Filed 6/12/17 In re Mason F. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 MASON F., a Person Coming Under the Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN SERVICES,

Plaintiff and Respondent,

v.

JESUS F.,

Defendant and Appellant.

F074719

(Super. Ct. No. JD134888-00)


OPINION

APPEAL from orders of the Superior Court of gv Kern County. Louie L. Vega, Judge.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Mark Nations, Interim County Counsel, and Amanda LeBaron, Deputy County Counsel, for Plaintiff and Respondent.
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Jesus F. (father) appeals the juvenile court’s orders denying his petition for modification under Welfare and Institutions Code section 388 and terminating his parental rights to his now two-year-old son, Mason F. Father argues the juvenile court improperly denied his section 388 petition, which sought to reverse the juvenile court’s jurisdictional findings based on the opinions of two belatedly discovered experts. Since the opinions were based on evidence available at the time of the jurisdiction hearing, the juvenile court was not required to grant a hearing. (In re H.S. (2010) 188 Cal.App.4th 103 (H.S.).) Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 2015, two-month-old Mason became unresponsive while in father’s care. Father told police he had been patting Mason on the back and rocking him roughly when Mason gasped for air, vomited and went limp. Father slapped Mason on both sides of his face and shook him in an effort to wake him up. Father then called 911 and performed cardiopulmonary resuscitation until fire and ambulance personnel arrived.
Mason was transported to Bakersfield Memorial Hospital, where an examination revealed Mason had visible bruising on both cheeks which appeared to be thumbprints and a computerized tomography (CT) scan showed multiple subdural hematomas indicative of non-accidental trauma. Mason was placed into a medically induced coma and airlifted to Valley Children’s Hospital (VCH) in Madera, where he was placed in the pediatric intensive care unit.
Additional testing at VCH revealed the following injuries consistent with non-accidental trauma: (1) severe traumatic brain injury, including multiple small intraparenchymal hemorrhages and substantive bilateral subdural hemorrhages of apparent different ages, (2) cervical spine injury; (3) bilateral retinal hemorrhages; and (4) multiple fractures of varying ages on Mason’s arms and legs, and a newly fractured rib. Father was arrested and charged with willful injury to a child, assault of a child under age eight resulting in a paralysis or a comatose state, and assault by means of force likely to produce great bodily injury. He remained in custody throughout these proceedings.
On June 26, 2015, the Kern County Department of Human Services (Department) filed a petition alleging (1) Mason was at risk of suffering serious physical harm inflicted nonaccidentally by a parent or as a result of a parent’s failure to adequately protect him (§ 300, subd. (a)), and Mason, who was under the age of five, suffered severe physical abuse by a parent or another person known by the parent, and the parent knew or reasonably should have known that person was physically abusing the child (§ 300, subd. (e)). Mason was discharged from the hospital the same day and placed in a foster home.
In a July 2015 interview with social workers, father denied physically abusing Mason and told them he suspected the maternal grandmother caused Mason’s injuries. That same month, Mason’s mother, Sara G., told a social worker that she did not know how his injuries occurred and denied knowing that father had abused Mason. In an August 2015 interview, however, she told a social worker she suspected the maternal grandmother. A police detective told a social worker in August 2015 that mother and father had been interviewed twice – on the day of the incident and a couple days later. During his first interview, father told police he “might have shook him too hard but that wasn’t my intention.” Neither parent said anything about the maternal grandmother doing anything to Mason during their first interviews, and mother did not mention that during her second interview. During his second interview, father “decided it was the grandmother” and gave a different story; father had given possibly three or four different versions of what happened since the initial interviews.
At first doctors believed that Mason would be severely neurologically debilitated. An MRI performed on Mason in November 2015, however, revealed that Mason only had a small amount of fluid on the left side of his brain. The doctor told the foster parent he considered Mason’s progress “a miracle” since the entire brain area was completely covered in fluid when he was admitted to the hospital. The doctor believed Mason would have only a minimal amount of impairment and would be able to function within normal limits if he was “taught properly.”
The jurisdiction hearing was held on December 1, 2015, after it was continued twice: (1) first on August 19, 2015, at the request of mother’s attorney, joined by father’s attorney, to have additional time to consult with an orthopedic specialist due to the complexity of the case; and (2) again on October 19, 2015, at the request of mother’s attorney to review interview videos and because father’s attorney was unavailable. At the December 1 hearing, father and mother both submitted on the Department’s reports without presenting additional evidence. After ensuring mother’s and father’s waivers of their right to a hearing were knowing and voluntary, the juvenile court found the petition’s allegations true and set a disposition hearing for January 6, 2016.
