In re ESPERANZA C., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
ESPERANZA C. et al., Defendants and Appellants.
Court of Appeals of California, Fourth District, Division One.
*1049 Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Laura C.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant Esperanza C.
John J. Sansone, County Counsel, John E. Philips, Chief Deputy County Counsel, and Gary C. Seiser, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McINTYRE, J.
Appellants, the minor, Esperanza C., and her mother, Laura C., appeal orders denying their petitions for modification under Welfare and Institutions Code section 388. (All statutory references are to the Welfare and Institutions Code unless otherwise specified.) Appellants contend the court erred when it determined it did not have jurisdiction to review the social services agency's denial of a criminal records exemption for abuse of discretion.
When a child is removed from parental custody, the Legislature prefers placement with the child's relatives, whenever possible. (In re Antonio G. (2007)
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)
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. (§ 300, subd. (b).) Esperanza's maternal great uncle, Steve C., and his wife, Shannon, (together, the C.'s) came forward and asked the Agency to place Esperanza in their home. Steve was a licensed preacher and assistant pastor at a local church. The C.'s had four teenage children who were in school, either working or participating in sports, and doing well. However, the C.'s had a history of substance abuse and involvement with child protective services, and Steve had a criminal record.
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. (§ 361.5, subd. (b)(10), (11).)
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 Penal Code section 272 (section 272), and in 1975 for petty theft, possession of a dangerous weapon and receiving stolen property. The Agency stated that Steve's section 272 conviction might have encompassed lewd and lascivious conduct with a child age 14 years of age or under, and classified the conviction as a nonexemptible disqualifying offense.
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 Penal Code section 272 conviction did not include lewd or lascivious conduct with a child and filed a grievance with the *1051 Agency. Steve explained he was charged with violating section 272 when he was 21 years old after he supplied beer to his 17-year-old brother and four underage friends. The social worker stated "[t]here is no evidence to indicate that [Steve's] version of the crime takes it to an exemptible status." She reported the Agency did not receive any evidence to show Steve's section 272 conviction was exemptible, and the grievance officer was unable to overturn the denial of the C.'s relative home assessment.
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 Penal Code section 272 was a nonexemptible offense and whether the juvenile court had the authority to issue a criminal records exemption.
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 Penal Code section 272 conviction was exemptible but he could not locate a case number or court report from 1978.
The court found that Steve's Penal Code section 272 conviction was exemptible. Despite the court's many concerns "about what went on here," the court determined it did not have jurisdiction to review the Agency's denial of Steve's criminal records exemption and could not grant an evidentiary hearing on the section 388 petitions. The court denied the section 388 petitions as a matter of law.
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. (Evid. Code, §§ 451, 452, 453.) On February 28 this court ordered the request for judicial notice to be considered concurrently with the appeal. We grant Laura's request for judicial notice of the C.'s notice of appeal and this court's order dismissing the C.'s appeal. (Evid. Code, § 452, subd. (d).)
*1052 On April 10, 2008, on this court's own motion, we took judicial notice of the juvenile court's order of November 13, 2007, terminating parental rights and referring Esperanza to the Agency for adoptive placement. This court directed the parties to submit simultaneous letter briefs addressing the following: "Assuming arguendo error below, in view of the subsequent events that occurred in these dependency proceedings after this appeal was filed, is it possible for this court to grant effective relief or has the referral of the child to the Agency for adoptive placement rendered this appeal moot?"
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 Penal Code section 272 as a nonexemptible offense. They argue the Agency's denial of Steve's request for an exemption was an abuse of discretion subject to juvenile court review. Appellants maintain the juvenile court erred when it determined it did not have jurisdiction to review the Agency's action for abuse of discretion and summarily denied their section 388 petitions. They assert the juvenile court should have directed the Agency to evaluate the C.'s home based upon accurate information.
The Agency does not address appellants' contention the Agency erred when it classified Penal Code section 272 as a nonexemptible offense. It maintains the juvenile court lacks jurisdiction to review or override the Agency's executive decision to deny a criminal records exemption and relative home evaluation. The Agency asserts the court properly denied the section 388 petitions as a matter of law.
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 *1053 Agency asserts the C.'s were the only persons aggrieved by the denials, and had the right to file an administrative grievance process, which they did. (Cal. Code Regs., tit. 22, §§ 35000, subd. (g), 35215.) The Agency acknowledges Esperanza has an interest in placement with the C.'s but argues Esperanza was not aggrieved by Agency's action because she had not been placed in the C.'s home.
