C.S.
Sacramento County Department of Health & Human Services v. C.S.
Opinion
lead Opinion
Scotland, 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 an expert opinion that was based not on any new evidence, but on the same evidence available *106 to the experts who…