C.A. Orders New Hearing on Rights of Mentally Impaired Parents

Panel Says Restrictions on Visitation Improperly Prevented Family Reunification

By KENNETH OFGANG

The developmentally disabled parents of two infants were denied reasonable reunification services when social workers unduly limited their visitation rights, the Fourth District Court of Appeal ruled yesterday.

Div. One granted a writ of mandate, directing that a referral for hearing on termination of parental rights be set aside and that the parents, identified only as Tracy J. and Michelle B., be given further services in order to reunify with their children, who are in foster care.

The opinion of the court was authored by Justice James McIntyre, who said that a social services 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.”

Dependency Petition

The San Diego County Health and Human Services Agency filed a dependency petition concerning the couple’s son, identified as T.J., nine days after his birth in January 2010. They later filed a second petition regarding T.J.’s sister, Nancy J., born in May of last year.

The children were placed in foster care and the parents were given case plans, including counseling, parenting classes, psychological evaluations, and assessments by the San Diego Regional Center, which offers services to the developmentally disabled.

Michelle B. claimed to suffer from Prader-Willi syndrome, a non-inherited genetic disorder characterized by obesity and cognitive impairment. Her arms, social workers noted, are short in proportion to her body, making it difficult for her to hold a child, although she can cope with everyday problems.

The regional center determined that she does not have Prader-Willi syndrome and is not mentally retarded, and does not qualify for services.

Mildly Retarded

Tracy B., who suffered a childhood head injury, tested in the lower range of mildly mentally retarded. A psychologist evaluated him and said that he would benefit from reunification services but his prognosis for reunification was poor.

Last July, the court held a combined 18-month review hearing for T.J. and a jurisdictional and dispositional hearing for Nancy. On the agency’s recommendation, San Diego Superior Court Judge Ana L. Espana terminated services as to T.J., whose foster mother expressed a desire to adopt him, set a hearing on termination of parental rights as to him, and ordered six months of services in Nancy’s case.

The order was appealed, only as to T.J. The Court of Appeal originally reversed last November, in an unpublished opinion, and made its order final immediately.

It subsequently received a request for publication, but because the order was final, it could not grant publication, but instead recommended the Supreme Court do so.

The Court of Appeal panel also asked the Supreme Court to send the case back for potential modification of the opinion. The high court granted review, set aside the original ruling, and sent the case back to the Court of Appeal for reconsideration.

The justices yesterday reversed again, in a published opinion not substantially different than last year’s.

‘Barely’ Sufficient Evidence

McIntyre said the trial judge’s order was unsupported by substantial evidence. While there was “barely” sufficient evidence to warrant having the children remain in foster care, he explained, it was clear that the limitations on visitation and the failure to provide the mother with services tailored to her physical disabilities rendered reunification services inadequate as a matter of law.

The social workers’ reports, he elaborated, showed that the parents were protective of the boy’s safety, yet the agency limited them to one supervised visit per week of three to four hours. Given that fact, the claim that they could not safely care for him was speculative.

“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,” the justice wrote. “They are entitled to that opportunity.”

The case is Tracy J. v. Superior Court (San Diego County Health and Human Services Agency), D060252.

Source http://www.metnews.com/articles/2012/trac012712.htm