How could my criminal record affect my ability to be appointed as the child’s guardian in dependency court?

First, the bad news: If the child is NOT living with you right now, before the judge can make you the child’s guardian and allow the child to live with you, the court staff (or a county social worker) must run a background check on you AND any other adults who live in your home or who will spend significant time with the child.[2473] If you (or any other adult who gets checked) have a criminal record, the judge will not allow the child to live with you UNLESS you get a “criminal record exemption” from the county social service agency.[2474] A criminal record exemption means you must get the county social service agency to excuse your conviction and not hold it against you in the process of becoming the child’s guardian through dependency court.

What convictions can I NOT get an “exemption” for?

Unfortunately, many convictions are considered “non-exemptible,” which means if you or anyone in your home has a non-exemptible conviction on your criminal record, the judge will NOT allow the child to live with you, even if living with you would otherwise be good for the child.[2475]

Non-exemptible convictions include: A FELONY conviction for child abuse, child neglect, spousal abuse, other crimes against a child (including child pornography), or for a crime involving violence (including rape, sexual assault, and homicide), and a felony conviction within the last 5 years for physical assault, battery, or a drug- or alcohol-related offense.[2476]

IMPORTANT EXCEPTION: BUT—and this is a big BUT—if the child is already living in your home, the judge can allow the child to continue living with you, even if you or someone else in the home has a “non-exemptible” conviction, especially if the child is doing well there.[2477]

FREE RESOURCES

For more information on juvenile dependency court and dependency court guardianship, these guides explain how dependency court works, and explain your rights and responsibilities as a parent, caregiver, or guardian:FOR PARENTS—

FOR CAREGIVERS & GUARDIANS—

Court forms for juvenile dependency court are available on the California Courts’ website at http://www.courts.ca.gov/1208.htm.

  1. 2473

    Cal. Welf. & Inst. Code § 361.4. The background checks will include both criminal records and child abuse, and may also be conducted on any person over age 14 living in your home if the social worker believes that person may have a criminal record.

  2. 2474

    To get a criminal record exemption, you must show strong evidence of your good character, such that living with you will be in the child’s best interest AND will not put the child at risk of harm. Cal. Welf. & Inst. Code § 361.4(d)(2).

  3. 2475

    Cal. Welf. & Inst. Code § 361.4(d)(2); Los Angeles Cnty. Dep’t of Children & Fam. Svcs. v. Superior Court (Valerie A.), 7 Cal. App. 4th 1161, 1168 (2001), review denied. The complete list of non-exemptible offenses is contained in Cal. Health & Safety Code § 1522(g). However, certain offenses are “non-exemptible only under specified circumstances,” and the Director of Social Services may have discretion to grant an exemption for an offense that otherwise would be non-exemptible. See In re Esperanza C., 165 Cal. App. 4th 1042, 1057 (2008). In addition, some counties may not have authority to issue an exemption, which means the judge cannot place a child in a home where any person has been convicted of a crime other than a minor traffic violation. Cal. Welf. & Inst. Code § 361.4(d)(6).

  4. 2476

    Cal. Health & Safety Code § 1522(g)(C).

  5. 2477

    L.A. Cnty. Dep't of Children & Fam. Svcs. v. Sup. Ct. (Cheryl M.), 112 Cal. App. 4th 509, 520 (2003). Moreover, if the welfare agency was aware of the person’s criminal record when it originally placed the child in the home, the agency may not argue later that the criminal record is a reason to remove the child. In re Miguel E., 120 Cal. App. 4th 521 (2004). However, if the child was allowed to live with relative as an emergency placement, the welfare agency can remove the child if it later finds that any adult living in the home has a criminal record. Cal. Welf. & Inst. Code § 361.45 (2010); In re M.L., 205 Cal. App. 4th 210 (2012), as modified on denial of reh'g (May 16, 2012).