Filed 10/16/14 In re Paul M. CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FOUR




In re Paul M. et al., Persons Coming Under                                    B251989
The Juvenile Court Laws.
___________________________________                                           (Los Angeles County
LOS ANGELES COUNTY                                                            Super. Ct. No. CK42835)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

          Plaintiff and Respondent,

          v.

R.M.,

          Defendant and Appellant.


          APPEAL from an order of the Superior Court of Los Angeles County,
S. Patricia Spear, Judge. Affirmed.
          Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
          Amir Pichvai for Plaintiff and Respondent.
                                         ______________________________
       R.M. (mother) appeals the order denying her Welfare and Institutions Code
section 388 petition.1 She contends new evidence requires a new trial on the
jurisdictional finding that her son, Paul M. (born in 1999), sexually abused her daughters,
L.P. and E.P. (born in 2006). We disagree and affirm the order.


                    FACTUAL AND PROCEDURAL SUMMARY
       This dependency case has been the subject of two previous opinions. We affirmed
the jurisdictional and dispositional order in In re Paul M. (Jan. 30, 2013, B240325
[nonpub. opn.] (Paul M. I)). The order terminating mother’s reunification services and
returning Paul, but not the twins, to her custody was affirmed in R.M. v. Superior Court
(May 14, 2014, B251998 [nonpub. opn.] (R.M.)). Mother commenced the writ
proceedings in R.M. and the current appeal simultaneously to challenge rulings made at
the same hearing. She filed the bulk of the record in that case and the “balance of record”
in this. The parties extensively rely on the record in R.M., and we borrow some of the
relevant facts and procedural history from that record and from our prior opinions.
       In May 2011, a referral was made due to a concern about Paul’s allegedly
inappropriate sexual language and behavior. During the subsequent investigation, the
twins “reported being hit by both Paul and appellant with various objects, including a
hand, a shoe, and a belt. They also stated that Paul had touched their ‘private parts’ and
that he made them ‘eat it.’” After the first interview, mother instructed the twins not to
talk about sexual contact with their brother. (Paul M. I, supra, at p. 2.) Mother
represented herself at the jurisdictional hearing and chose to proceed on documentary
evidence alone. The evidence included reports by the Department of Children and
Family Services (DCFS) and declarations by mother. (Id. at pp. 4–5.) The court
sustained DCFS’s amended section 300 petition on several grounds, one of which was
based on the alleged sexual abuse of the twins by Paul. (Id. at p. 5.) Mother was ordered
to undergo a psychological evaluation, and to receive reunification services and

       1
        Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
                                             2
monitored visitation. (Ibid.) On appeal, we concluded the twins’ repeated claims of
sexual abuse were sufficiently reliable to constitute substantial evidence, and the only
evidence of coaching pointed to mother. (Id. at pp. 8–9) We upheld the court’s
overruling of mother’s belated objection to DCFS’s reports and the lack of live witness
testimony. (Id. at pp. 5–6.)
       A contested 18-month review hearing took place over several days in August and
September 2014. A number of witnesses testified, but the parties rely on the testimony of
social worker Rosita Brennan; mother’s evaluator, Dr. Mitchell Harris; Paul’s therapist,
Dr. Jared Maloff; and the twins’ therapist, Dr. Catherine Lippincott.
       Brennan testified that during a monitored visit on July 30, 2013, Paul urged E.P. to
report that the foster mother told the twins they were in foster care because “Paul put his
penis in their mouth” and “gave them candy not to tell.” E.P. responded “that that didn’t
happen, and the foster mother told . . . her yes, it happened, and that’s why they’re in
foster care.” Brennan also testified that E.P. stated social worker Rebecca Sampson had
“told them to say that Paul put his penis in their mouth[s].”
       Dr. Harris referenced E.P.’s statements, as reported by Brennan, as evidence
supporting mother’s doubts about the accuracy of the allegations of sexual abuse. He
expressed concern that the forensic interview with the girls was not videotaped, and
wondered how the word “pee pee . . . morphed into penis,” a word not typically used by a
four-and-a-half-year-old child.
       Dr. Maloff, who had seen the twins and Paul six times, testified the children did
not exhibit sexualized behavior, and the twins were not afraid of Paul. Dr. Maloff opined
it was possible that Paul did not perpetrate the alleged sexual abuse because the twins,
who were “very young” at the time were initially interviewed together, and he was
“aware of the difficulty in interviewing children who are that young and retrieving factual
statements.” Dr. Maloff found Paul’s denial of the sexual abuse believable absent
evidence to the contrary, but proceeded with his therapy “as if” the abuse had happened.
       Dr. Lippincott testified the twins had had individual therapy sessions with her on a
weekly basis since April 2012. According to Dr. Lippincott, whenever they talked about

