In re Shari W.

Filed 4/1/08 In re Shari W. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Patricia A. Spear, Judge. Affirmed.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr. County Counsel, James M. Owens, Assistant County Counsel and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

__________________________

Mother Brenda J. appeals from the courts order making her then 16 (and now 17) year old daughter a dependent of the court under Welfare and Institutions Code section 300. We affirm.

FACTS AND PROCEEDINGS

In June 1990, mother Brenda gave birth to minor Shari. When minor was eight years old, mothers husband, who was minors stepfather, repeatedly molested minor. The incidents of molestation, which mother did not know about, took place over a year before stepfather stopped. When minor was 15 years old, stepfather began to make her feel uncomfortable by repeatedly leering at her. Because mother noticed the leering, she made sure minor was never alone in the house with stepfather.

In July 2005, minor told mother about the sexual molestation when she informed mother she wanted to move out of the house and live with her paternal aunt. Mother believed minors accusations against stepfather and reported them to respondent Department of Children and Family Services. The department intervened and scheduled a Team Decision-Making meeting to develop a plan to keep minor safe. Mother refused, however, to sign the departments proposed safety plan. She also refused to submit to a Live Scan and refused to sign releases to let minor receive medical and dental care.

Following the unsuccessful team meeting, the department filed in December 2006 a petition under section 300. The petition alleged minor was at risk of harm if she remained in mothers custody because mother lived with stepfather, giving him access to minor. The petition also alleged minor was at risk of injury from domestic violence because stepfather had hit minor he claimed accidentally while trying to protect himself when she and her sister intervened in mothers fight with a neighbor. To protect minor, the department placed her with a foster family.

The court adjudicated the petition and in April 2007 sustained its allegations. It found stepfather had molested minor when she was eight years old. It further found his leering made her uncomfortable and, because of the past molestation, endangered her emotional health and safety. Finally, the court rejected stepfathers claim that he hit minor accidentally during mothers fight with her neighbor. Because stepfather continued to live with mother, the court did not return minor to mothers custody. The court instead ordered mother to participate in counseling to address sex abuse awareness and boundary issues. It also ordered individual counseling for minor, which mother was to join when minors counselor deemed appropriate. Finally, the court ordered visitation for mother and minor.

Mother appeals from the courts orders.

DISCUSSION

Mother contends the court erred in finding dependency jurisdiction existed. She asserts a risk of future harm to the minor must exist at the time of the jurisdictional hearing before the dependency court may assume jurisdiction over a child. (In re Alexander K. (1993) 14 Cal.App.4th 549, 560; In re Jennifer P. (1985) 174 Cal.App.3d 322, 326.) She argues that by the time of the April 2007 jurisdictional and dispositional hearing, no evidence suggested a risk of future harm. She points out that she had not injured minor; stepfather was the offending adult. When she learned he had molested minor when she was younger, she arranged for minor to move out of the house and live with relatives. Minor had no contact with stepfather between moving out in July 2005 and the April 2007 hearing almost two years later.

We review the courts finding of a risk of future harm for substantial evidence. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) Here, stepfather had repeatedly molested minor when she was eight years old, continually leered at her when she was 15, and hit her at least once. Past conduct may be probative of a current risk of harm. (In re Alexander K., supra, 14 Cal.App.4th at p. 560.) The court had sufficient facts to conclude minors risk of future harm at stepfathers hands remained while mother continued to live with stepfather where he had access to minor. (Compare In re Jennifer P., supra, 174 Cal.App.3d at p. 327 [no dependency jurisdiction where mother took steps, including pursuing criminal action and court order barring further contact, to ensure father who had molested minor had no access to child].) Thus substantial evidence supported the courts jurisdictional order making minor a dependent of the court.

In affirming, it bears noting that the department has not moved against mothers parental rights in minor and nothing in the record before us suggests the mother-daughter relationship is legally at risk although the point will become moot when minor turns 18 in June 2008. We further note that our affirmance is without prejudice to mothers right to file a petition under section 388 alleging a change of circumstances when, and if, she and stepfather stop living in the same household again a point that will become moot in a few months.

DISPOSITION

The April 10, 2007 order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

EGERTON, J.*

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* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.