The disposition hearing was continued several times and ultimately held on May 12. The Department recommended denial of reunification services for both parents. The Department was not convinced that father was the sole source of Mason’s multiple injuries, as the parents both indicated maternal grandmother, who had given different statements to the social worker and police, had cared for Mason alone. Nevertheless, both parents failed to protect Mason.
Mother’s attorney asked the juvenile court to consider providing her with reunification services; father’s attorney joined in that request, but did not have any further evidence to present. The juvenile court adjudged Mason a dependent, removed him from parental custody, denied reunification services to both parents under section 361.5, subdivision (b)(5) and to father under section 361.5, subdivision (b)(6), granted mother one-hour monthly supervised visits, denied visitation to father, and set a section 366.26 hearing for September 9.
In a report prepared for the section 366.26 hearing, the Department recommended termination of parental rights and that Mason be freed for adoption. When Mason was discharged from the hospital, he had ongoing medical needs that required follow-up care from numerous departments at VCH. Mason subsequently was discharged from all departments, except neurosurgery and neuropsychology, as he no longer needed medical care. Mason’s retinal hemorrhages were treated with laser eye surgery and his vision improved. When Mason was four months old, he qualified for early intervention services, which he received in the foster home. An August 2016 developmental evaluation determined that 17-month-old Mason was delayed in his personal/social, language, and fine and gross motor skills. Mason was referred to physical therapy due to concerns about his gait while walking – he was not able to balance when standing upright or walking.
The Department considered Mason to be “specifically adoptable” because his current caretaker, with whom Mason had been placed since June 2015, was committed to adoption despite Mason’s medical and developmental needs, and not knowing the full consequences of the trauma he experienced. Moreover, Mason would not suffer severe emotional trauma if parental rights were terminated, as Mason had a minimal relationship with mother and no relationship with father. The Department believed Mason would experience no detriment were he freed from parental control.
At the September 9 hearing, father’s attorney informed the juvenile court that she had received a copy of an email that morning from father’s criminal defense attorney, in which the defense attorney stated he “had top physicians in the field who had new evidence” that father did not injure Mason as Mason had medical conditions which would account for his injuries. Father’s attorney asked for a brief continuance to speak with the defense attorney and determine if filing a section 388 petition was warranted. Mason’s attorney did not object to a continuance, but the Department did, with County counsel questioning whether a section 388 petition could be used to reopen jurisdiction.
The juvenile court granted the continuance so father’s attorney could determine what the evidence was, and set the continued hearing for October 17. The juvenile court ordered that if, after reviewing the evidence, father’s attorney wanted to file a section 388 petition, she should filed the petition along with a brief on the issue of whether that was the proper vehicle to reconsider the jurisdictional findings, so there would not be a question about what she expected to present and the authority for pursuing it through a section 388 petition. The juvenile court set a briefing schedule for responsive and supplemental briefs.
Father’s attorney subsequently filed both a section 388 petition and a brief on whether new evidence could be presented through a section 388 petition at a section 366.26 hearing. The petition asserted that since the jurisdiction and disposition hearings, new evidence had come to light that was not previously available which showed that father was not responsible for Mason’s condition on May 21, 2015, and ultimately showed Mason did not suffer any injuries other than a rib fracture likely caused during CPR. The petition asked the court to either reverse the jurisdictional findings or set a new jurisdiction hearing to allow father to present the evidence that was not previously available to him.
Father’s attorney explained the criminal defense attorney found two experts, Drs. Charles Hyman and Janice J. Ophoven, to review the records. Those experts would testify Mason had only one fracture when he came to the hospital, namely the rib fracture that was consistent with Mason receiving CPR, and the other alleged fractures were actually harmless bone lesions consistent with a metabolic bone condition caused by Mason’s vitamin D deficiency. Moreover, Dr. Ophoven believed the allegations of “shaken baby syndrome” were a rush to judgment, since the syndrome is over diagnosed and in this case, was misdiagnosed. Dr. Ophoven opined Mason suffered an episode of apnea associated with vomiting and seizures, and there was no scientific basis for the opinion of doctors and law enforcement that Mason’s symptoms resulted from violent shaking. Attached to the petition were Dr. Ophoven’s preliminary findings, Dr. Ophoven’s letter discussing the history of shaken baby syndrome and how it is no longer a reliable theory, Dr. Hyman’s initial findings, and the doctors’ curricula vitae.
