In re M.G.

Filed 9/24/07 In re M.G. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from orders of the Superior Court of Los Angeles County, Jan Levine, Judge. Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Jose G., Defendant and Appellant.

Rich Pfeiffer, under appointment by the Court of Appeal, for M.G., Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and William D. Thetford, Deputy County Counsel for Plaintiff and Respondent.

INTRODUCTION

Jose G. and his five-year-old son, M. G., separately appeal from the jurisdiction and disposition orders of the juvenile court finding true that Jose sexually abused M. and that M.s parents had a violent confrontation in the childs presence. (Welf. & Inst. Code,  300, subd. (d).)[1]Both appellants contend that the court erred in relying on M.s out-of-court statements to sustain the petition and there was insufficient evidence to justify the removal of M. from Joses custody ( 361, subd. (c)). Guided by our Supreme Court in In re Cindy L. (1997) 17 Cal.4th 15 (Cindy L.) and In re Lucero L. (2000) 22 Cal.4th 1227 (Lucero L.), we affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

1. The detention

At the time of the February 2006 events that led to the juvenile courts jurisdiction, M.s parents had been divorced for four years. The family law court had awarded primary physical custody of the child to Jose and granted mother Isabel visits two weekends a month. Jose and M. resided in the home of Yolanda U. where Jose rented a room. Also living in the house were Yolandas husband Jesus U., her children Jorge and Jesus U., Jr., and her nephews Jose D. and Armando D. Yolanda babysat M. M. has a speech impediment that makes it sometimes difficult to understand him.

The Department of Children and Family Services (the Department) received an emergency response referral on February 3, 2006, alleging that Jose had sexually abused M. The following information was contained in the Departments detention report. On February 2, 2006, M. disclosed to Yolanda that Jose had pulled the childs pants down and kissed his penis and buttocks. He also watched pornographic videos with Jose. M. gestured with his mouth and tongue

to show how his father had kissed him and how it was done in the movies. Yolanda told Isabel, who then came to Yolandas house to speak with M. Jose was present at the time and denied the events. Isabel went to file a report with the Sheriffs Department. Deputy Sheriff Mendoza came to Yolandas house for interviews.

According to Deputy Sheriff Puzio, the child had related the same story to the nurse who examined him at the hospital. M. told Deputy Puzio that the last time Jose had done this to him was  last night at bed time  and that  my daddys pee-pee is hard and bigger than my pee-pee.  M. also stated that Jose buys him toys so that he will not tell anyone about the activity.

A childrens social worker, accompanied by Deputy Puzio, interviewed Jose. Jose denied the allegations and accused M. of being a liar.

The social worker interviewed M. at the Departments offices. While M. did not respond to questions about sexual abuse, he confirmed that  yes, I see movies with my dad. The women in the movies are naked and they kiss their front and buttocks.  The social worker did not observe marks or bruises on the childs body.

A teacher at M.s school, John B. Gomez, confirmed to the social worker that M. had disclosed that Jose was  putting his penis inside his mouth and his buttocks  and that Jose and he watched triple X-rated movies. With gestures, the child had shown the teacher how this was done in the movies.

Attached to the detention report was Deputy Puzios report containing the quotes from his interviews with M., the school principal, Mr. Gomez, and others.

Based on the above described information, the Department determined that M. was being sexually abused and his safety was of immediate concern. Because of the previous family court order, M. was placed in foster care, not with Isabel. The juvenile court detained M. and found that Isabel was non-offending.

2. The petition ( 300) and the jurisdiction report

The Department filed a petition under section 300, subdivision (d). It alleged that Jose sexually abused M., consisting of, but not limited to, Jose orally copulat[ing] the childs penis, buttocks and anus. Further, [Jose] fondled the childs penis and buttocks [and] showed the child pornographic movies. Further, [Jose] told the child not to disclose said sexual abuse. Such sexual abuse of the child . . . endangers the childs physical and emotional health and safety and places the child at risk of physical and emotional harm and damage, danger, and sexual abuse.[2]

The Departments jurisdiction report dated March 8, 2006, contained, among other things, (1) the detention report; (2) the statements of Isabel, Jose, and others; (3) the detectives report; (4) the family law courts paperwork; (5) the police reports from 2003 and 2005 concerning domestic violence between Isabel and Jose, as well as a burglary report filed by Jose against Isabel; (6) the restraining orders filed by Isabel and Jose against each other; and (7) confirmation by a domestic violence shelter that Isabel and M. had received refuge there.

