Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK79343 Debra Losnick, Commissioner.
Michelle L. Jarvis, under appointment by the Court of Appeal for, Defendant and Appellant Eliseo A.
Karen J. Dodd, under appointment by the Court of Appeal for, Defendant and Appellant Margarita H.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant Margarita H. (Mother) is the mother of six children, Jose M. (Tony) age 16, Cristobal M. age 12, Jennifer M. age 8, Jazmin M. age 6, Eliseo A. age 4, and Gerardo A. age 2. Appellant Eliseo A. (Father A.) is the father of the younger two children.
Mother and Father A. (collectively, the parents) appeal from a dependency court order establishing jurisdiction over the children and removing them from their custody. Primarily, Mother and Father A. contend that: (1) the trial court improperly permitted one of the children to testify; (2) the trial court erred in admitting hearsay contained in social study reports; and, (3) the record lacked substantial evidence to support the trial court’s findings. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The initial facts.
In late 2009, the Los Angeles County Department of Children and Family Services (DCFS or the Department) began an investigation of the family because a teacher reported Cristobal had gone to school in urine-soaked clothing with cockroaches falling out of his jacket. Previously, in 2006 and 2009, the Department investigated the family. Although the prior cases were closed, Mother was diagnosed in June 2009 reports with chronic, severe depression, or Major Depressive Disorder.
On September 23, 2009, a DCFS social worker found the family home filthy, infested with roaches and unsafe for children. The cabinet to the cleaning supplies did not have a safety latch and knives were within reach of the younger children. The social worker recommended Mother clean the home, eliminate the unsanitary conditions and remove the safety hazards. Two days later, the social worker returned; the home was in fair condition, although knives remained on the counter.
At a Team Decision Meeting on October 8, 2009, Mother admitted that the children witnessed domestic violence with the biological father of the older children, Jose M., Sr. (Jose M.).
B. The petition, detention, and amended petition.
On October 14, 2009, the Department filed a multi-count petition pursuant to Welfare and Institutions Code section 300. The court held a detention hearing on that date and ordered all six children detained. In an interim report filed on October 22, 2009, Father A. told a social worker that he started to live with Mother in 2005, but he had been in and out of the residence. According to Father A., he had been back in the home for the last two weeks.
All statutory references are to the Welfare and Institutions Code, unless otherwise stated.
In a November 19, 2009 jurisdiction report, social worker Patricia Ahumada-Luna reported Mother and Father A. were disinterested about Departmental concerns. For example, they were not disturbed by the cockroach infestation and did not understand the ramifications of this unsanitary condition. The social worker saw no roaming cockroaches in the home, but there were dead cockroaches in the cabinets. One foster mother reported the girls had lice when they arrived at the foster home. The parents were apathetic about other Departmental concerns, such as Cristobal’s enuresis. The social worker indicated that Father A., Mother, and an uncle hit the children with a belt and cable. Ahumada-Luna also reported that Mother had been diagnosed with Major Depressive Disorder. The dependency court set the case for adjudication and a contested disposition hearing.
DCFS filed an amended petition on December 7, 2009. As amended, the petition included allegations against Mother and Father A. pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). The amended petition also alleged Jose M. violated section 300, subdivisions (b) and (g).
C. The jurisdiction and disposition hearing.
On January 28, 2010, the dependency court began a jurisdiction and disposition hearing which concluded on March 5, 2010.
1. The documents submitted by the Department and admitted into evidence.
a. The last minute informations.
On the first day of trial, the Department filed an amended information. Ahumada-Luna revealed that Jazmin and Eliseo (who was three at the time) disclosed physical abuse by Mother and Father A. According to Jazmin, Father A. hit her and Cristobal on their backs with a belt. Father A. hit all of the children with a belt. Eliseo reported that Father A. hit him with a belt and drawer, and pulled his hair. Eliseo stated Mother, Father A., and an uncle pulled his ears. Eliseo provided details that Mother hit him, Jazmin, and Cristobal with a cable. Eliseo further stated that he had seen Mother and Father A. fight and Father A. hit Mother. Ahumada-Luna observed a bruise on Eliseo’s face. Eliseo’s foster mother had reported that Jazmin and Cristobal were hit with a cable. The foster mother also stated that Eliseo had come to the foster home with purple legs and bruises on his thigh, back and legs. Additionally, Eliseo had reported to the foster mother that Mother and Father A. had yanked his ears, and Mother, Father A., and an uncle hit him on the legs. Tony had reported that sometimes Mother and his biological father (Jose M.) hit the children with a belt. Cristobal stated that before Jose M. was deported, Jose M. hit Mother.
