Opinion
C084898
07-24-2018
In re K.S., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. R.S., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD237489)
Appellant R.S., mother of the now seven-year-old minor, appeals from the juvenile court's order denying her petition for modification. (Welf. & Inst. Code, §§ 388, 395.) Finding no error, we affirm the juvenile court's order.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
We provide an abbreviated recitation of the background of this case, summarizing only those portions that are relevant to the resolution of the issue on appeal.
At the commencement of this case in 2016, allegations of possible sexual abuse of the minor were made to law enforcement. During investigation of the matter, the minor made varying statements—some of which suggested she had been the victim of sexual abuse. The minor also recanted her allegations and there was evidence suggesting possible fabrication or "coaching" had occurred.
The initial allegations in the section 300 petition filed on behalf of the minor were based upon allegations of sexual abuse of the minor. At the contested jurisdictional hearing, a resolution was reached and the jurisdictional allegation was amended to state: "The child . . . has been disclosing specific incidents of sexual abuse by her mother's boyfriend, [P.N.], which is beyond the knowledge and information concerning sex that a five year old child should have and the mother has failed to properly respond to the child's statements of sexual abuse. The mother's lack of awareness, concern or belief regarding the child's disclosure of sexual abuse puts the child at substantial risk of serious physical harm or illness."
The juvenile court sustained the petition as amended and returned the child to mother's care and custody under dependent supervision with services to mother.
On January 24, 2017, mother's counsel filed a section 388 petition for modification requesting the juvenile court "change its prior order and find that the evidence is insufficient to find by a preponderance of the evidence that the allegations of the 1st Amended 3000 [sic] WIC petition filed 9/28/16 are true." In support of the modification request, the new information was listed as follows: "The child has been examined by a psychologist and has found that there is no evidence that the child has been sexually abused by anyone at any time. In conjunction with the SAFE Interview, the BEAR Clinic examination, and the numerous contradictory stories told by the child, the evidence establishes that the child was not the victim of sexual abuse by any individual." A letter from forensic psychologist, Bruce W. Ebert, Ph.D., indicated that he conducted a forensic interview of the child, reviewed discovery, mother's intake form and a developmental questionnaire, and concluded the child was not the victim of sexual abuse.
The juvenile court denied mother's petition for modification, adopted the agency's recommendation to terminate the case, placed the minor in the sole legal and physical custody of her mother, and terminated dependency.
DISCUSSION
Mother claims the juvenile court erred when it denied her petition for modification requesting the court vacate its jurisdictional findings. We disagree.
A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. "The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence. [Citation.]" (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
In this case, jurisdictional allegations were sustained that mother did not respond properly to the minor's statements regarding possible sexual abuse. Later, after the minor had been returned home, a forensic psychologist issued a statement concluding that the minor had not been sexually abused by anyone. Mother filed a petition for modification, seeking to have the jurisdictional findings voided and the case dismissed. The juvenile court properly denied mother's petition.
As emphasized by the juvenile court in denying mother's petition, the jurisdictional allegation that was ultimately sustained was not an allegation that the minor had been the victim of sexual abuse. It was that the minor had made assertions of events that, if they had occurred, would have been sexual abuse, and that mother did not respond to those assertions in an appropriately protective fashion.
We agree with the juvenile court that Dr. Ebert's report "didn't negate any of that." The new evidence was simply more evidence that the minor's initial statements suggesting she had been the victim of sexual abuse were untrue. It did nothing to undermine the jurisdictional findings that were made.
The juvenile court also stated it did not find such evidence to be "new" since it was premised on the evidence that was available and considered at the jurisdictional hearing. --------
Because there was no new evidence presented that undermined the jurisdictional findings so as to support modifying or vacating the findings, the juvenile court did not abuse its discretion in denying mother's petition for modification.
DISPOSITION
The order of the juvenile court is affirmed.
BUTZ, Acting P. J. We concur: HOCH, J. RENNER, J.