In re C.P.
I. FACTUAL BACKGROUND
The child (born 2011) was removed from mother‘s custody in May 2017, after he was sexually abused by a maternal uncle; at the time of removal, mother, child, and uncle all resided in the home of the grandparents. The uncle is now incarcerated on a 20-year sentence for child molestation. Mother has been out of contact with CFS, and reportedly has moved out of state. The child was initially placed with a foster family, but in June
Mother failed to reunify with the child. The child was ordered to remain in the group home under a planned permanent living arrangement, with the goal of identifying an appropriate placement for legal guardianship.
The grandparents started the resource family approval process, with the goal of having the child placed in their care, almost immediately after the child was removed from mother‘s custody in May 2017. The grandparents have been involved in the regular child and family team meetings for the child, and at least at some points have been designated as the educational rights holders for the child. They have also maintained contact with the child, making a two-hour drive to visit with him weekly once their visitation was approved in October 2017; a social worker characterized grandparents as the “only constant” in the child‘s life. The grandparents’ visitation was initially supervised, but in November 2018 “four hour Saturday visits off site” were approved. The child was allowed to spend almost two weeks in the grandparents’ home for the 2018 holidays, staying with them from December 21, 2018 to January 2, 2019. By January 2019, in the judgment of the group home, the child had made “significant progress” with respect to his developmental issues, and was “ready and willing to transition into living with his grandparents,” though a transition to a different placement would raise concerns due to his “need for routine and anxiety with new places/situations.” In February 2019, with the agreement of the social worker, the juvenile court gave CFS authority to allow
During the process, however, a criminal background check revealed that the grandfather had a 1991 misdemeanor conviction under
Grandfather successfully took steps to have his name removed from the Child Abuse Central Index (CACI), the database maintained by the California Department of Justice regarding reports of known or suspected child abuse or severe neglect. (See In re C.F. (2011) 198 Cal.App.4th 454, 462-463 [discussing CACI and process of removing reports from CACI].) Grandfather also obtained a dismissal of the charge pursuant to
During a team meeting in January 2019, the child stated “‘I love my grandma and grandpa and I want to live with them forever.‘” At a post permanency review hearing in February 2019, the child again expressed that he wished to live with the grandparents by stating “I want to go home,” and confirming that “home” meant his grandparents’ house. The child‘s counsel noted, however, that “placement is not looking likely anytime soon” because of grandfather‘s “nonexemptible criminal history and prior CACI hits.” The juvenile court appointed counsel for the grandparents, and requested briefing on the issue of whether a “misdemeanor 28 years ago” could preclude any exercise of “independent judgment” regarding the child‘s placement.
At a hearing in April 2019, the juvenile court agreed with CFS‘s analysis of the law, and denied “the grandparents’ request to be reassessed . . . .”
II. DISCUSSION
We consider here whether the absolute statutory bar to placement of the child with grandparents, triggered by grandfather‘s misdemeanor conviction from 1991, is unconstitutional as applied.5 If this question is answered in the affirmative, CFS should be required to reconsider grandparents’ request for an exemption starting from the premise that grandfather‘s conviction is generally disqualifying but potentially exemptible in exceptional circumstances, based on an individual analysis. We hold that
A. Background Regarding Resource Family Approval Process
The resource family approval process is intended to be an expedited assessment of individuals and families to provide foster care and become legal guardians or adoptive families for dependent children. (
The home environment assessment standards include a “criminal record clearance of each applicant and all adults residing in, or regularly present in, the home . . . .” (
When resource family approval has not yet been granted, a child may be placed on a temporary emergency basis with a relative or nonrelative extended family member. (
B. Standing
CFS argues that the grandparents lack standing because they were not “directly injured” by the juvenile court‘s order that the child remain in his current placement. We reject this argument.
In substance, grandparents’ constitutional challenge is fairly construed not as a challenge to the juvenile court‘s order regarding the child‘s placement, but rather its
C. Separation of Powers
The grandparents contend that the statutory bar to placement of the child with them because of the grandfather‘s conviction violates the doctrine of separation of powers “by giving the legislature, instead of the juvenile court, the power to determine the best interests of the children, especially where it does so without fully considering the totality of the child‘s circumstances.”