On February 19, 2010, the Department filed an additional information about DCFS’s attempts to serve Jose M. Other statements in this report were not considered by the court.
b. The police report.
DCFS filed a Los Angeles Police Department child abuse investigation report emanating from a November 24, 2009 investigation. According to the report, Gerardo’s foster mother stated that when she took custody of Gerardo, he had bruises on his legs. When the foster mother asked about the bruises, Eliseo responded. He stated Father A. and an uncle hit “them on their legs.” Eliseo told the foster mother that Father A. spanked the children. The officers observed no bruises on Eliseo or Gerardo.
c. The MAT assessment.
The Department filed a multidisciplinary assessment team (MAT) report. The team concluded that all children had medical issues and most had psychological issues, as did Mother. Mother reported to the team that Jose M. hit her and the older children. She also stated the children witnessed domestic violence and alcohol abuse. One foster mother revealed that Jazmin arrived in her house with lice. It was noted that Jennifer had a history of selective mutism. Jazmin exhibited the same behavior; she too would not engage verbally. Mother was reported to be depressed.
Selective mutism is “a complex childhood anxiety disorder characterized by a child’s inability to speak and communicate effectively in select social settings, such as school. These children are able to speak and communicate in settings where they are comfortable, secure and relaxed.” ([as of Jan. 13, 2011].)
d. The SCAN exams.
The Department filed reports from December 2009 about suspected child abuse and neglect (SCAN) exams. The exams could not prove or disprove allegations of physical abuse. The reports noted that the children needed medical and psychological attention for numerous problems, including poor hygiene. The older children admitted witnessing domestic violence between Mother and Jose M., and being hit until they were teenagers. Tony stated Mother hit him with a belt. Cristobal reported being disciplined with a belt by Jose M. and Mother until he was a teenager. Cristobal also reported Mother struck him with her hand. Eliseo revealed his ears were pulled. When Jazmin was questioned, she responded by nodding her head, but she did not speak.
2. The hearing testimony.
a. The testimony from the children.
A number of the children testified that they had lived in a cockroach infested home. Jazmin would not respond to the questions posed to her. Jennifer, who had been diagnosed as having selective mutism, answered a few questions, she did not address anything pertinent to this appeal.
Cristobal, who was 10 years old at the time, testified Mother hit him once with a sandal. He stated that Mother knew Jose M. had hit him. Cristobal further testified his biological father (Jose M.) hit him with a belt, however he had not seen his father for five or six years.
Tony, 15, testified that Mother hit him with a belt about three years prior. Tony stated Mother hit his siblings, but she no longer punished them with a belt.
Eliseo was three at the time he testified. Counsel raised competency objections. Over the objection, Eliseo stated Father A. hit him and Gerardo with a belt. He testified that Mother hit him with a cable on his buttocks, and his uncle pulled his ears. Father A. did not hit him with a drawer. At some points during Eliseo’s testimony, he got up from the chair in which he was sitting.
b. The testimony from the social worker.
Social worker Ahumada-Luna testified to the following. She was trained to interview children. She interviewed the children on a number of occasions. At first, none of the children made allegations of abuse. Jazmin had refused to talk to a number of other persons, including the SCAN team. Later, however, Jazmin disclosed abuse. Jazmin stated that Father A. used a belt to discipline the children. When Ahumada-Luna questioned Jazmin, she made sure the child understood the difference between truth and lies. Jazmin spoke in both Spanish and English, but communicated effectively because Ahumada-Luna spoke both languages.
Ahumada-Luna interviewed Eliseo after Jazmin disclosed abuse. Eliseo stated Mother hit him, Jazmin, and Cristobal with a cable. Eliseo additionally reported Father A. hit him with a belt on his leg and buttocks, pulled his hair, and hit him with a drawer.
Ahumada-Luna acknowledged that in preparing the January 28 information, she had added some words to the sentences attributed to Eliseo and placed those sentences in quotation marks. She wrote the report that way to make the sentences complete, not to alter the meaning of Eliseo’s statements. Ahumada-Luna was certain Eliseo told her he was hit with a belt and Mother hit him with a cable. Ahumada-Luna believed Eliseo used the word “cable” to mean an electrical cord. Ahumada-Luna used the word “cable” in the report because that was the term Eliseo used. Eliseo understood the questions Ahumada-Luna posed and he responded as Ahumada-Luna reported. Ahumada-Luna concluded that Eliseo had the cognitive ability to relay information. Ahumada-Luna noted that at times during her conversation, Eliseo could not sit still.
c. Father A.’s testimony.
