In re W.J. CA5

Filed 11/19/20 In re W.J. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

In re W.J. et al., Persons Coming Under the
Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF F081093
SOCIAL SERVICES,
(Super. Ct. Nos. 19CEJ300299-1,
Plaintiff and Respondent, 19CEJ300299-2, 19CEJ300299-3
& 19CEJ300299-4)
v.

CLAUDIA V., OPINION
Defendant and Appellant.

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. William
Terrence, Judge.
Nicholas J. Mazanec, under appointment by the Court of Appeal, for Defendant
and Appellant.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-

* Before Levy, Acting P.J., Peña, J. and De Santos, J.
 Claudia V. (mother) appeals an order denying her petition to either set aside
previously sustained sexual abuse allegations of the dependency petition and dismiss the
dependency or return three of her four children to her on family maintenance. (Welf. &
Inst. Code, § 388.)1 She contends the juvenile court abused its discretion in denying the
petition, as she presented new evidence that undercut the foundation for jurisdiction, the
court failed to consider all the evidence, and the request was in the children’s best
interest. She also contends her trial counsel was ineffective because she failed to enter
certain discovery into evidence. Finding no merit to mother’s contentions, we affirm the
order.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has four children—two daughters, now 16-year-old W.J. and 15-year-old
D.J., and two sons, now 14-year-old J.J. and five-year-old G.J. The three oldest children
share the same father, Francisco M. (father), while G.J.’s father is Alfredo M.
(stepfather).2 Mother was married to father when the three oldest children were born.
Mother and father divorced in 2015 and mother married stepfather the following year.
The family came to the attention of the Fresno County Department of Social
Services (Department) in August 2019, when the Department received a referral alleging
then 15-year-old W.J. had stated her stepfather touched her inappropriately and raped her
when she was in eighth grade, and when she told mother, mother did not believe her.
The social worker interviewed W.J. on August 20, 2019. W.J. disclosed an uncle
sexually molested her from when she was eight years old until she was in the eighth
grade, and while mother was aware of this and confronted the uncle, they never reported
him to law enforcement. W.J. also said her stepfather raped her in the summer of 2018,

1 Undesignated statutory references are to the Welfare and Institutions Code.
2 Neither father appeared during the dependency proceedings and their whereabouts
were unknown. Both father and stepfather were denied reunification services. They are
not parties to this appeal.

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when mother was at work. W.J. told mother about the rape in July 2019. Mother kicked
stepfather out of the home, but he returned to live there so he could care for G.J. Mother
told W.J. she needed to “gather evidence” to prove stepfather raped W.J. and then she
would report it to law enforcement. W.J. told the social worker mother “watches us all
the time now.”
The social worker contacted the police, who interviewed W.J. W.J. told police
stepfather “groped” her when she was 13 or 14 years old. He would slip his hand inside
her shirt, touch her buttocks, and tell her things like “you look hot” or “you have a fine
ass.” W.J. also said “[h]e slipped his hands in my pants.” W.J. said the rape occurred
during spring break in 2018. It was early morning and her siblings were asleep. W.J.’s
cellphone had been taken away from her because she was in trouble. Stepfather called
her into his bedroom and ordered her to take off her clothes in order to get her cellphone
back. Stepfather then “pushed her on the bed” and forcibly raped her. Thereafter,
stepfather continued to inappropriately touch her buttocks. W.J. said she left a note on
mother’s bed, which stated stepfather was groping her. After mother found the note, she
confronted stepfather, who began to cry and admitted to inappropriately touching W.J.
Mother told stepfather to stop and he did.
W.J. told the police she was diagnosed with severe depression and had attempted
suicide. She told mother about the rape in July 2019, after mother found marijuana in her
room. Mother confronted stepfather, but he denied raping W.J. Mother told her not to be
alone with stepfather and to stay away from the house until mother came home from
work. W.J. was taken to be interviewed by a sexual abuse detective.
The police placed a protective hold on the children. The social worker met with
the police detective who interviewed W.J. and mother. W.J. told the detective stepfather
raped her during spring break in 2018 and he began groping her breasts, buttocks and
vagina on numerous occasions since she was 13 years old. W.J. said she told mother
about being fondled a year ago and about the rape after it happened, but mother did not

