Tracy J. v. Super. Ct.

Filed 11/18/11 Tracy J. v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TRACY J. et al.,
Petitioners,
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
D060252
(San Diego County
Super. Ct. No. J517708A)
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
Real Party in Interest.
PROCEEDINGS in mandate after referral to a Welfare and Institutions Code
section 366.26 hearing. Ana L. Espana, Judge. Petition granted. Stay vacated.
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

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contend there is not substantial evidence to support the findings 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 grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Tracy J. and Michelle B. are the parents of T.J., born January 2010, and Nancy J.,
born May 2011. This proceeding concerns only T.J. (Nancy is mentioned when relevant
to T.J.'s case.) Nine days after his birth, the San Diego County Health and Human
Services Agency (the Agency) detained T.J. 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 T.J. 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 non-inherited 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-
sydrome/DS00922/DSECTION-symptoms> [as of Oct. 28, 2011].) Michelle's arms were
short in proportion to her body, which made it difficult for her to hold and feed T.J. She
had a weight problem and walked with difficulty. Overall Michelle tested in the
borderline range of intellectual functioning. Her verbal comprehension index score was

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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 a 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.

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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.
The 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

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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;
Tracy did not check T.J. for injuries after T.J'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 functioned well as a team.
Donna Reyes was an investigator with Dependency Legal Group. She previously
worked for the Agency as a social worker in the court intervention unit. Reyes observed
three visits between the parents and T.J. at the parents' home. Their home was clean.

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Reyes did not see any safety concerns. Social worker Stephanie Carter did not have to
intervene or correct the parents to avoid any dangerous situations.
Angelica Garcia provided independent living skill services to Tracy and was often
in the home. Garcia said Tracy played with T.J. and explained things to him. T.J.
followed his father around the house. In the beginning, the social worker would offer
suggestions to Tracy. Now Tracy parented T.J. fairly independently. The parents did not
need to be reminded to prepare food and feed T.J.
Randene Ostlund also provided independent living services to Tracy. She had 30
years experience working with adults with developmental disabilities. Ostlund was
impressed by Tracy's dedication to T.J. He was very cognizant of T.J.'s safety. Michelle
read to T.J. Ostlund said the parents cared for the children as a team. Michelle was
articulate and observant but had physical challenges. Tracy was agile, quick and capable
of multitasking.
Garcia was present during the visit at the mall when T.J. threw a tantrum. She
testified Tracy picked up T.J. and checked him for injuries. When Tracy looked for a
high chair, he left T.J. in the care of the others at the visit.
Social worker Carter supervised the parents' visits with T.J. T.J. liked to follow
his father around. They played ball together. Carter said the interactions between T.J.
and his parents were "great." The parents were protective and alert. They were able to
learn educational material about safety, nutrition and basic childhood necessities. Carter
never saw Tracy leave T.J. alone during a diaper change. The only potentially dangerous
situation Carter observed in the last year was when T.J. fell and bumped his head. Tracy

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immediately went to T.J., picked him up in a "very nurturing, very loving" manner and
wiped away his tears. Carter showed Tracy a little lump that was starting to form on
T.J.'s forehead and advised him to put ice on it.
Carter said Tracy and Michelle could not individually care for T.J. without the
other parent's assistance. Carter said she would be uncomfortable leaving T.J. alone with
his parents because she did not know how the parents would respond to an emergency.
Carter acknowledged the parents knew how to call for help.
The juvenile court found that return to parental custody would be detrimental to
T.J. The court stated the parents were "moving in the right direction" but "the time [had]
run." In view of the highly structured, supervised visitation, and T.J.'s asthma, the court
said it could not find there was a substantial probability the parents would be able to care
for T.J. if it continued the 18-month review hearing for three months. The juvenile court
found that reasonable services were offered or provided to the parents, terminated
reunification services and set a section 366.26 hearing. In Nancy's case, the juvenile
court specified the services to be offered to the parents, and ordered the Agency to
implement short, unsupervised visits between the parents and Nancy.
Michelle and Tracy petition for review of the court's orders and request a stay of
the section 366.26 hearing. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) This
court issued an order to show cause and the Agency responded. The parties waived oral
argument. On October 28, 2011, this court stayed the section 366.26 hearing.