Father A. testified in the continued trial on February 19, 2010. He stated that he had been living with Mother and the children since September 25, 2009. Prior to that time, he visited the home daily. He fed the children, played with them, and provided Mother about $200 per month in support. He did not hit the children, but disciplined them by sending them to their rooms or by refusing to allow them to play outside. If the children were returned to him, a neighbor would take care of them while he worked. He observed that the home had been infested with cockroaches and flies until the social worker directed it to be cleaned.
3. The dependency court’s decision.
The dependency court found Eliseo’s testimony to be credible, but Father A.’s testimony not to be credible. With respect to the allegations, it found true some counts, amended some counts, and dismissed others. As to Mother and Father A., the court found by a preponderance of evidence that the children were dependents of the juvenile court within the meaning of section 300, subdivisions (a) and (b). As to Jose M., the court found by a preponderance of evidence that the children were dependents of the juvenile court within the meaning of section 300, subdivisions (b) and (g).
The court sustained the petition as amended and found the following allegations true:
Counts a-1 and b-5: On prior occasions, Mother physically abused Tony, Cristobal, Jennifer, and Jazmin with a belt, endangering these children and placing them, Eliseo and Gerardo at risk.
Counts a-2 and b-6: On prior occasions, Father A. inappropriately disciplined Jazmin by, including but not limited to, striking her with a belt on her back. This excessive discipline caused Jazmin unreasonable pain and suffering. Mother failed to protect Jazmin. The inappropriate discipline by Father A. and the failure to protect Jazmin by Mother endangered Jazmin and placed her and her other siblings at risk.
There are markings on the amended petition suggesting the court struck the phrase “including but not limited to striking [Jazmin] with the belt on her back” in count b-6. However, the court did not state it was doing so on the record when it delineated the amendments to the petition, and there are no such markings on count a-2 containing the exact same language. Thus, it appears the court did not delete this language from count b-6.
Counts a-4 and b-8: On prior occasions, Father A. inappropriately disciplined Eliseo by, including but not limited to, striking him with a belt. This excessive discipline caused Eliseo unreasonable pain and suffering. Mother failed to protect Eliseo. The inappropriate discipline by Father A. and the failure to protect Eliseo by Mother endangered Eliseo and placed him and his other siblings at risk.
Count b-1: Mother suffered from mental and emotional problems, including Major Depressive Disorder, rendering her incapable of caring for the children. Mother failed to attend therapy; her mental and emotional condition endangered the children.
Count b-2: The children were endangered because their home, established by Mother, was frequently found to be filthy, unsanitary, and in a hazardous condition.
Counts b-3 and g-1: Jose M., whose whereabouts were unknown, failed to provide the children with the necessities of life, endangering them, and placing them at risk.
The dependency court also found, by clear and convincing evidence, that there were no reasonable means to protect the children short of removal, and placed them in DCFS custody. The parents were provided reunification services and monitored visitation.
Father A. and Mother timely appealed. The biological father of the older four children (Jose M.) was named in the dependency proceedings. He was deported and is not a party to this appeal.
DISCUSSION
A. Preliminary statement.
On appeal, the parents contest the dependency court’s findings stemming from abuse and inappropriate discipline. They do not contest the count b-1 findings that Mother suffered from mental and emotional problems including a diagnosis of Major Depressive Disorder, rendering her incapable of caring for the children and endangering the children. They also do not contest the count b-2 findings that the children were endangered because their home was frequently found to be filthy, unsanitary, and a hazardous condition.
We affirm a jurisdiction order if any one of the statutory grounds for it are supported by substantial evidence. (In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 6; In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) We have addressed the merits of the issues raised because sustained jurisdiction allegations inform the parameters of the family’s case plan and removal order. (Welf. & Inst. Code, § 361.5, subd. (b)(3) [denial of reunification services if new allegations of abuse]; Pen. Code, § 11170 [Child Abuse Central Index].)
