In Re Esperanza C.
McINTYRE, J.
Appellants, the minor, Esperanza C., and her mother, Laura C., appeal orders denying their petitions for modification under
When a child is removed from parental custody, the Legislature prefers placement with the child‘s relatives, whenever possible. (In re Antonio G. (2007) 159 Cal.App.4th 369, 376-377 [71 Cal.Rptr.3d 79].) If a relative has a disqualifying criminal conviction, the child cannot be placed in the relative‘s home without a grant of a criminal records exemption (exemption) by the State Department of Social Services or its county designee (agency). (
As a matter of first impression, we hold that the juvenile court has jurisdiction to review the agency‘s denial of a criminal records exemption for abuse of discretion. (Cf. Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 732-734 [68 Cal.Rptr.2d 239] (DSS); Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2001) 87 Cal.App.4th 1161, 1166-1167 [105 Cal.Rptr.2d 254] (Valerie A.).) If the juvenile court determines the agency has abused its discretion in the criminal records exemption process, the court‘s authority under
FACTUAL AND PROCEDURAL BACKGROUND
Esperanza C. was born in June 2006. Her father was not identified. Esperanza‘s mother, Laura C., had an extensive history of substance abuse and involvement with child protective services. The juvenile court had terminated Laura‘s parental rights to three older children, who were adopted by relatives.
In January 2007 the San Diego County Health and Human Services Agency (Agency) detained Esperanza in protective custody and initiated dependency proceedings. (
On February 7, 2007, the court sustained the section 300 petition and removed Esperanza from parental custody. The court bypassed reunification services and set a section 366.26 hearing. (
On March 20, 2007, the Agency denied the C.‘s request to place Esperanza in their home. Steve had been convicted in 1978 for contributing to the delinquency of a minor under
The Agency was also concerned about child abuse referrals it had substantiated against Shannon in 1989 and the C.‘s in 1992. The C.‘s children were removed from parental custody in 1992 because of substance abuse and domestic violence. The family reunified in 1996. The Agency did not recommend Esperanza‘s placement with the C.‘s because of their child protective history and Steve‘s criminal convictions.
Steve asserted that his
On July 10, 2007, the Agency placed Esperanza in a prospective adoptive home. On July 19 Esperanza and Laura filed section 388 petitions asking the court to review the Agency‘s placement decision for abuse of discretion and to place Esperanza with the C.‘s. The section 388 petitions alleged the Agency abused its discretion when it denied the C.‘s home evaluation and Esperanza‘s best interests would be promoted by placement with a relative.
Without making prima facie findings, the court granted a hearing on the petitions, and asked the parties to brief whether
On August 21, 2007, the court stated it had read and considered the case file and memoranda of points and authorities. The court clarified with county counsel that the Agency sought a criminal records exemption but the administrative body indicated they were not going to grant an exemption. Minor‘s counsel told the court that Steve tried to submit information to show the
The court found that Steve‘s
APPELLATE PROCEEDINGS
On February 26, 2008, Laura filed a request with this court to take judicial notice of the C.‘s notice of appeal, filed October 19, 2007, and this court‘s order of November 1, 2007, dismissing the C.‘s appeal for lack of standing. (
On April 24, 2008, Laura filed a motion with this court to take additional evidence under section 909 of the Code of Civil Procedure. The Agency opposes the request. On May 8 this court ordered the request for additional evidence to be considered concurrently with the appeal. We deny the motion.
DISCUSSION
A
Appellants contend the Agency incorrectly interpreted
The Agency does not address appellants’ contention the Agency erred when it classified
Before we discuss the merits of the parties’ contentions, we address the Agency‘s arguments appellants lack standing and the appeal has been rendered moot by subsequent proceedings.
B
The Agency contends appellants lack standing to appeal the court‘s denial of their section 388 petitions. It argues appellants were not aggrieved by the denial of their section 388 petitions because the juvenile court does not have jurisdiction to review and override the Agency‘s executive decisions. The
Generally, an aggrieved party may appeal a judgment in a juvenile dependency matter. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 948 [124 Cal.Rptr.2d 688].) To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court‘s decision. (Ibid.; In re Carissa G. (1999) 76 Cal.App.4th 731, 734 [90 Cal.Rptr.2d 561].) We liberally construe the issue of standing and resolve doubts in favor of the right to appeal. (Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 540 [104 Cal.Rptr.2d 686].)