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do anything about it. Mother gave inconsistent statements regarding her knowledge of
the alleged sexual abuse. She would say she was not aware of the abuse and did not
know the details, but later stated she needed to do “her own investigation.” Mother also
stated she was aware of the sexual abuse and confronted stepfather about telling W.J. she
had a “big butt.” Mother did not know stepfather’s current whereabouts or his cellphone
number. She kicked stepfather out of the home two weeks earlier, but the children
reported he spent the night there the previous night and stepfather’s clothing was still in
the home. The detective had a cellphone number for stepfather, but no one was
answering the phone. W.J. was taking anti-depressants; the detective gave the social
worker her psychotropic medications.
The social worker spoke with the detective the next day. The detective stated the
allegations were “not cut and dry” and there were “a lot of things going on with [W.J.]”
The detective said mother did not believe W.J.’s allegations and was not cooperative with
the investigation. Mother was “evasive” and “not protective,” and said W.J. was a “liar”
and a “runaway.” Mother came across as defensive and “pled the fifth” when asked
about the allegations. Mother did not report the uncle’s molestation of W.J. to law
enforcement because the same uncle molested mother. The detective noted mother had a
habit of not reporting abuse; when W.J. ran away with an 18-year-old boyfriend who had
inappropriately touched her, W.J. asked mother not to make a report.
Two social workers interviewed D.J. and J.J., both of whom denied they were
sexually abused. J.J. said stepfather took care of G.J. inside the home in the mornings,
but then he would leave. D.J. said stepfather did not live in the home and she felt “safe”
with him. D.J. recalled one time when mother asked her if stepfather inappropriately
touched her private parts; she told mother “no.” D.J. said her sister “smokes weed to
numb the pain” and drank alcohol.
The social workers spoke with mother, who said law enforcement “caught her by
surprise” and she was aware she was not cooperative the day before. Mother said she

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believed W.J.’s allegation that stepfather sexually abused her. Mother said W.J. told her
around August 1, 2019, that stepfather raped her. When mother confronted W.J. about
finding a “vape pen” and asked why she smoked it, W.J. began to cry and said it was “to
numb the pain, because [stepfather] raped me.”
Mother said she kicked stepfather out of the home and he no longer lived there.
When asked why stepfather’s belongings were still in the home, mother said she did not
know. She had packed his things in her car and was going to take them somewhere.
Mother did not report W.J.’s sexual abuse to law enforcement because she wanted to
“gather evidence, such as pictures, or texts proving he did do it,” but “[i]t came down to
nothing,” as she found no evidence it happened. Mother denied W.J. told her the year
before that stepfather was inappropriately touching her, and she said W.J. only told her
stepfather was calling her names. Stepfather admitted he told W.J. she “had a big butt”
and mother told him not to speak to W.J. that way.
Mother first said that maternal grandmother provided childcare for G.J. at her
aunt’s home while mother was at work. When the social worker asked why the children
said stepfather was in the home caring for G.J. the day before, mother changed her story
and said he came to the home in the mornings to care for G.J. while she was at work, as a
parent needed to be present when G.J. had in-home learning. Mother said she did not
report that the uncle abused W.J. because she was not aware of it. Mother said W.J. had
a 17-year-old boyfriend who W.J. claimed sexually abused her, but W.J. did not want it
to be reported.
At an August 22, 2019 team decision making meeting, the Department decided to
keep the children in out-of-home care, as voluntary family maintenance services were not
appropriate since mother was not fully cooperative with the investigation and did not
believe W.J.’s allegations. During the meeting, it was disclosed that W.J. had a history of
cutting, which W.J. said was due to bullying and sexual abuse.

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The Dependency Petition
A dependency petition was filed, followed by a first amended petition which
alleged the children fell within the provisions of section 300, subdivisions (b)(1) (failure
to protect), (d) (sexual abuse), and (g) (no provision for support), and W.J. also fell
within the provisions of section 300, subdivision (c) (serious emotional damage).
Specifically, the first amended petition alleged: (1) mother failed to protect W.J., and the
other children were at risk of suffering serious physical harm or neglect, because, despite
W.J. telling her that stepfather sexually abused her, mother failed to protect W.J. from
further abuse, or report the abuse to law enforcement and the Department (§ 300,
subd. (b)(1)); (2) W.J. was suffering severe emotional damage, as shown by her
depression and anxiety, which resulted from mother failing to protect her from sexual
abuse by stepfather (§ 300, subd. (c)); (3) W.J. was sexually abused by stepfather, which
mother failed to protect her from, and the other children were at substantial risk of being
sexually abused by stepfather (§ 300, subd. (d)); and (4) the children were left without
provision for their support as the whereabouts of their father and stepfather were
unknown (§ 300, subd. (g)).
On August 23, 2019, the children were detained.
The Jurisdiction and Disposition Hearing
At the request of mother’s attorney, a contested jurisdiction and disposition
hearing was set for January 30, 2020, with a settlement conference to be held on
November 7, 2019.
The Department prepared jurisdiction and disposition reports for the hearing. The
three younger children were placed together with their maternal uncle and his partner,
while W.J. was in a group home. D.J. and J.J. told the social worker they felt safe at
home with mother and wanted to return home to her. W.J. was hospitalized on
September 5, 2019, because she was having a psychotic episode and needed to be
restrained. She was transferred to a behavioral health hospital on September 17, 2019,

