Trial court: Alameda County Superior Court, in Session as a Juvenile Court Trial judge: Hon. Kimberly Briggs (Alameda County Super. Ct. No. OJ010443)
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
After placing a dependent child in the home of her grandparents on an emergency basis, the Alameda County Social Services Agency (Agency) discovered that the grandfather had a criminal history rendering the home ineligible as a formal relative placement. (Welf. & Inst. Code, § 361.4.)*fn2 The Agency moved the child from the grandparents' home and filed a petition under section 387, while grandfather sought a criminal history exemption that would have allowed the home to be considered as a placement. (§ 361.4, subd. (d)(2).) This exemption request was ultimately denied by the Agency.
In an unfortunately protracted and possibly unnecessary proceeding under section 387, the juvenile court reviewed the propriety of the move from the grandparents' home and the Agency's decision to deny the grandfather's criminal records exemption. After a series of hearings over 17 months, the court dismissed the Agency's section 387 petition and ordered the child placed with her grandparents. The Agency appeals, arguing that the placement order was unauthorized in light of the grandfather's unexempted criminal history, and that the juvenile court should have granted the section 387 petition. The Agency also argues that the court exceeded its authority by ordering reunification services and transportation assistance to facilitate the transition to the grandparents' home; that it erred when it found reasonable services had not been provided to the child; and that it should have identified a permanent plan for the child.
We agree with the Agency that the juvenile court erred in dismissing the section 387 petition and ordering the child placed with the grandparents. In light of this conclusion, the order requiring the Agency to provide reunification services and transportation assistance must also be set aside.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Dependency/Family Maintenance Plan
M.L. was born in July 2008 to T.L. (father) and M.P. (mother), each of whom has a long history of criminal activity and substance abuse. The parents have six other children, all of whom were living outside the home, and some of whom had been the subjects of juvenile dependency proceedings.
The Agency filed a dependency petition alleging that both mother and M.L. had tested positive for opiates and alcohol at M.L.'s birth; that mother had a history of polysubstance abuse; and that the parents' other children were living outside the home due to the parents' drug use, criminal activities and incarcerations. On August 13, 2008, the juvenile court declared M.L. a dependent under section 300, subdivisions (b) and (j), and placed her in the custody of her parents under a family maintenance plan. (§ 362, subd. (b).)
According to the status report prepared by the Agency for the January 2009 review hearing, the parents had to leave their home and were looking for other housing while "living with relatives when they can." By the time of the July 2009 status hearing, the family had moved into the home of M.L.'s paternal grandparents, M.P (grandmother) and D.M. (grandfather). In October 2009, the parents agreed to continue drug testing and treatment and to continue residing with the grandparents as a condition of retaining M.L. in their care.
B. Section 387 Petition Removing M.L. from the Parents' Custody
On December 10, 2009, the Agency filed a supplemental petition under section 387, alleging that the parents had not complied with drug treatment and testing requirements; that they were no longer living with the paternal grandparents; and that father had been incarcerated in San Quentin prison for theft and drug possession.*fn3 The detention report filed by the Agency advised the court that M.L. had been taken from the custody of her parents on December 8, 2009, and was allowed to remain in her grandparents' home after social worker Eddy Herrera approved an emergency relative placement. The report stated that the grandparents' home "will be assessed for relative approval" by Herrera, and "[t]here is a relative who is able, approved, and willing to care for the child(ren)." On December 8, 2009, the grandfather signed a criminal records statement under penalty of perjury in which he denied having been convicted of a crime in California or another jurisdiction.
At the detention hearing on December 11, 2009, the court removed M.L. from her parents' custody and "[c]ommitted [her] to the care, custody and control of the  Agency to be placed in a suitable family home or private institution." It also adopted certain findings in the detention report, which included the statement, "there is a relative who is able, approved, and willing to care for the child(ren)."
The Agency filed a jurisdictional/dispositional report on the section 387 petition reiterating that M.L. had been placed with her grandparents in a relative emergency placement. The report stated that M.L. was doing well in her the home of her grandparents, with whom she appeared comfortable and bonded. It characterized the placement as being in the home of "an approved relative" (versus an approved non-relative extended family member, a licensed foster parent, or a licensed emergency foster parent--the other preprinted boxes that could have been checked in that section of the report).
A combined jurisdictional/dispositional hearing was held on the section 387 petition on January 13, 2010. The court set aside the previous order placing M.L. with her parents, denied them reunification services, and the set the case for a section 366.26 hearing on May 11, 2010 to select a permanent plan. M.L. was "[c]omitted  to the care, custody and control of the  Agency to be placed in a suitable family home or private institution," and the court adopted findings from the Agency's report that characterized her current placement as being with "an approved relative." The order also stated that visitation with the grandparents was "appropriate" and was to be arranged at the discretion of the Agency.
