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Name: In re H.S.
Case #: C063087
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/02/2010

A new conclusion reached by an expert based on records and reports presented at trial is not “new evidence” for purposes of a section 388 petition. Following a contested hearing, the juvenile court held that the minors’ injuries were caused by abuse. The minors were removed and reunification services were denied. Three months later, appellant filed a section 388 petition based on new evidence. The new evidence was an opinion by an expert who reviewed the original medical records and concluded that there were explanations other than abuse. The juvenile court found that the opinion was not new evidence and denied the section 388 petition without a hearing. On appeal, appellant contended that the juvenile court was required to liberally construe the section 388 motion in favor of its sufficiency and find the opinion was new evidence because the expert’s opinion had not previously been submitted to the court. The appellate court rejected the argument and affirmed. “New evidence” means material evidence that the party could not have presented at the dependency proceeding the petition seeks to set aside. Here, the expert opinion was not based on any new evidence, but was based on the same evidence available to the experts who testified at trial. The new expert simply had a different opinion which could have been presented at the jurisdiction hearing. To allow a belated new opinion would be contrary to public policy favoring finality.