The jurisdiction report also contained the results of an interview in late February 2006 with Yolanda, who clarified that the conversation with M. started when M. reported to her that  My dad said that the boy [Yolandas 12-year-old son] pulls down my clothes.  M. said Jose told M. to say that, and then M. clarified that Jose was the one who actually pulled the childs pants down. When

Yolanda told M. she would report this to Isabel, M. became scared and explained that his father told him not to say anything to his mother or her husband.

Yolandas husband Jesus stated that at night, when M. was bathing, Jesus would hear him cry. Both of Yolandas nephews explained that on the way to school the day after the disclosures, M. told them he had lied to the deputy sheriff about the abuse, and that Jose was the one who had pulled M.s pants down. Jose had promised the child that if he said nothing, Jose would buy the boy a King Kong dinosaur.

The childrens social worker explained that the chief concern was the explicit detail with which M. described to Isabel, Yolanda, Yolandas sons and nephews, law enforcement, and school personnel about being inappropriately touched and watching pornographic films. The physical examination of M. could neither confirm nor negate sexual abuse. Both parents denied the petitions allegations.

Maribel Mejia, Ph.D., conducted a forensic interview. Dr. Mejia first assessed M.s comprehension of truth, falsehood, and morality. She determined that the child was unable to consistently answer questions to establish whether he distinguished between truth and a lie. However, the doctor explained, M. was able to consistently and correctly answer questions about the morality of lying, and agreed to tell the truth. The only information M. would give about his experiences, however, was in response to Dr. Mejias inquiry into what M. had talked to the deputy sheriff about. M. responded,  here, here, and everywhere,  as he pointed to his penis, buttocks, and all over his chest and back. Asked what happened here, there, and everywhere, M. responded,  thats all  and appeared to begin preparing to leave. Asked what movies he liked to watch with his father, M. sat back on the sofa and covered his face with his arms and then pretended to scare Dr. Mejia. Dr. Mejia found M. to be guarded and evasive, and unable to distinguish between truth and falsehood. The doctor noted that, while the child pointed to his private parts when asked what he talked to the police about, he did not disclose any type of sexual abuse.

3. The adjudication

At the jurisdiction hearing, M. was interviewed in chambers. The juvenile court initially found that M. was truth competent in that he could distinguish between the truth and falsehood and was capable of telling the truth. After the Department commenced questioning the child, however, the court concluded that although M. knew the difference between truth and lies and that he must tell the truth, the court did not think he would provide productive testimony. The court ruled that although M. was truth competent, he was unavailable to testify. In July 2006, the court again found that M. was not capable of giving meaningful testimony, but this time also ruled that he was not truth competent.

Yolanda testified that on February 2, 2006, she was driving M. to buy Chinese food and mentioned that the food was for M. and her son Jesus. M. replied that Jose told M. to say that Yolandas son Jesus would pull M.s pants down. In her words, this comment just came out of him [M.]. We were not talking about anything. Surprised, Yolanda stopped the car and asked M. to repeat himself two or three times. M. explained that his father would lower M.s pants and do something to his front part and behind with his tongue or with his mouth. M. also explained that the movies depicted ladies with no clothes who would kiss. M. showed what motions the women made. M. also reported that Jose told him not to tell any adults. M. appeared nervous the entire time he was talking about Joses conduct. Yolandas son denied pulling M.s pants down.

Joses attitude toward Jesus changed. He accused Jesus of abusing M. When Jesus denied it, Jose tapped him on the shoulder and assured Jesus that M. was a liar. That evening, Jose took M. to buy a toy for the child.

The following day, February 3, 2006, as Yolanda was taking M., Jesus, and her nephew to school, M. told them he had lied to the deputy sheriff the day before because Jose had promised to buy him a King Kong toy and a dog. Later that day, the school called and asked Yolanda to return to discuss some disclosures M. had made at school.