In her brief, father’s attorney argued that it was clear that if father had new evidence to present regarding previous court findings, the correct vehicle to petition the court was by a section 388 petition. Father’s attorney asserted that father’s petition outlined new evidence that had become available from other experts and there was no other way for him to present the new evidence to the court. Father asked the court to review the evidence in the section 388 petition and set a hearing to consider the new evidence and determine if its previous findings should be reversed.
On September 29, the juvenile court signed a form JV-183 “Court Order on Form JV-180, Request to Change Court Order[,]” and completed the portion of the form order which stated it was ordering a hearing for October 17 on the section 388 request because the best interest of the child may be promoted by the request. The court left blank the portion of the form that stated “The court orders a hearing on whether the court should grant or deny an evidentiary hearing.”
On October 3, the Department filed a brief asking the court to deny the section 388 petition without a hearing because father had not made a sufficient showing to justify granting the hearing. Relying on H.S., supra, 188 Cal.App.4th 103, the Department argued the evidence father presented was not new evidence within the meaning of section 388, but only different opinions on the evidence available at the December 1, 2015 jurisdiction hearing, and therefore father had not met his burden under section 388.
On October 17, the juvenile court held a combined section 388 and section 366.26 hearing. The juvenile court began with the section 388 petition, stating that it had reviewed the briefs and its indicated ruling was that the case the Department cited, H.S., was on point, but it was giving “an opportunity to respond, obviously, counsel, before I make that my opinion for the court.” Father’s attorney asserted she believed that by setting a hearing on the petition, the juvenile court had agreed the section 388 petition was the appropriate way to present father’s evidence, and while she was not prepared to present the evidence that day, she intended to ask the court to continue the matter so she could get the experts there in person. She did not expect to argue the appropriateness of the section 388 petition. Nevertheless, on that issue, father’s attorney explained that she learned of the evidence on the day she made it known to the court, and asked that father be given a chance to have the evidence heard and ruled on, as it would be a grave injustice to take away parental rights if Mason had a medical issue instead of having been injured. Father’s attorney had been in contact with the experts, who would be available in early December for father’s criminal trial and were willing to coordinate with the dependency court.
County counsel argued that, assuming section 388 was the proper vehicle, the petition did not meet the threshold criteria as father’s attorney had not provided any evidence in the form of sworn affidavits or declarations, the facts were similar to H.S., and with due diligence, father’s and mother’s attorneys could have found these experts months ago and presented the evidence at the jurisdiction hearing. County counsel asked the juvenile court to move forward with the section 366.26 hearing.
Father’s attorney responded that the evidence was not available at that time even with due diligence because the experts only rendered their opinions recently. While father’s attorney did seek out an expert opinion, “they did not make these same findings.”
The juvenile court found the section 388 petition did not state new evidence and the ruling in H.S. was “on all fours as far as this court is concerned with this case before us.” The court adopted the Department’s reasoning as it references H.S., supra, 188 Cal.App.4th 103.
Turning to the section 366.26 hearing, father’s and mother’s attorneys both submitted on the reports without presenting further evidence. The juvenile court terminated parental rights and ordered a permanent plan of adoption.
DISCUSSION
Father contends the juvenile court erred in denying his modification petition because he presented new evidence that severely undermined the basis for dependency jurisdiction. The Department replies the expert opinions of Drs. Hyman and Ophoven did not constitute new evidence because their opinions were based on the facts that supported the juvenile court’s jurisdictional findings.
Section 388 allows a parent with an interest in a dependent child to petition the juvenile court to change, modify, or set aside any previous order. (§ 388, subd. (a).) “If it appears that the best interests of the child … may be promoted by the proposed change of order, . . . the court shall order that a hearing be held and shall give proper notice . . . .” (§ 388, subd. (d).) A court presented with a section 388 petition has two choices: (1) summarily deny the petition or (2) hold a hearing. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) “In order to avoid summary denial, the petitioner must make a ‘prima facie’ showing of ‘facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.’ [Citations.] ‘[I]f the petition fails to state a change of circumstances or new evidence that might require a change of order, the court may deny the application ex parte. [Citation.]’ [Citation.] On the other hand, ‘if the petition[s] present any evidence that a hearing would promote the best interests of the child, the court will order the hearing.’ ” (Ibid.)
