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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for 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 

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 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. 

______________________________ 
2 

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.
3 

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 
4 

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 
5 

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-yearold 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 
6 

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 
7 

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 
8 

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 
9 

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