Generally, an aggrieved party may appeal a judgment in a juvenile dependency matter. (In re L.Y.L. (2002)
(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)
(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)
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. (§ 366.26, subd. (j).) The Agency argues this court cannot grant effective relief because Esperanza's prospective adoptive family now has statutory preference for adoption, and the juvenile court's role is limited to reviewing the Agency's adoptive placement decision for abuse of discretion. (§ 366.26, subd. (k); see In re Sarah S. (1996)
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)
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)
(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)
D
(4) When a child is removed from parental custody, the child's relatives are given preferential consideration for placement, whenever possible. (§§ 361.3, subd. (a), 16000, subd. (a), 16501.1, subd. (c)(1); see also § 309 [mandating detention with a responsible relative]; Fam. Code, § 7950, subd. (a)(1) ["Placement shall, if possible, be made in the home of a relative, unless the placement would not be in the best interest of the child."].) The Legislature states its preference that a child who has been removed from parental custody should live in the least restrictive, most familylike setting, as close to the child's family as possible. (§ 16000, subd. (a).) The setting must be safe for the child. (§§ 361.3, subd. (a)(8), 16501.1, subd. (c)(1).)
(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. (§ 361.4, subd. (a).) The same safety standards used in licensing foster homes apply to a relative home assessment. (§ 309, subd. (d).) The court or social worker must initiate a criminal records check on all persons over the age of 18 living in the home, and on any other person over the age of 18 who may have significant contact with the child. (§ 361.4, subd. (b).) If the criminal records check indicates the person has no criminal record (other than minor traffic *1056 violations), the social worker and the court may consider the home for placement of the child under section 361.3. (§ 361.4, subd. (d)(1).)
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. (§ 361.4, subd. (d)(2).) The juvenile court may review the Agency's decision not to request a waiver of the disqualifying offense for abuse of discretion. (Valerie A., supra, 87 Cal.App.4th at pp. 1166-1167; see Cal. Code Regs., tit. 22, § 80019.1, subd. (d)(3)(D); see generally Gresher v. Anderson (2005)
(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). (Health & Saf. Code, § 1522, subd. (g)(1); Cal. Code Regs., tit. 22, § 80019.1.)
If the offense is exemptible, the Director of Social Services (DSS) or its designee county (generically, agency) has the authority to grant an exemption. (§ 361.4, subd. (d)(3)(A); see In re Hanna S. (2004)
(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. (Cal. Code Regs., tit. 22, § 80019.1, *1057 subd. (e).) The agency must also consider the facility and type of association, and the individual's age at the time the crime was committed. (Cal. Code Regs., tit. 22, § 80019.1, subd. (f).)
With limited exceptions not applicable here, the agency cannot grant an exemption for certain convictions. (Health & Saf. Code, § 1522, subd. (g); Gresher v. Anderson, supra, 127 Cal.App.4th at pp. 96-97; Doe v. Saenz (2006)
(8) The process of determining whether an offense is nonexemptible "presents a high danger of error." (Doe v. Saenz, supra,
(9) Penal Code section 290, the Sex Offender Registration Act, lists offenses requiring lifetime registration in California as a sex offender. (Pen. Code, § 290, subds. (b), (c).) These offenses include a conviction for "any offense involving lewd or lascivious conduct under Section 272." (Pen. Code, § 290, subd. (c).)
Simply stated, Penal Code section 272 proscribes any act or omission of a performance of any duty that contributes to the delinquency or dependency of a minor. Depending on the conduct for which the person was convicted, a section 272 conviction may be either exemptible or nonexemptible. If the section 272 conviction is nonexemptible, then the agency may not grant an exemption, and the juvenile court does not have the authority to place a child in the applicant's home. (§ 361.4, subd. (d)(2), (3)(A); Valerie A., supra, 87 Cal.App.4th at pp. 1166-1167.)
If the Penal Code section 272 conviction is exemptible, the Agency may grant the applicant an exemption based on a showing of good character and rehabilitation, as described above. (§ 361.4, subd. (d)(2), (3)(A); Health & Saf. *1058 Code, § 1522, subd. (g)(1); Cal. Code Regs., tit. 22, § 80019.1, subds. (e), (f).) If the agency grants the relative a criminal records exemption, the juvenile court may independently consider the child's placement with that relative. (§§ 361.3, subd. (a), 366.3, subd. (e) [nonadoptive placement].) After parental rights have been terminated, the court may review the agency's prospective adoptive placement for abuse of discretion. (DSS, supra,
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,
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. (Code Civ. Proc., § 1094.5.) The Agency also acknowledged existing administrative remedies do not generally provide effective relief within the context of a child's dependency case due to mandatory timelines imposed by the Legislature on dependency proceedings. Our decision here concerns only the scope of the juvenile court's authority under section 388, as raised by the parties in their briefs, and does not concern the applicability, if any, of section 1094.5 of the Code of Civil Procedure to dependency proceedings.