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and placed on a section 52503 hold two days later. She was prescribed Depakote,
Seroquel, and Zyprexa.
The children had mental health assessments. W.J., who was diagnosed with
severe depression, anxiety, and bipolar disorder, was recommended for ongoing
treatment, including individual and family treatment and clinical case management. W.J.
was hospitalized for her many emotional and mental health issues from September 5 to
October 1, 2019. W.J. was taken to Valley Children’s Hospital on October 21, 2019, on a
section 5150 hold, and was transported to a psychiatric health facility two days later,
where she was placed on a section 5250 hold. As of November 4, 2019, W.J. had made
improvements but needed to be monitored for a few more days. Ongoing individual
therapy and clinical case management was recommended for the other children.
Mother, who had court-ordered supervised visits with the children, had been
visiting the three younger children regularly and appropriately. Visits with W.J.,
however, were sporadic due to W.J.’s hospitalizations. During an October 15, 2019
supervised visit with mother, W.J. stated she did not want to see mother anymore because
mother was aware that she was being sexually abused, yet mother did not care or allow
her to receive therapy. After the visit, the social worker asked W.J. if she really did not
want to see mother. W.J. then stated she was willing to visit mother again.
A family reunification panel was held on October 8, 2019, as mother met the
provisions for bypass of family services under section 361.5, subdivision (b)(6), based on
the allegations of severe sexual abuse. The social worker noted that, according to the
detective, W.J. appeared to be consistent with her reports of sexual abuse and there was
an ongoing criminal investigation into her allegations, but stepfather’s whereabouts were

3 Under section 5250, an individual who has been detained for 72 hours under
sections 5150, 5200 or 5225, and has received an evaluation, may be certified to receive
intensive treatment related to a mental health disorder or impairment by chronic
alcoholism for a maximum of 14 days.

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unknown. Mother denied that W.J. told her about any sexual abuse before the current
allegations were reported and said she was not aware of anything until W.J. disclosed the
rape on August 1, 2019. Thereafter, she wanted to do her own investigation because she
was unsure if W.J. was making up the allegations to avoid getting into trouble for being
caught with a vape pen. Mother stated she believed W.J. and wanted stepfather to be
criminally prosecuted.
Mother was asked about W.J.’s past disclosures of sexual abuse by other family
members. Mother stated there were two uncles who molested or groped W.J. when she
was a child; one was arrested and prosecuted after another child came forward alleging
sexual abuse, while the other went to Mexico to avoid prosecution. Mother said she
always believed W.J. about the sexual abuse and rape allegations, but she was not sure if
W.J. was being honest about who raped her, as W.J. “never liked” stepfather, though she
did not act differently around him. Whenever mother caught W.J. doing something that
could get her in trouble, W.J. would disclose something to avoid getting into trouble.
W.J. began having mental health issues when she was in eighth grade. W.J. sent nude
photos of herself to boys in school, which led to her being bullied. W.J. began having
suicidal ideations, and one girl, who bullied W.J., beat her up on one occasion. Mother
said she obtained a restraining order against the girl and the school expelled her.
Mother said she would remain single and never have anyone else live in her home
again if it meant her children were safe. She also said she would be more vigilant in the
future regarding who babysat her children and where they were watched, and she would
“start reporting everything my kids tell me right away.” Mother experienced domestic
violence in her relationship with father, but her relationship with stepfather had been
good until the family’s involvement with the Department. Mother told the Department
she also was the victim of sexual abuse when she was younger. The Department noted it
appeared to be a cycle for the family not to properly address sexual abuse allegations.
Mother was doing services on her own; she was participating in a parenting program and

