Opinion
S269868
09-29-2021
IN RE JOSHUA S.
F082100 Fifth Appellate District.
The petition for review is denied.
Concurring Statement by Justice Liu
When a child is removed from a parent's or guardian's custody, Welfare and Institutions Code section 361.5, subdivision (a)(1) says the juvenile court "shall" order that the parent or guardian receive reunification services. (All statutory references are to the Welfare and Institutions Code.) These services are intended" "to eliminate the conditions leading to the loss of custody'" and to further" "the goal of preservation of family, whenever possible.'" (Renee J. v. Superior Court(2001) 26 Cal.4th 735, 744.) The goal of reunification extends beyond the parent's interest in "actual physical custody" and includes "exploring ways of protecting the "parent['s] interest in the companionship, care, custody, and management of his [or her] children.'" (In re Monica C.(1995) 31 Cal.App.4th 296, 308, 309.)
The mandate to provide reunification services is subject to a few caveats. First, section 361.5, subdivision (a)(1) contains three exceptions relating to when the parent or guardian is uninterested in reunification services or when reunification services have already been terminated under the juvenile court's delinquency jurisdiction.
Second, section 361.5, subdivision (b) provides a separate list of 17 statutory bypass provisions under which the juvenile court "need not" order reunification services. Some of these exceptions are premised on a finding of criminal wrongdoing, including where "the parent or guardian of the child has been convicted of a violent felony," "the parent or guardian has been required by the court to be registered on a sex offender registry," or "the parent or guardian knowingly participated in, or permitted, the sexual exploitation . . . of the child." (§ 361.5, subd. (b)(12), (16) & (17).)
Third, section 361.5, subdivision (e) contains a bypass procedure for a parent or guardian who is "incarcerated, institutionalized, or detained by the United States Department of Homeland Security, or has been deported to the parent's or guardian's country of origin." (§ 361.5, subd. (e)(1).) For these parents and guardians, the juvenile court is authorized to deny reunification services if it finds by "clear and convincing evidence" that "those services would be detrimental to the child." (Ibid.) In making that determination, the juvenile court "shall consider" factors such as "the length of the sentence," "the nature of the crime," and "the likelihood of the parent's discharge from incarceration . . . ." (Ibid.)
Here, C.S. (hereafter Mother) faced several criminal charges at the time of the disposition hearing, and she was in custody pending trial due to an inability to post bail. None of the charges appears to fall within the 17 bypass provisions set forth in section 361.5, subdivision (b). Because she was in custody, however, the juvenile court deemed Mother to be an "incarcerated" parent under section 361.5, subdivision (e)(1). After considering the age of the children, the relationship between the children and Mother, and the nature of the charges, the court determined that reunification services would be detrimental to her children and denied Mother all reunification services.
Mother's petition raises a question of statutory interpretation. She argues that the term "incarcerated" in section 361.5, subdivision (e)(1) should include only those who have been convicted and sentenced to a period of incarceration. The Court of Appeal rejected this argument, relying on Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13. The court in Edgar O. explained that the term "incarcerated" plainly means "jailed" (id. at p. 17) and that "the obvious purpose of section 361.5, subdivision (e)(1) . . . is to address reunification services in cases where parents are not at liberty to come and go or to schedule activities as they please" (id. at p. 18).
Our denial of review today expresses no view on the proper reading of the statute. I write to call attention to a separate issue not directly raised by Mother's petition: whether the statutory scheme, as construed by the Court of Appeal, violates principles of equal protection.
Under the scheme, there are at least two ways in which parents who cannot post bail are treated differently from those who can. First, only parents who are in custody pending trial are subject to a "detriment" analysis (§ 361.5, subd. (e)(1)) that could potentially result in the denial of all reunification services. By contrast, assuming none of the other statutory exceptions apply, a parent who faces the exact same charges but is able to post bail remains entitled to the provision of reunification services under section 361.5, subdivision (a)(1).
Second, only parents who are in custody pending trial are subject to the juvenile court's consideration of their moral culpability based on unadjudicated criminal charges. Once the door to a "detriment" analysis is opened, the juvenile court is directed to consider factors like "the nature of the crime" and "the likelihood of the parent's discharge from incarceration." (§ 361.5, subd. (e)(1).) The listing of these factors invites the juvenile court to consider the parent's culpability or likelihood of guilt when determining if reunification services should be provided at all. This door can be opened solely by dint of a parent's inability to afford bail, whereas it would stay shut if he or she could post bail.
In other words, for a parent who is able to afford bail, "the nature of the crime" or "the length of the sentence" cannot serve as reasons for denying reunification services; there is no exception from section 361.5, subdivision (a)(1)'s mandate of reunification services that authorizes such consideration. (See Simmons v. Ghaderi (2008) 44 Cal.4th 570, 587 [where "the Legislature provided express exceptions" in a statute," " "we may not imply additional exemptions unless there is a clear legislative intent to the contrary"' "].) At most, those factors can inform what types of services may be appropriate. By contrast, for a parent who faces the exact same charges but cannot afford bail, a juvenile court may consider the nature of the charges and the parent's potential culpability in deciding not only what types of services may be appropriate but also whether to deny reunification services altogether.
Mother's case demonstrates how this statutory scheme can operate to deny parents or guardians reunification services altogether. The fact that Mother was in custody pending trial prompted an inquiry into whether reunification services would be "detrimental to the child." (§ 361.5, subd. (e)(1).) The juvenile court pursued this inquiry by considering the factors stated in the statute and, expressly noting that the "[n]ature of the crime [was] concerning," denied Mother all reunification services. If Mother had been able to post bail, the nature of the charges could only have informed what kind of reunification services she would be provided, not whether she would be provided any services at all.
Although some Courts of Appeal have rejected equal protection challenges to this statutory scheme, those decisions have not addressed the specific forms of discrimination described above. The courts have reasoned that any disparate treatment is rationally related to the government's legitimate interest in finding permanent placements for children within a limited timeframe, which is made more difficult when a parent is confined. (See In re J.M. (May 22, 2015, A142654) [nonpub. opn.]; In re T.M.(July 8, 2015, A142643) [nonpub. opn.].) But even if factors such as "the nature of the crime" and "the length of the sentence" facing the parent are rational considerations in determining the best placement for a child, I find it troubling that a court could consider such factors in denying reunification services altogether in the case of a parent who cannot afford bail, when the court could not deny reunification services based on such factors in the case of a parent who faces the exact same charges but can afford bail.
"The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional," and "[t]he disadvantages to remaining incarcerated pending resolution of criminal charges are immense and profound." (In re Humphrey(2021) 11 Cal.5th 135, 143, 147.) Such disadvantages include the possible termination of parental rights. Whether principles of equal protection permit disparate treatment in the provision of reunification services to parents who can afford bail and those who cannot is an issue that courts may need to resolve.
Alternatively, the Legislature may wish to reconsider the statute in light of the potential unfairness it creates. Among other options, the statute could be amended to ensure that parents and guardians facing criminal charges are treated the same, regardless of whether they can afford bail. More specifically, the Legislature could make clear that in the case of parents in pretrial custody solely because of an inability to afford bail, juvenile courts may consider the factors specified in section 361.5, subdivision (e)(1) to decide what types of reunification services are appropriate, but may not consider such factors to deny reunification services altogether.
I Concur: CUÃLLAR, J.