IN RE: LAWRENCE S. (1990)

Larry S. appeals from an order of the Santa Clara County Juvenile Court adjudging his six- and nine-year-old sons dependents of the  court, and, in conflict with an order of the Santa Barbara County Family Court, forbidding him contact with his children until the children, their therapists, and the supervising social worker consent.

FACTUAL HISTORY

The marriage of appellant and his former wife, Kathleen, was dissolved on September 17, 1986, in the Santa Barbara County Superior Court, during a bruising battle with mutual allegations of spousal and child abuse, and Kathleen's accusation that appellant sexually molested the children.

In September 1987, Kathleen, appellant, and the attorney for the children stipulated for final judgment, agreeing among other things that custody was awarded to Kathleen and appellant was to have supervised visitation beginning December 19, 1987.

After a hearing attended by counsel for the parents and the children on December 11, 1987, Judge Thomas Adams of the Santa Barbara County Superior Court appointed two visitation supervisors, specified dates of future visits, and chose the location of the December 19 visit.

The court gave the supervisors authority to terminate a visit if anything occurred which the supervisor felt was detrimental to the best interests of the children.   He also authorized each party to have his or her own visitation supervisor present.

On December 18, the Santa Barbara court signed the order prepared by Kathleen's attorney and approved as to form by appellant's and the children's attorneys, and it was filed that same day.

At noon on December 18, the Santa Clara County Juvenile Probation Department placed the children in protective custody and alleged, in a petition which was filed in the juvenile court on December 22, that the oldest, Michael, then 7, came within the provisions of Welfare and Institutions Code section 300, subdivision (d),¹ in that he was sexually molested by his father, that he did not wish to visit his father as ordered by the Santa Barbara County Family Court, and that he engaged in a suicidal act when told he had to visit his father.

The petition filed on behalf of the younger, Lawrence, then 4, alleged that he was sexually molested by his father and that he did not wish to visit his father as ordered.   Both parents were named in the petition.

 The same day, the juvenile court released the minors to their mother's custody, ordered no contact between them and appellant, and forbade the visit scheduled for the next day.   The probation officer's report filed on January 5, 1988, stated that the mother admitted and the father denied all allegations.

Appellant moved to dismiss because the juvenile court lacked jurisdiction and because the petitions were barred by res judicata and collateral estoppel.   Appellant's subsequent attorney moved for judgment on the pleadings because jurisdiction was properly in the Santa Barbara County Family Court, the minors were represented by counsel in that court, and there was no imminent danger to the children.   Both motions were denied.

The jurisdictional hearing finally commenced on March 30, 1989.   After a five-day hearing, the court sustained the third petition (see infra ) as to Michael on subdivisions (c) and (d) of section 300, but only as to the allegation of physical abuse of a sibling under subdivision (j).   As to Lawrence, the allegations under section 300, subdivision (d), were not sustained;  the allegations under subdivision (c) were sustained except for those relating to the opinion of Lawrence's therapist;  and subdivision (j) was sustained.   This appeal ensued.²

CONTENTIONS ON APPEAL

Appellant contends that the court's finding that Michael engaged in suicidal conduct on December 18, 1987, was not supported by a preponderance of the evidence.   Furthermore, the court erred in allowing relitigation of issues that had been “extensively examined in the Santa Barbara domestic court” and in overruling “a court order issued 11 days before the juvenile petition was filed where the minors were represented ․ by counsel and there has been no evidence [of a change in circumstances] since the order was issued by the domestic court.”

Additionally, he contends that the juvenile court erred in finding dependency because section 300 required, but the evidence did not establish, that there was a current risk to the minors necessitating the protection of the juvenile court.

Lastly, appellant asserts that the court erred in refusing to allow the reportedly “fearful” and “intimidated” 10– and 16–year–old cousins of Michael and Lawrence to testify outside the presence of appellant and Kathleen.

JURISDICTION

Appellant contends that the court should have granted his motion to dismiss the petition, since the allegations that he had physically and  sexually abused the children had previously been litigated in the Santa Barbara County Superior Court, and the petitions did not allege any facts that had occurred between the issuance of the order on December 11, 1987, and the taking of the minors into protective custody on December 18, 1987.

