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In re H.S.

September 2, 2010


APPEAL from orders of the Juvenile Court of Sacramento County, Daniel Horton, Juvenile Court Referee. Affirmed. (Super.Ct.No. JD227848 & JD227849).

The opinion of the court was delivered by: Scotland, P. J.


C.S. (appellant), the father of H.S. and S.S. (the minors), appeals from the denial of his petition to modify prior orders of the juvenile court adjudicating the minors to be dependent children and removing them from parental custody. (Welf. & Inst. Code, §§ 388, 395.)

The question posed is whether the belated submission of an expert's opinion, formed based on evidence that was available at the jurisdiction hearing, constitutes "new evidence" within the meaning of Welfare and Institutions Code section 388, subdivision (a), which allows an order of the juvenile court to be modified or set aside "upon grounds of change of circumstances or new evidence" (further section references are to the Welfare and Institutions Code unless otherwise specified). The answer is "no."

As we will explain, the term "new evidence" in section 388 means material evidence that, with due diligence, the party could not have presented at the dependency proceeding at which the order, sought to be modified or set aside, was entered. Here, appellant's section 388 motion relied on a expert opinion that was based not on any new evidence, but on the same evidence available to the experts who testified at trial. The new expert simply came to a different conclusion that, with due diligence, could have been presented at the jurisdiction hearing. To allow this belated new opinion evidence to support a section 388 motion would be contrary to the public policy calling for promptness and finality of juvenile dependency proceedings in order to protect the best interests of the child.


Two-month-old H.S. and one-year-old S.S. were taken into protective custody after a hospital examination revealed that H.S. had nonaccidental injuries, including a broken arm and a subdural hematoma. Neither parent had an adequate explanation of how H.S. suffered the injury, although they suggested that S.S. might have been responsible for the broken arm. Subsequent investigation disclosed that H.S. also had a fractured rib, which was healing, and had bruises on her back dating from about the same time as the rib fracture. A medical assessment concluded that the fractures were deliberately inflicted. Unable to explain the additional injuries, the parents gave multiple, conflicting conjectures as to the causes.

The Department of Health and Human Services (DHHS) filed petitions alleging the minors were at risk of suffering serious physical harm inflicted nonaccidentally by a parent or as a result of a parent's failure to adequately protect them. Concluding that services would not benefit the parents, who were not positively bonded to the minors and did not take responsibility for H.S.'s injuries, DHHS recommended the denial of reunification services.

Following a contested jurisdiction hearing that included conflicting testimony and extensive medical records and reports, the juvenile court found that the rib fracture, with attendant bruising, and the arm fracture constituted serious physical injury to H.S. The court sustained the amended dependency petitions as to both minors. Pending the disposition hearing, the parents participated in services but continued to deny responsibility for the injuries to H.S.--instead offering explanations that shifted blame to others.

At the conclusion of the contested disposition hearing, the court denied reunification services, finding the parents had not established that reunification was in the minors' best interests.

Three months later, appellant filed a section 388 petition, seeking to have the jurisdictional findings vacated, the dependency petition dismissed, and the minors returned home. The petition was based on purported new evidence, an opinion by Mohammed Al-Bayati, Ph.D., regarding the cause of H.S.'s injuries. Having analyzed the original medical records and reports, this new expert opined that there were explanations other than abuse. His opinion conflicted with the expert opinions presented at the jurisdiction hearing by both Kevin Coulter, M.D., the physician in charge of the pediatric ward of the University of California, Davis, Medical Center, and appellant's own expert, Angela Rosas, M.D., also a pediatrician.

Ruling the belated opinion of appellant's new expert was not new evidence, the juvenile court denied the section 388 petition without holding an evidentiary hearing. The court reasoned that the new expert's opinion was based on evidence available at the jurisdiction and disposition hearings; thus, appellant failed to meet his burden to obtain an evidentiary hearing because there was no new evidence that was unavailable at the jurisdiction hearing.


Appellant claims the juvenile court was required to liberally construe the section 388 motion in favor of its sufficiency and thus conclude that, although the new expert based his opinion on matter that was available at the jurisdiction hearing, the opinion was nonetheless "new evidence" because the new expert's assessment of ...

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