The parties disagree on whether the juvenile court’s denial of the petition constituted a summary denial or a denial after an evidentiary hearing. Father submits the juvenile court denied him a hearing on the petition, which would require us to review the juvenile court’s ruling de novo. The Department asserts the juvenile court held a hearing on the petition, and therefore our review is for abuse of discretion.
On this record, we agree with father that the juvenile court did not hold an evidentiary hearing, and instead denied father a hearing after determining the evidence father offered was not in fact new. This is borne out by (1) the juvenile court’s comments at the September 9 hearing that it wanted to first determine whether a section 388 petition was the proper vehicle to present new evidence based on the parties’ briefs, (2) its setting of the October 17 hearing date at the September 9 hearing in order to make that determination, and (3) its comments at the October 17 hearing that it ordered the briefing so it would “know how to proceed if this was the appropriate way to go[,]” and it did not “think it was proper to deny [the petition] outright without having looked at it for the purpose of determining what would be a part of that.” While father’s attorney was led to believe the juvenile court had ordered an evidentiary hearing presumably because of the September 29 order, the juvenile court disabused her of this belief at the October 17 hearing and permitted argument only on the issue of whether the evidence was new, not on the merits of the petition.
We do not necessarily agree, however, that a summary denial of a petition calls for de novo review. Indeed, the weight of authority suggests that we review the summary denial of a section 388 petition without an evidentiary hearing for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079; In re Angel B. (2002) 97 Cal.App.4th 454, 460; In re Anthony W. (2001) 87 Cal.App.4th 246, 250; In re Aljamie D. (2000) 84 Cal.App.4th 424, 431, 433.) Citing a civil case that does not involve dependency, Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 184, father asserts that a juvenile court’s denial of a hearing is reviewed de novo because it rests on whether the moving party has failed to make a prima facie showing. We need not resolve the issue because, even applying the non-deferential de novo standard of review, we conclude the petition was insufficient to warrant a hearing.
To obtain a full hearing, a parent must make a prima facie showing of both (1) a change of circumstances or new evidence, and (2) that the proposed change is in the child’s best interests. (In re Jackson W. (2010) 184 Cal.App.4th 247, 257.) Here, the juvenile court denied a hearing because it found Dr. Hyman’s and Dr. Ophoven’s opinions did not constitute new evidence within the meaning of section 388. In so finding, the juvenile court determined the case was controlled by the Third District Court of Appeal opinion in H.S., supra, 188 Cal.App.4th 103, in which the appellate court held that the belated submission of an expert’s opinion that was based on evidence available at the jurisdiction hearing does not constitute new evidence within the meaning of section 388, subdivision (a). (H.S., supra, 188 Cal.App.4th at pp. 105, 108-110.)
In H.S., the child suffered injuries which a medical assessment had concluded were deliberately inflicted. Three months after the jurisdiction hearing, the parents filed a section 388 petition to vacate the jurisdictional findings based on purported new evidence – the opinion of an expert who had reviewed the medical records and reports, and opined there were other explanations for the injuries, which opinion conflicted with the expert opinions presented at the jurisdiction hearing. (H.S., supra, 188 Cal.App.4th at pp. 106-107.) The juvenile court denied the petition without holding an evidentiary hearing, ruling the belated opinion was not new evidence. (Id. at p. 107.)
Since section 388 does not define the term “new evidence,” the appellate court looked to authorities interpreting Code of Civil Procedure sections 657 and 1008, which allow parties to move for a new trial or seek review of a prior court order based on newly discovered evidence or new facts. (H.S., supra, 188 Cal.App.4th at pp. 107-108.) Under these statutes, parties seeking reconsideration are generally required to “ ‘ “provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time,” ’ ” and to state why they could not “ ‘ “with reasonable diligence, have discovered and produced [the evidence] at the trial.” ’ ” (H.S., supra, 188 Cal.App.4th at p. 108, italics omitted.)
The appellate court stated the public policy underlying the requirements for motions for reconsideration or a new trial – that litigants must use great care in preparing cases for trial and ascertaining facts, and allowing the reopening of previously decided cases simply because a party identifies evidence that could have been presented at trial would vitiate the effects of the rules of res judicata – applied even more forcefully to dependency cases. (H.S., supra, 188 Cal.App.4th at p. 108.) This is because “delay is antithetical to the primary focus of dependency proceedings, the best interests of the child.” (Ibid.) Accordingly, the appellate court concluded “the term ‘new evidence’ in section 388 must be construed to include the three requirements of new evidence, reasonable diligence, and materiality found in sections 675 and 1008 of the Code of Civil Procedure.” (H.S., supra, 188 Cal.App.4th at pp. 108-109.)
