In Re James B.

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…