Father said he and the child slept in
the same bedroom, which had a full-sized bed, playpen, and toddler bed. Father said the
child slept in the playpen. The closet had clothes, shoes, and diapers. The social worker
concluded father had demonstrated that he had adequate provisions for the child.
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The social worker reported that father was willing to take on the responsibility to
provide full care and custody of the child and noted that he had no prior CFS
involvement. She noted that father had been compliant with CFS and court orders and
commented that he demonstrated “good insight and understanding of the threat [mother]
pose[d] to the child,” and he assured that he would always be protective of the child. The
social worker opined that father had taken protective measures, as evidenced by him
taking the child into his care and refraining from communicating with mother prior to
CFS involvement. The social worker thus recommended that, given father was a
nonoffending parent, it would be in the child’s best interest to dismiss the dependency,
with a family law custody order for him. The social worker added that the prognosis for
family reunification with mother was poor and stated it was necessary to remove the child
from her under section 361, subdivision (c). The social worker also stated it would not be
detrimental to place the child with father.
The court held a jurisdiction/disposition hearing on January 12, 2026. CFS moved
to dismiss the allegations under b-2 and g-4, and the court granted the motion. CFS
submitted on its recommendation that father, as the nonoffending parent, be given
custody of the child. Thus, CFS asked the court to dismiss the case with a custody order
for father, or, alternatively, place the child with him on family maintenance.
The court clarified that it dismissed the section 300, subdivision (b) allegation
regarding father. The court then found the remaining allegations in the petition true. The
court noted its concern with the part of the jurisdiction/disposition report that said father
had not been granted the opportunity to demonstrate his protective capacity. Thus, the
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court felt that evidence of father’s protective capacity was lacking in the report. The
court stated that “it would definitely not hurt Mom and Dad to get some services.” The
court also noted its concern “regarding this cat-and-mouse game with the Department
trying to come by to see what’s going on.” The court stated it had no idea why the door
was not answered “but it just didn’t help the family’s cause.”
The court then found continuance “in the home of Mom and Dad” contrary to the
child’s welfare and found that clear and convincing evidence showed the child should be
removed from mother’s and father’s care, since there was a substantial danger to her
health, safety and well-being. The court removed the child from their custody and
ordered family reunification services for both mother and father.
DISCUSSION
The Court’s Removal Order Was Not Supported by Substantial Evidence
Father’s sole contention is that there was insufficient evidence to support removal
of the child from his care. CFS concedes, and we agree.
A. Relevant Law
“Before the court may order a child physically removed from his or her parents, it
must find, by clear and convincing evidence, the child would be at substantial risk of
harm if returned home and there are no reasonable means by which the child can be
protected without removal.” (In re Hailey T. (2012) 212 Cal.App.4th 139, 145-146
(Hailey T.); § 361, subd. (c)(1).)
“The court shall consider, as a reasonable means to protect the minor, each of the
following: (A) The option of removing an offending parent, guardian, or Indian
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custodian from the home. [¶] (B) Allowing a nonoffending parent, guardian, or Indian
custodian to retain physical custody as long as that parent, guardian, or Indian custodian
presents a plan acceptable to the court demonstrating that they will be able to protect the
child from future harm.” (§ 361, subd. (c)(1).)
“The standard of review of a dispositional order on appeal is the substantial
evidence test.” (Hailey T., supra, at p. 146.) “Under this standard, we determine whether
there is any substantial evidence, contradicted or uncontradicted, which supports the
conclusion of the trier of fact.” (In re G.C. (2020) 48 Cal.App.5th 257, 265.) However,
where the burden of proof supporting the juvenile court's order requires a showing by
clear and convincing evidence, as does the removal order in this case, our review must
take into consideration that heightened burden of proof. (Conservatorship of O.B. (2020)
9 Cal.5th 989, 995.)
Thus, “when reviewing a finding that a fact has been proved by clear and
convincing evidence, the question before the appellate court is whether the record as a
whole contains substantial evidence from which a reasonable fact finder could have
found it highly probable that the fact was true.” (Conservatorship of O.B., supra, 9
Cal.5th 989, 995-996.)
“All evidentiary conflicts are resolved in favor of [affirmance], and where more
than one inference can reasonably be deduced from the facts, we cannot substitute our
own deductions for those of the trier of fact.” (In re G.C., supra, 48 Cal.App.5th at p.
265.)
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B. There Was Insufficient Evidence To Support Removal of the Child From Father’s
Custody
Both parties agree that removal of the child from father’s custody was not
warranted, as there was no evidence to support a finding that there “would be a
substantial danger to the physical health, safety, protection, or physical or emotional
well-being” of the child if she were to remain in his care. (§ 361, subd. (c)(1).) We
agree.
We first note that father was not the offending parent in this case. Moreover, the
court dismissed the sole allegation against father in the petition. Nonetheless, the court
removed the child from his custody because it felt that evidence of his protective capacity
was lacking. Also, the court was concerned with the “cat-and-mouse game with the
Department trying to come by to see what’s going on” and the door not being answered,
although the court admitted it had no idea why the door was not answered. The court
concluded that continuance “in the home of Mom and Dad” was contrary to the child’s
welfare. Significantly, the evidence showed that mother did not live in the home with
father and the child. Mother herself indicated she was homeless and confirmed that she
did not visit the child or her other children at father’s residence.
Further, the evidence demonstrated that father had maintained the child in his care
and custody since she was born, he was extremely protective of her, and he did not allow
mother any unsupervised contact with her. Father and the child lived with the MGM,
who had legal guardianship of mother’s other children, who also resided in the family
home. Therefore, the family was required to abide by CFS’s established boundaries and
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the court’s orders. The evidence showed the home where father and the child lived was
clean and safe and stocked with food, and that the child had clothes, shoes, and diapers.
The social worker observed the home and concluded that father had demonstrated that he
had adequate provisions for the child. The social worker reported that father was willing
to take on the responsibility to provide full care and custody of the child and noted that he
had no prior CFS involvement. The social worker also observed that father had been
compliant with CFS and court orders and opined that he demonstrated “good insight and
understanding of the threat [mother] pose[d] to the child.” We additionally note the
maternal relatives described father as a responsible, loving and caring father and stated
that he was employed and had always provided for the child. Mother similarly said father
was fully capable of caring for the child and specified that he was extremely protective of
her. Therefore, there was no evidence of a substantial danger to the child’s health and
well-being that warranted the removal from father’s custody. (§ 361, subd. (c).) On the
contrary, the undisputed evidence demonstrated that it was safe to return the child to his
custody.
We conclude that substantial evidence does not support the juvenile court’s
findings, by clear and convincing evidence, that there was or would be substantial danger
to the child if she was returned home to father. We thus reverse the dispositional order as
to father on this basis alone. (See M.V., supra, 78 Cal.App.5th at p. 963; § 361, subd.
(c).)
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DISPOSITION
The dispositional order as to father is reversed, and the matter is remanded with
directions to conduct a new disposition hearing as to father.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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