1

Filed 3/26/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re C.P., a Person Coming Under the 

Juvenile Court Law.

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

A.P.,

Defendant;

M.P. et al.,

Interveners and Appellants.

E072671

(Super.Ct.No. J271063)

OPINION

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, 

Judge. Reversed and remanded with instructions.

Patricia K. Saucier, under appointment by the Court of Appeal, for Objectors and 

Appellants.

Michelle D. Blakemore, County Counsel and Svetlana Kauper, Deputy County 

Counsel, for Plaintiff and Respondent.
2

In this appeal, the maternal grandparents of C.P., the child who is the subject of 

this dependency matter, argue that the absolute statutory bar to placement of the child in 

their custody, either through approval as a resource family pursuant to Welfare and 

Institutions Code1section 16519.5 or on an emergency basis pursuant to section 361.4, is 

unconstitutional as applied to them.2 The bar is triggered in this case by a disqualifying 

misdemeanor criminal conviction suffered by grandfather in 1991. We agree with 

grandparents that the absolute statutory bar to placement of the child in their custody 

would be unconstitutional as to them if they can establish that they have a parental

relationship with the child, not just a grandparental relationship. We remand to the trial 

court to make the predicate factual findings and consider the issue anew from that 

perspective.

I. FACTUAL BACKGROUND

The child (born 2011) was removed from mother’s custody in May 2017, after he 

was sexually abused by a maternal uncle; at the time of removal, mother, child, and uncle 

all resided in the home of the grandparents. The uncle is now incarcerated on a 20-year

sentence for child molestation. Mother has been out of contact with CFS, and reportedly 

has moved out of state. The child was initially placed with a foster family, but in June 

 

1 Further undesignated statutory references are to the Welfare and Institutions 

Code.

2 The maternal grandparents are objectors and appellants M.P. and S.P. The 

child’s mother, alleged father, and paternal grandparents are not parties here.
3

2017 he was moved to a group home capable of addressing his special health care needs 

related to autism. 

Mother failed to reunify with the child. The child was ordered to remain in the 

group home under a planned permanent living arrangement, with the goal of identifying 

an appropriate placement for legal guardianship. 

The grandparents started the resource family approval process, with the goal of 

having the child placed in their care, almost immediately after the child was removed 

from mother’s custody in May 2017. The grandparents have been involved in the regular 

child and family team meetings for the child, and at least at some points have been 

designated as the educational rights holders for the child. They have also maintained 

contact with the child, making a two-hour drive to visit with him weekly once their 

visitation was approved in October 2017; a social worker characterized grandparents as 

the “only constant” in the child’s life. The grandparents’ visitation was initially 

supervised, but in November 2018 “four hour Saturday visits off site” were approved. 

The child was allowed to spend almost two weeks in the grandparents’ home for the 2018 

holidays, staying with them from December 21, 2018 to January 2, 2019. By January 

2019, in the judgment of the group home, the child had made “significant progress” with 

respect to his developmental issues, and was “ready and willing to transition into living 

with his grandparents,” though a transition to a different placement would raise concerns 

due to his “need for routine and anxiety with new places/situations.” In February 2019, 

with the agreement of the social worker, the juvenile court gave CFS authority to allow 
4

grandparents to have overnight and weekend visitation with the child on the condition 

that the child was to have no contact with anyone CFS had not approved. 

During the process, however, a criminal background check revealed that the 

grandfather had a 1991 misdemeanor conviction under Penal Code section 273d, which is 

disqualifying under Health and Safety Code section 1522. (See Health & Saf. Code, § 

1522, subd. (g)(2)(A)(i) [prohibiting exemption for resource family applicant with 

conviction under Pen. Code, § 273d prior to January 1, 1994].) Penal Code section 273d 

applies to “[a]ny person who willfully inflicts upon a child any cruel or inhuman corporal 

punishment or an injury resulting in a traumatic condition . . .” (Pen. Code, § 273d, subd. 

(a).) According to grandfather’s account of the circumstances giving rise to this 

conviction—the only account in our record—he pleaded no contest, and was sentenced to 

probation and required to take anger management classes after he was accused of pushing 

his wife and son during, or while trying to walk away from, an argument. 

