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Name: In re Summer H.
Case #: B189009
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 06/26/2006

Under Welfare and Institutions Code section 361.4, a minor may not be placed in the home of a relative or other non-foster parent who has a criminal record unless a criminal records exception has been granted. As an alternative to removal from a parent and placement in the foster care system, section 360 authorizes the juvenile court to appoint a legal guardian if the guardianship is in the minor’s best interests. In this case, the juvenile court concluded that it was prohibited by section 361.4 from granting mother’s request to place the minor in a legal guardianship with the person who was the legal guardian for one of the siblings because the proposed guardian had a prior criminal record and no exception had been granted by the county. Mother petitioned for writ of mandate, and the appellate court granted the writ and ordered a new hearing on the guardianship request. The criminal records exemption requirement of section 361.4 does not circumscribe the court’s discretion to appoint a legal guardian under section 360. The two statutes are intended to address different situations. Section 361.4 is a placement statute, and section 360 is a parent-driven statute, not dependent on the child’s removal from the custody of his parent and the county’s approval of the placement of the child. The parent need only consent to the guardianship, with the juvenile court’s approval following a determination that the proposed guardianship is in the child’s best interests. Although the views of the Department as to the appropriateness of the proposed guardian and his home are significant, the decision is expressly left to the court, not the Department.