Grandparents offer no authority establishing that determination of a dependent child‘s best interests generally, or the determination of whether to place a child with someone despite a prior criminal conviction more specifically, should be viewed as constitutionally vested only in the judicial branch. (See Carmel Valley Fire Prot. Dist. v. State of California (2001) 25 Cal.4th 287, 298 (Carmel Valley) [purpose of separation of powers doctrine “‘is to prevent one branch of government from exercising the complete power constitutionally vested in another’ . . . “].) To the contrary, all three branches of government are properly involved. For example, the decision to grant or deny a criminal records exemption is an executive one subject to administrative review. (In re M.L., supra, 205 Cal.App.4th at p. 227.) The judiciary may review an agency‘s ruling on an exemption request as part of the dependency proceeding, as the juvenile court did here, or on writ review from denial of administrative relief. (In re Esperanza C., supra, 165 Cal.App.4th at pp. 1058-1059.) The judiciary reviews the agency‘s decision for abuse of
Grandparents emphasize that
D. Due Process
Grandparents concede that the juvenile court correctly determined that, under the statutory scheme, grandfather‘s conviction is nonexemptible. They contend, however, that because that statutory scheme places an absolute bar on the child ever being placed with them, based solely on the Penal Code section of grandfather‘s conviction and not on any individualized determination of their circumstances, it violates their constitutional right to due process. We agree that the absolute statutory bar may be unconstitutional as to grandparents, and therefore unenforceable as to them, depending on factual findings that need to be made by the trial court in the first instance.
“The due process clause protects substantive fundamental liberty interests against unreasonable government interference.” (In re H.K. (2013) 217 Cal.App.4th 1422, 1432.) In addressing a substantive due process argument, we first identify the liberty
Courts have generally rejected the proposition that grandparents, in their capacity as grandparents and without more, have a constitutionally protected interest in their relationship with the grandchild. (See In re Brittany K. (2005) 127 Cal.App.4th 1497, 1508 [noncustodial grandparent of juvenile court dependents have no substantive due process right to free association with minors, or to maintain a relationship with them]; In re R.J. (2008) 164 Cal.App.4th 219, 225 [recognizing absence of authority for the proposition that a grandparent has a constitutionally protected interest in the custody and care of his or her grandchild]; Miller v. California (9th Cir. 2004) 355 F.3d 1172, 1175 [“While there is no question that parents have a constitutionally protected liberty interest in making decisions about the care, custody, and control of their children [citations], we have never held that any such right extends to grandparents“]; but see Drollinger v. Milligan (7th Cir. 1977) 552 F.2d 1220, 1227, fn. 6 [stating, without further analysis: “The nuclear family has traditionally constituted the unit afforded the protection of due
It is well-established, however, that essentially parental bonds may develop between a child and a caregiver, including a grandparent, who are not biologically parent and child, and courts have often found these parental relationships to be constitutionally protected. (See In re H.K., supra, 217 Cal.App.4th at p. 1435; see also In re Bridget R. (1996) 41 Cal.App.4th 1483, 1503-1504, 1507, superseded by statute on another ground as stated in In re Santos Y. (2001) 92 Cal.App.4th 1274, 1311-1312 [finding children in care of prospective adoptive parents to have a “presently existing fundamental and constitutionally protected interest in their relationship with the only family they have ever known“].) Grandparents argue that their bond with the child falls within this constitutionally protected category of relationship.
Grandparents rely primarily on New York authority involving circumstances where the child had long been living with the caretakers as parent and child. In Matter of Abel (N.Y. Fam. Ct. 2011) 33 Misc.3d 710, the child had formed an “‘inseparable bond‘” with maternal relatives who had served as his parents since his birth and who wished to adopt him, but were disqualified from adopting by a conviction from 12 years before the child was born. (Id. at pp. 711-713.) The children in In re Adoption of Jonee (N.Y. Fam. Ct. 1999) 181 Misc.2d 822 had lived for seven years with an aunt who wished to adopt them, who they “viewed as a ‘loving parent,‘” and with whom they shared a “‘deep bond.‘” (Id. at pp. 824-825.) The children were nevertheless being removed from the
We are persuaded that the reasoning of these New York courts, grounded in federal constitutional principles, applies equally well in this state. A permanent, irrebuttable statutory presumption regarding certain convictions—no matter what the underlying facts, no matter how long ago, and no matter the characteristics of the parent apart from the conviction—may not, consistent with the California State and United States Constitutions, absolutely disqualify an adult who shares a parental bond with a child from ever having that child placed in their care. Due process principles require, at the least, an individualized, case-by-case analysis, rather than the placement of an adult
On the present record, we find it possible that grandparents have developed a relationship with the child that amounts to the sort of “bonded, quasi-family relationship that courts have found worthy of protection as a fundamental interest.” (In re H.K., supra, 217 Cal.App.4th at p. 1435.) Among other things, the record makes it obvious that the child loves his grandparents and views their house as his “home.” As well, a social worker viewed grandparents as the “only constant” in the child‘s life—and endorsed overnight, unsupervised visitation, sometimes extended for days and even weeks at a time—which also supports the conclusion that grandparents have served a fundamentally parental role in the child‘s life.
