A statutory bar to placement based on a 28-year-old misdemeanor conviction was unconstitutional as applied. The minor was removed from mother in 2017 after he was sexually abused by a maternal uncle. At the time of removal, mother, the minor, and uncle all lived with the grandparents. Uncle went to prison for 20 years and mother did not keep contact with the Department. The minor was placed in foster care, and then in a group home. Mother failed to reunify, and the minor’s permanent plan was a group home with the goal of identifying a placement for legal guardianship. The grandparents started the resource family approval process with the goal of having the minor placed with them. They spent significant periods of time with the minor, and the group home staff felt that the minor was ready to transition into the grandparents’ custody. The minor began overnight visits with the grandparents. During the approval process, a criminal background check revealed that grandfather had a 1991 misdemeanor conviction under Penal Code section 273d, which is disqualifying under Health and Safety Code section 1522. According to grandfather, the incident arose from an argument where he pushed his wife and son. Grandfather took steps to have his name removed from the Child Abuse Central Index (CACI), and obtained a dismissal of the charge under Penal Code section 1203.4. Nevertheless, the Department denied grandparents’ application for an exemption due to the conviction. During the appeals process, the Department took the position that grandfather’s conviction was nonexemptible. The juvenile court denied placement with the grandparents. On appeal, grandparents argued that the absolute statutory bar to placement triggered by grandfather’s 1991 conviction was unconstitutional as applied. The appellate court held that an absolute statutory bar would violate the grandparents’ rights to due process if they had developed a parental relationship with the child. Therefore, the appellate court reversed and remanded for the trial court to take evidence and make factual findings about whether the grandparents’ relationship with the child is the sort of bonded quasi-family relationship that should be deemed worthy of protection as a fundamental interest. If the relationship is worthy of such protection, the Department must reassess the grandparents’ application on an individualized basis.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/E072671.PDF