                                              3
past events, such as physical or sexual abuse, the girls would became “anxious and
dysregulated, hiding under chairs, rocking in the fetal position, and saying . . . what did I
do, what did I do, I’m not supposed to tell you.”
       During the hearing, mother filed a section 388 petition based on new evidence.
She referenced only Brennan’s notes, where the visitation monitor stated that the twins
recanted their sexual abuse allegations and that they had been unduly influenced by social
worker Sampson and the foster parents to make false statements. Mother added that the
twins had been incorrectly interviewed together. On the record, mother’s attorney
advised the court that mother was “very concerned about all the new evidence that’s
come out since July 30th and things that we put in the 388.” The court denied the
petition, stating that it was based on “the same evidence that we are trying at this very
moment. There’s nothing new that hasn’t been reported in many other court reports. [¶]
The court has a different view of some of the evidence that mother feels there’s dramatic
new evidence. The court does not believe there’s any change in circumstances. The
court does not believe there’s a showing that the 388 is the proper vehicle. [¶] The court
feels that the orders that mother wants are the orders that it is trying right now. And there
is no point in trying the 388 separately. She wanted return, she wanted things that are
impossible, like vacate everything that’s been affirmed on appeal.”
       At the end of the hearing, the court terminated mother’s reunification services,
returning Paul to mother’s custody, but not the twins. Mother challenged the termination
of her reunification services in R.M., supra, and simultaneously filed this appeal from the
denial of her section 388 petition.


                                       DISCUSSION
       Mother’s only contention on appeal is that newly discovered evidence requires a
retrial of the allegations of sexual abuse of the twins by Paul.
       We review the summary denial of a section 388 petition for abuse of discretion.
(In re Stephanie M. (1994) 7 Cal.4th 295, 318.) To be entitled to a hearing on a petition
to set aside an earlier order of the juvenile court, the petitioner must make a prima facie

                                              4
showing that there is a change of circumstances or new evidence, and that the new order
would be in the best interest of the child. (§ 388, subd. (a)(1); In re Stephanie M., at
p. 317.)
       Mother analogizes this case to Blanca P. v. Superior Court (1996) 45 Cal.App.4th
1738 (Blanca P.). The children in that case were originally detained due to inappropriate
discipline by the mother. The foster parents became concerned the parents’ three-year-
old daughter had an unusually wide vaginal opening. When asked repeatedly “if anyone
touched her ‘pee-pee,’” the girl responded with “my mom,” “boy,” and “my Pappy.” A
subsequent petition was filed alleging the father had digitally penetrated the girl’s vagina.
(Id. at p. 1742.) At the jurisdictional hearing on that petition, the judge admitted not
having read it; he also had to be disabused of the impression that the allegation of sexual
abuse already had been sustained. (Id. at p. 1744.) His jurisdictional and dispositional
order was not appealed, but a subsequent Evidence Code section 730 evaluation
exonerated the father of any propensity to sexually abuse children because the clinical
findings were inconsistent with a diagnosis of incest or pedophilia. (Id. at pp. 1745,
1755.) At the 18-month hearing, the evidence indicated the parents had complied with
their service plan but continued to deny the allegation of sexual abuse. (Id. at p. 1747.)
A different judge terminated the parents’ reunification services and found that return of
the children to the parents’ custody would be detrimental. (Ibid.)
       The appellate court concluded that the Evidence Code section 730 evaluation cast
doubt on the initial jurisdictional finding of sexual abuse, as did “the very circumstances
of that initial finding.” (Blanca P., supra, 45 Cal.App.4th at p. 1754.) It held that
“collateral estoppel effect should not be given, at a 12- or 18-month review, to a prior
finding of child molestation made at a jurisdictional hearing when the accused parents
continue to deny that any molestation ever occurred and there is new evidence supporting
their denial.” (Id. at p. 1757.) The court noted that a section 388 petition may be an
alternative remedy, but did not decide that issue. (Id. at p. 1759.)
       Blanca P. is distinguishable. There, the evidence of sexual abuse was particularly
problematic since the three-year-old’s response that her father touched her private parts