Moreover, on the present record, we find it plausible that, absent the absolute statutory bar, CFS would have found grandfather‘s conviction to be exemptible. In the absence of an absolute statutory bar cutting short the analysis, an agency considering whether to grant a criminal records exemption is required to consider factors “including, but not limited to, the following as evidence of good character and rehabilitation: the nature of the crime and whether it involved violence or a threat of violence to others; the period of time since the crime was committed and the number of offenses; circumstances surrounding the commission of the crime that would demonstrate the unlikelihood of
We emphasize that the Legislature‘s determination that an offense constitutes an absolute bar to placement must still be considered as the starting point in the analysis when it applies, even though due process requires that a person who has a parental relationship with a child receive a more individualized determination when placed in a broad category for disqualification.8 And for crimes normally subject to an absolute statutory bar on exemptions, the first factor listed in Esperanza C.—the nature of the crime and whether it involved violence or a threat of violence to others—will often weigh strongly, even dispositively, in favor of denial. That may not be so, however, for a misdemeanor conviction like grandfather‘s, which arose, so far as we can tell from the record, from circumstances involving only minimal violence and no injury to any victim. Also, the other factors, so far as we can determine, are either neutral or weigh in favor of
Nevertheless, the record we have before us is limited, and in this appeal, at least, CFS has contested whether grandparents’ relationship with the child should be viewed as parental. We cannot determine how long the child and his mother were living with grandparents before the child was removed, and the record has only sparse information about the circumstances of that cohabitation. The child resided in the grandparents’ house, but it was the child‘s mother who had custody of him. By the April 2019 hearing, the child had not resided with the grandparents for two years. By the time this opinion issues, approximately another year of the child living in a group home will have elapsed. Our limited record shows no reason to conclude that the child has formed parental bonds with any other parental figures during this time. Although visitation with grandparents was going well as of April 2019, nothing in the record speaks to current circumstances, whether positive or negative. Furthermore, our record contains only grandfather‘s own, possibly self-serving description of the circumstances giving rise to his 1991 conviction. It may be that there is another side to that story that needs to be taken into account in deciding whether an exemption should be granted, even though we hold due process
In other dependency contexts, the existence of a parental relationship is generally a factual determination for the juvenile court to make in the first instance. (See, e.g., In re Anthony B. (2015) 239 Cal.App.4th 389, 395 [regarding determination of whether there is a beneficial parental relationship for purposes of statutory exception to termination of parental rights].) Here, grandparents’ constitutional argument, premised on the existence of a parental relationship with the child, was raised for the first time on appeal, so the juvenile court has never had the opportunity to consider whether their relationship with the child is the sort of “bonded, quasi-family relationship that courts have found worthy of protection as a fundamental interest.” (In re H.K., supra, 217 Cal.App.4th at p. 1435.) We conclude that the matter should be remanded for the trial court to make that predicate factual determination in the first instance.
III. DISPOSITION
The juvenile court‘s order denying grandparents’ request for an order that CFS reassess their application to be approved as a resource family is reversed, and the matter is remanded for the trial court to take evidence and make factual findings about whether grandparents’ relationship with the child is the sort of “bonded, quasi-family relationship” that should be deemed “worthy of protection as a fundamental interest.” (In re H.K., supra, 217 Cal.App.4th at p. 1435.). If the juvenile court finds that grandparents’ relationship with the child is worthy of such protection, it shall direct CFS
CERTIFIED FOR PUBLICATION
RAPHAEL
J.
We concur:
CODRINGTON
Acting P. J.
SLOUGH
J.