B. The Trial Court Did Not Abuse Its Discretion in Finding Eliseo Competent to Testify.
The parents contend Eliseo’s testimony was inadmissible because he was not competent. We disagree. The law presumes every witness is qualified to testify. “Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify in any matter.” (Evid. Code, § 700; People v. Lewis (2001) 26 Cal.4th 334, 360.) A person is incapable of being witnesses in two situations. If the witness is “ ‘[i]ncapable of expressing himself or herself concerning the matter so as to be understood either directly or through interpretation by one who can understand him [or her]’... or ‘is [i]ncapable of understanding the duty of a witness to tell the truth.’ ” (People v. Lewis, supra, at p. 360, quoting Evid. Code, § 701, subd. (a).)
Even assuming Eliseo were not competent to testify, any error would be harmless. (Chapman v. California (1967) 386 U.S. 18, 24.) As detailed below, Jazmin’s testimony and Ms. Ahumada-Luna’s testimony, as well as the admitted reports, provide substantial evidence supporting the trial court’s findings.
Minors, like other witnesses, must be competent to testify. (People v. Montoya (2007) 149 Cal.App.4th 1139, 1149-1150.) “[A] witness’s competency to testify is determined exclusively by the court. [Citations.]” (People v. Lewis, supra, 26 Cal.4th at p. 360.) The parties agree that we review a dependency court’s competency determination for abuse of discretion. (Ibid.; In re Crystal J. (1990) 218 Cal.App.3d 596, 601.) The parents, as the persons challenging Eliseo’s competency, bear the burden of establishing his lack of competence. (People v. Lewis, supra, at p. 360.)
Eliseo was two months shy of his fourth birthday when he testified. The dependency court acknowledged that Eliseo had to be competent to testify. As a result, the court proceeded cautiously, asking Eliseo a number of questions to determine his ability to understand and to communicate truthfully.
Eliseo testified he understood what it meant to tell the truth and promised to do so. He stated his name, age, and the color of his shoes and shirt. He knew he had the same name as his father. Eliseo clearly testified that both Mother and Father A. hit him, Father A. hit him with a belt, and Mother hit him with a cable. Eliseo testified consistently with the information contained in previous reports.
Mother and Father A. suggest the dependency court applied the incorrect legal standard because it did not state on the record that Eliseo was “competent.” Rather, it stated, “[t]he court did not have trouble understanding Eliseo. The gist of his testimony was credible.” The parents argue the dependency court erroneously believed that credibility equaled competency. However, the court’s other comments demonstrate it understood the proper standard. For example, the court stated, “I think we still have to have some level of competence for him to testify.”
Mother and Father A. assert Eliseo’s testimony was inherently unreliable. As examples of Eliseo’s unreliable testimony, they point to inconsistencies in Eliseo’s testimony and the fact that at times Eliseo could not sit still. They note, for example, that Eliseo first held up four fingers when asked his age, although he was not four at the time. Eliseo also testified he was married, although he corrected this fact immediately. Inconsistencies in a witnesses’s testimony and nervousness do not necessarily render a witness incompetent to testify. Here, the dependency court observed Eliseo to ascertain whether his restlessness was simply that of a young child. The court also assessed whether Eliseo’s answers meant he did not understand the questions being posed or the difference between the truth and a lie. In addition, the court determined whether Eliseo’s incorrect statements affected his capabilities to express himself. The dependency court was in the best position to observe Eliseo and evaluate his capabilities. We defer to the court’s “factual assessments.” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427; Friddle v. Epstein (1993) 16 Cal.App.4th 1649, 1659 [lower court resolves inconsistencies and contradictions in witness testimony].)
The record demonstrated that the dependency court evaluated appropriate factors surrounding Eliseo’s testimony, including his age, responses to the questions posed to him, his level of cognitive development, and his ability to perceive, understand, remember, and communicate. (People v. Montoya, supra, 149 Cal.App.4th at p. 1150; cf. CACI No. 224; Pen. Code, § 1127f; People v. Dennis (1998) 17 Cal.4th 468, 525.) Given the totality of the circumstances, including Eliseo’s repeated and consistent reporting of abuse and his lack of a motive to lie, the court reasonably found Eliseo’s statements believable and reliable. As a result, the court did not abuse its discretion in finding Eliseo competent to testify.
C. Substantial evidence supports the dependency court’s findings.
Mother and Father A. contend the record does not contain substantial evidence to support the dependency court’s findings. We disagree.
