Filed 10/16/14 In re Paul M. CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 pa rties from citing or relying on opinions not certified for pu blication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered publi shed for purposes of rule 8.1115.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 The Juvenile Court Laws.

___________________ ________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,

v.
R.M.,
Defendant and Appellant. B251989
(Los Angeles County Super. Ct. No. CK42835)

APPEAL from an order of the Supe rior 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.

________________ ______________2 R.M. (mother) appeals the order denyi ng 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 PROC EDURAL 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 mothe r’s reunification services and returning Paul, but not the twins, to her custody was affirmed in R.M. v. Superior Court (May 14, 2014, B25 1998 [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 re cord in that case and the “balance of record” in this. The parties extensively rely on th e record in R.M., and we borrow some of the relevant facts and procedural history from th at record and from ou r 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 thei r ‘private parts’ and
that he made them ‘eat it.’” After the first interview, moth er 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 he aring 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 petiti on on several grounds, one of which was based on the alleged sexual ab use of the twins by Paul. ( Id. at p. 5.) Mother was ordered to undergo a psychological evaluation, an d to receive reunification services and

1 Statutory references are to the Welfare and Institutions Code unless otherwise indicated.3 monitored visitation. ( Ibid .) On appeal, we concluded th e twins’ repeated claims of sexual abuse were sufficiently reliable to co nstitute substantial ev idence, and the only evidence of coaching po inted to mother. ( Id . at pp. 8–9) We upheld the court’s overruling of mother’s belated objection to DC FS’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 testifie d, but the parties rely on the testimony of social worker Rosita Brennan; mother’s eval uator, Dr. Mitchell Harris; Paul’s therapist, Dr. Jared Maloff; and the twins’ ther apist, Dr. Catherin e Lippincott. Brennan testified that during a monitored visit on July 30, 2013, Paul urged E.P. to report that the foster mother to ld the twins they we re 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 work er 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 interv iew 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-yea r-old child. Dr. Maloff, who had seen the twins and Pa ul six times, testif ied the children did not exhibit sexualized behavior, and the twins we re 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 inte rviewing children who are that young and retrieving factual
statements.” Dr. Maloff foun d Paul’s denial of the sexu al abuse believable absent evidence to the contrary, but pr oceeded with his therapy “as if ” the abuse had happened. Dr. Lippincott testified the twins had had in dividual therapy sessions with her on a weekly basis since April 2012. According to Dr. Lippincott, whenever they talked about4 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 sec tion 388 petition based on new evidence. She referenced only Brennan’ s notes, where the visitation m onitor 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. Mo ther added that the twins had been incorrectly in terviewed together. On the record, mother’s attorney advised the court that mother was “very co ncerned 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 th e 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 th e orders that it is trying right now. And there is no point in trying the 388 separately. Sh e 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 te rminated mother’s reunification services, returning Paul to mother’s custody, but not th e 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 th at newly discovered evidence requires a retrial of the allegations of sexua l abuse of the twins by Paul. We review the summary denial of a se ction 388 petition for a buse 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 facie5 showing that there is a change of circumstan ces or new evidence, and that the new order
would be in the best interest of the child. (§ 3 88, 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 orig inally detained due to inappropriate discipline by the mothe r. The foster parents became c oncerned the parents’ three-yearold daughter had an unusually wi de 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 alle ging the father had digitally pe netrated the girl’s vagina. ( Id . at p. 1742.) At the jurisdictional hear ing 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 be en 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 di agnosis of incest or pedophilia. ( Id . at pp. 1745, 1755.) At the 18-month hearing, the eviden ce indicated the parents had complied with their service plan but continued to de ny the allegation of sexual abuse. ( Id . at p. 1747.) A different judge terminated the parents’ reuni fication services and found that return of the children to the parents’ cu stody would be detrimental. ( Ibid .) The appellate court concluded that the Ev idence Code section 730 evaluation cast doubt on the initial jurisdictiona l 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 shoul d not be given, at a 12- or 18-month review, to a prior finding of child molestation made at a juri sdictional 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 th at 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 eviden ce of sexual abuse was particularly problematic since the three-yea r-old’s response that her fath er touched her private parts6 could not fairly support the allegation that he penetrated her with his fingers, and the reviewing court was concerned about the ci rcumstances under which the jurisdictional finding of sexual abuse was made. Mo ther raises no such concerns here. Her assertion that different judges presided at the jurisdictional and 18-m onth hearing is incorrect, as all relevant orders were made by Judge S. Patricia Spear. The jurisdictional and dispositional order, and the orde r terminating reunification serv ices have been affirmed on appeal. Mother offers no reason why the la w 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 substantia lly the same and no material change in evidence].) The only evidence cited in the secti on 388 petition was visitation monitor Brennan’s report of E.P.’s statements made on July 30, 2013, wh en 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 th em 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].” Initia lly, the foster mother’s beliefs as to why the twins were in foster care are irrelevant because the girls ma de allegations of sexual abuse long before they were placed in foster car e. Moreover, mother ’s assu mption 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 a buse early on because mo ther 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 th at mother had told her ‘“no eating private parts’” and ‘“Paul would never do that.’” Du ring 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 sometim es.” 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 should n’t tell the truth. My7 mom says I can’t tell you.” The twins si milarly vacillated when interviewed by dependency in vestigator Woillard, in turn refusing to answer questions, claiming to have lied, but also admitting to have had sexual co ntact 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 jurisdictiona l hearing also indicates that early on mother began accusing DCFS, and in partic ular social worker Sampson, the first interviewer, of unduly influe ncing the twins. In her decl arations, as well as during her visits with the twins, mother maintained her daughters were being instructed to say that Paul sexually abused them. She sugges ted Sampson had preconc eived notions about
Paul’s sexualized behavior due to allegations in earlier re ferrals, 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 de pendency investigator, moth er complained that the girls had been in the same room during the fi rst interview, and E.P. had “copied” L.P. She suggested the girls had learned the ph rase ‘“penis in the mouth’” during the interview. Sampson took issue with mothe r’s accusation that the girls had learned the word ‘“penis’” from her, noting th at 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 statemen ts E.P. reportedly ma de on July 30, 2013, were thus substantially similar to statemen ts included in the documentary evidence presented at the jurisdictional hearing. Th e court correctly concluded that the evidence
on which mother’s sect ion 388 petition was base d 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 extent8 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 mo ther’s section 388 petition. Allowing mother to rely on these witnesses’ te stimony 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 3 88 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. Ma loff and Harris expressed the same concerns about the reliability of the initia l interviews with the twins th at mother had brought to the court’s attention at the jurisdictional hearing— that the interviews were not electronically recorded, that the children we re initially interviewed togeth er, and that they picked up words unusual for their age. Mother wa s 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. Bu t as we explained in our earlier opinion, uncorroborated hearsay statements by minors un der 12 years of age are admissible in dependency cases so long as they are sufficiently reliabl e, and their reliability depends on the ““‘the time, content and circumst ances 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 th e evidence presented at the ju risdictional hearing, and the
statements were therefore admi ssible 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 the9 children’s age is not in itself re levant 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 substa ntially 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