Parental Termination for Physical Violence Between a Child's Parents

In In re Daisy H. (2011) 192 Cal.App.4th 713, the Second District Court of Appeal found that "physical violence between a child's parents may support the exercise of jurisdiction under subdivision (b) but only if there is evidence that the violence is ongoing or likely to continue and that it directly harmed the child physically or placed the child at risk of physical harm. " (Daisy H, supra, at p. 717.) In Daisy H., the juvenile court declared the children, ages nine and 13, dependents of the court, removed them from their father's custody and control and restricting him to monitored visits at neutral sites. (Daisy H., supra, at p. 715.) The amended petition contained allegations under "section 300, subdivision (a) risk of `serious physical harm', subdivision (b) parent's failure to protect child from risk of `serious physical harm' and subdivision (c) risk of `serious emotional damage'. The juvenile court sustained the allegation under subdivision (a) that on prior occasions Father choked Mother and pulled her hair and that once, while speaking to Daisy, Father threatened to kill Mother. With respect to subdivision (b), the juvenile court sustained the same allegation of domestic violence contained in subdivision (a) plus allegations that Father `has mental and emotional problems . . . which render him unable to provide regular care of the children' and that Father emotionally abuses his children `by making derogatory statements about their mother which include . . . "bitch, hoe and prostitute." `Each allegation sustained by the juvenile court under subdivisions (a) and (b) included the accusation that Father's conduct `places the children at risk of physical and emotional harm.' The juvenile court found insufficient evidence that Father's name-calling, as alleged under subdivision (b), placed the children at risk of `serious emotional damage' under subdivision (c)." (Id. at pp. 715-716.) In Daisy H., Mother told the DCFS worker that in 2007, two years before the petition was filed, Father pulled her hair and choked her. Mother's later statements and court records indicate that these events actually occurred in 2002, seven years before the petition was filed. When interviewed by the DCFS worker, none of the children showed any signs of physical abuse. They all appeared healthy and well-groomed. Moreover, the children denied ever witnessing their Father physically abuse their Mother and there was no evidence that the alleged hair-pulling and choking incidents occurred in the children's presence. The children stated that they had no fear of their Father. (Daisy H., supra, at p. 717.) On appeal, the Daisy H. court found that the "evidence was insufficient to support a finding that past or present domestic violence between the parents placed the children at a current substantial risk of physical harm. The physical violence between the parents happened at least two, and probably seven, years before the DCFS filed the petition. There was no evidence that any of the children were physically exposed to the past violence between their parents and no evidence of any ongoing violence between the parents who are now separated. " (Daisy H., supra, at p. 717.)