Orange Cty. Soc. Servs. Agency v. Diana L.

Opinion

SILLS, P. J. In May 1994, five-month-old Sylvia and one-and-one-half-year-old Michelle were taken into custody after their mother, Diana, was arrested for child endangerment and possession of illegal drugs. The father, Octavio, was not living with the children at the time. In September 1994, the children became dependents of the juvenile court after dependency petitions were sustained based on the mother’s arrest and neglect, and the father’s failure to have protected the children from that neglect.

Octavio had been arrested for spousal abuse in 1991. In October 1995, about two months prior to the eighteen-month review, he was arrested for spousal abuse again, after a physical altercation with Diana. The 18-month review was held in early January 1996. Reunification services were terminated and the case was set for a permanency planning hearing under section [562366].26 of the Welfare and Institutions Code.1 In mid-January 1996, however, the Orange County District Attorney’s office, for a reason not disclosed in the record, dismissed the spousal abuse charges against Octavio.

In February 1996, Octavio filed a request, pursuant to section 388, seeking to modify the order terminating reunification services, based on the dismissal of the spousal abuse charges. The petition was denied, and denied without the court setting a special hearing on the subject. In this appeal, Octavio now argues that he should have received at least a hearing on whether the dismissal was a change in circumstances which would have warranted renewed reunification efforts.

Octavio’s argument is meritless. Six years ago, in In re Benjamin D. (1991) 227 Cal.App.3d 1464 [278 Cal.Rptr. 468], this court held that evidence of spousal abuse was relevant on the question of whether the child of the marriage was properly within the jurisdiction of the juvenile dependency court. “Both common sense and expert opinion,” we observed, “indicate spousal abuse is detrimental to children.” (Id. at p. 1470, fn. 5; see also In re Heather A. (1996) 52 Cal.App.4th 183, 195 [60 Cal.Rptr.2d 315] [recognizing that spouse battering is “secondary abuse” which may sow in children the seeds of psychological predisposition to be victims of domestic violence]; Fields, The Impact of Spouse Abuse on Children and Its Relevance In Custody and Visitation Decisions in New York State (1994) 3 Cornell J.L. & Pub. Pol’y 221, 228 [“Studies show that violence by one parent against another harms children even if they do not witness it.”]; Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions (1991) 44 Vand. L.Rev. 1041,1055-1056 [“First, children of these relationships appear more likely to experience physical harm from both parents than children of relationships without woman abuse. Second, even if they are not physically harmed, children suffer enormously from simply witnessing the violence between their parents. . . . [^Q Third, children of abusive fathers are likely to be physically abused themselves.” (Fns. omitted.)].)