Appellant asserts that the sole reason the intervention of the juvenile court was sought was Kathleen's dissatisfaction with the Santa Barbara court's visitation order.

Although the language of the petitions evolved as the case proceeded through juvenile court, appellant contends that none of the petitions presented any issue other than whether he had molested the minors.   He asserts that that question had been thoroughly considered by the Santa Barbara court, whose orders were framed to protect the minors.   Since no evidence had been presented in Santa Clara in 1989 which would indicate that the minors were at any risk that did not exist on December 11 and 18, 1987, there was no need for the juvenile court to take jurisdiction from the Santa Barbara court.

1. The Petitions in Santa Clara

When the matter came to hearing on March 24, 1989, the probation department filed a third petition on behalf of each minor which conformed to changes in section 300 that went into effect on January 1, 1989.

The petitions, almost identical, alleged that each minor came within the provisions of section 300, subdivisions (c), (d), and (j),³ in that:  “300(c):  Said  minor is suffering serious emotional damage and is at further risk of suffering further emotional damage as evidenced by severe anxiety, depression and withdrawal in that:  [¶] (1) Said minor states and believes that he has been sexually and physically abused by his natural father;  [¶] (2) Said minor states he does not wish to have any contact with his natural father at this time as he is afraid of his father;  [¶] (3) On or about December 18, 1987 [Michael] engaged in a suicidal act when told that he would have to visit his father[;  and, as to Lawrence:]  (3) Said minor's therapist has recommended that said minor have no contact with his father at this time and that any contact would be detrimental to the emotional well-being of said minor.”

2. The Issues in Santa Barbara

While it is not clear when Kathleen first petitioned the Santa Barbara family court for dissolution of the marriage, exhibits presented at motions in the Santa Clara County Juvenile Court reveal that as early as January 1986, Kathleen testified in the Santa Barbara court regarding custody and visitation issues.   Allegations of misconduct by both parents were before the court.   However, visitation starting at the end of January 1986 was ordered.

The specific accusations that appellant sexually molested and again physically abused the children were made by March 27, 1986.   The official response included investigations by the San Jose and Santa Barbara Police Departments, referrals to the San Luis Obispo Sexual Assault Response Team (SART), Child Protective Services of Santa Barbara County, and the Santa Clara County Juvenile Probation Office.

On April 3, 1986, the Santa Clara County Juvenile Probation Department declared the matter settled at intake “as minors did not live w/father and mother able to provide protection and supervision of them.”   A physical examination through SART revealed no physical evidence of molestation.   No criminal charges were filed.

A hearing in the Santa Barbara court was scheduled for June 20, 1986, apparently on appellant's motion to hold Kathleen in contempt.   Kathleen filed a responsive declaration announcing her inability to attend the hearing (she had originally moved the children to Modoc County to get “as far away from Mr. [S.] as [she could]”), but was currently in the San Jose area, and specifically objecting to visitation.   She stated she was afraid of appellant because of violence in their marriage.   She thought he was angry enough to kill her “because of [her] opposition to Mr. [S.]'s wishes.”   Furthermore, she thought he could get help from his friends from church who had attended two previous court sessions.

 She did not want the children to visit because they were undergoing counselling and “any contact now would undermine the children's belief that they can get away from the abuse and molestation inflicted on them․   Their counselor believes that this would all but end their therapy.  [¶] 11.   This is particularly true since Mr. [S.] adamantly maintains that nothing ever happened.   As long as he holds that belief, he cannot help them and his contacts with them, even if closely supervised, will be destructive to them.   This is made even more true because the children and their father are so very close.   He is still a major influence on their lives even after all that has happened and even when they are separated from each other.”

She declared that Michael told her all the things appellant had done to him.   He stated he hated his father and never wanted to see him again, except to tell him how much he hated him, and to hang him by the hair and beat him until he died.

She admitted that she had refused to allow the children to visit appellant after the March 23, 1986 visit when “Michael told [her] that both of them had been molested on those visits, and that is when [she] went to the police.”   She declared that Sergeant Botar of the San Jose Police Department had told appellant that he could not visit until an investigation had been completed, and that a juvenile probation officer in San Jose told her that if she did allow visitation, “he would think [she] was endangering the children and might work to take the children away from [her].”