Grandfather successfully took steps to have his name removed from the Child 

Abuse Central Index (CACI), the database maintained by the California Department of 

Justice regarding reports of known or suspected child abuse or severe neglect. (See In re 

C.F. (2011) 198 Cal.App.4th 454, 462-463 [discussing CACI and process of removing 

reports from CACI].) Grandfather also obtained a dismissal of the charge pursuant to 

Penal Code section 1203.4.3 Nevertheless, in November 2018, CFS issued grandfather a 

 

3 Penal Code section 1203.4 allows a defendant who successfully completes 

probation to petition the court to set aside his or her guilty plea and dismiss the complaint 

or information. (People v. Mazumder (2019) 34 Cal.App.5th 732, 745.) “If granted, 
5

“Notice of Action to Individual Regarding Resource Family Approval Criminal Record 

Exemption Decision,” stating that the grandparents’ application for resource family 

approval must be denied because of the grandfather’s conviction. The grandparents filed 

an administrative appeal of that decision. Our record does not reveal what disposition, if 

any, was reached in that administrative appeal, though we can infer that it has not been 

resolved in the grandparents’ favor, since they continue to pursue this appeal.4

During a team meeting in January 2019, the child stated “‘I love my grandma and 

grandpa and I want to live with them forever.’” At a post permanency review hearing in 

February 2019, the child again expressed that he wished to live with the grandparents by 

stating “I want to go home,” and confirming that “home” meant his grandparents’ house. 

The child’s counsel noted, however, that “placement is not looking likely anytime soon” 

because of grandfather’s “nonexemptible criminal history and prior CACI hits.” The 

juvenile court appointed counsel for the grandparents, and requested briefing on the issue 

of whether a “misdemeanor 28 years ago” could preclude any exercise of “independent 

judgment” regarding the child’s placement.

 

section 1203.4 relief provides substantial benefits . . . .” (Ibid.) Nevertheless, it “‘“does 

not purport to render the conviction a legal nullity”’” and it “‘does not, properly 

speaking, “expunge” the prior conviction.’” (Ibid.)

4

In any case, CFS has never argued that the grandparents required to exhaust all 

administrative remedies before challenging the denial of an exemption in the juvenile 

court. (See Mission Housing Development Co. v. City and County of San Francisco

(1997) 59 Cal.App.4th 55, 67 [“[T]he defense of failure to exhaust administrative 

remedies may be waived if not properly or timely raised.”]; see also In re N.V. (2010) 

189 Cal.App.4th 25, 31 [noting several exceptions to the doctrine of exhaustion of 

administrative remedies that apply to a challenge to an agency determination that a 

relative’s home would be unsuitable for placement of a dependent child].)
6

Counsel for CFS filed a memorandum of points and authorities arguing that 

placement of the child with the grandparents without a criminal record clearance or 

exemption was barred by statute, that grandfather’s conviction was nonexemptible, and 

that obtaining relief under Penal Code section 1203.4 did not render the conviction a 

nullity or exemptible for purposes of determining whether placement of the child would 

be permissible. Grandparents’ counsel filed a memorandum of points and authorities, 

arguing that CFS had abused its discretion in denying the grandfather’s exemption 

request, and asking that the juvenile court “order the department to reevaluate” the 

request. 

At a hearing in April 2019, the juvenile court agreed with CFS’s analysis of the 

law, and denied “the grandparents’ request to be reassessed . . . .”

II. DISCUSSION

We consider here whether the absolute statutory bar to placement of the child with 

grandparents, triggered by grandfather’s misdemeanor conviction from 1991, is

unconstitutional as applied.5 If this question is answered in the affirmative, CFS should

be required to reconsider grandparents’ request for an exemption starting from the 

premise that grandfather’s conviction is generally disqualifying but potentially 

exemptible in exceptional circumstances, based on an individual analysis. We hold that

 

5 Grandparents did not raise this constitutional issue in the juvenile court. 

Nevertheless, we exercise our discretion to reach the issue. (See Los Angeles Unified 

School District v. State of California (1991) 229 Cal.App.3d 552, 555 [“belatedly raised” 

constitutional issue that involves “a purely legal question involving no disputed facts” 

may be considered for the first time on appeal].)
7

if the trial court finds that grandfather has a parental relationship with C.P., he is entitled 

to an individual analysis of his exemption request, rather than the application of an 

absolute statutory bar, and that the circumstances here may warrant an exemption being 

granted.

A. Background Regarding Resource Family Approval Process

The resource family approval process is intended to be an expedited assessment of 

individuals and families to provide foster care and become legal guardians or adoptive 

families for dependent children. (§ 16519.5, subd. (a).) A resource family is “an 

individual or family that has successfully met both the home environment assessment 

standards and the permanency assessment criteria” established by statute and the State 

Department of Social Services. (Id., subds. (c), (d).) 