1. Substantial evidence standard and the admissibility of reports in dependency proceedings.
“In a challenge to the sufficiency of the evidence to support a jurisdictional finding, the issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court. Evidence from a single witness, even a party, can be sufficient to support the trial court’s findings. [Citations.]” (In re Alexis E., supra, 171 Cal.App.4th at pp. 450-451.)
Pursuant to section 355, “[a]ny 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.” (Id., subd. (a).) Section 355 permits the introduction of social study reports “in any matter involving the custody, status, or welfare of a minor in a dependency proceeding” under certain conditions. One such condition requires that “[t]he preparer of the social study shall be made available for cross-examination....” (Id., subd. (b)(1), (2).) If a party timely objects to “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 certain exceptions.” (Id., subd. (c)(1), italics added.) These exceptions include: “(A) The hearsay evidence would be admissible in any civil or criminal proceeding under any statutory or decisional exception to the prohibition against hearsay. [¶] (B) The hearsay declarant is a minor under the age of 12 years who is the subject of the jurisdictional hearing.” (Id., subd. (c)(1).) Where the hearsay statement is of a minor under 12, the statement is not admissible if it is the product of fraud, deceit, or undue influence. Section 355 permits the introduction of a minor’s hearsay statements contained in the reports where the minor is incompetent to testify. (In re Lucero L. (2000) 22 Cal.4th 1227; id. at pp. 1242-1243; id. at pp. 1247-1248; In re April C. (2005) 131 Cal.App.4th 599, 609-610.)
Further, to satisfy due process requirements, the hearsay statements of an incompetent minor may not be relied upon “exclusively unless the court finds that ‘the time, content and circumstances of the statement provide sufficient indicia of reliability.’ [Citation.]” (In re Lucero L., supra, 22 Cal.4th at p. 1248.)
In re Cindy L. (1997) 17 Cal.4th 15 delineated three criteria of reliability to be used in assessing whether hearsay statements contained in social study reports were admissible. The Cindy L. decision preceded the Legislature’s amendment to section 355 to specifically permit the introduction of statements from children under the age of 12 as articulated in section 355, subdivision (c)(1)(B). In re Lucero L., supra, 22 Cal.4th 1227 acknowledged the legislative change and limited Cindy L.’sholding. In re Lucero L. noted that with the amendments, hearsay statements contained in reports were admissible even if they “fail[ed] to measure up to the standards of reliability prescribed in Cindy L.” (In re Lucero L., supra, at p. 1231.)
2. There is substantial evidence supporting the dependency court jurisdictional findings.
We first note that the hearing took place over a number of months. Mother and Father A. had ample opportunity to address the abuse charges detailed at length in the January 2010 last minute information. This document contained reports by Jazmin and Eliseo to Ahumada-Luna that Father A. used a belt to discipline the children and Mother used a cable. Ahumada-Luna further reported that Eliseo spontaneously told his foster mother that Mother hit her children with a belt. The foster mother indicated Eliseo had bruises when he arrived at the foster home. Information in the police report, MAT assessments, and SCAN exams confirmed the children had been hit by Jose M., Father A., and Mother. Eliseo repeatedly stated that Father used a belt and Mother used a cable to inflict excessive discipline. Workers eliciting the statements from the children were trained professionals. There was no evidence that the children, foster mother or social worker had motives to lie. There was no evidence the statements from the children were coerced. There was no evidence the statements in the reports were the product of fraud, deceit, or undue influence. Thus, the time, content and circumstances of the statements provided indicia of reliability.
Further, the hearsay statements in the reports were corroborated by additional testimony, further suggesting their reliability. Cristobal testified Mother hit him with a sandal. Tony testified Mother hit him and his siblings with a belt. Eliseo testified Father A. hit him and another sibling with a belt and Mother hit him with a cable. Eliseo also testified Father A. hit him with a drawer. Ahumada-Luna testified that Jazmin had revealed Father A.’s inappropriate use of a belt to discipline.
Thus, the hearsay testimony from the reports was reliable and admissible, even assuming those making the statements were competent to testify at trial. (In re Lucero L., supra, 22 Cal.4th at pp. 1242-1243; id. at pp. 1247-1248; In re Carmen O. (1994) 28 Cal.App.4th 908, 914-915 [four-year-old’s statements in social study reports reliable even though child does not testify].) The evidence, as delineated above, was sufficient for the dependency court to sustain the section 300, subdivisions (a) and (b) allegations of serious physical harm and failure to protect. The evidence demonstrated a substantial risk that the children would suffer serious physical harm.