Applying those requirements to the facts before it, the appellate court pointed out the section 388 petition relied on the new expert’s opinion that was based on old evidence available at the time of trial and that, with due diligence, could have been presented at trial. The fact the new expert interpreted the evidence differently than the medical doctors who testified at the jurisdiction hearing did not make his opinion “new evidence” within the meaning of section 388. (H.S., supra, 188 Cal.App.4th at p. 109.) Moreover, the new expert’s opinion was not based on additional facts obtained after the jurisdiction hearing; instead, the expert reached his opinion “based on the same evidence available to the experts who testified at trial and simply came to a different conclusion than theirs.” (Ibid.) Finally, the above-stated public policy, along with “the need for prompt resolution and finality of juvenile dependency proceedings in order to protect the best interests of the child,” supported the appellate court’s holding. (Ibid.) Since the new expert’s opinion was based on evidence available at the time of trial, the juvenile court did not abuse its discretion in ruling that the appellant was not entitled to a hearing on the section 388 petition. (H.S., supra, 188 Cal.App.4th at pp. 109-110.)
The evidence that father submitted here was precisely the type the appellate court found to be insufficient to trigger the right to a hearing in H.S. Dr. Hyman’s opinion, which was provided to father’s criminal defense attorney in August 2016, was an interpretation of evidence available at the time of the December 2015 jurisdiction hearing. Dr. Ophoven’s report dated September 6, shows that her opinion also was based on a review of materials available at the time of the jurisdiction hearing, including the November 2015 MRI. Moreover, with due diligence these opinions could have been presented at the jurisdiction hearing – there is nothing to suggest that these experts were not available for consultation before December 2015.
Father argues H.S. is distinguishable because he provided an explanation below as to why the new evidence could not reasonably have been discovered and presented sooner – namely that while his attorney did attempt to find a medical expert who would offer a different opinion than the hospitals’ doctors, she could not find one. He claims this is because, according to Dr. Ophoven, a diagnosis of shaken baby syndrome was based on misconceptions that were now proven to be unsound and the “science of head trauma has evolved over the years[,]” which shows her opinion was based on recent developments in the science of head trauma. He also argues Dr. Ophoven’s opinion was based, in part, on evidence that was not available until after the jurisdiction hearing – namely how Mason was doing 16 months after the incident.
The evidence he points to, however, is not new evidence that was not available at the time of the December 2015 jurisdiction hearing. Dr. Ophoven’s “summary of current issues regarding the condition commonly referred to as ‘Abusive Head Trauma/Shaken Baby Syndrome’ ” provides a timeline of the theory, citing numerous medical studies ranging from the 1970’s to 2012, along with an outline of the changes and evolution of the theory from 2001 to 2013, which show “a fundamental change in physician’s understanding of pediatric head injury in the last 5-6 years.” While the summary shows there have been recent developments in head trauma, those developments had been chronicled before the jurisdiction hearing. Dr. Ophoven’s opinion that Mason’s doctors’ conclusion that his injuries were caused by violent shaking was based on “currently outdated theories” concerning so-called shaken baby syndrome was not based on a new theory or even a newly emerging theory, but rather on a theory that existed at the time of the jurisdiction hearing.
Similarly, Dr. Ophoven’s statement in her report that “review of records indicates the child is doing very well without significant residual neurological deficits,” does not indicate that her opinion was based on evidence that was not available at the time of the jurisdiction hearing. Because Dr. Ophoven’s report is dated September 6, father assumes Dr. Ophoven relied on Mason’s condition as of that date in rendering her opinion. The report, however, contains an extensive list of the materials Dr. Ophoven reviewed in preparing her report, which included hospital records, police reports, and documents from the Department. While some documents are undated, the dated ones are all from 2015, including Mason’s November 2015 MRI. Only two social studies are listed – a “Social Study” and a “Social Study-Supplemental.” Given that Dr. Ophoven based her assertion that Mason was doing very well on her review of the records, which were from 2015 and included only two social studies, Dr. Ophoven’s opinion concerning Mason’s progress was based on records that were available at the time of the jurisdiction hearing. Moreover, Dr. Ophoven’s opinion was not based on Mason’s progress, but rather her opinions that shaken baby syndrome had been misdiagnosed, Mason had an underlying metabolic bone condition, other conditions could have caused the retinal hemorrhages, Mason may have experienced rough handling by his caretakers, and the abnormalities in the case may have a more innocuous explanation. In sum, the evidence on which Drs. Hyman and Ophoven based their opinions was available at the time of the jurisdiction hearing.