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mental health treatment. She was willing to participate in any services ordered and
believed she could benefit from parenting classes, mental health and family therapy.
The Department believed it was in the children’s best interest to recommend
services for mother. While the prognosis for successful reunification was guarded due to
the severity of the allegations and the family’s extensive cycle of sexual abuse issues, it
appeared likely. Although the Department was unable to fully assess W.J.’s relationship
with mother due to W.J.’s mental health issues, the three younger children seemed to
have a strong parent/child relationship with mother and wanted to reunify with her. The
Department was concerned about mother’s ability to protect the children from further
harm, but believed reunification services would enable her to ameliorate the reasons for
the children’s removal, noting there appeared to be a cycle of sexual abuse within
mother’s family which had not been addressed, and providing services to mother would
help treat her own trauma and address safe parenting issues. Mother appeared willing to
participate in the necessary services to be able to provide for the children’s need for
safety. Thus, the Department recommended the children remain placed in out-of-home
care and mother be ordered to participate in reunification services.
At the November 7, 2019 settlement conference, the Department submitted on the
reports and recommendations. The children’s attorney stated that while there was “a
valid (b)(6)” for mother, the children had a warm relationship with mother, and he
confirmed they wanted to reunify with her. Accordingly, he submitted on the
Department’s recommendation. Mother’s attorney stated mother was submitting on
jurisdiction, but mother wanted the court to know she had been taking W.J. to therapy
before the Department’s involvement. In addition, mother, who had not been offered
services at detention, pursued them on her own; she was participating in therapy and had
attended 10 sessions of a parenting class.
After finding mother knowingly, intelligently, and voluntarily waived her right to
a contested hearing on the issues of jurisdiction and disposition, the juvenile court found

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the petition’s allegations true, removed the children from mother’s custody, and ordered
reunification services for mother, which included parenting classes and mental health and
domestic violence evaluations and any recommended treatment. A postdisposition
mediation hearing was set for January 30, 2020.
The Section 388 Petition and Hearing
Mother filed a section 388 petition on January 3, 2020, in which she asked the
juvenile court to revisit the jurisdictional findings. As changed circumstances or new
evidence, mother asserted W.J. recanted her prior statements during a November 19,
2019 supervised visit as reflected in the delivered service logs that were provided to the
parties, which mother’s attorney would provide to the court, if needed. Mother asked the
juvenile court to either: (1) find the petition’s allegations to not be true; (2) amend the
allegations to conform to the new evidence, return the children to her custody, and
dismiss dependency; or (3) place the children with her on family maintenance. Mother
asserted these changes would be in the children’s best interest because they had a very
strong bond with her and would have more security and stability if placed with her.
A postdisposition mediation was held on January 30, 2020. W.J. was discharged
from the psychiatric health facility on November 4 and placed in a short-term therapeutic
residential placement, where she was receiving on-site mental health services. The other
children remain placed together in a relative home. Mother had completed a mental
health assessment, which recommended she participate in individual therapy. She also
completed a domestic violence inventory, which recommended she complete a 52-week
child abuse class. Mother completed a parenting program in December 2019. The results
of the mediation were for the juvenile court to continue with a case plan goal of family
reunification, with mother continuing to participate in her court-ordered services.
At the January 30, 2020 hearing, county counsel asked the juvenile court to adopt
the results of the mediation. As for the section 388 petition, the Department had filed a
written response, which recommended denial of the petition and continuation of

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reunification services. The children’s attorney submitted on the mediation and whether
the section 388 petition should be set for a contested hearing. Mother’s attorney did not
think the petition needed to be set for a trial, as all the information she intended to present
was in the Department’s response, which indicated W.J. recanted all her statements.
Mother’s attorney was willing to simply argue why the petition should be granted. The
children’s attorney then declared a conflict between W.J. and the other children, as he
could not represent all of them when arguing the section 388 petition. The juvenile court
appointed a new attorney for the three younger children and set a continued hearing on
the section 388 petition for February 20, 2020.
In the Department’s response to the section 388 petition, the social worker
provided further details concerning mother’s statements during the family reunification
panel meeting. Mother reported that W.J. was molested by one uncle when she was five
or six years old, and she disclosed the abuse when she was eight years old after another
child came forward accusing that uncle of sexual abuse. That uncle was convicted, but
mother was not aware of the sentence. W.J. was 12 years old when a cousin groped her
and W.J. disclosed that abuse when she was 13 years old. Mother confronted the cousin,
but she believes he went to Mexico; she did not report the abuse to law enforcement.
During the meeting, the social worker stated there were allegations in the child welfare
history that mother was molested by the same uncle who molested W.J., as well as by a
second uncle. Mother’s brother was required to register as a Penal Code section 290 sex
offender due to a sexual relationship with an underage girl and sentenced to serve time in
a correctional institution.
During a supervised visit following the November 7, 2019 court hearing, W.J. kept
asking to go home with maternal aunt and uncle, but also made comments about wanting
to stay in her current placement and wanting to return to mother. At a supervised visit
five days later, W.J. said she wanted to live with maternal aunt, as she believed her
anxiety and depression would decrease, and she believed she was ready to live with

