Tulare County Department of Public Social Services v. Shirley W.

Opinion

BROWN (G.A.), P. J. On March 14, 1986, Kathleen W., bom October 18, 1978, was adjudged a dependent child of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (d), and a reunification plan was adopted.

The original petition was filed on February 12,1985. At that time Kathleen was approximately five years, four months old. The contested jurisdictional hearing was held on January 14-16, 1986, at which time the allegations of the petition as to Kathleen1 were found tme. The dispositional hearing was held on March 14, 1986, after the court denied a motion for a new trial.

An amended petition was filed on March 12, 1985, which omitted an allegation that Kathleen had stated in the past that her father (Chris W.) had molested her. Otherwise the allegations of the amended petition substantially [70]conform to the original petition and in relevant part state: “(2) This person comes within the provisions of Section 300 a&d of the Juvenile Court Law of California, as follows:

“Count /: 300d That said minors’ home is an unfit place for them by reason of neglect of their mother in that Kathleen [W.] has been repeatedly sexually molested by her mother’s boyfriend, Kenneth [A.]. She has told her mother that Mr. [A.] has fondled her genital area and forced her to rub his penis. Her mother has not protected her and does not believe her.

“David has witnessed some of these incidents.

“Count II: 300a That said minors have no parent or guardian capable of exercising proper and effective care and control and is [szc] in need of such care and control in that the facts alleged in Counts I and II [szc] above are hereby incorporated and made a part hereof.

That minors’ father cannot protect them as he does not have civil custody at this time.”

The principal two factual issues in the case are (1) whether Kenneth A. molested Kathleen, and (2) if appellant, Shirley W., had knowledge of Kenneth A.’s actions and failed to protect Kathleen. Whether there is substantial evidence to support the implied finding that appellant did have knowledge of Kenneth A.’s molestation of Kathleen is a close question.

In a separate criminal trial, Kenneth A. was acquitted by a jury on January 31, 1986, of one count of lewd and lascivious acts upon Kathleen.