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DISCUSSION
A
Michelle and Tracy contend there is not substantial evidence to support the finding
that returning T.J. to parental custody would create a substantial risk of detriment to the
safety, protection, or physical or emotional well-being of the child (detriment finding).
Tracy maintains he was not given a reasonable opportunity to demonstrate he could
safely care for his son. Michelle argues she was not offered or provided reasonable
family reunification services because the Agency did not tailor the case plan to her
disabilities. She further asserts the juvenile court abused its discretion when it did not
extend the reunification period.
Each parent joins in and adopts the other's arguments.
B
The purpose of the California dependency system is to protect children from harm
and to preserve families when safe for the child. (§ 300.2; In re Dakota H. (2005)
132 Cal.App.4th 212, 228.) The focus during the reunification period is to preserve the
family whenever possible. (Rita L. v. Superior Court (2005) 128 Cal.App.4th 495, 507.)
Until services are terminated, family reunification is the goal and the parent is entitled to
every presumption in favor of returning the child to parental custody. (§§ 366.21,
366.22; David B. v. Superior Court (2004) 123 Cal.App.4th 768, 788 (David B.).) After
reunification services are terminated, the focus is to provide the child with a safe,
permanent home. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1788 (Elizabeth R.).)

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At a status review hearing, the court must return the child to the physical custody
of his or her parent unless the Agency proves, by a preponderance of the evidence, that
return to the parent would create a substantial risk of detriment to the safety, protection,
or physical or emotional well-being of the child. (§§ 366.21, subds. (e) & (f); 366.22,
subd. (a).) The court may not set a section 366.26 hearing at a six-month or 12-month
review hearing unless it finds by clear and convincing evidence reasonable services have
been offered or provided to the family. (§ 366.21, subds. (e) & (g)(1).) At the 18-month
review hearing, the court may continue the hearing under section 352 if it finds that
reasonable family reunification services have not been offered or provided to the parents.
(Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1017.)
We review the evidence most favorably to the prevailing party and indulge in all
legitimate and reasonable inferences to uphold the court's ruling. (In re Misako R. (1991)
2 Cal.App.4th 538, 545.) " 'Substantial evidence' is evidence of ponderable legal
significance, evidence that is reasonable, credible and of solid value. [Citations.]"
(Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) "Inferences may
constitute substantial evidence, but they must be the product of logic and reason.
Speculation or conjecture alone is not substantial evidence. [Citations.]" (Ibid.)
Tracy contends the social worker's and psychologists' opinions concerning his
inability to safely care for T.J. were speculative because he did not have the opportunity
to show he was capable of caring for his son. Michelle argues the social worker's
concerns about the parents' continued need for support services does not constitute
substantial evidence of detriment.

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Almost 30 years ago our colleagues at the Third District Court of Appeal wrote,
"Harm to the child cannot be presumed from the mere fact of mental illness of the parent
. . . . The proper basis for a ruling is expert testimony giving specific examples of the
manner in which the mother's behavior has and will adversely affect the child or
jeopardize the child's safety." (In re Jamie M. (1982) 134 Cal.App.3d 530, 540 (Jamie
M.).) The appellate court rejected any inferences or stereotypes to be drawn from a
parent's labeled diagnosis, stating such a diagnosis is a starting point, not a conclusion.
(Ibid.)
This observation applies equally to a nonabusive parent who has a physical or
developmental disability. We agree with Tracy that a psychologist's initial assessment
(completed before the parent has had the opportunity to meaningfully participate in
reunification services) does not constitute substantial evidence of current detriment to the
child. To the extent social worker Scheri's conclusions were based solely on the
evaluating psychologists' initial opinions and the parents' eligibility for support services,
those conclusions do not constitute substantial evidence of detriment. The evidence must
be viewed in light of the disabled parent's response to services and demonstrated ability
to safely care for the child, despite that parent's labeled diagnosis, initial prognosis or
eligibility for support services. (Jamie M., supra, 134 Cal.App.3d at p. 540; accord,
Elizabeth R., supra, 35 Cal.App.4th at pp. 1789-1790.)
The parents contend the social worker's concerns about their ability to properly
feed, clothe, bathe and clean T.J. are insignificant in view of their demonstrated ability to
provide basic care to T.J., the positive nature of their interactions with him and available

