Filed 8/16/16 In re L.H. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


In re L.H., a Person Coming Under the                                B269584
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. DK13246)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

V.H.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of the County of Los Angeles, Terry
Truong, Juvenile Court Referee. Affirmed.
         Julie E. Braden, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Brian Mahler, Senior Associate County Counsel, for Plaintiff and
Respondent.
                                    INTRODUCTION


       V.H. (father), the father of L.H. (born May 2010) and two of L.H.’s siblings,1
appeals from the juvenile court’s jurisdiction and disposition orders finding that he
sexually abused L.H., declaring her a dependent child of the juvenile court pursuant to
Welfare and Institutions Code section 300, subdivision (d),2 and placing L.H. with A.H.
(mother). Father contends that there was not substantial evidence to support the juvenile
court’s jurisdictional finding. We affirm the orders.


                 FACTUAL AND PROCEDURAL BACKGROUND


       On August 29, 2015, plaintiff and respondent Los Angeles County Department of
Children and Family Services (Department) received a referral advising that five-year-old
L.H. had disclosed to police that father digitally penetrated her twice when she was four
years old, tried to insert his penis into her vagina when she was five years old, and
inappropriately touched her on several occasions. Los Angeles County Sheriff Detective
Shelby Martin interviewed L.H. The incident report of that interview provides: “[L.H.
said that] [e]arly this morning she woke up to her parents arguing. She said her ‘daddy
was being mean to mommy.’ She said she believed her father (suspect) was mad because
he wanted to ‘make babies with me (referring to herself).’ She was unable to expand on
what she meant by that. [¶] I asked [L.H.] if [father] ever touched her ‘privates.’ She
then used her right had to point to her vagina and asked, ‘here?’ I told her ‘yes’ and




1     L.H.’s two siblings were subject to the dependency action but the allegations
concerning them were dismissed. They are not parties to this appeal.

2      All statutory references are to the Welfare and Institutions Code, unless otherwise
indicated.


                                             2
asked her if she knew it was called a vagina. She said she did.[3] [¶] . . . [¶] I asked
[L.H.] if [father] put anything . . . inside her vagina. She said he ‘put his private on my
private. He tried to put it in but it wouldn’t go in. It hurts really bad from Daddy trying
to put it in.’ I asked her what she was talking about when she said ‘daddy’s private.’ She
pointed to her vaginal area and said, ‘you know, his private.’ I asked her if she knew
what a penis was and she shook her head no. I asked her if ‘daddy’s private’ is the
private that all boys have. She said, ‘yes.’” Detective Martin’s incident report states that
she advised the Department that father was in custody but would be released if he posted
bail.
        The Department’s September 9, 2015, detention report states that the Department
interviewed Detective Martin who said L.H. “disclosed very detailed information and
does not seem to be lying.” The Department reported that it interviewed L.H. When
L.H. was asked if father had ever touched her private parts, she replied he had touched
her private parts on occasion when washing her or when rubbing her vaginal area when
she had complained about pain related to urinating. L.H. denied that father put his
fingers or anything else in her vagina. The Department interviewed father who denied
the sexual abuse allegations, stating “I didn’t do anything.”
        The Department reported that the family had eight prior referrals, including one in
2003 in which the reporting party said mother saw her daughter from a prior relationship,
who was then five-years old, touching father’s penis, and father having an erection while
mother’s daughter sat on his lap. Following its investigation, the Department found the
allegations of sexual abuse to be inconclusive.
        The Department filed a petition on behalf of L.H. and her two minor two siblings
under section 300, subdivisions (b), (d), and (j), alleging that in 2015 father fondled
L.H.’s vagina; mother knew or reasonably should have known of father’s conduct and


3       L.H. said that on two or three occasions when she was four-years-old father
touched her vagina and put his fingers inside it “‘because sometimes my private parts
hurt,’” and father placed his fingers in her vagina the night of the incident, saying
“‘[d]addy touches it so it doesn’t hurt.’”

                                              3
failed to protect L.H.; and the parents’ conduct placed the three children at risk of harm.
At the detention hearing, the juvenile court found the children were described by section
300, subdivisions (b), (d) and (j), and ordered them to be released to mother.
       The Department filed an October 28, 2015, jurisdiction/disposition report which
included Detective Martin’s incident report regarding her August 29, 2015, interview of
L.H. It also attached a supplemental report prepared by Los Angeles County Sheriff
Detective Maria Gonzalez stating that on August 31, 2015, she interviewed L.H. and
father. L.H. stated that when her “private part” hurt, her parents would apply powder and
cream. She said father had occasionally cleaned her vaginal area when giving her a bath,
and she denied he had “done anything else” to her vaginal area. During his interview,
father denied placing his penis in or around L.H.’s vagina, and said that the only times he
had ever touched L.H.’s vagina were when she needed help washing it or when he needed
to apply some ointment to it.
       On November 19, 2015, L.H. participated in a forensic interview with “Ms.
Monica.” L.H. said father hugs her, and when he does so he places his hands on her
shoulders, elbows, stomach, head, legs, knees, toes, or “body.” The only place she does
not like it is when he hugs her toes. When Monica asked L.H. if she had told the police
that father had “put his finger inside [her] private part and that it hurt,” L.H. replied, “I
don’t know about anything. I don’t know what you’re talking about.” When Monica
asked L.H. if she had told her therapist that father had touched her, L.H. replied, “I didn’t
tell any—anything.”
       On December 21, 2015, the juvenile court held a contested jurisdiction and
disposition hearing. The court admitted into evidence, without objection, the September
9, 2015, detention report, the October 28, 2015, jurisdiction/disposition report, and the
compact disc and transcript of Monica’s forensic interview with L.H.
       Detective Martin testified that she has been employed by Los Angeles County
Sheriff’s Department for ten years, two as a detective; has conducted 75 to 100
interviews with young children while investigating sexual abuse; and received training on
interviewing potential sexual abuse victims. She recounted the information about her