(1) As the Agency acknowledges, a child has a legally cognizable interest in his or her placement with a relative. (See In re Marilyn H. (1993) 5 Cal.4th 295, 306 [19 Cal.Rptr.2d 544, 851 P.2d 826] [natural children have a fundamental independent interest in belonging to a family unit];
(2) Until parental rights are terminated, a parent retains a fundamental interest in his or her child‘s companionship, custody, management and care. (In re H.G. (2006) 146 Cal.App.4th 1, 9-10; [52 Cal.Rptr.3d 364]; In re Dakota H. (2005) 132 Cal.App.4th 212, 223; [33 Cal.Rptr.3d 337]; see also
C
The Agency contends the issues raised in this appeal have been rendered moot by the subsequent termination of parental rights and Esperanza‘s placement with a prospective adoptive family. It argues when parental rights are terminated, the “exclusive care and control of the child” is placed with the Agency for adoptive placement. (
Appellants contend if this court determines the juvenile court erred when it did not grant the section 388 petitions, this court must reverse the judgment terminating parental rights. They argue this court can grant effective relief by remanding the matter to the juvenile court with directions to independently review the question of relative placement, including whether the Agency considered the request for an exemption under the correct legal standard. Appellants also contend the issue whether the juvenile court has jurisdiction to review the Agency‘s denial of an exemption for abuse of discretion is a question of continuing public importance, and is capable of repetition, yet evading review. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158-1159 [111 Cal.Rptr.2d 310].)
An appellate court will not review questions which are moot and only of academic importance, nor will it determine abstract questions of law at the request of a party who shows no substantial rights can be affected by the decision either way. (TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1385 [68 Cal.Rptr.3d 320].) An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316 [94 Cal.Rptr.2d 798]; Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863 [167 P.2d 725].) On a case-by-case basis, the reviewing court decides whether subsequent events in a dependency case have rendered the appeal moot and whether its decision would affect the outcome of the case in a subsequent proceeding. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769 [76 Cal.Rptr.2d 684].)
(3) As we explained above, appellants have substantial interests at stake that may be affected by the outcome of this appeal. (Keefer v. Keefer (1939) 31 Cal.App.2d 335, 337 [87 P.2d 856].) A decision by this court that the juvenile court has authority to review a denial of a criminal records exemption for abuse of discretion, and to direct the agency to consider the request for an exemption under the appropriate legal standard, may affect the outcome in a subsequent proceeding. (In re Dylan T., supra, 65 Cal.App.4th at p. 769.) If the agency grants an exemption, the juvenile court may consider the child‘s placement under
D
(4) When a child is removed from parental custody, the child‘s relatives are given preferential consideration for placement, whenever possible. (
(5) Before a child may be placed in a relative‘s home, the social worker must visit the home to assess the appropriateness of the placement. (
If the criminal records check indicates the person has been convicted of a crime that would preclude licensure as a foster home, the child may not be placed in the home, unless an exemption has been granted. (
(6) If the agency receives a request to waive the disqualifying conviction, it evaluates the criminal conviction. Convictions generally fall into two categories: crimes for which the county may grant an exemption (exemptible offenses) and crimes for which the county cannot grant an exemption (nonexemptible offenses). (
If the offense is exemptible, the Director of Social Services (DSS) or its designee county (generically, agency) has the authority to grant an exemption. (
(7) To determine whether to grant a criminal records exemption, the agency must 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 repetition; activities since conviction, including employment, therapy or education; a full and unconditional pardon or certificate of rehabilitation; character references; and honesty and truthfulness in the exemption application process. (
With limited exceptions not applicable here, the agency cannot grant an exemption for certain convictions. (
(8) The process of determining whether an offense is nonexemptible “presents a high danger of error.” (Doe v. Saenz, supra, 140 Cal.App.4th at p. 997.) “This danger of error is enhanced due to the complexity of the statutory scheme identifying more than 50 non-exemptible offenses, some of which are non-exemptible only under specified conditions.” (Ibid.; see generally Gresher v. Anderson, supra, 127 Cal.App.4th at p. 96.) Nonexemptible offenses include “sexual battery, certain crimes affecting children or the elderly, and a `conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.‘” (Doe v. Saenz, supra, 140 Cal.App.4th at p. 974.) Included in the list of nonexemptible offenses are offenses specified in
(9)
Simply stated,
If the
E
Citing Valerie A., appellants assert the court has jurisdiction to review the Agency‘s refusal to request a waiver of a relative‘s disqualifying criminal conviction. (Valerie A., supra, 87 Cal.App.4th at pp. 1166-1167.) Appellants acknowledge the court cannot disregard the necessity for an exemption. They contend that a directive to the agency from the juvenile court to consider the request for a criminal records exemption under the correct legal standard does not interfere with the agency‘s executive authority to grant or deny an exemption.
The Agency asserts the court has no jurisdiction to review the Agency‘s exercise of its executive function to deny a criminal records exemption, whether the criminal conviction is for an exemptible or nonexemptible offense. (S.W., supra, 131 Cal.App.4th at p. 848.) The Agency states that if an applicant is dissatisfied with the agency‘s decision to deny a request for an exemption, the applicant may seek administrative review.
