Tracy J. v. Superior Court

202 Cal. App. 4th 1415, 2012 WL 234030
CourtCalifornia Court of Appeal
DecidedJanuary 26, 2012
DocketNo. D060252
StatusPublished
Cited by131 cases

This text of 202 Cal. App. 4th 1415 (Tracy J. v. Superior Court) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tracy J. v. Superior Court, 202 Cal. App. 4th 1415, 2012 WL 234030 (Cal. Ct. App. 2012).

Opinion

[1419]*1419Opinion

McINTYRE, J.

Tracy J. and Michelle B. seek review of juvenile court orders terminating family reunification services and setting a hearing under Welfare and Institutions Code section 366.26. (Further statutory references are to the Welfare and Institutions Code.) They contend there is not substantial evidence to support the findings that it would be detrimental to return their son, T.J., to their physical care and that reasonable services were offered or provided to them.

We conclude that the parents, who are developmentally disabled, did not receive reasonable family reunification services. Despite positive reports from professionals about the parents’ devotion to the child and to his safety, the San Diego County Health and Human Services Agency (the Agency) unreasonably limited visitation services. We emphasize that harm to a child cannot be presumed from the mere fact a parent is developmentally disabled. The Agency may not limit a developmentally disabled parent’s visitation in the absence of evidence showing the parent’s behavior has jeopardized or will jeopardize the child’s safety, and it cannot impede the progression of visitation services to a parent solely out of concerns about the parent’s mental health status. Accordingly, we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Tracy J. and Michelle B. are the parents of T.J., bom January 2010, and Nancy J., bom May 2011. This proceeding concerns only TJ. (Nancy is mentioned when relevant to T.J.’s case.) Nine days after his birth, the Agency detained TJ. in protective custody and filed a petition alleging Michelle and Tracy were developmentally disabled and could not provide regular care to him. (§ 300, subd. (b).)

The juvenile court sustained the petition, removed TJ. from parental custody and ordered a plan of family reunification services. Michelle’s and Tracy’s case plans included general counseling, a parenting education program, psychological evaluation and a San Diego Regional Center (SDRC) assessment and services, if offered.

Michelle said she had Prader-Willi syndrome, a noninherited genetic disorder that results in a variety of physical and behavioral characteristics, including obesity, health problems related to obesity and mild to moderate cognitive impairment. (Mayo Clinic, Prader-Willi syndrome <http://www.mayoclinic.com/ health/prader-willi-syndrome/DS00922/DSECTION-symptoms> [as of Jan. 26, 2012].) Michelle’s arms were short in proportion to her body, which made it difficult for her to hold and feed TJ. She had a weight problem and walked with [1420]*1420difficulty. Overall Michelle tested in the borderline range of intellectual functioning. Her verbal comprehension index score was in the average range. Michelle was generally able to cope with everyday problems. There was no indication Michelle had substance abuse problems or a personality disorder.

Michelle participated in an SDRC assessment. SDRC determined Michelle did not have Prader-Willi syndrome and was not mentally retarded, and did not qualify for their services.

Tracy tested in the lower range of mildly mentally retarded. His condition was not genetic; he had suffered a head injury when he was a child. Tracy did not appear to suffer from any personality pathology. According to the evaluating psychologist, Tracy was capable of utilizing reunification services but his prognosis for reunifying with T.J. was poor.

T.J.’s development was assessed within normal limits. He had asthma, requiring different treatments depending on the severity of his symptoms. T.J. was described as happy and active. He was placed in a concurrent planning home with foster parents who wanted to adopt him.

Michelle and Tracy were provided one supervised visit a week, lasting from three to four hours. The visitation supervisor said Michelle and Tracy demonstrated a parental role with T.J., responded appropriately to his verbal and nonverbal signals, put his needs ahead of their own and consistently displayed empathy toward him. Because of her physical limitations, Michelle found it difficult to diaper T.J., fasten his clothing and take him out of his high chair. She relied on Tracy for assistance.

In October 2010, at the six-month review hearing, the social worker said the parents fully complied with their case plans but still needed instruction and guidance on feeding, holding and clothing T.J. The juvenile court continued family reunification services and authorized the Agency to implement unsupervised visits with notice to minor’s counsel, and overnights and a 60-day home visit with the advance concurrence of minor’s counsel.

Michelle reapplied for SDRC services but was again denied.

The 12-month review hearing, originally scheduled for March 2011, was continued and heard with T.J.’s 18-month review hearing (and Nancy’s jurisdictional and dispositional hearing) on July 25 and 26, 2011. The Agency recommended the court terminate family reunification services and set a section 366.26 hearing for T.J., and provide six months of services in Nancy’s case.

[1421]*1421The social worker, Anthony Scheri, said Michelle and Tracy actively participated in family reunification services. He concluded they were able to follow directions but did not have the ability to safely parent their children. Scheri questioned the parents’ ability to assess T.J.’s asthma symptoms and treat him appropriately.

As an example of the parents’ inability to parent their children, Scheri cited a visit supervised by the foster mother on July 13, 2011. Although some details of the foster mother’s account of the visit were contradicted by the SDRC professionals present at the visit, the foster mother reported concerns about the children’s safety in their parents’ care. These included: Michelle gave water to Nancy instead of formula and was unable to take her out of the stroller without assistance; Michelle did not know how to react to T.J.’s tantrum and did not check him for injuries after he threw himself on the floor; Tracy told T.J. to “stay” on a changing table and walked away to throw out the diaper; Tracy left T.J. in a stroller in the middle of the mall and walked 30 to 40 steps away to get a high chair; and Tracy did not check TJ. for injuries after TJ.’s tantrum.

Tonya McCleave, a service coordinator for SDRC for 25 years, provided case management services and independent living skills training to Tracy. By coincidence, McCleave was at the mall on July 13. She also observed an earlier visit at the parents’ home. McCleave said Tracy was a loving and caring father. He was able to provide for the children’s safety on the two occasions she was present. The home environment was clean. He did not become frustrated when caring for the children. At the mall, Tracy was trying to secure T.J. in a high chair when he realized the safety belt was not working properly. Tracy explained to T.J. he had to keep him safe and found another high chair with a safety belt.

McCleave said the SDRC team did not conduct a parenting assessment of Tracy but had discussed his ability to follow through with the court’s requirements. Tracy did not qualify for some SDRC services because he was independent and high functioning in many ways, and was able to follow directions with guidance. Tracy’s and Michelle’s strengths and weaknesses balanced each other, and they fiinctioned well as a team.

Donna Reyes was an investigator with Dependency Legal Group of San Diego.

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Bluebook (online)
202 Cal. App. 4th 1415, 2012 WL 234030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracy-j-v-superior-court-calctapp-2012.