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SDRC services to assist them in parenting. They contend they need only provide an
adequate level of care for T.J., not an ideal one. (David B., supra, 123 Cal.App.4th at
p. 789.) The parents' contentions have significant merit.
However, in reviewing the evidence most favorably to the prevailing party, we
must conclude there is substantial evidence in the record to support the juvenile court's
finding it would be detrimental to T.J.'s health, safety and well-being if immediately
returned to the physical care of his parents. (§§ 366.21, subd. (f); 366.22, subd. (a).)
Michelle and Tracy saw T.J. under supervised conditions three to four hours a
week. They never parented T.J. on their own. T.J. was diagnosed with asthma. Michelle
and Tracy were not trained to recognize or treat his symptoms. They did not attend his
medical appointments. SDRC was unable to locate a residential facility for the family
and could not provide 24-hour services to Tracy. Under these circumstances, it is
reasonable to infer T.J. might suffer serious harm if he had an asthma attack while in the
sole care of his parents. Michelle's physical limitations made it difficult for her to
respond to T.J. We note the Agency's final court report contains more advocacy than
fact, and the evidence barely sustains the detriment finding under the substantial evidence
standard of review.
C
Tracy contends he was not offered a reasonable opportunity to demonstrate he
could safely care for his son because visitation with T.J. remained limited and supervised.
Michelle contends she was not provided services tailored to her physical disabilities. We
agree.

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Family reunification services play a critical role in dependency proceedings.
(§ 361.5; In re Alanna A. (2005) 135 Cal.App.4th 555, 563; see, 42 U.S.C. § 629a(a)(7).)
Reunification services should be tailored to the particular needs of the family. (David B.,
supra, 123 Cal.App.4th at p. 793.) The juvenile court and child welfare agency must
accommodate the special needs of disabled and incarcerated parents. (Elizabeth R.,
supra, 35 Cal.App.4th at p. 1792.)
The "adequacy of reunification plans and the reasonableness of the [Agency's]
efforts are judged according to the circumstances of each case." (Robin V. v. Superior
Court (1995) 33 Cal.App.4th 1158, 1164.) To support a finding reasonable services were
offered or provided, "the record should show that the supervising agency identified the
problems leading to the loss of custody, offered services designed to remedy those
problems, maintained reasonable contact with the parents during the course of the service
plan, and made reasonable efforts to assist the parents in areas where compliance proved
difficult . . . ." (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) "The standard is not
whether the services provided were the best that might be provided in an ideal world, but
whether the services were reasonable under the circumstances." (In re Misako R., supra,
2 Cal.App.4th at p. 547.)
We are concerned by the limitation on visitation services that were provided to
Michelle and Tracy. Visitation is an essential component of a reunification plan. (In re
Mark L. (2001) 94 Cal.App.4th 573, 580.) To promote reunification, visitation must be
as frequent as possible, consistent with the well-being of the child. (§ 362.1, subd.

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(a)(1)(A); In re Alvin R. (2003) 108 Cal.App.4th 962, 972.) Here, Michelle and Tracy
never received more than four hours a week of supervised visitation services.
Early in the dependency proceedings, a visitation supervisor said the parents
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. Later, the professionals involved in the case characterized the parents'
interactions with T.J. as "great," "very protective," "very loving and adoring,"
"protective [and] alert," "very nurturing, very loving," and "comfort[ing]". They also said
Tracy was a "very loving, caring father" and "very cognizant of [T.J.'s] safety." Social
worker Carter said the parents had a basic understanding of how to care for T.J.
Despite reports the parents were protective of T.J.'s safety, the record shows the
Agency did not advance the parents' visitation services. In explaining the limited
visitation, Carter said she would feel "uncomfortable" leaving T.J. alone with his parents.
Yet Carter described only one incident in more than a year that may have implicated
T.J.'s safety—when T.J., who was learning to walk, fell and bumped his head. The
record shows Tracy picked his son up, wiped away his tears and followed Carter's advice
to put ice on T.J.'s head.
When the Agency limits visitation in the absence of evidence showing the parents'
behavior has jeopardized or will jeopardize the child's safety, it unreasonably forecloses
family reunification on the basis of the parents' labeled diagnoses, and does not constitute
reasonable services. (Cf., Jamie M., supra, 134 Cal.App.3d at p. 540.) Here, Michelle
and Tracy fully cooperated with the Agency, made substantial progress with their court-