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maternal aunt. W.J. started crying, saying she would go insane in the group home and if
she could live with maternal aunt, she was willing to go to school and drug test. W.J. told
mother she needed to be with family as soon as possible and wanted to go home.
At the beginning of a supervised visit on November 19, 2019, W.J. immediately
stated, “[Stepfather]. I started it,” and she lied to the detective about the sexual abuse.
She admitted being a “porn addict,” and said she watched a video about a stepfather and
daughter, so she went to stepfather and “dry humped him,” but he pushed her away. W.J.
started crying, saying she lied about having intercourse with stepfather because she did
not like that he made her clean her room. W.J. said she was “messed up in the head,”
was sorry she lied to the police, and she “thought it would take him away but it took me
away.” W.J. said she needed to talk to the investigator and then turned to mother and
apologized for lying. W.J. repeatedly said she wanted to be with mother. She wanted to
get stepfather out of the house and have him go to jail. She did not think “it would go
this far,” but she was “saying the truth now,” and she blamed the sexual abuse she went
through as a child.
Mother attempted several times to redirect the conversation, but W.J. would bring
the conversation back to going home. W.J. said she did not want to leave mother and
wanted to stay with her forever. W.J. did not think she “would be taken away this long.”
W.J. said she was having migraines because she was stressed and needed to go home.
W.J. asserted she was being responsible, taking her medication, helping to clean, and
washing her clothes. Mother told her not to stress and to enjoy her life, but W.J. said the
only way she could do that was to be home with mother. After W.J. left the visit, mother
stated she did not expect W.J. to say the things she did.
On January 2, 2020, it was reported that G.J. was making inappropriate gestures.
In September and November 2019, G.J. exhibited “humping” behavior, where he humped
things such as tables and chairs. The behavior lessened but returned after the December
2019 winter holiday. Concerned about the behavior, the care provider contacted mother,

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who said she was aware of the behavior and explained W.J. used to play the “jumping
game” with him, where W.J. took G.J. to her room and let him jump on her stomach,
which looked like humping. Mother also said W.J. took G.J. to her room to watch porn.
Mother told the care provider she caught W.J. and G.J. several times. Mother caught
W.J. jumping naked with J.J. two years ago. The care provider stated G.J.’s behavior
increased after visits with W.J. The care provider asked D.J. if she knew about the
“jumping game” and if she had seen anything in the past, but D.J. stated she was not
aware and then cried.
Two social workers interviewed the three younger children on January 13, 2020.
J.J. was aware W.J. used drugs because he heard mother talking to W.J. about it. He saw
G.J. rubbing against a couch in the past. J.J. denied being touched inappropriately by
anyone and said visits with mother were going well. G.J. was not willing to speak with
the social workers. D.J. was aware of G.J.’s humping and said it happened when they
were in mother’s care. D.J. denied being touched inappropriately by anyone but also
stated that if it should happen, she would not tell an adult. D.J. wanted her and her
siblings to return home to mother, although she wanted to know if it was possible for
W.J. to visit but not live there.
The next day, the social workers contacted mother, who denied being aware of the
“jumping game” and said G.J. learned the humping behavior from another little boy in
the neighborhood. Stepfather was G.J.’s primary caregiver, as mother was not home
most of the time because she worked many hours and stepfather did not work. Stepfather
told her he saw W.J. put G.J. on her stomach and he jumped, but that only happened
once. After that, stepfather did not allow G.J. to be with W.J. Mother said she used to
catch W.J. watching porn. Mother denied catching W.J. naked with J.J. and said the care
provider misinterpreted their conversation.
The Department believed there continued to be substantial detriment to the
children if they were returned home, as it was concerned mother would allow stepfather