The home environment assessment standards include a “criminal record clearance 

of each applicant and all adults residing in, or regularly present in, the home . . . .” 

(§ 16519.5, subd. (d)(2)(A)(i)(I).) If the background check of such individuals indicates 

that any of them has been convicted of “an offense described in subparagraph A of 

paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, home 

approval shall be denied.” (§ 16519.5, subd. (d)(2)(A)(i)(III), italics added.) As relevant 

here, these offenses include a conviction under Penal Code section 273d dating from 

prior to January 1, 1994. (Health & Saf. Code, § 1522, subd. (g)(2)(A)(i).) The 

“approving entity”—here, CFS—may grant an “exemption from disqualification” for 

some offenses, if the applicable criteria are met, but pre-1994 Penal Code section 273d 
8

offenses are among those that are categorically nonexemptible.

6

 (See § 1522, subd. 

(g)(2)(B)-(D).) Dismissal of a conviction under Penal Code section 1203.4 does not 

render the conviction either a nullity or exemptible for purposes of determining whether a 

conviction is disqualifying. (Los Angeles County Dept. of Children & Family Services v. 

Superior Court (Cheryl M.) (2003) 112 Cal.App.4th 509, 518-519.)

When resource family approval has not yet been granted, a child may be placed on 

a temporary emergency basis with a relative or nonrelative extended family member. (§§ 

309, subd. (d), 361.45.) Again, however, criminal background checks are required before 

placement, and the standards set out in Health and Safety Code section 1522 apply; if an 

adult residing in or regularly present in the home has a conviction under an offense 

described in Health and Safety Code section 1522, subdivision (g)(2)(A), “the child shall 

not be placed in the home . . . .” (§ 361.4, subd. (b)(5).)

B. Standing

CFS argues that the grandparents lack standing because they were not “directly 

injured” by the juvenile court’s order that the child remain in his current placement. We 

reject this argument.

In substance, grandparents’ constitutional challenge is fairly construed not as a 

challenge to the juvenile court’s order regarding the child’s placement, but rather its 

 

6

 Formerly, the county agency would apply to the State Department of Social 

Services for approval of the exemption, but the relevant statutes have been amended. 

(See Los Angeles County Department of Children and Family Services v. Superior Court 

(Valerie A.) (2001) 87 Cal.App.4th 1161, 1166-1167 [discussing former procedures for 

exemptions].) 
9

rejection of their request that CFS be required to reassess them for approval as a resource 

family.7 That rejection is an order after judgment, appealable under section 395, 

subdivision (a). (§ 395, subd. (a)(1) [“A judgment in a proceeding under Section 300 

may be appealed in the same manner as any final judgment, and any subsequent order 

may be appealed as an order after judgment”].) The grandparents were directly 

“aggrieved” by the juvenile court’s denial of their request, in that they have a legally 

cognizable interest that is injuriously affected by the decision. (In re L.Y.L. (2002) 101 

Cal.App.4th 942, 948; see also In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053 

[agency conceded that relatives denied criminal records exemption had standing to 

challenge the denial; Court of Appeal found child and parent whose parental rights had 

not yet been terminated also had standing].) Moreover, we are required to “liberally 

construe the issue of standing and resolve doubts in favor of the right to appeal.” (Ajida 

Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 540.) 

 

7 The remedy grandparents request on appeal is different from the one requested in 

the juvenile court. In the juvenile court, grandparents requested an order that CFS 

“reevaluate [their] request for an RFA exemption.” In this appeal, now represented by 

different counsel, they ask that we “reverse the juvenile court’s findings and orders made 

pursuant to section 361.4” and “remand for a hearing to determine whether placing [the 

child] with [the grandparents] is in [the child’s] best interests.” In our view, 

grandparents’ trial counsel better framed the appropriate remedy. As grandparents’ trial 

counsel noted, the juvenile court “does not have the authority to order placement of [the 

child] with the grandparents.” It can find, however, that CFS misunderstood the scope of 

its discretion in denying an exemption request, and order it to reconsider the issue under 

the appropriate legal standard. (See In re M.L. (2012) 205 Cal.App.4th 210, 227 

[juvenile court’s finding that the agency had abused its discretion in denying exemption 

request did not give it authority to grant exemption request or place child in the home of 

party requesting exemption].)
10

We find that grandparents have standing, and turn to the merits of their challenge 

to the juvenile court’s order.