Whether a hearing took place on June 20, and if so, what its outcome was does not appear in the record.   However, testimony at the jurisdictional hearing in Santa Clara County established that the Santa Barbara court granted visitation to appellant's mother on August 6, 1986.   Six days later, a SART report listed appellant's mother as an alleged molester.   More paternal relatives were accused as molesters in a September 5, 1986, SART report.   Michael and Lawrence started psychological treatment on November 16, 1986 and January 5, 1987, respectively.

As can be gathered from the record in the instant case, the allegations of abuse and molestation were before the Santa Barbara court repeatedly during 1986 and 1987.

In addition, the court also received reports of the minors' mental states.   A Modoc county mental health service report on the minors (showing an initial referral in December 1985 and a final session in April 1986, after the allegations of sexual abuse were made) was before the Santa Barbara court on August 27, 1986.   In February 1987, the court received psychological evaluations of both minors which it had ordered on October 30, 1986.   These addressed the issues of the alleged molestation and abuse, visitation, and  fear.   The court also had a custody investigation and report pursuant to Civil Code section 4602.

Notwithstanding this onslaught of allegations, counter-allegations, and reports, an order for telephonic and supervised in-person visitation was made in April 1987.

It is unclear when the children were first represented by counsel in the Santa Barbara proceedings, although they were represented in September 1986, when supervised visitation with appellant's mother was ordered.   Significantly, however, in September 1987, well after the molest and fear allegations were made and investigated, reports presented, and argument presented to the family court, their counsel stipulated with Kathleen and appellant to the agreement which included supervised visitation.

The stipulation for final judgment was incorporated and made a part of the final judgment.   It provided, in pertinent part:  The status of the marriage was dissolved on September 17, 1986.   Kathleen had custody of the minors.   Appellant was granted supervised visitation.   In addition to a court-appointed supervisor, each party was entitled to choose a non-relative to be present at the visitations.  (The December 18 order authorized the court-chosen supervisor to terminate a visit if anything occurred which the supervisor felt was detrimental to the best interests of the child.)   The visits were to be in parks and recreation centers open to the public between 11 a.m. and 3:30 p.m.

Appellant had the right to telephone the minors every Sunday between 12:45 p.m. and 1 p.m., and both parties had the right to tape record or have a third party monitor the conversations.   Appellant had the right to send letters and gifts to the minors through the mail or by United Parcel Service.   Appellant and his agents were forbidden to contact the minors except as specified in the judgment.   Before appellant or his family members could send birthday or holiday cards, the parties had to agree.   The parties were authorized to communicate by mail regarding the children's psychological treatment and educational and other needs.   All other contacts were forbidden unless mutually agreed to by the parties before the contact commenced.

Each party and his or her agents were ordered to remain 50 yards from the residence of the other, and each party was forbidden to molest, strike, sexually assault, or otherwise disturb the peace of the other or the children.   The restraining orders were permanent unless modified by future order of the court.   Both parties denied ever abusing the children, and neither party admitted any claim or defense of the other party.   Neither party had ever personally observed the other party sexually molest the minors.

A hearing was scheduled for June 17, 1988.   The court indicated it would consider longer visitation, including the possibility of additional time during  summer and holidays.   The court ordered the parties to attend mediation prior to the hearing.

DISCUSSION

Appellant argues that the Santa Barbara court was the proper forum to determine whether the visitation order should be modified.

Section 327 provides:  “Either the juvenile court in the county in which a minor resides or in the county where the minor is found or in the county in which the acts take place or the circumstances exist which are alleged to bring such minor within the provisions of Section 300, is the proper court to commence proceedings under this chapter.”

“Where there is a conflict, California cases unequivocally endorse the proposition the first court to assume and exercise jurisdiction acquires exclusive jurisdiction.  [Citations.]”  (In re Brendan P. (1986) 184 Cal.App.3d 910, 916–917, 230 Cal.Rptr. 720.)   However, the court observed:  “Cases are legion which permit assumption of juvenile court jurisdiction over custody issues after there has been a custody ruling in a family law department, but in those cases the precise matters charged in the juvenile court are different than those resolved by the earlier domestic proceeding.   Most usually, ․ subsequent events may show the parent is unable to care for the child, thus requiring the state to step in as a party bringing a protective custody action․”  (Id. at p. 917, 230 Cal.Rptr. 720.)