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)
Neither Valerie A., supra,
(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,
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,
The administrative grievance process is designed to protect the rights and interests of the applicant. (See Health & Saf. Code, §§ 1522, subd. (g), 1526, *1060 1551; Cal. Code Regs., tit. 22, §§ 80040, 89240.) It does not necessarily safeguard the interests of the court, the child, the parent and the social worker in the child's prompt placement in the home of an appropriate relative. (§§ 309, 319, 361.3, 16000, subd. (a), 16501.1, subd. (c)(1); Fam. Code, § 7950, subd. (a); In re Antonio G., supra, 159 Cal.App.4th at pp. 376-377.) If the juvenile court lacks jurisdiction to review the agency's criminal records exemption process, the child and the parent are left without any timely, and therefore effective, means to challenge the agency's decision.
(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,
(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. (§§ 361.3, 361.4; see generally LeFrancois v. Goel (2005)
(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.
*1061 F
Here, the Agency concluded that Steve's Penal Code section 272 conviction was nonexemptible because there was "a lack of evidence" to indicate the conviction did not involve a lewd and lascivious act. The juvenile court, without stating the basis for its finding, determined that Steve's section 272 conviction was an exemptible offense. The Agency did not challenge the court's finding at trial, and ignored the issue in its brief. Because we remand this matter to the juvenile court for a hearing under section 388, we discuss the appropriate standard that must be applied to determine whether a section 272 is a nonexemptible offense.
(14) The statutory scheme governing criminal records exemptions does not permit the agency to infer that an applicant's Penal Code section 272 conviction involved lewd and lascivious behavior. An applicant is not required to prove that his or her section 272 conviction is not a nonexemptible sex offense. (Health & Saf. Code, § 1522, subd. (g); see generally, Gresher v. Anderson, supra, 127 Cal.App.4th at pp. 105-110 [discussing applicant's due process rights in the criminal exemption process].) Either the agency has a valid record that the applicant was convicted, by proof beyond a reasonable doubt, of a sex offense (or other nonexemptible offense), or it does not. Further, an applicant is not required to prove the nonexistence of an offense to show good moral character. (§ 361.4, subd. (d)(2); Cal. Code Regs., tit. 22, § 80019.1, subds. (e), (f); see Gresher v. Anderson, supra, at pp. 97, 113.)
Unless the Agency has a record that Steve was convicted of lewd and lascivious behavior under Penal Code section 272, its classification of the section 272 conviction as a nonexemptible offense is erroneous as a matter of law. A decision that rests on an error of law constitutes an abuse of discretion. (Holtville Farms, Inc. v. Agricultural Labor Relations Bd. (1985)
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,
*1062 When Esperanza was detained, the C.'s immediately came forward and requested placement. The C.'s consistently visited Esperanza. They told the social worker they wanted to adopt her. Esperanza's guardian ad litem believed Esperanza's placement with the C.'s was in her best interests. The guardian ad litem informed the court the C.'s protective issues were long resolved, the C.'s were good parents to their children, and their home met safety standards. (§ 309, subd. (d)(2).) Esperanza's placement with the C.'s would enable her to remain in contact with her extended family, including three siblings who had been adopted by other family members. Because of concerns about age and health, Esperanza's other relatives were not able to care for her. Other than the C.'s, there were no other relatives the court could consider for placement. We also note Esperanza filed a section 388 petition seeking judicial review of her placement and appealed the court's ruling that it did not have jurisdiction to consider her petition.
(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 section 361.3." (In re Antonio G., supra,
DISPOSITION
The orders denying the section 388 petitions are reversed. The order terminating parental rights under section 366.26 is also necessarily reversed. (In re Lauren R., supra,
*1063 We acknowledge Laura's subsequent appeal challenging the juvenile court's order terminating parental rights under section 366.26. On finality of this decision under California Rules of Court, rule 8.264(b), Court of Appeal case No. D052294 will be dismissed. (In re Dani R. (2001)
Nares, Acting P. J., concurred and O'Rourke, J., concurred in the result.