                                              5
could not fairly support the allegation that he penetrated her with his fingers, and the
reviewing court was concerned about the circumstances under which the jurisdictional
finding of sexual abuse was made. Mother raises no such concerns here. Her assertion
that different judges presided at the jurisdictional and 18-month hearing is incorrect, as
all relevant orders were made by Judge S. Patricia Spear. The jurisdictional and
dispositional order, and the order terminating reunification services have been affirmed
on appeal. Mother offers no reason why the law of the case doctrine should not apply to
those orders. (See Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292,
304 [doctrine applies where issues substantially the same and no material change in
evidence].)
       The only evidence cited in the section 388 petition was visitation monitor
Brennan’s report of E.P.’s statements made on July 30, 2013, when E.P. reportedly
disagreed with the foster mother’s claim that the twins were in foster care because “Paul
put his penis in their mouth[s]” and “gave them candy not to tell.” She also reportedly
claimed that social worker Rebecca Sampson had “told them to say that Paul put his
penis in their mouth[s].” Initially, the foster mother’s beliefs as to why the twins were in
foster care are irrelevant because the girls made allegations of sexual abuse long before
they were placed in foster care. Moreover, mother ’s assumption that E.P.’s statements
constitute new evidence is not supported by the record in R.M., supra, on parts of which
she selectively relies.
       Early DCFS reports that were presented at the jurisdictional hearing indicate the
girls began recanting their claims of sexual abuse early on because mother told them to
do so. As early as the second interview with social worker Sampson, L.P. claimed she
had lied or “mixed up the stories,” adding that mother had told her ‘“no eating private
parts’” and ‘“Paul would never do that.’” During the subsequent forensic interview, L.P.
claimed she had lied about her brother’s “penis,” and refused to answer questions about
it, saying only that “he was bothering us sometimes.” E.P. reported L.P. had said she got
candy if Paul ‘“puts [his] pee-pee in her mouth,’” but denied Paul ever did that to her.
E.P. also said that L.P. “shouldn’t have said that. . . . [¶] She shouldn’t tell the truth. My

