Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD225515
BUTZ, J.Appellant, the maternal grandmother of Devin B. (the minor), appeals from an order of the juvenile court denying her request to place the minor in her custody and care. (Welf. & Inst. Code, § 388.) She contends the court erred when it found it had no discretion to return the minor to her custody. We shall reverse the juvenile court’s order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The minor, a six year old with severe mental impairments related to autistic traits, was detained after his mother, Elisha B. (mother), left him unattended in a park known to be frequented by over 170 registered sex offenders.
The Sacramento County Department of Health and Human Services (DHHS) filed a petition alleging failure to protect pursuant to Welfare and Institutions Code section 300, subdivision (b).
Appellant filed a request for de facto parent status, and made a subsequent motion pursuant to Welfare and Institutions Code section 388 requesting that the minor be placed with her.
At the May 2007 jurisdictional/dispositional hearing, the court sustained the petition, assumed jurisdiction over the minor (Welf. & Inst. Code, § 300, subd. (b)) and granted appellant’s request for de facto parent status. With respect to placement of the minor, DHHS informed the court that it supported placing the child with appellant on a “psychosocial level,” but could not approve appellant’s home for placement due to her 1997 conviction for a violation of Penal Code section 273d, subdivision (a), notwithstanding expungement of that conviction in August of 2000, pursuant to Penal Code section 1203.4. The court noted that it could not grant a waiver pursuant to Welfare and Institutions Code section 361.4 because it did “not have [the] power to waive criminal history if it is otherwise unwaivable.”
The minor’s father, then serving a 30-year-to-life sentence in state prison, signed a waiver of reunification services.
At a subsequent hearing on the Welfare and Institutions Code section 388 motion, DHHS and counsel for the minor both lodged their opposition to placement of the minor with appellant based on her “nonwaivable” prior conviction for corporal injury to a child. Again noting its inability to “place [the minor] with someone who has an unwaivable background offense and especially one of this nature which involves corporal injury to a child,” the court denied appellant’s motion and adjudged the minor a dependent child of the juvenile court, committing him to the care and custody of DHHS for suitable placement.
Appellant filed a timely notice of appeal.
DISCUSSION
Appellant contends the juvenile court erred when it found it had no discretion to place the minor in her care in spite of DHHS’s refusal to do so based on her prior conviction under Penal Code section 273d, subdivision (a).
The state or local agency charged with making adoptive placements, in this case DHHS, has exclusive authority to make placement decisions for the child, reviewable only for abuse of discretion. (Los Angeles County Dept. of Children etc. Services v. Superior Court (1998) 62 Cal.App.4th 1, 9-10; Department of Social Services v. Superior Court (1977) 58 Cal.App.4th 721, 733-734.)
Under state law, before placing any child in the home of a relative, the agency must conduct a criminal records check. (Welf. & Inst. Code, § 361.4, subd. (b).) “If the criminal records check indicates that the person has been convicted of a crime that would preclude licensure under Section 1522 of the Health and Safety Code, the child may not be placed in the home.” (Welf. & Inst. Code, § 361.4, subd. (d)(2).) However, the state Director of Social Services may grant a county permission to issue criminal records exemptions in accordance with the standards and limitations established in paragraph (1) of subdivision (g) of Section 1522 of the Health and Safety Code. The county may file a request with the director who shall grant or deny the request within 14 days of receipt of the county’s request. (Welf. & Inst. Code, § 361.4, subd. (d)(3)(A).)
Health and Safety Code section 1522 requires a criminal background investigation of those who apply for licenses or permits to operate community care facilities and foster family homes. It provides, in part: “If the State Department of Social Services finds that the applicant . . . has been convicted of a crime other than a minor traffic violation, the application shall be denied, unless the director grants an exemption pursuant to subdivision (g).” (Health & Saf. Code, § 1522, subd. (a)(4)(A).)
Subdivision (g)(1) of Health and Safety Code section 1522 says: “After review of the record, the director may grant an exemption from disqualification . . . if the director has substantial and convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of such good character as to justify issuance of the license or special permit . . . .” However, Health and Safety Code section 1522, subdivision (g)(1)(A)(i) provides that, notwithstanding the foregoing, an exemption “may not be granted” where the applicant has been convicted of certain offenses, including conviction for violation of Penal Code section 273d prior to January 1, 1994.
Here, appellant was convicted in 1997 of felony corporal injury on a child. (Pen. Code, § 273d, subd. (a).) In August of 2000, after successfully completing probation, she was granted relief under Penal Code section 1203.4, resulting in a change of plea to not guilty and dismissal of the case against her.
“[A] Penal Code section 1203.4 expungement does not constrain the state Department of Social Services from taking any action it is permitted to take following a conviction.” (Los Angeles County Dept. of Children & Family Services v. Superior Court (2003) 112 Cal.App.4th 509, 519, citing Health & Saf. Code, § 1522, subd. (f)(1).) Having occurred in 1997, appellant’s Penal Code section 273d conviction does not fall within those offenses expressly made nonexempt under Health and Safety Code section 1522, subdivision (g)(1)(A)(i). As DHHS concedes, appellant’s conviction was therefore waivable at its discretion. (Health & Saf. Code, § 1522, subd. (g)(1).)
Where DHHS has determined it would not be in the best interest of the minor to be placed with a relative with a disqualifying criminal conviction (expunged or not), the juvenile court does not have the authority to usurp that decision and grant a waiver in any event. (In re S.W. (2005) 131 Cal.App.4th 838, 849, 851-852.) The court does, however, have the authority to determine whether DHHS abused its discretion in making its placement decision. (Los Angeles County Dept. of Children etc. Services v. Superior Court, supra, 62 Cal.App.4th at pp. 9-10.)
Here, the juvenile court noted that it did not “ha[ve] the option to place [the minor] with someone who has an unwaivable background offense . . .,” explaining to appellant that “it’s just not one of those things the Court can do at this time, . . . it’s just not something that is possible at this time.” The court was correct insofar as its inability to make a placement decision contrary to that made by DHHS; however, the court was laboring under the mistaken impression that appellant’s 1997 conviction was “unwaivable,” and it further erred in failing to exercise its authority to review the placement decision made by DHHS for abuse of discretion. That error can only be remedied by remanding this matter for further proceedings in that regard.
In so doing, we reject appellant’s argument that, because the minor spent most of his life living with her, the issue was not whether the child should be placed with her but rather whether he should be returned to her custody, and therefore evaluation under Welfare and Institutions Code section 361.4 was neither necessary nor appropriate. While the record certainly supports appellant’s contention that the minor spent a good portion of his life in her custody and care, there is also evidence that the child was never formally placed with appellant and indeed had been with his mother for some period of time prior to and at the time of his detention. Therefore, treatment of this matter as a placement issue rather than return of the minor to a prior placement is appropriate, as is assessment of appellant’s home under section 361.4.
Although our review does not require us to determine the quality of care given the minor by appellant, we note that, by all accounts, appellant provided a healthy and safe environment for the minor in which he appeared to flourish.
We also reject appellant’s contention that the juvenile court should have appointed counsel for her upon awarding her de facto parent status. As the People correctly point out, the court has discretion, but is not required, to appoint counsel for a de facto parent. (Cal. Rules of Court, rule 5.534(e)(2).) In any event, appellant can make her case in that regard on remand.
DISPOSITION
The order of the juvenile court is reversed and the matter is remanded for further proceedings to determine whether DHHS abused its discretion in denying adoptive placement of the minor with appellant based upon appellant’s 1997 Penal Code section 273d, subdivision (a) conviction.
We concur: DAVIS , Acting P.J., RAYE , J.