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IN RE D.R.

October 1, 1998

IN RE D.R., APPELLANT.


APPEAL FROM THE SUPERIOR COURT.

Before Terry and Reid, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Reid, Associate Judge:

Appellant D.R., a neglected child, challenges an order of the trial court sending him to a "locked" residential treatment facility. He contends that the trial court should have applied "the least restrictive environment" standard in determining the appropriate placement for him. We affirm.

FACTUAL SUMMARY

The record on appeal reveals the following facts. D.R. was born on September 22, 1980. When he was six years old, his parents left him alone in a homeless shelter, together with his siblings. Both parents have suffered from substance abuse, and have been unable to care for their children. D.R. and two of his siblings were placed in emergency care on November 19, 1986. After proceedings were initiated in June 1989 to have D.R. and his siblings adjudicated as neglected, they were placed in shelter care, and later foster care. Following a trial held in April 1990, the trial court determined that the mother had neglected her children. They were committed to the Department of Human [718 A2d Page 150]

Services, Child and Welfare Services Division, in June 1990. For approximately one month in January 1992, D.R. and one of his brothers resided with their mother under protective supervision. However, they were removed from their mother's care and returned to foster care due to drug dealing in her apartment. Subsequently, in March 1992, D.R.'s mother was arrested and jailed on shoplifting charges. During this time, D.R.'s father had little contact with him or his siblings because of his own drug problem.

In April 1992, D.R. took money from his foster mother's change purse, opened a cupboard where an unloaded gun was kept in the foster home, and took the gun to his bedroom. The foster mother requested that D.R. be removed from her home, and he was placed in the Twentieth Street Therapeutic Home For Boys in Northeast Washington, D.C. From age eleven to seventeen, D.R. studied at several schools, including the Pathways School in Wheaton, Maryland, and Archbishop Carroll High School in the District. Although D.R. is capable of performing well academically, he engaged in disruptive and violent behavior toward staff members during his residential placement at the therapeutic boys' home, and lost his scholarship at Archbishop Carroll High School due to truancy and failure to maintain a "B" average.

D.R. was placed on lithium to control his behavioral moods. In July 1995, he tested positive for marijuana. As a result of his behavior, he was sent to St. Elizabeths Hospital in 1997 for evaluation. Testing by a staff psychiatrist at St. Elizabeths Hospital, Dr. Carlos Astrada, disclosed that D.R. suffered from depression and was a substance abuser (alcohol and marijuana). Although D.R. previously had been diagnosed as a bipolar/manic depressive, Dr. Astrada concluded that he did not suffer from this mental illness, but from "a depressive disorder." Dr. Astrada prescribed an anti-depressant medication for D.R., and recommended long-term placement in a dual diagnostic residential facility geared toward the treatment of substance abuse and emotional problems.

In November 1997, the trial court ordered the District to find a suitable residential placement for D.R. D.R.'s mother concurred with the recommendation of a residential treatment facility. D.R. was transferred to the Department of Human Services' residential treatment unit in January 1998, and in the same month, he was expelled from the Emerson Preparatory School because of truancy. His guardian ad litem suggested three possible places, including Jackson Academy in Dickson, Tennessee, and the Bennington School in Vermont. During a hearing on March 28, 1998, before the Family Division of the Superior Court, D.R.'s guardian ad litem requested placement at the Bennington School, even though the school was not a certified District of Columbia Medicaid provider, and would not have space for D.R. for two to four weeks. The guardian ad litem contended "that it's in — D.'s best interest to go to Bennington." However, even though the guardian ad litem considered Bennington the best place for D.R., she also stated: "There is nothing wrong with the Jackson Academy."

In contrast to the guardian ad litem's request, D.R.'s social worker, and other District government employees, asked for placement at the Jackson Academy. The assistant general counsel of the Child and Family Services Receiver's Office cited a District of Columbia regulation prohibiting placement of a District Medicaid recipient in a facility having no District Medicaid certification. In addition, D.R.'s social worker emphasized Jackson Academy's experience with youths manifesting anti-social problems; its willingness to tailor an educational program to D.R.'s needs so that he could complete his high school education; the possibility that D.R. could enroll in community college courses upon completion of the high school program; and the immediate availability of a place for D.R. When the court asked D.R. for his views, he expressed preference for Bennington because it was not a locked facility. D.R. stated: "[T]hat's the only thing about the Jackson School that I . . . dislike is that it's locked down."

Before the trial court gave its final ruling, D.R.'s guardian ad litem declared that St. Elizabeths Hospital had recommended Bennington [718 A2d Page 151]

for D.R., "with the knowledge that it was not a locked facility." She added:

So, my argument is that the Court . . . has the duty and responsibility to provide services that are least restrictive. And, that's the nature of the mental health code. And, for D. to be placed in a locked facility, as is Jackson Academy, would not be the least restrictive environment. And, it would infringe, indeed, upon his liberty interest.

The trial court ordered placement of D.R. at the Jackson Academy as the more appropriate facility for D.R. because "of the kinds of acting out . . . that he is engaged in. . . ." In particular, the court singled out D.R.'s "involvement, his attitude with respect to involvements with gangs, and holding guns and that sort of thing." However, the court told D.R. to "give [Jackson Academy] a ...


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