                                               6
mom says I can’t tell you.” The twins similarly vacillated when interviewed by
dependency investigator Woillard, in turn refusing to answer questions, claiming to have
lied, but also admitting to have had sexual contact with their brother. Viewed in this
context, E.P.’s reported recantation on July 30, 2013 cannot be new evidence.
       The evidence presented at the jurisdictional hearing also indicates that early on
mother began accusing DCFS, and in particular social worker Sampson, the first
interviewer, of unduly influencing the twins. In her declarations, as well as during her
visits with the twins, mother maintained her daughters were being instructed to say that
Paul sexually abused them. She suggested Sampson had preconceived notions about
Paul’s sexualized behavior due to allegations in earlier referrals, even though they had
been deemed unfounded, and she questioned the reliability of the initial and forensic
interview absent an audio or video tape.
       When interviewed by the dependency investigator, mother complained that the
girls had been in the same room during the first interview, and E.P. had “copied” L.P.
She suggested the girls had learned the phrase ‘“penis in the mouth’” during the
interview. Sampson took issue with mother’s accusation that the girls had learned the
word ‘“penis’” from her, noting that the word was not used in the first interview, but L.P.
already knew it by the second interview.
       As we concluded in Paul M. I, supra, at page 9, there is evidence that mother
herself unduly influenced the twins early on in the case. She berated them for making
what she believed were false claims of sexual abuse, she discussed the case with social
workers in the twins’ presence, and she suggested that the twins were told by someone,
possibly Sampson, what to say. The statements E.P. reportedly made on July 30, 2013,
were thus substantially similar to statements included in the documentary evidence
presented at the jurisdictional hearing. The court correctly concluded that the evidence
on which mother’s section 388 petition was based was not new.
       Mother’s contention that the court denied the section 388 petition without having
heard all relevant evidence is contrary to the record. All witnesses on whose testimony
mother relies in this appeal had testified before the petition was denied. To the extent

                                             7
mother attempts to analogize the testimony of Drs. Maloff and Harris to the exonerating
evidence in Blanca P., supra, 45 Cal.App.4th at page 1745, the claim is forfeited because
this evidence was not cited in support of mother’s section 388 petition. Allowing mother
to rely on these witnesses’ testimony for the first time on appeal would be unfair to the
juvenile court. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 813.)
       Even assuming the juvenile court denied mother’s section 388 petition based on all
the evidence adduced up to that point at the 18-month hearing, the denial of the petition
was not an abuse of discretion. Drs. Maloff and Harris expressed the same concerns
about the reliability of the initial interviews with the twins that mother had brought to the
court’s attention at the jurisdictional hearing—that the interviews were not electronically
recorded, that the children were initially interviewed together, and that they picked up
words unusual for their age. Mother was advised she could call witnesses at the
jurisdictional hearing, and she claimed to have retained an expert witness, but she failed
to call any such witness. (Paul M. I, supra, at pp. 4–5.) As she acknowledges, evidence
that could have been presented earlier is not new evidence. (In re H.S. (2010) 188
Cal.App.4th 103, 109.) Thus, a “new expert’s opinion that is based on old evidence
available at the time of trial” does not qualify as new evidence. (See ibid.) Drs. Maloff
and Harris’s concerns about the reliability of the twins’ claims cannot be new evidence.
       Dr. Maloff’s opinion that in the absence of other evidence, Paul’s denial of the
sexual abuse was credible was based on the assumption that the twins’ claims were
unreliable unless they were corroborated. But as we explained in our earlier opinion,
uncorroborated hearsay statements by minors under 12 years of age are admissible in
dependency cases so long as they are sufficiently reliable, and their reliability depends on
the ““‘the time, content and circumstances of the statement[s].”’ (In re Lucero L. (2000)
22 Cal.4th 1227, 1248.)” (Paul M. I, at p. 8.) We concluded the twins’ statements were
sufficiently reliable based on the evidence presented at the jurisdictional hearing, and the
statements were therefore admissible without corroboration. (Id. at p. 9.) Other than his
concern about the twins’ young age and the fact that they were initially interviewed
together, Dr. Maloff did not identify any problem with their statements. But the

                                              8
children’s age is not in itself relevant to the issue of reliability, and the fact that E.P. may
have heard L.P.’s statements during the initial interview does not make L.P.’s own initial
statements any less reliable. In essence, mother asks us to second-guess our own
previous decision based on evidence substantially similar to that presented at the
jurisdictional hearing. We decline to do so.


                                       DISPOSITION
       The order is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                           EPSTEIN, P. J.
       We concur:



              WILLHITE, J.



              MANELLA, J




                                               9