C. Separation of Powers

The grandparents contend that the statutory bar to placement of the child with 

them because of the grandfather’s conviction violates the doctrine of separation of 

powers “by giving the legislature, instead of the juvenile court, the power to determine 

the best interests of the children, especially where it does so without fully considering the 

totality of the child’s circumstances.” 

Grandparents offer no authority establishing that determination of a dependent 

child’s best interests generally, or the determination of whether to place a child with 

someone despite a prior criminal conviction more specifically, should be viewed as 

constitutionally vested only in the judicial branch. (See Carmel Valley Fire Prot. Dist. v. 

State of California (2001) 25 Cal.4th 287, 298 (Carmel Valley) [purpose of separation of 

powers doctrine “‘is to prevent one branch of government from exercising the complete

power constitutionally vested in another’ . . . ”].) To the contrary, all three branches of 

government are properly involved. For example, the decision to grant or deny a criminal 

records exemption is an executive one subject to administrative review. (In re M.L., 

supra, 205 Cal.App.4th at p. 227.) The judiciary may review an agency’s ruling on an 

exemption request as part of the dependency proceeding, as the juvenile court did here, or 

on writ review from denial of administrative relief. (In re Esperanza C., supra, 165

Cal.App.4th at pp. 1058-1059.) The judiciary reviews the agency’s decision for abuse of 
11

discretion. (Id. at pp. 1049-1050.) The scope of that discretion is defined by the statutes 

enacted by the Legislature. (See State Bd. of Education v. Honig (1993) 13 Cal.App.4th 

720, 750 [“Essentials of the legislative function include the determination and 

formulation of legislative policy”].) 

Grandparents emphasize that section 362, subdivision (a), grants the juvenile court 

the power to make “any and all reasonable orders for the care, supervision, custody, 

conduct, maintenance and support of the child . . . .” They ignore, however, that this 

statute, adopted by the Legislature, is also subject to limitations set by the Legislature. 

The doctrine of separation of powers does not apply here.

D. Due Process

Grandparents concede that the juvenile court correctly determined that, under the 

statutory scheme, grandfather’s conviction is nonexemptible. They contend, however, 

that because that statutory scheme places an absolute bar on the child ever being placed 

with them, based solely on the Penal Code section of grandfather’s conviction and not on 

any individualized determination of their circumstances, it violates their constitutional 

right to due process. We agree that the absolute statutory bar may be unconstitutional as 

to grandparents, and therefore unenforceable as to them, depending on factual findings 

that need to be made by the trial court in the first instance.

“The due process clause protects substantive fundamental liberty interests against 

unreasonable government interference.” (In re H.K. (2013) 217 Cal.App.4th 1422, 

1432.) In addressing a substantive due process argument, we first identify the liberty 
12

interest asserted and then determine whether it is a fundamental right that is “‘deeply 

rooted in this Nation’s history and tradition . . . .”’ (Ibid.) “When a statutory 

classification impinges on a fundamental right, it is subject to strict scrutiny review.” (Id.

at p. 1433.) “If a statute does not implicate a fundamental right or operate to the singular 

disadvantage of a suspect class, only a rational relationship to a legitimate state purpose 

is necessary to uphold the constitutional validity of the legislation.” (Ibid.) We apply the 

de novo standard of review to constitutional questions. (Ibid.)

Courts have generally rejected the proposition that grandparents, in their capacity 

as grandparents and without more, have a constitutionally protected interest in their 

relationship with the grandchild. (See In re Brittany K. (2005) 127 Cal.App.4th 1497, 

1508 [noncustodial grandparent of juvenile court dependents have no substantive due 

process right to free association with minors, or to maintain a relationship with them]; In 

re R.J. (2008) 164 Cal.App.4th 219, 225 [recognizing absence of authority for the 

proposition that a grandparent has a constitutionally protected interest in the custody and 

care of his or her grandchild]; Miller v. California (9th Cir. 2004) 355 F.3d 1172, 1175 

[“While there is no question that parents have a constitutionally protected liberty interest 

in making decisions about the care, custody, and control of their children [citations], we 

have never held that any such right extends to grandparents”]; but see Drollinger v. 

Milligan (7th Cir. 1977) 552 F.2d 1220, 1227, fn. 6 [stating, without further analysis: 

“The nuclear family has traditionally constituted the unit afforded the protection of due 
13

process. We see no reason, however, not to extend this guaranty to the grandfathergrandchild relationship”].)