At oral argument, the Agency acknowledged the court has authority to override an agency decision if an aggrieved person has filed a writ of mandamus in the superior court after exhausting his or her administrative remedies. (
The question whether a court is authorized to perform a certain act is a purely legal question. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2008) 162 Cal.App.4th 1408, 1414 [77 Cal.Rptr.3d 52].) We review questions of law de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801 [35 Cal.Rptr.2d 418, 883 P.2d 960].)
Neither Valerie A., supra, 87 Cal.App.4th 1161 or S.W., supra, 131 Cal.App.4th 838 controls the analysis here. Unlike Valerie A., the Agency did not refuse to request a waiver of Steve‘s criminal record. (See In re Jullian B. (2000) 82 Cal.App.4th 1337, 1350 [99 Cal.Rptr.2d 241].) Here, the social worker initiated the criminal records exemption process and the Agency determined it could not grant an exemption of Steve‘s
(10) The Agency‘s decision not to grant an exemption for a criminal conviction is an executive one, subject to administrative review. (S.W., supra, 131 Cal.App.4th at p. 848.) This does not necessarily mean the criminal records exemption process is immune from judicial review within the context of the child‘s dependency proceedings. (See, e.g., DSS, supra, 58 Cal.App.4th at pp. 732-733; Los Angeles County Dept. of Children & Family Services v. Superior Court (1998) 62 Cal.App.4th 1, 9 [72 Cal.Rptr.2d 369] (LA Dept.); Fresno County, supra, 122 Cal.App.4th at p. 649.) There is no constitutional or statutory provision that expressly states the juvenile court may not review agency action for abuse of discretion. (See
For example, when a child has been freed for adoption, the agency has exclusive custody, control and supervision of the child. (DSS, supra, 58 Cal.App.4th at pp. 732-733; LA Dept., supra, 62 Cal.App.4th at p. 9; Fresno County, supra, 122 Cal.App.4th at p. 649.) While the juvenile court cannot substitute its judgment for the agency, it may review the agency‘s placement decision for abuse of discretion, that is, it assesses whether the agency “acted arbitrarily and capriciously, considering the minor‘s best interests.” (DSS, supra, at p. 734, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; [27 Cal.Rptr.2d 595, 867 P.2d 706]; see also Fresno County, supra, 122 Cal.App.4th at p. 648 [the juvenile court may decide adoptive placement issues “to the point of guiding and directing the department“].)
The administrative grievance process is designed to protect the rights and interests of the applicant. (See
(11) “The overriding concern of dependency proceedings . . . is not the interest of extended family members but the interest of the child.” (In re Lauren R., supra, 148 Cal.App.4th at p. 855.) Placement with a suitable relative is presumptively in the child‘s best interest. (
(12) Given the importance of the interests at stake, we do not believe agency error in the criminal records exemption process should operate to strip the juvenile court of jurisdiction to consider the child‘s placement with an appropriate relative. (
(13) Considering the juvenile court‘s role as parens patriae, the clear legislative preference for and the child‘s interest in relative placement, the urgency of dependency timelines, the lack of a timely, effective remedy for a dependent child and his or her parent through existing administrative regulations and procedures, we hold that the juvenile court may review the agency‘s denial of a criminal records exemption for abuse of discretion. We therefore conclude the juvenile court erred when it determined it did not have jurisdiction to review agency action for abuse of discretion and denied appellants’ section 388 petitions as a matter of law.
Here, the Agency concluded that Steve‘s
(14) The statutory scheme governing criminal records exemptions does not permit the agency to infer that an applicant‘s
Unless the Agency has a record that Steve was convicted of lewd and lascivious behavior under
G
Appellants contend reversal of the court‘s order dismissing the section 388 petitions necessitates reversal of the judgment terminating parental rights. (In re Lauren R., supra, 148 Cal.App.4th at p. 861 [“Because it is necessary to restore all parties to their prior positions, the orders terminating parental rights are also reversed.“]; In re Antonio G., supra, 159 Cal.App.4th 369, 379; In re H.G., supra, 146 Cal.App.4th 1; In re Jeremy W., supra, 3 Cal.App.4th 1407.) Although Esperanza was not placed with the C.‘s, we conclude that reversal of the order terminating parental rights is required under the circumstances here.
(15) The court expressed concern about the Agency‘s processes, and observed that if it had jurisdiction, it “would have a lot of questions of the agency as to why they can‘t grant this [exemption].” While the Agency expressed concerns about the C.‘s past involvement with child protective services, “a prior child protective history does not bar a relative from being evaluated and considered for placement of a dependent child under
DISPOSITION
The orders denying the section 388 petitions are reversed. The order terminating parental rights under
Nares