RHONDA W v. THE SUPERIOR COURT OF
LOS ANGELES COUNTY
Filed 5/26/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re SUMMER H., a Person Coming Under the Juvenile Court Law. | B189009 (Los Angeles County Super. Ct. No. CK04334) |
RHONDA W., Petitioner v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest. |
ORIGINAL PROCEEDINGS; petition for writ of mandate. Stanley Genser, Commissioner. Petition granted.
Children's Law Center and Martha A. Matthews for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Judith A. Luby, Deputy County Counsel for Real Party in Interest.
No person who has a criminal record, other than for a minor traffic violation, may be licensed or certified as a foster parent for placement of a child without an exemption from the director of the State Department of Social Services. (Health & Saf. Code, § 1522.) Similarly, although the Legislature has expressed its clear preference for the placement of a dependent child in the home of a relative or extended family member rather than a traditional foster home, when the juvenile court removes a child from the physical custody of his or her parents, the child may not be placed in the home of a relative or other person who is not a licensed or certified foster parent and who has a criminal record unless a criminal records exemption has been granted by the appropriate official in the county in which the dependency proceeding has been initiated. (Welf. & Inst. Code, § 361.4.)[1]
As an alternative to removing the child from the physical custody of his or her parent and placing the child in the foster-care system, section 360 and California Rules of Court, rule 1456(b)[2] authorize the juvenile court at the disposition hearing to appoint a legal guardian if the parent has advised the court he or she does not wish to receive family maintenance or family reunification services and agrees to the guardianship and the court finds, after consideration of all of the evidence, including a review of the proposed guardian's criminal history, that the guardianship is in the child's best interests.
Does the criminal records exemption requirement of section 361.4 circumscribe the court's discretion to appoint a legal guardian under section 360? The answer to this question, evident in the language of both sections 360 and 361.4, as well as the context of the statutory scheme of which they are part, is no. The two statutes are intended to address different situations. Section 361.4 is a placement statute. Its objective is to protect children who have been placed in the foster-care system by evaluating prospective caregivers who are not licensed or certified foster parents by the same criteria imposed on prospective foster parents. Section 360, in contrast, is a parent-driven statute. It is dependent not on the child's removal from the physical custody of his or her parents and the county's approval of the placement of the child, but on the parent's consent to the guardianship and the juvenile court's determination that the proposed guardianship is in the child's best interests. In the instant case the juvenile court concluded it was prohibited by section 361.4 from granting the mother's request for appointment of a legal guardian for her daughter pursuant to section 360 because the proposed guardian (who had previously been appointed by the probate court as the legal guardian for another of her daughters) had a prior criminal record and no exemption had been granted by the county. The court's discretion to order a legal guardianship under section 360 is not so limited. Accordingly, we grant the mother's petition for writ of mandate and direct the juvenile court to hold a new hearing on the guardianship request.
FACTUAL AND PROCEDURAL BACKGROUND
Summer H. was born in June 2005 with cocaine in her system. Her mother Rhonda W. also tested positive for cocaine. Rhonda W. admitted to a social worker with the Los Angeles County Department of Children and Family Services (Department) that she is a long-term cocaine abuser; she had used cocaine while she was pregnant with Summer; she is unable to care for Summer; her â€