Appellant argues that this case is a Brendan P. situation.   In fact, there are striking similarities in the chronology of the two cases.   In Brendan P., “[t]here was a lengthy, nine-day litigated custody hearing before Judge Kapiloff of the superior court family law division.   Judge Kapiloff, after hearing extensive testimony of mental health professionals, social workers and the parents, ordered joint custody to be in both parents with two days per week visitation to Bernard.   In the process of that ruling, Judge Kapiloff specifically found there was ‘no evidence that Brendan was molested by [his father].’

“To say the parties did not cooperate with the court order is a gross understatement.   There continued to be open warfare between them—the mother determined to impede visitation, the father determined to have it—sometimes angry and out of control.   Hearings were held, charges made, considered, acted on.   Judge Kapiloff on April 2, 1984, made a formal order for two days a week supervised visitation between father and son.   The mother went into hiding with the child․

“On May 3, the parties came before Judge Kapiloff on the father's motion for enforcement and modification of the visitation order.   The judge ordered  two eight-hour visitations to happen May 5 and 6, 1984.   The mother thwarted both these visitations.

“The next day, May 4, a dependency petition was filed in the juvenile court regarding Brendan, alleging under ․ section 300, subdivision (a), that Brendan had no parent or guardian actually exercising and capable of exercising proper parental care and control.   The petition stated ‘because of said minor's age [he] is in need of such care and control, in that on or about 5–3–84 the emotional atmosphere in the home, to wit, including but not limited to the mother is being forced to allow Brendan to visit his father, [Bernard], who has sexually molested and physically abused Brendan's half sibling [which was] detrimental and harmful to the health and welfare of said minor.’   The petition also recites:  ‘The mother having custody is requesting the services of the Juvenile Court.’ ”  (In re Brendan P., supra, 184 Cal.App.3d at p. 913, 230 Cal.Rptr. 720.)

While Brendan P. reversed the juvenile court's order because of insufficient notice to the father, the court stated as dicta:  “relitigation of identical issues in both domestic and juvenile forums is nowhere said to be permissible.”  (184 Cal.App.3d at p. 917, 230 Cal.Rptr. 720.)

In the instant case, both respondents, the minors, and the probation department (department), argue that the issue of molestation was not litigated in Santa Barbara because the “Stipulation for Final Judgment” expressly makes no finding on the issue of abuse, and arguably removed the issue from the court's purview.   However, neither respondent contends the subject had not been brought before the family court.

We note first that the stipulation for final judgment, incorporated into the final judgment of the court, is an agreement made after the parties had presumably settled outstanding issues.  “It was implicit in the stipulation that, as between the parents, the issue as to the custody of the child had been settled․”  (Loomis v. Loomis (1948) 89 Cal.App.2d 232, 236, 201 P.2d 33.)   The court apparently approved the agreement.  “While parents have a legal right to contract with each other as to the custody and control of their offspring [citation], ․ [w]here the welfare of children is involved as it is in divorce cases, parents cannot by contract so bind themselves as to foreclose the court from an inquiry as to what that welfare requires.  [Citations.]”  (Anderson v. Anderson (1922) 56 Cal.App. 87, 89, 204 P. 426.)

Consequently, when the allegations of abuse and molest arose in the Santa Barbara court, the court had been obligated to consider them.   Both the Santa Clara County Juvenile Court record and the extensive Santa  Barbara court file ⁴ make clear that these allegations were pending there.  (Code Civ.Proc., §§ 1049, 410.50, subd. (b).)

The juvenile court file contains exhibits relating to the Santa Barbara action that appellant presented with several motions to be heard in July 1988.⁵  They, along with a declaration under penalty of perjury prepared by appellant on June 13, 1988, present a vivid picture of the allegations and counter-allegations, and opinions and counter-opinions, which faced the Santa Barbara court.