Mr. Gomez testified that he had acted as a translator when the counselor interviewed M. at school about the abuse allegations. Also present were Yolanda, Isabel, and the school principal. Mr. Gomez confirmed that three hours after the interview, Mr. Gomez reported to Deputy Puzio that M. stated  he watches porn movies with his father  and that [m]y daddy pulled my pajamas down and put his mouth here, pointing to his penis, and here, pointing to his bottom. M. also described what happened in the movies. He made movements with his tongue that Mr. Gomez believed a five-year-old would not normally do. While M. has a speech impediment and it was difficult for Mr. Gomez to understand the boy, Mr. Gomez testified he was confident he accurately reported M.s statements to the deputy sheriff. Mr. Gomez understood that he has a mandatory obligation to report abuse and because of the gravity of the allegations, he had to be sure about what he reported to the deputy sheriff. Mr. Gomez also translated when Deputy Puzio interviewed M. M. said the same things to the deputy sheriff that he told the counselor. The child did not appear to be upset.

Jesus, who was 12 years old, also testified at the hearing. He saw M. every day during the time that the boy and his father lived in Yolandas house and knows the child well. M. does not lie. M. told him, his cousin, and Yolanda that Jose had made him lie to the deputy sheriff and promised to buy M. a King Kong toy and puppy. Jesus has seen Joses pornographic movies.

Isabel testified that M. did not want to tell her about the events initially because he feared Jose would spank him. Then, M. stated that Jose would take M.s clothes off and put on the movies. M. described the movies as having women and men without clothes. M. then explained that Jose touched M.s genital and buttocks areas with his tongue. When he said this, M. put his hands over his genital area and his buttocks.

The juvenile court sustained the count under section 300, subdivision (b), as the parties agreed, finding true the allegation that M. was exposed to a violent confrontation between the parents. With respect to the sexual abuse count under section 300, subdivision (d), the court found that the Department had carried its burden of proof and sustained it. In a two-and-one-third page statement, the court gave its reasons. It stated that the allegations of sodomy, oral copulation, and fondling of the childs penis and buttocks were based on the referral, at least two police reports, subsequent interviews with the child, his school principal, Yolanda, Isabel, and Jose. Mr. Gomez, Yolanda, and Isabel were cross-examined about M.s statements to them. While M. was called to testify at trial, he was either not competent, or not available, or both.

The juvenile court found that the reports, attachments, testimony at trial, witness credibility, and arguments of counsel provided substantial evidence that the section 300, subdivision (d) count was true (with the exception of sodomy, and so the language concerning that allegation was stricken[3]). The court found Isabel was a credible witness, but Jose was not. Not only did Joses inconsistent statements undermine his credibility, the court found, but they did not hold together to establish a credible explanation of, or the origin for, M.s graphic descriptions, through gestures, of the sexual behavior he had disclosed.

The court also found the hearsay statements in the social study reports were admissible under the child hearsay exception [of Cindy L., supra, 17 Cal.4th 15]. The child expressed himself in an age-appropriate fashion, using gestures to point to his genitals and his buttocks, as well as moving his tongue to show how his father put his mouth on him and how the naked people in the movies he watched licked and kissed each other. The childs statements remained consistent each time he told his story in the immediate aftermath of his disclosure. The child had no motive to make these things up. Indeed, the child volunteered to several people his teacher and Dep. Puzio that his father had told him not to disclose fathers abuse and had rewarded him with a toy for not telling Dep. Mendoza. Moreover, the child, only 5 years old, would not typically know about such behavior in the absence of his personal experience. The court would have found that in light of these indicia of reliability, M[.]s unavailability for cross-examination would not have prevented the court from relying on his previous statements for jurisdictional findings. [Citation.] (Italics added.) The juvenile court ordered M. removed from Joses custody. ( 361, subd. (c).) The parties agreed to a disposition plan.

CONTENTIONS

Both appellants contend that the court erred in relying on M.s out-of-court statements in sustaining the petition. Without the hearsay, they contend, there was no evidence of sexual abuse and so the order sustaining the petition under section 300, subdivision (d) must be reversed and there is no evidence to support the courts disposition order removing M. from Joses custody.

DISCUSSION

1. Standard of review

At a jurisdictional hearing, a finding that the minor is a person described in section 300 must be supported by a preponderance of the evidence. [Citations.] (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) Under this standard, [w]e review the record to determine whether there is any substantial evidence, contradicted or not, which supports the courts conclusions. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) We must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.] (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) We affirm the rulings of the juvenile court if there is reasonable, credible evidence of solid value to support them. [Citations.] (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319.)