It is well-established, however, that essentially parental bonds may develop 

between a child and a caregiver, including a grandparent, who are not biologically parent 

and child, and courts have often found these parental relationships to be constitutionally 

protected. (See In re H.K., supra, 217 Cal.App.4th at p. 1435; see also In re Bridget R.

(1996) 41 Cal.App.4th 1483, 1503-1504, 1507, superseded by statute on another ground 

as stated in In re Santos Y. (2001) 92 Cal.App.4th 1274, 1311-1312 [finding children in 

care of prospective adoptive parents to have a “presently existing fundamental and 

constitutionally protected interest in their relationship with the only family they have ever 

known”].) Grandparents argue that their bond with the child falls within this 

constitutionally protected category of relationship.

Grandparents rely primarily on New York authority involving circumstances 

where the child had long been living with the caretakers as parent and child. In Matter of 

Abel (N.Y. Fam. Ct. 2011) 33 Misc.3d 710, the child had formed an “‘inseparable bond’” 

with maternal relatives who had served as his parents since his birth and who wished to 

adopt him, but were disqualified from adopting by a conviction from 12 years before the 

child was born. (Id. at pp. 711-713.) The children in In re Adoption of Jonee (N.Y. Fam. 

Ct. 1999) 181 Misc.2d 822 had lived for seven years with an aunt who wished to adopt 

them, who they “viewed as a ‘loving parent,’” and with whom they shared a “‘deep 

bond.’” (Id. at pp. 824-825.) The children were nevertheless being removed from the 
14

aunt’s custody solely because of a 20-year-old conviction. (Ibid.) In re Adoption of 

Corey (N.Y. Fam. Ct. 1999) 184 Misc.2d 437 involved children placed in an unrelated 

foster family with whom they had developed a closely bonded parental relationship, and 

who desired to adopt them. (Id. at pp. 439-440.) The children were placed in the home 

before a new statute disqualified the parents from custody of the children, let alone 

adoption, because of a prior conviction suffered by the prospective adoptive father, who 

had since gotten sober and otherwise fully engaged in rehabilitating himself. (Id. at pp. 

439-441.) In each of these cases, the New York courts found that the absolute statutory 

bar disqualifying the parents violates state and federal constitutional rights, reasoning that 

due process required an individualized determination of whether maintaining the parental 

relationship would be in the children’s best interests, regardless of the parents’ prior 

convictions. (Matter of Abel, supra, at pp. 717-718; In re Adoption of Jonee, supra, at p. 

829; In re Adoption of Corey, supra, at pp. 446-447.)

We are persuaded that the reasoning of these New York courts, grounded in 

federal constitutional principles, applies equally well in this state. A permanent, 

irrebuttable statutory presumption regarding certain convictions—no matter what the 

underlying facts, no matter how long ago, and no matter the characteristics of the parent 

apart from the conviction—may not, consistent with the California State and United 

States Constitutions, absolutely disqualify an adult who shares a parental bond with a 

child from ever having that child placed in their care. Due process principles require, at 

the least, an individualized, case-by-case analysis, rather than the placement of an adult 
15

with a parental relationship in a category as broad as the one in which grandfather has 

been placed. The prohibition here encompasses even, for instance, very old misdemeanor 

convictions where a child was not physically harmed. As applied, the absolute bar at 

issue may work an unreasonable government interference with parental rights.

On the present record, we find it possible that grandparents have developed a 

relationship with the child that amounts to the sort of “bonded, quasi-family relationship 

that courts have found worthy of protection as a fundamental interest.” (In re H.K., 

supra, 217 Cal.App.4th at p. 1435.) Among other things, the record makes it obvious 

that the child loves his grandparents and views their house as his “home.” As well, a

social worker viewed grandparents as the “only constant” in the child’s life—and 

endorsed overnight, unsupervised visitation, sometimes extended for days and even 

weeks at a time—which also supports the conclusion that grandparents have served a 

fundamentally parental role in the child’s life.

Moreover, on the present record, we find it plausible that, absent the absolute 

statutory bar, CFS would have found grandfather’s conviction to be exemptible. In the 

absence of an absolute statutory bar cutting short the analysis, an agency considering 

whether to grant a criminal records exemption is required to 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 
16

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.” (In re Esperanza C.

(2008) 165 Cal.App.4th 1042, 1056 (Esperanza C.)) 

We emphasize that the Legislature’s determination that an offense constitutes an 

absolute bar to placement must still be considered as the starting point in the analysis 

when it applies, even though due process requires that a person who has a parental 

relationship with a child receive a more individualized determination when placed in a

broad category for disqualification.

