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07/31/92 MATTER G.T.

July 31, 1992

IN THE MATTER OF: G.T., APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. Samuel B. Block, Trial Judge)

Before Steadman and Schwelb, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Appellant, G.T., a mildly retarded adult, seeks to compel the District of Columbia to provide him and his wife, T.B., who also is mentally retarded, with a supervised apartment under the "Mentally Retarded Citizens Constitutional Rights and Dignity Act of 1978," D.C. Code §§ 6-1901 et seq. (1989) (hereafter "the Act"). The trial court denied appellant's motion on the ground that, on the particular facts of this case, compelling admission would be inconsistent with the habilitative purposes of the Act. We affirm.

I

Appellant has resided intermittently in residential facilities for the mentally retarded in Maryland and the District of Columbia since he was eight years old. The instant proceeding in the District began in 1985 when appellant's guardian ad litem filed in Superior Court a petition for commitment pursuant to D.C. Code § 6-1924 (1989). Appellant was diagnosed as mildly, rather than moderately, retarded and thus was ineligible for commitment. *fn1 However, under circumstances not entirely clear from the record, appellant voluntarily was placed in a long-term group home in 1986.

Beginning in November of that year, appellant took several extended absences from the group home, culminating in his departure from the facility on February 14, 1987. On April 30, 1987, appellant filed a "Motion to Compel Admission of Respondent to a Residential Facility in the Least Restrictive Setting." In the motion, appellant stated that he and T.B., who apparently also had pending a petition for commitment to a residential facility, *fn2 had left their residential placements in order to live together, and that they had married on March 20, 1987. Appellant sought to require the District to place the couple together in a supervised apartment.

A

The trial court held a hearing on G.T.'s motion to compel, receiving testimony from several District of Columbia officials familiar with G.T.'s circumstances. Among other witnesses, G.T.'s case manager testified that the Bureau of Community Services (BCS) had in 1987 prepared a revised Individual Habilitation Plan ("IHP") *fn3 for him, which recommended that G.T. receive non-resident support services rather than placement in a residential facility. Elaborating on this point, G.T.'s case manager testified that G.T. had failed to follow through on the recommendations for his habilitation set forth in his IHPs for 1986 and 1987. Specifically, in addition to appellant's unauthorized absences from the group home, appellant failed to attend his job training program, medical appointments, or counseling sessions, despite his agreement to participate in these services. During this time, T.B. also failed to attend family and individual counseling sessions. Based on G.T.'s actions, G.T.'s case manager concluded that the BCS "would be creating a dependency by putting [G.T.] in a supervised setting at this time," and she agreed with the assessment of G.T.'s psychologist in a 1987 psychological evaluation that "until [G.T.] has demonstrated consistent willingness to participate in the counseling, vocational training and the vocational assessment which BCS has recommended for him, other services should not be provided. To provide him with what he wants as opposed to what he needs would only serve to further debilitate him in terms of emotional maturational matters." G.T.'s psychologist testified that G.T.'s failure to cooperate was not caused solely by his mental retardation, but rather that emotional problems were an independent source of the difficulties. *fn4

In addition to this testimony, the trial court had before it both the 1986 and 1987 IHPs for appellant as well as various reports included with the IHPs. These documents contained considerable evidence relating to G.T.'s mental retardation and his failures to participate in the services recommended as necessary for his habilitation in his 1986 and 1987 IHPs. A report prepared by appellant's case manager noted that appellant's attendance at a job training program in which he was enrolled had been "sporadic" and that the several times he had requested transportation to the program he had failed to show up at the appointed time. The report concluded that appellant had failed to follow through on any arrangements regarding his habilitation, and that appellant "does not appear to be sincere in his request for services." Appellant's 1987 IHP elaborated on appellant's failure to avail himself of the available services, concluding that only non-resident support services should be provided until appellant had demonstrated a willingness to participate in his habilitation. Specifically, the IHP stated:

There is a strong dependency need evident. That is, [G.T.] appears much more interested in being provided for by others than in providing for himself. Since coming under the care of MRDDA/BCS, he has consistently refused to cooperate with just those programming/habilitative measures which would result in his becoming independent. Specifically, he has refused to participate in therapy or counseling, refused to participate in a comprehensive vocational assessment, refused to remain at a group home placement provided for him, and refused to participate in a program at ROI geared to develop and maximize his vocational and work-adjustment skills, as well as lead to a full-time position there at minimum wage. . . . It would be extremely counterproductive in terms of [G.T.'s] emotional growth and development if he were to be provided an apartment by the at no cost to him or his wife. If such a residence were provided, he would then have no motivation to work, develop his adaptive/social/vocational skills, or get the counseling and/or psychotherapy he so strongly needs in order to come to the point at which he will be able to provide these living arrangements for himself.

B

The trial court largely credited the testimony of these witnesses, summarizing the situation as one where "apparently [G.T.] wants something -- just to have an apartment to live in without all of the necessary things that are required him to . . . give him the opportunity to be able to live alone without the District of Columbia interfering" in his life. The trial court further found that although appellant needed to be in a residential facility, his failure to be so placed was "not the District's fault," but rather flowed from appellant's refusal to participate in other services necessary to his habilitation. In so doing, the trial Judge found that appellant's marital status was irrelevant to the impasse that had developed between appellant and BCS officials, noting instead that other married couples received services through BCS. *fn5 Rather than deny appellant's motion, however, the trial court ordered that the District find another vocational placement for appellant and continued the case in order to allow appellant to demonstrate his willingness to participate in the vocational training.

According to a Court status report prepared on April 14, 1988, appellant and his wife attended only two of the weekly family counseling sessions scheduled for him from December 14, 1987 to April 14, 1988, and failed to appear for appointments regarding a job referral. Furthermore, when the parties reconvened for the hearing, *fn6 the government stated that appellant had missed "a great deal" of his job training program since the December hearing. On this basis, the ...


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