Even if the parties considered the case terminated by the order containing the stipulation for final judgment, family law courts have continuing jurisdiction over custody matters.  (Civ.Code, § 4600, subd. (a).)  Thus, when the visitation issue (which apparently had been extinguished by the agreement) reignited, the proper and quickest procedure would have been to return to the court where the issue was pending.

Next, the department contends that “[u]nless the Juvenile Court intervened in this matter, there is no way that MOTHER would be able to protect her children from further molest, abuse or psychological trauma at the hands of [appellant].   The Family Court orders required that the children visit with their father, supervised, on a set schedule․   Thus, MOTHER is put in an untenable position—allow her children to visit even though it causes them extreme anxiety and depression or violate the court orders and risk being held in contempt.   The only way to prevent this is for MOTHER to abrogate her decision-making powers to the Juvenile Court which considers the best interests of the children paramount to those of the parents.”

The department asserts that “in juvenile proceedings the minor's welfare is paramount;  the child is a party to the action in juvenile court and must be  represented by counsel.   On the other hand in most family court/child custody proceedings, the parents' self-interests are paramount.”   The department cites In re William T. (1985) 172 Cal.App.3d 790, at page 798, 218 Cal.Rptr. 420, for the latter proposition.   However, what William T. said was:  “In most parental custody proceedings, the child is not ensured representation and must depend upon others to represent the child's ‘best interests.’  [Citations.]”  (Ibid.)

Moreover, the fact is the children were indeed represented by counsel.   Furthermore, Civil Code section 4600, subdivision (b), and subsequent sections direct family law courts to award custody, grant visitation, and make other determinations according to the best interests of the child.

“[I]n an action between parents in reference to the custody of and right of visitation with a minor child ․, the welfare of the child is the all-important question first for decision, and the state, acting in the relation of parens patriae, has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare․  [Citations.]  [¶] ․ The primary consideration is what will promote the best interests of the child.  [Citation.]”  (Miller v. Hedrick (1958) 158 Cal.App.2d 281, 285, 322 P.2d 231.)

The department argues fiercely that:  “It is absolutely despicable that MICHAEL would have to attempt suicide in order to avoid visiting with a parent who molested him and physically abused him.   Similarly, it is appalling that his brother, who was subjected to physical and emotional abuse by his father, would also have to visit with him.”

The department continues:  “the petitions allege that both minors are suffering the emotional damage because, in part, they do not wish to have contact with their father․   Yet, the Santa Barbara Family Court orders require these minors to visit with their father.”

Clearly, the Santa Barbara family court would have made appropriate modification of its order if presented with supporting facts.   As another appellate court has said:  “The referee in announcing his decision and the Department on appeal emphasized the need of the juvenile court to ‘protect the child,’ ․ While this may be true, we can hardly presume the domestic court would require or allow father-daughter contact where it would be detrimental to Jennifer's welfare.   We are also disturbed by what appears to be the Department's tunnel vision and lack of confidence in superior courts other than the juvenile court.”  (In re Jennifer P. (1985) 174 Cal.App.3d 322, 327, 219 Cal.Rptr. 909.)

Next, both respondents contend that since Michael's suicide attempt on December 18 took place after the last orders made by the Santa Barbara  family court on December 11, this constitutes a changed circumstance justifying assumption of jurisdiction by the juvenile court.

To clarify the chronology, the petition filed in juvenile court indicates that the alleged suicide attempt took place before noon on December 18.   The judge in Santa Barbara was signing the written order prepared by Kathleen's attorney that very day, and somebody filed the order on that day.   It may reasonably be inferred that the attorneys for all parties were but a phone call away.   It seems farfetched in the extreme to think that the Santa Barbara court, with the ink still wet on its order, would not have been willing instantly and effectively to deal with the allegation that Michael was so frightened of his father that he would choose suicide over a visit.

The department further argues that “the case did not come to the attention of the Juvenile Court because of MOTHER.”   The significance of this lies in the fact that “ ‘[a] probation officer or social worker, through the services of child abuse or child protective agencies, determines whether proceedings in the juvenile court are warranted, and the filing of a petition is preceded by an investigation to determine if there is cause to commence such proceedings.  [Citation.]   These processes insulate the proceedings from self-interest and petty interferences which can pervade parental custody disputes․'  [Citations.]”  (In re Anne P. (1988) 199 Cal.App.3d 183, 194, 244 Cal.Rptr. 490.)