C. Live Scan Results--Grandfather's Criminal History
As part of the process for approving the grandparents' home for placement, the Agency conducted a "Live Scan" to investigate their criminal history.*fn4 Although the grandmother had no criminal history, the grandfather's rap sheet revealed the following: a 1965 conviction for petty theft; a 1969 conviction for driving at an unsafe speed; a 1970 conviction for driving with a suspended license; a 1977 conviction for reckless driving; a 1980 conviction for malicious mischief/vandalism; a 1983 conviction for resisting arrest; a 1995 conviction for possession of a controlled substance; a 2000 conviction for possession of a controlled substance; and various other arrests, including one for domestic violence in February 2009. Under state law, the grandfather's convictions disqualified him as a placement for M.L. unless he obtained a criminal records exemption from the Agency. (See § 361.4, subd. (d).)
D. Second Section 387 Petition and Removal of M.L. from Grandparents' Home
On March 26, 2010, the Agency filed a supplemental section 387 petition alleging that the grandparents were unable to safely care for M.L. in that both of them had used drugs while she was living in their home and the grandmother had been diagnosed with a mental health condition that had prevented her from becoming a caretaker for a sibling of M.L.'s who was declared a dependent in Contra Costa County. The petition further alleged, "Approximately four months ago, the paternal grandparents were advised that the paternal grandfather must submit to a standard exemption in order for the home to be cleared for placement. For the past four months, the paternal grandfather has not cooperated with the exemption process."
The detention report filed in connection with the section 387 petition indicated that M.L. had been taken into protective custody on March 24, 2010, and placed in a licensed foster home. It explained, "On 3/24/10, a Team-decision Making meeting was held for the purpose of consideration for a change in placement. The primary concern centered around the placement that could not be approved in the home of the paternal grandparents in that the child was placed only on an emergency basis in December 2009. To explain, initially the child was placed with the parents under the condition that they remain in the home of the paternal grandparents, in addition to other requirements set forth in their case plan. About seventeen months after the in-home order, the child was removed from the care of the parents, yet she was allowed to remain in the home of the paternal grandparents. Fast forward to early December 2009 (to date), the paternal grandfather was informed that he must fulfill the process for a Standard Exemption based on his criminal record; however, he never did. In addition, the agency received information from a worker in Contra Costa County alleging ongoing substance abuse by the paternal grandparents, as well as mental health issues on behalf of the paternal grandmother. Last month, the primary worker, Jenaiah Jones, witnessed concerns about the grandparents' behavior, particularly the paternal grandmother during a recent home visit. . . ."
On March 29, 2010, the court found a prima facie case that removal was necessary (§ 319). On April 22, 2010, the Agency filed an amended supplemental section 387 petition deleting the allegations that the grandparents had used drugs. The grandparents, who sought to have M.L. returned to their home, were granted de facto parent status in May 2010.
E. First Phase of Hearing on section 387 Petition
The first portion of the contested hearing on the amended supplemental section 387 petition was held over several days between June 2010 and October 2010, while the hearing under section 366.26 (initially set for May 11, 2010) was continued. The following evidence was presented on the section 387 petition:
1. Social Worker Eddy Herrera
Eddy Herrera was the social worker responsible for the placement of M.L. with the grandparents after she was detained outside her parents' custody in early December 2009. He testified that although grandfather had signed a document on December 8, 2009 indicating that he had no criminal history, grandfather had told Herrera that he had some "minor indiscretions years ago." On December 9, 2009, Herrera did an initial check of the grandparents' criminal history using CLETS (California Law Enforcement Telecommunications System) and CACI (Child Abuse Central Index), which revealed no "hits."*fn5 Based on this information, he approved M.L.'s placement in the grandparents' home on an emergency basis.
Before Herrera could approve the grandparents' home for a more permanent placement, a Live Scan based on their fingerprints was required. The Scan revealed that the grandfather had nine criminal convictions between 1965 and 2000, and an arrest for spousal abuse in 2009. Herrera advised the grandfather that his convictions disqualified him as a placement for M.L. unless he obtained a criminal records exemption from the Agency. (See § 361.4, subd. (d).) Grandfather hired an attorney to assist in this process, but had difficulty obtaining records from some of the older cases, which dated from the 1960's and 1970's. Herrera believed the grandfather had been cooperative in gathering what information he could, but it was also difficult for the Agency to obtain these records, which came from different jurisdictions. The exemption application had not yet been resolved because the Agency was still gathering information from other jurisdictions.
2. Social Worker Rachael Sims
Social worker Rachael Sims testified that M.L. could not be returned to the grandparents' home because a criminal exemption had not been granted and the home had not, therefore, been approved. In her opinion, the document the grandfather had submitted to explain his criminal history as part of the exemption process did not show insight.*fn6 Sims questioned whether the home was safe, ...