Substantial evidence is  evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could [make the same finding]. [Citations.]  (In re Angelia P. (1981) 28 Cal.3d 908, 924.) Thus,  [a]ll conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact . . . . [Citations.] (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214, italics added.) Under this standard, the juvenile court, not this court, assesses the credibility of witnesses, resolves conflicts in the evidence, and determines where the weight of the evidence lies. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53, italics added.)

Although sufficiency of the evidence is the applicable standard when we review the juvenile courts order sustaining a petition, we will not overturn the courts conclusion that hearsay evidence was admissible unless the court has abused its discretion. [Citation.] (Cindy L., supra, 17 Cal.4th at p. 35.)

2. The child-dependency exception to the hearsay rule

Noting that M. was incompetent to testify at the jurisdictional hearing, Jose argues that the only evidence of sexual abuse came in the form of multiple hearsay. The only evidence the court had was the Departments social studies containing reports of what others told the social worker that M. had described to them. Jose contends this evidence is inherently unreliable.

Section 355, subdivision (a) provides with respect to the jurisdictional hearing, that Any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence. Subdivision (b) then establishes that A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d). (Italics added.) Thus, social studies prepared by social workers fit[] within the class of legally admissible evidence on which a court can rely in a jurisdictional hearing, despite the fact that a social study is itself hearsay and may contain multiple levels of hearsay. (Cindy L., supra, 17 Cal.4th at p. 21, citing In re Malinda S. (1990) 51 Cal.3d 368, italics added.)

Section 355, subdivision (c) limits the types of hearsay evidence sufficient to support a jurisdictional finding. If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the following exceptions. ( 355, subd. (c)(1), italics added.) Of relevance here, the exception in subdivision (c)(1)(B) reads, The hearsay declarant is a minor under the age of 12 years who is the subject of the jurisdictional hearing. However, the hearsay statement of a minor under the age of 12 years shall not be admissible if the objecting party establishes that the statement is unreliable because it was the product of fraud, deceit, or undue influence. (Italics added.)

3. Jose and M. did not raise a hearsay objection

Turning to the case before us, to restate the initial part of the rule, M.s statements contained in the social study are admissible and by themselves constitute competent evidence upon which a finding of jurisdiction may be made ( 355, subd. (b); Lucero L., supra, 22 Cal.4th at p. 1242), unless a party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence. ( 355, subd. (c)(1).)

Neither Jose nor M. objected at the adjudication hearing to the admission of the Departments exhibits, or to portions of those exhibits based on hearsay; they never moved in limine to strike or to exclude any of M.s out-of-court statements as hearsay. When the Department offered into evidence its reports and attachments containing, via multiple levels of hearsay, M.s statements, the court specifically asked whether there was any objection to it receiving the evidence. M.s attorney responded, No objection, and Joses attorney said No.

It is well settled that a partys failure to object to the admission of improper or inadequate evidence forfeits the right to raise the issue on appeal. (In re Clara B. (1993) 20 Cal.App.4th 988, 1000 [father omitted to object to childs therapists opinion that father was perpetrator].) Furthermore, section 355, subdivision (c)(1) specifically requires a timely objection to the admission of specific hearsay evidence contained in a social study to render that hearsay evidence insufficient as sole support for a jurisdictional finding. (See Lucero L., supra, 22 Cal.4th at p. 1242, italics added, citing 355, subd. (c)(1).)

As Jose and M. did not raise any challenge to M.s hearsay statements before the juvenile court, they have deprived the Department, as petitioner, of the opportunity to establish the exception under section 355, subdivision (c)(1)(B) that M., as declarant, is a minor under the age of 12 years who is the subject of the jurisdictional hearing. And they deprived themselves of the opportunity to respond with evidence that the statement is unreliable because it was the product of fraud, deceit, or undue influence. (Ibid.) Both Jose and M. have forfeited the contention on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)

4. Indicia of reliability are present and support admissibility of M.s out-of-court statements

Notwithstanding that the hearsay statements in the social study reports are admissible, the juvenile court has the obligation to determine whether they support a jurisdictional finding. (Lucero L., supra, 22 Cal.4th at p. 1253 (conc. opn. of Chin, J.).) We conclude that substantial evidence supported the trial courts explicit finding (Lucero L., supra, 22 Cal.4th at p. 1249) that M.s statements show special indicia of reliability and thus we conclude that the court did not abuse its discretion in admitting the hearsay evidence.