                                               4
interview with L.H. Detective Martin opined L.H. was being truthful with her because
L.H.’s “answers came out like it was normal”—“like she was having a conversation”;
L.H. “seemed very intelligent [and] bright;” she would not expect a five-year-old child to
know about “a penis going into a vagina”; and she would not expect L.H. to make such
statements to her given that mother’s statements to her regarding father’s inappropriate
conduct towards L.H. did not include father attempting to place his penis inside L.H.’s
vagina.
       Father testified that L.H. got rashes in her vaginal area due to urinary issues, and
to treat these rashes, he had sprinkled and then rubbed baking powder around that area
based on mother’s instructions to do so. The last time he had treated L.H.’s rashes in this
fashion was when she was four years old. Father denied ever sexually abusing L.H.,
including by inserting a finger in, fondling, or attempting to insert his penis into L.H.’s
vagina.
       Mother also testified. She said that she was uncertain whether she saw or felt
father’s hand on L.H.’s vagina during the incident.4
       When the juvenile court inquired whether counsel was ready to conduct argument,
father’s counsel replied, “I had intended to briefly question [L.H.]. I know that this has
been something discussed. My belief is that even questioning today, I don’t think
[L.H.’s] statements would be vastly different from the statements made in the forensic
interview.”
       At the conclusion of the hearing, the juvenile court said, “I don’t believe this is as
clear cut of a case as counsel makes it out to be. [¶] . . . [¶] [Detective Martin has] been
the only one [to whom L.H. said that father attempted to put his penis in her vagina].
This child has not said it again to the [other investigators or interviewers]. So that leaves
me to question it. [¶] But again, she did make the statement. And unfortunately, that’s
what I have to deal with. And there’s nothing to refute those statements in that
report. [¶] So I reluctantly sustain [the allegations of] D-1 [in the petition] to reflect on

4     The juvenile court ultimately found mother’s statements about “seeing [] father” to
be “unclear” as to “whether she saw what she saw.”

                                               5
prior occasions in 2015, [L.H.’s father] sexually abused [L.H.] in that the father
attempted to penetrate the child’s vagina.”
       The juvenile court amended and sustained the petition, found the children were
described by section 300, subdivision (d), and dismissed the allegations under section
300, subdivisions (b) and (j). As amended, the sustained petition read: “On prior
occasions in 2015, [father] sexually abused [L.H.] in that the father attempted to penetrate
the child’s vagina. Such sexual abuse of the child by the father endangers the child’s
physical health and safety and places the child at risk of harm.” The juvenile court
declared [L.H.] to be a dependent under section 300, subdivision (d), placed her with
mother; granted father monitored visitation; and awarded maintenance services to
mother, reunification services to father, and couples counseling if the parents intend to
remain together.


                                       DISCUSSION


       Father contends that there was not substantial evidence to support the juvenile
court’s jurisdictional finding because the juvenile court may not rely solely on the
minor’s out-of-court statements unless they are reliable. Substantial evidence supports
the juvenile court’s jurisdictional finding.


       A.     Standard of Review
       We review the juvenile court’s jurisdiction findings for substantial evidence. (In
re Quentin H. (2014) 230 Cal.App.4th 608, 613.) “In making this determination, we
draw all reasonable inferences from the evidence to support the findings and orders of the
dependency court; we review the record in the light most favorable to the court’s
determinations; and we note that issues of fact and credibility are the province of the trial
court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not
reweigh the evidence or exercise independent judgment . . . . [Citations.] ‘“[The]
[appellate] court must review the whole record in the light most favorable to the

                                               6
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find [that the order is appropriate].”’ [Citation.]” (In re Matthew S. (1988) 201
Cal.App.3d 315, 321.)