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to have access to the children and would neglect their needs. The Department asserted
mother lacked the capacity and ability to provide for the children’s safety, and appeared
to normalize or minimize the seriousness of sexual abuse.
It appeared to the Department that W.J. was using manipulation to return home.
On October 30, 2019, W.J. told mother she was raped at the psychiatric health facility,
but she would not provide information about it until mother came and took her home.
During supervised visits, W.J. stated she should go home because she had migraines due
to stress, and her anxiety and depression would decrease. At first, W.J. stated maternal
aunt wanted her to live at maternal aunt’s home. Then, maternal aunt no longer wanted
W.J. to live with her and maternal grandmother wanted her. Recently, W.J. contacted
maternal aunt falsely stating the social worker did not allow sibling visits to occur at
maternal aunt’s home.
The Department wanted to see mother demonstrate the ability to protect her
children from sexual abuse and be responsive to their statements and behaviors, noting
the sexual abuse appeared to be multigenerational. Accordingly, the Department
recommended the continuation of reunification services for mother and the children
remain in out-of-home care.
At the February 20, 2020 hearing, the attorneys for the Department and the
children asked the juvenile court to deny the petition. Mother’s attorney argued W.J.’s
recantation of the allegations that began the case was grounds to dismiss jurisdiction,
adding that the discovery she received the day before indicated even the therapist was
stating it would be better for W.J. to have more time with mother. Alternatively,
mother’s counsel asked the juvenile court to retain jurisdiction, but place the three
younger children with mother.
The juvenile court denied the section 388 petition on all grounds. The juvenile
court stated it read the petition and was “certainly concerned about some of the
statements that were made and referenced, as far as discovery is concerned,” but it

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believed “there’s more going on here than just a simple recantation” as described in the
Department’s response. The juvenile court explained: “W[.J.] essentially has made
several statements, and many of those statements seem motivated by a desire to return
home, not so much that allegations themselves aren’t true. The Court does not believe
it’s in the best interest of any of the minors to grant the [petition]. The Court does realize
that the minor W[.J.] has made statements contrary to her earlier statements; however, it
is not enough that this Court believes it’s in the best interest of the children to change the
course of the case at this point…. This Court does not believe it’s in the best interest of
the minors to place any of the minors back … into family maintenance with mother, …
nor does this Court believe[] it’s appropriate to reverse the prior findings in the case, and
find[] [the] petition to be not true.” In its written order, the juvenile court stated the
petition was denied because the requested relief was not in the children’s best interest and
the evidence presented did not establish changed circumstances.
DISCUSSION
The Section 388 Petition
A parent has the right to petition the court to change, modify, or set aside a prior
order on the grounds of change of circumstance or new evidence. (§ 388, subd. (a)(1).)
In bringing the petition, the parent has the burden to prove by a preponderance of the
evidence that new evidence or changed circumstances exist and the proposed
modification would be in the child’s best interest. (Nahid H. v. Superior Court (1997)
53 Cal.App.4th 1051, 1068; Cal. Rules of Court, rule 5.570(a), (e).)
Whether the juvenile court should modify a previously made order rests within its
discretion and its determination may not be disturbed unless there has been a clear abuse
of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds of reason. (Id. at
pp. 318–319.) All conflicts in the record must be resolved in favor of the juvenile court’s
decision and all legitimate inferences indulged in to uphold that decision. (In re Jason L.

15.
(1990) 222 Cal.App.3d 1206, 1214.) When two or more inferences can reasonably be
deduced from the facts, the reviewing court has no authority to substitute its decision for
that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at p. 319.)
It has been held that a section 388 petition is the appropriate vehicle by which to
bring a recantation of sexual abuse charges to the juvenile court’s attention. (In re
Brandon C. (1993) 19 Cal.App.4th 1168, 1170–1171.) The court in Brandon C.,
however, cautioned: “[W]e do not mean to imply that recantation by a victim or witness
in a sexual abuse case will always constitute ‘new evidence’ for purposes of section 388,
or that an evidentiary hearing will be warranted in every such case. Nor do we mean to
imply that a mere showing of ‘recantation’ will justify modifying or setting aside the
juvenile court’s jurisdictional and dispositional orders.” (In re Brandon C., supra, at
p. 1172.) In each case, the juvenile court must determine whether the petitioner has
presented a change of circumstance or new evidence and made a prima facie showing that
“ ‘the best interests of the child may be promoted by the proposed change of order.’ ”
(Ibid.)
Here, the juvenile court considered mother’s petition for modification and the
Department’s response, and concluded W.J.’s statements made at the November 19, 2019
visit were insufficient to warrant a change in the outcome of the case and mother failed to
show reopening jurisdiction would be in the children’s best interests. Both conclusions
withstand appellate scrutiny.
Mother asserts she presented new evidence in the form of W.J.’s recantation of all
allegations against stepfather, thereby undermining the foundation for jurisdiction.
Certainly W.J.’s statements at the November 2019 visit cast doubt on her original
accusations, as well as her credibility. While mother claims the recantation proves the
sexual abuse did not occur, it is not clear which of W.J.’s two accounts is true. As the
juvenile court found, W.J. could very well have recanted because she wanted to return
home. Considering the recantation and W.J.’s original accusations, along with hers and