Jose relies on Dr. Mejias and the juvenile courts finding that M. was not truth competent together with M.s unavailability for cross-examination to argue that there was no evidence of abuse sufficient to sustain the petition. However, M.s unavailability does not automatically render the hearsay statements in the Departments social studies incompetent and insufficient evidence of abuse.

The Supreme Court in Cindy L., supra, 17 Cal.4th at page 15, addressed the parameters of the child dependency exception to the hearsay rule where a child declarant is unavailable to testify because he or she is intimidated by the courtroom setting or, as here, incompetent as a witness. (Id. at p. 28.) Cindy L. confirmed that hearsay statements concerning abuse made by young children, who are the subject of a jurisdictional hearing but who are unavailable to testify, are admissible. (Ibid.)

Nonetheless, an exception to the hearsay rule is not valid, Cindy L. explained, unless the class of hearsay evidence proposed for admission is inherently reliable. (Cindy L., supra, 17 Cal.4th at p. 28, italics added.) TheSupreme Court set forth three conditions for admitting out-of-court statements about abuse of children subject to jurisdictional hearings. They are: (1) the court must find that the time, content and circumstances of the statement provide sufficient indicia of reliability; (2) a child must either be available for cross-examination or there must be evidence of child sexual abuse that corroborates the statement made by the child; and (3) other interested parties must have adequate notice of the public agencys intention to introduce the hearsay statement so as to contest it. [Citations.] (Id. at p. 29.)

With respect to the first condition requiring indicia of reliability, the court established a nonexhaustive list of factors that the United States Supreme Court has cited as relevant to the reliability of hearsay statements made by child witnesses in sexual abuse cases. They are (1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected of a child of a similar age; and (4) lack of motive to fabricate. [Citation.] (Cindy L., supra, 17 Cal.4th at pp. 29-30.)

Thus, Cindy L., held that a finding of incompetence to testify should not be a categorical bar to the admission of a childs out-of-court statements but instead, hearsay statements by a child, who is adjudged legally incompetent to testify, would be admissible provided they met the special indicia of reliability delineated above. (Id. at p. 34, italics added.)

After the Legislature amended section 355, the Supreme Court again addressed the question of the child dependency exception in Lucero L., supra, 22 Cal.4th 1227. Based on the language of section 355, subdivision (b), quoted above, Lucero L. held that the hearsay statements contained in social studies should be admissible even if they do not meet the requirements of the child dependency exception and even if the minor is incompetent to testify. (Lucero L., supra, at p. 1243, italics added.) Under such circumstances, these hearsay statements, the Supreme Court held, may be admitted and relied on under section 355, even if the statements fail to meet the test of reliability set forth in Cindy L. (Lucero L., supra, at p. 1231.) But, those hearsay statements may not be relied on solely as the basis for a jurisdictional finding unless the court finds that they show special indicia of reliability. (Ibid., italics added.) That is, section 355 notwithstanding, the out-of-court statements of a child who is subject to a jurisdictional hearing and who is disqualified as a witness because of the lack of capacity to distinguish between truth and falsehood at the time of testifying may not be relied on exclusively unless the court finds that the time, content and circumstances of the statement provide sufficient indicia of reliability.  (Lucero L., supra, at pp. 1247-1248, italics added, quoting from Cindy L., supra,
17 Cal.4th at p. 29.)

The Supreme Court did emphasize the importance of juvenile court scrutiny of the statements of young children who are both legally incompetent and insulated from cross-examination. At least in the case of a truth incompetent minor, the court may rely exclusively on these out-of-court statements only if the declarants truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility . . . . (Lucero L., supra, 22 Cal.4th at p. 1249, quoting from Idaho v. Wright (1990) 497 U.S. 805, 820.)

Viewing the juvenile courts ruling as we are required (Lucero L., supra, 22 Cal.4th at p. 1249), we conclude that, although a close call, substantial evidence supports the juvenile courts reliability finding. While the list of reliability factors from the United States Supreme Court is not exhaustive, all of the enumerated ones are present here. M. spontaneously revealed the abuse. No prompting was needed. His description of Joses conduct was given in an age-appropriate fashion, and repeated with consistency to numerous adults thereafter. According to Deputy Puzio, the child appeared to bear no ill-will toward Jose. And, M. seemed to have little motivation to fabricate the story. In fact, he described a disincentive to revealing the abuse. He stated repeatedly that Jose would buy him toys if he kept the abuse a secret and announced that his father rewarded him with a toy for not telling the deputy sheriff. Finally, M. used certain gestures and made comments about his fathers anatomy that is outside the ken and beyond the personal experience of a five-year-old, absent abuse.