Father argues Jazmin was “fear” incompetent rather than “truth incompetent” and the standard of admissibility delineated in In re Lucero L., supra, 22 Cal.4th 1227 applies. For purposes of discussion, we have assumed Father A. is correct.
The parents claim Eliseo’s statements of abuse to Ahumada-Luna were not reliable because he did not make them in a timely manner and the police saw no physical evidence of abuse. However, these facts did not make Eliseo’s statements inherently unreliable. Rather, the facts bore on the weight to be given Eliseo’s testimony.
Further, the court did not rely solely upon the written social study reports. As outlined above, witnesses confirmed the use of inappropriate discipline. Even if, as noted by the parents, there was evidence that some of Mother’s abusive behavior had stopped when she was no longer with Jose M., not all of the evidence led to that conclusion. Rather, there was evidence that Mother continued to strike her children. Additionally, the evidence that Mother had hit the children while she was with Jose M. was probative of current conditions.
Given that there was evidence that the abuse had not stopped, we need not discuss Mother and Father A.’s argument that evidence of past abuse is insufficient to sustain allegations of physical harm.
We reject Mother’s contention that the facts did not prove there was a substantial, serious risk of harm. When a parent strikes a child with a belt, there is a risk of serious harm to that child and to the siblings. (In re Mariah T. (2008) 159 Cal.App.4th 428, 438 [hitting of three-year-old with belt constitutes infliction of serious harm].)
The parents dissect the evidence in an attempt to discredit it. For example, they note that the January 2010 information contained information that Eliseo had a bruise on his face, the police report details the foster mother’s statement that Gerardo had a bruise, and yet, the police report indicated the investigators saw no bruises on either Eliseo or Gerardo. The parents also note that Eliseo testified he was hit on the hand with a belt, but he told the social worker he was hit on the legs and buttocks. These discrepancies, like many of the others discussed by the parents, do not undercut the substantial evidence supporting the conclusion that Mother and Father A. hit the children and inappropriately disciplined them.
Father speculates that when Eliseo spoke about Father A. hitting him with a belt, Eliseo was actually referring to Jose M.
The parents also ask that we not consider the evidence that Jennifer and Jazmin were abused because these two children did not testify. However, because the girls suffered from selective mutism, they would not always speak. The parents have not demonstrated that Jazmin and Jennifer’s medical condition rendered the statements the children did make inadmissible. Further, as discussed above, admissible evidence from other sources proved Mother inappropriately disciplined the two girls.
Mother and Father also claim the statements contained in the social worker’s reports attributed to Jazmin could not be relied upon because Ahumada-Luna failed to qualify Jazmin as a witness. However, Jazmin’s out-of-court hearsay statements may be admissible even if Jazmin was not competent to testify. (In re Lucero L., supra, 22 Cal.4th at p. 1231; id. at pp. 1242-1243.) Also, the record shows that the social worker was trained to interview children. In interviewing Jazmin, Ahumada-Luna followed the normal procedures to determine whether a child knew the difference between truth and lies. Jazmin specifically told the social worker she understood the difference between the truth and a lie. There was nothing in the record suggesting Jazmin had a reason to lie or that her statements were the product of her imagination. The terminology Jazmin used did not suggest she was coached. There was nothing in the record suggesting Jazmin brought forth facts she did not believe to be true. Jazmin’s statements made to Ahumada-Luna that Father A. hit her and the other children with a belt were consistent with those made by Eliseo. Thus, the content and circumstances suggested, as impliedly found by the court, that Jazmin’s statements were reliable and admissible. We cannot conclude the dependency court abused its discretion in considering Jazmin’s hearsay statements.
Therefore, there was substantial evidence to support the jurisdictional findings that the parents used inappropriate discipline, exposing the children to substantial risk of serious harm and failing to protect them. (§ 300, subds. (a), (b).)
3. Father A.’s additional contentions are unpersuasive.
Father A. makes two additional arguments. First, Father A. contends the section 300, subdivision (g) finding must be reversed because it only applies to the older children and does not apply to his sons, Eliseo and Gerardo. However, the subdivision (g) finding does not relate to Father A. It holds Jose M. responsible for his failure to support the children.
Second, Father A. asserts we must reverse the removal order because there is no substantial evidence to support the findings. In light of our holding that there is substantial evidence to support the findings, we need not address this assertion.
DISPOSITION
The order is affirmed.
We concur: RUBIN, Acting P.J., FLIER, J.