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ordered case plans and demonstrated their abilities to feed, soothe, protect and care for
T.J. Garcia said Tracy parented T.J. fairly independently. McCleave and Ostlund
emphasized the parents' ability to work as a team and the complementary nature of their
skills. The Agency's concerns about unsupervised visitation could have been alleviated
by scheduling services from SDRC and the public health nurse and implementing in-
home parenting skills training during a portion of the unsupervised visits, and providing
initial drop-in checks by the social worker. Under these circumstances, the visitation
services provided to reunify this family were clearly unreasonable.
The juvenile court's order directing the Agency to implement specific services in
Nancy's case reveals the deficiencies in services in T.J.'s case. Significantly, the court
found it necessary to manage services and visitation in Nancy's case. The court ordered
the Agency to implement short, unsupervised visits with Nancy; notify the parents of, and
encourage them to attend, Nancy's medical appointments; not allow the foster mother to
supervise visits; engage the services of the public health nurse; refer the parents to the
Step into Success program (a parenting program for parents with disabilities); and follow
up with SDRC to obtain services for Michelle.
In contrast, with the exception of assisting Michelle with her SDRC application,
the parents did not receive the services the juvenile court deemed important for family
reunification in Nancy's case. The parents were not informed about T.J.'s medical
appointments until they were over. They did not receive any instruction on how to
recognize T.J.'s asthma symptoms and treat him appropriately, which directly
undermined their ability to reunify with him. The parents did not have the assistance of

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the public health nurse. They were not referred to the Step into Success program, which
provides parenting instruction as well as independent living services to parents with
disabilities. We also note SDRC did not conduct a parenting assessment of Tracy.
Although services need not be perfect, they must be designed to remedy the family's
problems and accommodate the special needs of disabled parents. (In re Misako R.,
supra, 2 Cal.App.4th at p. 547; In re Riva M., supra, 235 Cal.App.3d at p. 414; Elizabeth
R., supra, 35 Cal.App.4th at p. 1792.)
In addition, the record indicates that Michelle was not offered or provided
reunification services designed to address her physical disabilities in caring for a child. A
developmentally or physically disabled parent is entitled to services that are responsive to
the family's special needs in view of the parent's particular disabilities. (Elizabeth R.,
supra, 35 Cal.App.4th at p. 1790.) The evaluating psychologist said Michelle's clinical
presentation was unusual and required ongoing assessment. In October 2010 a social
worker recommended that Michelle have an evaluation by a medical professional to
determine if she had Prader-Willi syndrome. This did not occur. If Michelle did not
have Prader-Willi syndrome, as SDRC determined, was her condition treatable? If the
Agency disagreed with SDRC's assessment, why did it not try to locate alternate services
for Michelle? Would Michelle have made progress in her ability to care for T.J. if she
received occupational or physical therapy, or parenting skills training appropriate to her
disabilities? The record does not support a finding the Agency adequately identified
Michelle's problems and provided services responsive to her needs. (In re Riva M.,
supra, 235 Cal.App.3d at p. 414; Elizabeth R., supra, 35 Cal.App.4th at p. 1790.)

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We conclude there is not substantial evidence to support the juvenile court's
finding reasonable family reunification services were offered or provided to Michelle and
Tracy. Despite their full cooperation with the Agency, positive reports from service
professionals, their devotion to T.J. and the availability of significant support services
through SDRC, Michelle and Tracy have not had a reasonable opportunity to show they
are able to parent their child. They are entitled to that opportunity. (§§ 300.2, 361.5,
16501, 42 U.S.C. § 629a(a)(7); see, Alanna A., supra, 135 Cal.App.4th at p. 563,
Elizabeth R., supra, 35 Cal.App.4th at p. 1792.)
In view of the lack of reasonable reunification services and the absence of any
physical or emotional abuse in this special needs family, we conclude there is good cause
to continue the 18-month review hearing for six months. (Elizabeth R., supra,
35 Cal.App.4th at pp. 1792, 1798-1799; Mark N. v. Superior Court (1998)
60 Cal.App.4th 996, 1016-1017.)
DISPOSITION
Let a writ of mandate issue directing the juvenile court to: (1) vacate its finding
reasonable services were offered or provided to the parents; (2) vacate its order
terminating reunification services and setting a permanency planning hearing under
section 366.26; (3) continue the 18-month review hearing for six months; (4) order the
Agency to expand the parent's visitation with T.J., including unsupervised visitation as
appropriate; (5) order the Agency to provide services to the parents that are, at minimum,
equivalent to the services the court ordered in Nancy's case on July 26, 2011; (6) request
a parenting assessment of Tracy by SDRC; and (7) refer Michelle to a medical

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professional to determine whether she has Prader-Willi syndrome or other conditions.
The stay issued October 28, 2011, is lifted. This opinion is final immediately as to this
court. (Cal. Rules of Court, rule 8.490(b)(3).)
MCINTYRE, J.
WE CONCUR:
MCDONALD, Acting P. J.
AARON, J.

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