It is of no consequence that the juvenile court was required to rely on double and even triple hearsay, Joses contention to the contrary notwithstanding. Nor is it of consequence that M. never told a social worker about the abuse and so the only reports of M.s accounts were provided by Isabel, Yolanda, the school principal, Mr. Gomez, and Deputy Puzio. There is no requirement that the hearsay statements be made to a social worker. Social studies containing multiple hearsay are admissible (In re Malinda S., supra, 51 Cal.3d 368, 375) and, as explained, can be the sole basis for sustaining a petition provided the court finds the requisite indicia of reliability. (Cindy L., supra, 17 Cal.4th at pp. 22, 29; Lucero L., supra, 22 Cal.4th at p. 1231.) Section 355, subdivision (b)(1) defines social study as any written report furnished to the juvenile court and to all parties or their counsel by the county probation or welfare department in any matter involving the custody, status, or welfare of a minor in a dependency proceeding . . . . Here, the court had both the detention and jurisdictional reports.

Joses suggestion is unavailing that Isabel and Yolanda are not disinterested parties and therefore their reports of M.s account are suspect. As noted, it is the juvenile courts task to pass on the credibility of witnesses, resolve conflicts in the evidence, and determine where the weight of the evidence lies. We do not. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

Where M. consistently described the abuse, over a period of time to numerous people, the time, content, and circumstances ofM.s statements provide sufficient indicia of reliability. We are unable to conclude that the juvenile court abused its discretion in finding the statements reliable. Based on the reliability finding, we hold that M.s out of court statements constituted substantial evidence of abuse under section 300, subdivision (d).

5. The juvenile court did not err in removing M. from Joses custody

Both M. and Jose contend that the evidence does not support the juvenile courts ruling under section 361, subdivision (c)(1) removing M. from Joses custody.

Section 361, subdivision (c) reads, A dependent child may not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive . . . []  (1)  There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody. . . . [] . . .  (4)  The minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, or member of his or her household, or other person known to his or her parent, and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent or guardian . . . .

Here, the juvenile court had the findings sustaining the petitions allegation under section 300, subdivision (d), that Jose orally copulated the childs penis, buttocks, and anus. The court also had the evidence supporting the subdivision (b) finding that M. had been exposed to a violent confrontation between his parents. Beginning in 2003, Isabel was bruised and she and M. were admitted to a domestic violence shelter; Isabel stated that  There was always domestic violence since the beginning. . . .  I would say he would hit me daily. He sent me to the hospital once. I got stitches. . . .  This was when the baby was a year and a half. While on our way there, he threatened me and said they would take the baby from us if I said anything. I was really afraid, he was very controlling. [Sic.]  The court also had the restraining orders Isabel and Jose had filed against each other, and Jesuss statements that M. would cry at night in the bath.

As analyzed above, there is evidence that Jose sexually abused M. Furthermore, there is ample evidence that Jose inflicted physical abuse regularly on Isabel, and at least once in front of the child. The evidence also shows that M.s parents separation did not stop the domestic violence. Indeed, in November, 2005, M. was hit during one such violent confrontation. There is also undisputed evidence that M. was afraid that Jose would hit him. [D]omestic violence in the same household where children are living is neglect; it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it. Such neglect causes the risk. (In re Heather A., supra, 52 Cal.App.4th at p. 194.) The record supports the juvenile courts finding by clear and convincing evidence that there would be substantial danger to M.s physical health and emotional well-beingif he were returned to Joses custody. ( 361, subd. (c)(1) & (c)(4).)

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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Analysis and review provided by El Cajon Property line attorney.

[1] All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.

[2] The petition also alleged counts under section 300 subdivision (a) (serious physical harm), subdivision (b) (failure to protect), subdivisions (c) and (i) (serious emotional damage and cruelty), and subdivision (g) (failure to provide support). Later, the parties negotiated an agreement to dismiss all counts of the petition except the subdivision (b) count concerning the parents violent confrontation, which count was sustained by agreement, and the sexual abuse count under section 300, subdivision (d), which was adjudicated and is the subject of this appeal.

[3] The court amended the allegation to read,  sexual abuse consisted of, but was not limited to, the childs father orally copulated the childs penis, buttocks, and anus.