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In re G.K.

April 22, 2010

IN RE G.K.; DISTRICT OF COLUMBIA, APPELLANT.


Appeal from the Superior Court of the District of Columbia Family Court (NEG1424-99) (Hon. Nan R. Shuker, Trial Judge).

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge

Argued October 27, 2009

Before GLICKMAN, FISHER, and BLACKBURNE-RIGSBY, Associate Judges.

In this matter, the District of Columbia challenges a May 12, 2009, Family Court order (the "Order") that directed the District of Columbia Child and Family Services Agency ("CFSA") to assume responsibility for deciding whether to authorize inpatient psychotropic medications for a child who had been committed to its legal custody. We note at the outset that this is a case of first impression; never before have we been asked to decide who has the authority to provide consent for the administration of psychotropic medication to neglected children. While our immediate task is to analyze the relevant statutes and determine whether the Order at issue was a proper exercise of the Family Court's authority, in doing so, we also hope to provide some guidance for Family Court judges who may face similar circumstances in future cases.

The District argues that CFSA is without statutory authority to authorize non-emergency*fn1 psychotropic medications for a child in its legal custody and that the trial judge erred in this case by attempting to delegate a discretionary judicial function. For the reasons discussed more fully below, we agree with the District and reverse the Order at issue here. Before we reach our legal analysis, though, we first outline the relevant factual and procedural background leading up to the Family Court's May 12, 2009, Order.

I. Background

Appellee G.K. was born on March 18, 1998. His mother is (appellee) M.K.L. and his father is (appellee) L.L. CFSA removed G.K. and his five siblings from their mother's care when G.K. was twenty-one months old. The District filed a petition alleging that G.K. was a neglected child because his mother was unable to perform her parental responsibilities, due to substance abuse and mental illness, and he had been abandoned by his father. On April 26, 2000, M.K.L. stipulated that her six children were neglected.

G.K. stayed briefly with his father, under the protective supervision of the court, but that order was revoked less than four months after it had been entered. At the permanency review hearing on November 1, 2001, the original trial judge*fn2 decided that G.K.'s permanency goal should be guardianship with his paternal aunt, T.G. In April 2002, G.K. and two of his brothers were placed in foster care with the A.s while efforts were made to license T.G.'s home for foster care. G.K. and his brothers all had special educational, behavioral, and emotional needs; but G.K.'s were especially severe. On June 28, 2002, nearly nine months after G.K.'s permanency goal had been changed to guardianship with T.G., his case was transferred to another trial judge*fn3 because she had case responsibility for two related children.*fn4

At the permanency review hearing on July 29, 2002, the trial judge set aside G.K.'s permanency goal of guardianship and changed his and his brothers' permanency goals to reunification with their mother (appellee M.K.L.), who apparently had been "making substantial steps toward reunification." However, four months later, the trial judge again changed G.K.'s permanency goal to adoption, noting that he had been removed from his home three years earlier.

In August 2003, G.K. underwent a court-ordered psychiatric evaluation and was diagnosed both with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. The trial judge ordered that G.K. undergo another mental health evaluation because of his on-going behavioral problems. Before the doctor could complete his evaluation, however, G.K. was hospitalized at the Psychiatric Institute of Washington ("PIW") on an emergency basis because he was exhibiting psychotic behaviors. In 2004, at six years old, G.K. was diagnosed as suffering from Bipolar Disorder.

In anticipation of the court's October 14, 2004, permanency hearing, the parties filed statements regarding their preference for G.K.'s permanent placement. G.K.'s mother, M.K.L., who had since married and moved to North Carolina, indicated that she would like to see G.K. placed with either the G.s (as in T.G., G.K.'s paternal aunt) or the A.s (G.K.'s then-foster family). G.K.'s father, CFSA, and the District all expressed a preference for the G.s. G.K.'s father also filed a written statement of intent to consent to any future adoption petition filed by the G.s. At the October 14, 2004, permanency hearing, the trial judge indicated that G.K. and his brothers would be placed with the G.s and the boys moved to the G.s' home before the Christmas holidays that year.