       B.     Applicable Law
       Section 300, subdivision (d), provides for dependency jurisdiction when a child
“has been sexually abused, or there is a substantial risk that the child will be sexually
abused, as defined in Section 11165.1 of the Penal Code . . . .” Penal Code section
11165.1 defines “sexual abuse” to include both “sexual assault” and “sexual
exploitation.” Sexual assault includes child molestation [the “annoy[ance] or molest[ion
of] any child under 18 years of age”] (Pen. Code, §§ 11165.1, subd. (a) and 647.6); the
“[p]enetration, however slight, of the vagina . . . of one person by the penis of another
person . . .” (Pen. Code, §§ 11165.1, subd. (b)(1)); or the “[i]ntrusion by one person into
the genitals . . . of another person, including the use of any object for this purpose, except
that, it does not include acts performed for a valid medical purpose” (Pen. Code, §§
11165.1, subd. (b)(3)).
       Section 355, subsection (b) provides, “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 . . . .” Section 355, subsection (c)(1) provides, “If a 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: [¶] . . . [¶] (B)
The hearsay declarant is a minor under 12 years of age who is the subject of the
jurisdictional hearing. However, the hearsay statement of a minor under 12 years of age
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.”

                                               7
       “[S]ection 355 notwithstanding, [to satisfy due process under the United States
and California Constitutions5] 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” form the
sole basis for a jurisdictional finding unless there is special indicia of reliability. (In re
Lucero L. (2000) 22 Cal.4th 1227, 1247-1248 (Lucero L.).


       C.     Analysis
       Substantial evidence supports the juvenile court’s jurisdictional finding that father
sexually abused 5-year old L.H. L.H. told Detective Martin that L.H. believed her
parents were arguing the morning of August 29, 2015, because father wanted to “make
babies with me”; and father “put his private on my private. He tried to put it in but it
wouldn’t go in. It hurts really bad from Daddy trying to put it in.” L.H. identified her
vagina as her “private” though she did not know what the term “‘penis’” meant. L.H.
confirmed for Detective Martin that father’s “private” was the “‘private that all boys
have.’”
       Father argues that L.H.’s statements to Detective Martin constitute unreliable
hearsay, and under Lucero L., supra, 22 Cal.4th 1227, cannot constitute substantial
evidence. As previously noted, Lucero L. held that out-of-court statements of a minor
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”6
may not be the only basis for a jurisdictional finding unless the statements are reliable.
(Id. at pp. 1247-1248.)


5      U.S. Const., Amend. XIV; Cal. Const., art. I, § 7, subd. (a).

6      Evidence Code section 701, subdivision (a) provides that a person is disqualified
from testifying if it is shown by a preponderance of the evidence that the witness is,
among other things, “(1) [i]ncapable of expressing himself or herself concerning the
matter so as to be understood . . . or [¶] (2) [i]ncapable of understanding the duty of a
witness to tell the truth.”

                                               8
       Lucero L. is inapposite. In that case, our Supreme Court considered whether
section 355 controls when hearsay statements are made by a minor who was deemed
incompetent to testify because the child lacked the ability “at the time of testimony to
understand the obligation to tell the truth and/or to distinguish between truth and
falsehood.” (Lucero L., supra, 22 Cal.4th at p. 1231.) The court held that in such cases,
“Section 355 notwithstanding,” due process concerns require the juvenile court to find
that the “time, content, and circumstances of the [hearsay] statements provide sufficient
indicia of reliability” if those statements are exclusively relied upon by the court when
exercising jurisdiction. (Id. at pp. 1242, 1247.)
       Here, however, the juvenile court did not find L.H. incompetent to testify at the
jurisdiction hearing due to her lacking the ability to distinguish between truth and
falsehood. Indeed, the court was never called upon to determine L.H.’s competency to
testify because none of the parties called L.H. as a witness or claimed that L.H. was
incompetent to testify. Father’s counsel effectively admitted that L.H. was competent to
testify when she said she originally intended to call L.H. as a witness to “briefly
question” her about her statements made to Detective Martin. By her own admission,
father’s counsel had the opportunity to examine L.H. The only reason father’s counsel
provided for her choice not to call L.H. as a witness was not that defendant’s counsel
suspected L.H. to be incompetent to testify, but because father’s counsel “didn’t think
[L.H.’s] statements would be vastly different from the statements made in the forensic
interview.” Lucero L. therefore has no application here.
       In any event, L.H.’s statements to Detective Martin possessed sufficient indicia of
reliability under Lucero L. L.H.’s statements were detailed about father’s sexually
abusive conduct, and the statements describe attempted sexual penetration that a typical
five-year-old child would typically not know. Indeed, Detective Martin said L.H.
“disclosed very detailed information and [did] not seem to be lying.” At the hearing,
Detective Martin, an experienced interviewer of children who were potential abuse
victims, opined that L.H. was being truthful with her because she spoke with her in a
normal and conversational manner, without “stop[ping] and think[ing] about it”;

                                              9
understood what questions she was asking her; and she would not expect a five-year-old
child to know about “a penis going into a vagina.”
       In addition, it appears from the record that L.H.’s statements to Detective Martin
were the first statements she made to anyone in connection with this dependency case.
Substantial evidence supports the juvenile court’s jurisdictional finding.


                                     DISPOSITION


       The juvenile court’s orders are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                   RAPHAEL, J.



We concur:



              KRIEGLER, Acting P. J.



              BAKER, J.




      Judge of the Superior Court of the County of Los Angeles, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

                                             10