However, insulating processes were all in existence in the Santa Barbara proceedings.   Not only did numerous public agencies conduct investigations into the allegations of molestation, the family court then heard extensive argument on the matter.   It ordered psychological evaluations of the children.   When the hearings were had, the children were represented by counsel.   Indeed, as recently as the week between December 11 and December 18, their counsel as well as appellant's and Kathleen's agreed to supervised visitation.

In contrast, in December 1987, no investigation into the allegation of attempted suicide was made before proceedings were initiated in juvenile court.   It is interesting to note that the department had not felt compelled to intervene in 1986, when it learned of the allegations of molestation and abuse, albeit minus the alleged suicide attempt.   At that time, the intake officer found departmental action unnecessary since the mother, even then subject to orders of the Santa Barbara court, could provide care and protection.

Finally, we note that the instant case involved the courts of two different counties, not different departments of the same court.   In Greene v. Superior Court (1951) 37 Cal.2d 307, 231 P.2d 821, the Santa Barbara County  Superior Court issued an order in a divorce proceeding awarding custody of the children to the mother with visitation rights in the father.   The mother then moved to San Francisco and petitioned for guardianship of the children's persons in the San Francisco court.   She sought to substantially alter the father's visitation rights.   Relying on the general rule that when two courts have concurrent jurisdiction, the court first assuming it retains it to the exclusion of all other courts, the Supreme Court held that the San Francisco County Superior Court had no jurisdiction to appoint the mother as guardian for the children.  (Id. at pp. 308–312, 231 P.2d 821.)

The court stated:  “If change of residence within the state makes it desirable that the court of another county have jurisdiction to modify the [custody] decree, the objective may be attained by a change of venue.  [Citation.]   If it is still necessary or convenient that a guardian be appointed, despite the custody award [citations], conflict in jurisdiction may be avoided by bringing proceedings in the court having jurisdiction over the original custody decree.  [Citations.]

“It has been recognized that ‘to avoid interminable and vexatious litigation it is generally required that before modification or vacation of ․ a [custody] decree, “there must be a change of circumstances arising after the original decree is entered, or at least a showing that facts were unknown to the party urging them at the time of the prior order․” ’  [Citation.]  ․ Otherwise a parent having the immediate control of a minor might move from county to county, instituting guardianship proceedings, in search of a court that will alter the custody provisions of a divorce decree.”  (Greene v. Superior Court, supra, 37 Cal.2d at p. 312, 231 P.2d 821.)

In a similar case, involving custody and dependency proceedings in different counties, Justice Donald R. Franson wrote in a concurring opinion:  “[W]here a custody (or visitation) dispute between parents is pending in the superior court at the time a dependency petition is filed in the juvenile court, the latter court should defer to the superior court's handling of these matters unless some compelling reason is shown as to why the superior court cannot protect the safety and best interests of the minor.   No such showing was made in the present case.

“As the majority acknowledges, this custody war has been going on since 1979․   The Stanislaus court's various orders concerning custody and visitation reflect a continuing sensitivity to the minor's welfare.   Petitioner's alleged concern about the safety of the minor ․ could easily have been presented to the Stanislaus court pursuant to the pending motions with a suspension of further visitation until the court decided the issue.   Thus, there was no urgency or other compelling reason for the juvenile court to exercise its jurisdiction.   It should not have done so.”  (In re William T., supra, 172 Cal.App.3d at p. 805, 218 Cal.Rptr. 420.)

 Justice Franson concluded:  “the record indicates that petitioner engaged in blatant forum shopping for the sole purpose of avoiding what he anticipated would be adverse rulings by the Stanislaus court on the various custody and visitation motions then pending in that court.   Petitioner's complaint to the Solano County Child Protective Services which triggered the juvenile court petition ․ resurrect[ed] alleged acts of sexual child abuse and burning which had occurred months and years before.   These alleged acts had already been thoroughly investigated by the Stanislaus County Child Protective Services, and the results of its investigation (recommendation that no action be taken) had been communicated to the Solano County Child Protective Services.   It was not until ․ petitioner's motion for change of venue ․ had been denied by the Stanislaus court, that Solano County Child Protective Services chose to take any action.   As aptly noted by the Stanislaus court, the Solano County proceeding was ‘strictly an end run play designed to defeat [the Stanislaus court] of jurisdiction in a matter in which it was appropriately exercising its jurisdiction․’ ”  (172 Cal.App.3d at p. 804, 218 Cal.Rptr. 420.)