At the May 3, 2005, permanency hearing, G.K.'s mother executed a written consent to his adoption by the G.s, and on July 28, 2005, the G.s filed petitions to adopt G.K. and his brothers. Although no final decree of adoption terminating parental rights had been entered by the court at the time, the trial judge noted that both parents had previously consented to the adoptions and reasoned: "[u]nder D.C. law, more than thirty days have lapsed since their consents, which makes such consents irrevocable. Accordingly, there are no longer intact biological parental rights for the purposes of medical, mental health and education issues."*fn5

On November 16, 2006, G.K.'s school contacted his social worker and recommended that G.K. be assessed for hospitalization because, in the school's view, his behavior had "significantly deteriorated" in the previous few days. Ms. G. took G.K. to a hospital in Virginia the following day and his social worker executed the paperwork to have him admitted for psychiatric treatment. On November 21, 2006, G.K.'s guardian ad litem ("GAL") filed a motion for a psychiatric screening pursuant to D.C. Code § 16-2315, requesting a court order authorizing inpatient hospitalization. The GAL objected to G.K.'s admission to the Virginia hospital because it had been authorized by his social worker; the GAL argued that G.K.'s social worker was not his "guardian" and thus had no authority under D.C. law to admit him for inpatient treatment. The trial judge agreed and issued an order directing the social worker to sign discharge papers for G.K., return him to the District, and have him admitted to a District facility for a twenty-one day psychiatric evaluation pursuant to D.C. Code § 16-2315.

G.K. was eventually discharged from the Virginia hospital on November 30, 2006, and transported to PIW; approximately two weeks later, the trial judge extended G.K.'s inpatient hospitalization for an additional twenty-one days. On December 11, 2006, PIW recommended that G.K. be placed in a residential facility for further treatment. On December 20, 2006, the trial judge issued an order directing that G.K. remain at PIW for mental health treatment pursuant to D.C. Code § 16-2320 (a)(4) pending his transfer to a residential treatment facility.

In early 2007, G.K. was accepted into the Pines Residential Treatment Center (the "Pines") in Virginia. On March 7, 2007, the District filed a motion seeking G.K.'s discharge from PIW and his placement at the Pines. G.K. was admitted on April 5, 2007, and he stayed at the Pines for approximately sixteen months. During this time, the G.s finalized their adoption of G.K.'s brothers but decided not to adopt G.K. Because CFSA was unable to identify another family resource for G.K., it contacted his former foster parents, the A.s, who expressed an interest in caring again for G.K. and began visiting him at the Pines in early 2008. By this point, G.K. was almost ten years old. Also during G.K.'s stay at the Pines, on July 15, 2008, the trial judge issued an order prohibiting contact between G.K. and his birth mother, appellee M.K.L.*fn6

On July 25, 2008, G.K. was discharged from the Pines and placed in therapeutic foster care with the A.s. On August 8, 2008, the District filed a motion seeking to terminate the parental rights ("TPR") of G.K.'s birth parents, M.K.L. and L.L. After M.K.L. made an appearance at the September 9, 2008, permanency review hearing, however, the trial judge directed the agency to explore placing G.K. with M.K.L. and his maternal aunt. But adoption remained G.K.'s permanency goal after CFSA determined that neither G.K.'s mother nor his aunt were suitable placements.

In early 2009, G.K.'s behavior worsened and there was concern that he was not taking his medication. At the April 14, 2009, permanency review hearing, G.K.'s social worker explained that the A.s were unsure about adopting him because of the questions regarding his long-term prognosis. In addition, the District noted that it had filed the TPR motion because the A.s were reluctant to proceed with the adoption before G.K. was legally free for adoption. The District urged the court to move forward on the TPR motion (which had been filed eight months earlier) because G.K. was already twelve years old by this point and he needed a permanent placement. But the trial judge declined to proceed on the TPR motion, expressing concern that the concomitant appeal to this court would unduly delay permanency for G.K.*fn7

Six days later, on April 20, 2009, the A.s transported G.K. to Children's National Medical Center ("Children's") because his behavior was uncontrollable. Based upon the hospital's recommendation, the District filed a motion on April 22, 2009, requesting another twenty-one day inpatient mental health evaluation for G.K. and the trial judge issued an order granting the request.

On May 4, 2009, the District filed a motion for an emergency hearing concerning G.K.'s need for psychotropic medications. The District reported that Children's had contacted G.K.'s mother, M.K.L., seeking her consent to medicate him, but she declined, reportedly saying that "God will heal him" and that "he just needs his mother to get better." The District asked the Family Court to hold a hearing to determine whether M.K.L. was withholding her ...


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