Solano County Department of Social Services v. Dawn B.

Opinion

BENSON, J. James B. (age seven) and Janee B. (age two) were declared dependent persons as described by Welfare and Institutions Code section 300, subdivision (d) (hereinafter section 300(d)) and placed in the home of their mother under the supervision of the Director of the Solano County Public Welfare Department.

The order of dependency is based on a determination that the minor children’s home was “unfit” due to the continued presence of the seven-year-old James within the home. The factual basis for the trial court’s ruling rested on instances of molestation inflicted by James upon his two-year-old sister Janee when, on several occasions, the children were bathing together in the family bathtub. The legal premise relied on by the trial court to support its decision was a determination that during the bathtub incidents James had “custody or care” of his sister Janee.

Dawn B., the mother of the two minor children, appeals the order. We reverse, holding as a matter of law, that custody or care of Janee, within the meaning of section 300(d), was not reposed in James at the time of the occurrences. We further hold that there was no evidence before the lower court to support and justify its conclusion that the home was “unfit” so as to warrant the court’s assumption of dependency jurisdiction.

The facts are as follows: Dawn B. is the custodial parent of James and Janee. In March 1985, Dawn noticed that Janee was acting afraid of James and was protective of her genital area. Dawn became suspicious that Janee had been sexually abused by her brother and had Janee examined by a physician. Although the examination failed to reveal any physical evidence [527]of abuse, Dawn confronted James. James admitted to molesting his sister. The incidents occurred several times in late December 1984 or January 1985 while James and Janee were bathing together. When the events took place the mother was in an adjoining room.

Following discovery, James was restricted to his room and spanked by Dawn. Dawn also discussed the incident several times with her son, explaining the harm he could have done to his sister.

The physician’s office contacted County Social Services,1 which in turn contacted Dawn. Dawn assured the assigned social worker, Mr. Panzer, that she would obtain counseling for James and expressed a willingness to accept any help Social Services might provide. Mr. Panzer visited the family “possibly a dozen times” during the five months he was assigned the case.