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mother’s statements to the social workers and police, the juvenile court reasonably could
find, as it did, that this was more than “a simple recantation.”
Moreover, jurisdiction was based on mother’s failure to protect W.J. after she
initially reported the sexual abuse by allowing stepfather to remain in the home and have
unsupervised access to W.J., and her failure to report the abuse to law enforcement and
the Department. Regardless of whether the abuse occurred, mother failed to take W.J.
seriously and take the steps necessary to protect her. Thus, even considering the
recantation, there is sufficient evidence to support the sustained allegations of failure to
protect and of sexual abuse. Based thereon, the juvenile court reasonably could conclude
W.J.’s statements at the November 2019 visit did not warrant reexamination of the
allegations of the dependency petition and the “new evidence” would not have changed
the outcome of the adjudication.
The juvenile court also reasonably could find it was not in the children’s best
interest to revisit jurisdiction or return the three younger children to mother on family
maintenance. Mother had a long history of minimizing sexual abuse and failing to report
it. Despite mother’s own sexual abuse by W.J.’s uncle, mother failed to report to law
enforcement W.J.’s abuse by that same uncle. She also failed to report when W.J.’s
cousin groped her. Finally, she failed to report W.J.’s claim of sexual abuse by
stepfather. In addition, G.J. was exhibiting concerning behavior that mother was aware
of yet did not address. The Department had ongoing concerns that mother appeared to
normalize or minimize the seriousness of sexual abuse, lacked the capacity and ability to
protect the children, and she needed to demonstrate her ability to protect the children
from sexual abuse. The juvenile court reasonably decided the best interest of the children
would not be served by changing the current order of family reunification services for
mother, as the evidence supported there was detriment to return the children to her
custody, and mother needed services to address the ongoing issues of sexual abuse and
sexual behaviors in the home that affected all the children.

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 Mother urges us to apply factors identified by the appellate court in In re Kimberly
F. (1997) 56 Cal.App.4th 519 to evaluate the children’s best interests. There, the juvenile
court denied the mother’s section 388 petition, brought on the eve of the section 366.26
permanency planning hearing, seeking return of her children. (In re Kimberly F., at
pp. 521–522.) In holding the juvenile court abused its discretion in not granting the
motion, the appellate court rejected a juvenile court’s use of a simple best interest test—
comparing the household and upbringing offered by the parent with that of the
caretaker—when analyzing a section 388 petition. (In re Kimberly F., at pp. 522, 526–
530.) The appellate court then determined a number of factors, not meant to be
exhaustive, should be considered: (1) the seriousness of the problem leading to
dependency and the reason that problem was not overcome; (2) the strength of relative
bonds between the dependent children to both the parent and caretakers, and the length of
time a child has been in the dependency system in relationship to the parental bond; and
(3) the degree to which the problem may be easily removed or ameliorated, and the
degree to which it actually has been. (Id. at pp. 530–532.)
While these factors may be relevant when addressing a section 388 petition
brought after reunification efforts have terminated, they are not relevant here, where the
section 388 petition is brought soon after disposition, when reunification efforts are
continuing. Even so, the problem that led to dependency, namely, mother’s failure to
protect W.J. from sexual abuse, still existed at the time of the petition and, as we have
explained, the juvenile court reasonably could find, despite the children’s strong bond to
mother, that she needed to participate in services to address her ability to protect her
children before they could safely be returned to her.
Finally, mother contends reversal is required because the juvenile court failed to
consider all the evidence. Specifically, mother asserts the juvenile court failed to
consider evidence from W.J.’s therapist, as reported by mother’s trial counsel during