Father alternatively argues that H.S. was wrongly decided and we should not follow it. He asserts the holding in H.S. “places judicial economy above obtaining the newest and most relevant medical knowledge surrounding the assertion of dependency jurisdiction, concluding that would serve the child’s best interest.” He contends the dependency system’s goals of protecting a child’s welfare and safeguarding the parents’ rights to raise their children are not advanced when a court is prevented from considering “newly-discovered medical knowledge which could undermine a dependency case, simply for the sake of judicial economy.”
Father contends the proper question is not whether the new expert’s opinion constitutes “new evidence,” but rather whether the proponent could have reasonably brought the evidence forward earlier; that an expert’s opinion is itself evidence; and that an expert’s opinion based on new or emerging medical knowledge is, by definition, “new evidence.” He claims we must reject the blanket exclusionary rule implied by H.S., namely that new evidence may never disturb a prior jurisdictional finding, even if based on newly-discovered scientific knowledge. He further claims that in dependency cases where the entire case is later shown to be based on an outdated or questionable medical theory, the parent must be afforded an opportunity to alert the court of the new medical knowledge and explain why it was unavailable earlier.
We decline father’s invitation to depart from H.S. Contrary to father’s assertion, H.S. does not preclude a court from finding that an expert’s belated opinion constitutes new evidence within the meaning of section 388 if that opinion is based on new medical knowledge. What would be relevant, however, is whether that medical knowledge existed and was accessible at the time of the jurisdiction hearing. As we have already explained, that was the case here with Dr. Ophoven’s opinions concerning shaken baby syndrome, which were available in December 2015. Since Dr. Ophoven’s belated opinion concerning shaken baby syndrome was not based on medical knowledge that was unavailable at the time of the jurisdiction hearing, the public policies discussed in H.S. apply with equal force here and justify the juvenile court’s ruling that father was not entitled to an evidentiary hearing on his section 388 petition.
Finally, father contends that even if the opinions of the new experts did not automatically trigger a hearing, remand is required so the juvenile court can exercise its discretion and determine whether he could have reasonably presented the new evidence sooner, a finding father contends the juvenile court was required, yet failed, to make. Relying on the principle that the failure to exercise discretion is an abuse of discretion (Dickson, Carlson & Campillo v. Pole (2000) 83 Cal.App.4th 436, 449), he claims the juvenile court’s failure to determine whether he made a sufficient due diligence showing was an abuse of discretion and the matter must be remanded because the juvenile court failed to exercise its discretion.
It appears father is arguing that even if the experts’ opinions were not based on new evidence, he could still establish a prima facie case if the evidence could not have been discovered and produced with reasonable diligence. He claims he has shown that here, since his attorney stated she attempted to retain an expert before the jurisdiction hearing, yet the juvenile court failed to evaluate his claim.
We disagree that the juvenile court did not evaluate whether his attorney exercised due diligence. When his attorney explained the evidence was not available at the jurisdiction hearing, even with due diligence, because the experts had only rendered their opinions recently, the juvenile court asked how that was different “from what’s stated in H.S.” Father’s attorney responded that the evidence was not known to her and she sought out an expert opinion, but the expert she found did not make the same findings as the experts the criminal defense attorney discovered. The juvenile court then stated there was no new evidence, adopted its indicated ruling, and stated “the ruling in H.S. is on all fours” with the present case. In our view, by referencing H.S., the juvenile court was adopting its reasoning, and impliedly found that father’s attorney, with due diligence, could have presented Dr. Hyman’s and Dr. Ophoven’s opinion testimony at the jurisdiction hearing. Although father’s attorney had unsuccessfully attempted to find an expert, there is nothing to suggest that she could not have located these experts before the jurisdiction hearing.
In sum, as the testimony father sought to present was based on evidence available at the time of the jurisdiction hearing 10 months earlier, the juvenile court did not err in determining he failed to make a prima facie case of “ ‘new evidence’ ” showing that “ ‘the best interests of the child may be promoted by the proposed change of order.’ ” (H.S., supra, 188 Cal.App.4th at pp. 109-110.)
DISPOSITION
The juvenile court’s orders are affirmed.



GOMES, J.
WE CONCUR:



HILL, P.J.



LEVY, J.