8

 And for crimes normally subject to an absolute 

statutory bar on exemptions, the first factor listed in Esperanza C.—the nature of the 

crime and whether it involved violence or a threat of violence to others—will often weigh 

strongly, even dispositively, in favor of denial. That may not be so, however, for a 

misdemeanor conviction like grandfather’s, which arose, so far as we can tell from the 

record, from circumstances involving only minimal violence and no injury to any victim. 

Also, the other factors, so far as we can determine, are either neutral or weigh in favor of 

 

8 Consistent with cases applying the due process clause to require an individual 

determination where persons are placed broad regulatory or statutory categories, we 

believe the absolute statutory bar must be a starting point for the analysis, even if 

constitutional considerations require departure from that default position. (See In re 

Humphrey (2018) 19 Cal.App.5th 1006, 1044-1045 [describing bail amount from

schedules as “starting point” and “default position,” even though individualized inquiry 

required to make final determination of amount necessary to secure defendant’s 

appearance]; Beckles v. United States (2017) 137 S.Ct. 886, 894 [describing federal 

sentencing guidelines as “‘the starting point and the initial benchmark’ for sentencing” 

after United States v. Booker (2005) 543 US. 220, 259, even though individualized 

assessment is constitutionally required.)
17

granting grandfather an exemption. Among other things, grandfather’s offense was 

committed in 1991; although he has not obtained a pardon, he has obtained dismissal of 

the charge pursuant to Penal Code section 1203.4; and we have no reason to conclude he 

has committed any other crimes, or otherwise failed to show good character and complete 

rehabilitation.

Nevertheless, the record we have before us is limited, and in this appeal, at least, 

CFS has contested whether grandparents’ relationship with the child should be viewed as 

parental. We cannot determine how long the child and his mother were living with 

grandparents before the child was removed, and the record has only sparse information 

about the circumstances of that cohabitation. The child resided in the grandparents’ 

house, but it was the child’s mother who had custody of him. By the April 2019 hearing, 

the child had not resided with the grandparents for two years. By the time this opinion 

issues, approximately another year of the child living in a group home will have elapsed. 

Our limited record shows no reason to conclude that the child has formed parental bonds 

with any other parental figures during this time. Although visitation with grandparents 

was going well as of April 2019, nothing in the record speaks to current circumstances, 

whether positive or negative. Furthermore, our record contains only grandfather’s own, 

possibly self-serving description of the circumstances giving rise to his 1991 conviction. 

It may be that there is another side to that story that needs to be taken into account in 

deciding whether an exemption should be granted, even though we hold due process 
18

would require an individualized determination, if it is determined that grandparents have 

a parental relationship with the child.

In other dependency contexts, the existence of a parental relationship is generally 

a factual determination for the juvenile court to make in the first instance. (See, e.g., In 

re Anthony B. (2015) 239 Cal.App.4th 389, 395 [regarding determination of whether 

there is a beneficial parental relationship for purposes of statutory exception to 

termination of parental rights].) Here, grandparents’ constitutional argument, premised 

on the existence of a parental relationship with the child, was raised for the first time on 

appeal, so the juvenile court has never had the opportunity to consider whether their 

relationship with the child is the sort of “bonded, quasi-family relationship that courts 

have found worthy of protection as a fundamental interest.” (In re H.K., supra, 217 

Cal.App.4th at p. 1435.) We conclude that the matter should be remanded for the trial 

court to make that predicate factual determination in the first instance.

III. DISPOSITION

The juvenile court’s order denying grandparents’ request for an order that CFS 

reassess their application to be approved as a resource family is reversed, and the matter 

is remanded for the trial court to take evidence and make factual findings about whether 

grandparents’ relationship with the child is the sort of “bonded, quasi-family 

relationship” that should be deemed “worthy of protection as a fundamental interest.” (In 

re H.K., supra, 217 Cal.App.4th at p. 1435.). If the juvenile court finds that 

grandparents’ relationship with the child is worthy of such protection, it shall direct CFS 
19

to reassess grandparents’ request for a criminal records exemption on an individualized 

basis, applying the legal standard articulated in this opinion. If the juvenile court finds 

that grandparents’ relationship with the child is not worthy of such protection, it shall 

again deny grandparents’ request that CFS be directed to reassess grandparents’ 

application.

CERTIFIED FOR PUBLICATION

RAPHAEL

J.

We concur:

CODRINGTON

Acting P. J.

SLOUGH

J.