The Supreme Court denied review yesterday in In re Joshua S., a dependency case. There were no recorded votes to grant, but Justice Goodwin Liu issued a 6-page concurring statement on a constitutional question he said was “not directly raised” in the petition for review. Justice Mariano-Florentino Cuéllar signed the statement.
The Fifth District Court of Appeal’s unpublished opinion in the case affirmed the denial of reunification services to a mother whose child had been removed from her custody. A statute provides the services are generally mandatory, but gives a juvenile court the discretion to deny them under certain circumstances when a parent is “incarcerated.” The mother, who was in jail awaiting trial, unsuccessfully argued “incarcerated” applies only to people incarcerated after conviction and sentencing.
Justice Liu’s separate statement claims the statutory scheme raises equal protection concerns because the “door [to the discretionary denial of reunification services] 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.” He cites two 2015 unpublished Court of Appeal opinions rejecting equal protection challenges, but finds “troubling” the distinction between parents who can afford bail and those who can’t. (Regarding the citation of unpublished opinions, see here.) He suggests that the courts or, alternatively, the Legislature might address the issue.
In 2015, Justice Liu revived a long-dormant practice of issuing separate statements upon the court’s denial of review, and he has done so on a number of occasions since then. (See recently here, here, and here.)
Liu’s separate statement might disappear into relative obscurity. The statement is on the court’s online docket and is appended to the end of the appellate court’s opinion, but because that opinion is unpublished, neither the opinion nor the separate statement will be in the official reports. (See here.) Both should appear in computer research databases, however. (See here.)