The same is true in the instant case.   Jurisdiction in the pending custody dispute lay in the Santa Barbara court, and it was improper for the Santa Clara County Juvenile Court to exercise its jurisdiction.   Since jurisdictional defects are “fatal” to the proceeding (In re B.G. (1974) 11 Cal.3d 679, 688, 114 Cal.Rptr. 444, 523 P.2d 244), both the jurisdictional and dispositional orders are reversed.

In light of our decision, we need not consider appellant's additional contentions on appeal.

DISPOSITION

The judgment is reversed.

FOOTNOTES

1.   Further statutory references are to the Welfare and Institutions Code unless otherwise stated.In December 1987, section 300 provided:  “Any person under the age of 18 years who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:  [¶] [ ] (d) Whose home is an unfit place for him by reason of neglect, cruelty, depravity, or physical abuse of either of his parents, or of his or her guardian or other person in whose custody or care he or she is.”  (See Stats.1986, ch. 1122, § 2, p. 3976.)

2.   During the pendency of this appeal, appellant's parental rights were terminated on August 16, 1990, pursuant to sections 366.21 and 366.26.   In light of this court's decision, the holding of In re Kristin B. (1986) 187 Cal.App.3d 596, 605, 232 Cal.Rptr. 36, may apply.

3.   In 1989, section 300 provided:  “Any minor who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:“.    .    .    .    .“(c) The minor is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care.   No minor shall be found to be a person described by this subdivision if the willful failure of the parent or guardian to provide adequate mental health treatment is based on a sincerely held religious belief and if a less intrusive judicial intervention is available.“(d) The minor has been sexually abused, or there is a substantial risk that the minor will be sexually abused, as defined in subdivision (b) of Section 11165 [now section 11165.1] of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the minor from sexual abuse when the parent or guardian knew or reasonably should have known that the minor was in danger of sexual abuse.“.    .    .    .    .“(j) The minor's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the minor will be abused or neglected, as defined in these subdivisions.   The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the minor.”  (See Stats.1987, ch. 1485, § 4.5, No. 12 West's Cal.Legis. Service, pp. 676–678.)

4.   On its own motion, this court reviewed Santa Barbara County Superior Court file No. 158661.  (Cal. Rules of Court, rule 12.)

5.   The documents in the juvenile court file which appear to have come from the Santa Barbara action include:  the Stipulation for Final Judgment filed September 14, 1987;  the Order After Hearing re Supervised Visitation with attached declarations of the visitation supervisors filed December 18, 1987;  a Modoc County Mental Health Service letter addressed to appellant's attorney bearing an exhibit tag dated 8/27/86;  a letter dated February 6, 1987 addressed to Santa Barbara County Superior Court Judge Bruce Dodds from clinical psychologist Paul Meisel who conducted a court-ordered evaluation of the minors;  the transcript of a telephone conversation between an investigator and Kathleen's former husband;  a letter to appellant dated May 6, 1986, from the former husband;  a declaration under penalty of perjury dated August 25, 1986, from the former husband;  an emergency room report for Michael dated January 25, 1986, diagnosing “acute larynogeal-tracheal bronchitis (croup)”;  a letter addressed to “To Whom It May Concern” dated November 17, 1985, from appellant;  a partial transcript of Kathleen's testimony at proceedings on January 17, 1986, in the Santa Barbara County Superior Court;  Kathleen's responsive declaration to notice of motion referring to the hearing set for June 20, 1986, in the Santa Barbara County Superior Court;  and a partial transcript of a deposition of Kathleen taken in connection with those proceedings on October 6, 1986.

PREMO, Associate Justice.

CAPACCIOLI, Acting P.J., and ELIA, J., concur.