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argument on the section 388 petition, that it would be better for W.J. to have more time
with mother.
“[I]t is well recognized that the judge must exercise his discretion upon a
consideration of evidence, and that the refusal of the trial court to consider all the
evidence is tantamount to a failure to exercise discretion, and calls for reversal of the
ensuing court order or decree.” (In re Marriage of Kern (1978) 87 Cal.App.3d 402, 411.)
But here, there is nothing to suggest the juvenile court refused to consider any evidence.
As mother recognizes, the evidence she claims the juvenile court refused to consider,
namely, her trial counsel’s representation of the therapist’s statement, was not evidence.
(EDC Associates, Ltd. v. Gutierrez (1984) 153 Cal.App.3d 167, 171, fn. 2 [“argument of
counsel is not evidence”].) The juvenile court cannot be faulted if it failed to consider
something that was not presented as evidence.
The cases mother relies on do not control here. In Schlumpf v. Superior Court
(1978) 79 Cal.App.3d 892, the appellate court considered which state was the proper
jurisdiction to resolve a child custody dispute, holding the trial court erred in finding
jurisdiction was proper in California without considering that most of the evidence
concerning the children’s best interests was located in another state. (Id. at p. 901.) In
Nadler v. Superior Court (1967) 255 Cal.App.2d 523, the trial court awarded custody of
the child to the father based solely on the mother’s sexual orientation; in ruling, the trial
judge stated he was not exercising his discretion and was required to award the father
custody as a matter of law. (Id. at p. 524.) The appellate court, emphasizing that “it is
not until the trial court has considered all the evidence that it may exercise its discretion
as to how the welfare of the child will best be served,” held the trial court erred in failing
to exercise its discretion and ruling as a matter of law that the mother was unfit. (Id. at
p. 525.)
Neither case is applicable here. The juvenile court did not preclude mother’s
attorney from presenting evidence or refuse to consider any properly presented evidence.

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Instead, the juvenile court considered all relevant requisite evidence regarding the merits
of the section 388 petition. Based on this record, we conclude the juvenile court did not
abuse its discretion in denying the petition.
Ineffective Assistance of Counsel
Mother contends her trial counsel was ineffective because she failed to attempt to
enter into evidence the delivered services logs provided to the parties the day before the
hearing on the section 388 petition. Specifically, she contends there is no satisfactory
explanation for the failure of her trial counsel to enter into evidence the log containing a
statement of W.J.’s therapist, which her counsel described at the hearing as indicating “it
would be better for the eldest minor to have more time with her mother.” Mother asserts
it is reasonably probable the outcome of the hearing would have been different if the
therapist’s statement had come into evidence, noting the juvenile court stated it was
“certainly concerned about some of the statements that were made and referenced, as far
as discovery is concerned.”
A parent represented in a dependency proceeding is entitled to competent counsel.
(§ 317.5.) A claim of ineffective assistance of counsel may be reviewed on direct appeal
if there is no satisfactory explanation for trial counsel’s action or inaction. (In re Dennis
H. (2001) 88 Cal.App.4th 94, 98, fn. 1.) To establish her trial counsel was ineffective,
mother must show counsel did not act in a manner expected of reasonably competent
attorneys and the error was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668,
687.) The same standard applies to retained and appointed counsel. (Cuyler v. Sullivan
(1980) 446 U.S. 335, 344–345.) Counsel’s ineffective assistance is prejudicial if it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of counsel’s error. (Strickland v. Washington, supra, 466 U.S. at
p. 694; People v. Watson (1956) 46 Cal.2d 818, 836.)
We need not decide whether mother’s trial counsel was deficient, as any error was
not prejudicial. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180 [court need not

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evaluate whether counsel’s performance was deficient before examining the issue of
prejudice].) At best, the therapist’s statement shows W.J. needed more time with mother,
not that W.J. or the other children should be returned to mother’s care or that dependency
should be dismissed. That it might be in W.J.’s best interest to increase visitation does
not mean it would be in her best interest to be placed with mother. The statement also
has no bearing on whether it was in the younger children’s best interests to be placed with
mother on family maintenance, as it apparently pertained only to W.J. As we have
explained, given mother’s long history of minimizing sexual abuse and failing to report
it, it was in the children’s best interest for mother to receive services to address the
ongoing issues of sexual abuse and behaviors in the home that affected all the children,
before returning the children to her custody. For these reasons, it is not reasonably
probable the juvenile court would have dismissed dependency or returned the younger
children to mother’s custody had the therapist’s statement been admitted into evidence.
DISPOSITION

The juvenile court’s order is affirmed.

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