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In re H.C.

Court of Appeals of The District of Columbia

July 5, 2018

In re H.C.; K.C., Appellant.

          Argued February 15, 2018

          Appeal from the Superior Court of the District of Columbia (NEG-490-15) (Hon. Rahkel Bouchet, Magistrate Judge) (Hon. Robert Okun, Associate Judge)

          Thomas C. Devlin for appellant.

          Rhondalyn Primes Okoroma, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, and Stacy L. Anderson, Senior Assistant Attorney General, were on the brief, for appellee.

          Before Glickman and McLeese, Associate Judges, and Ruiz, Senior Judge.

          Glickman, Associate Judge

         This is a mother's appeal from an order changing her neglected child's permanency goal to adoption. The decision was made after an evidentiary hearing, as required by In re Ta.L., 149 A.3d 1060 (D.C. 2016) (en banc). The Magistrate Judge found that the mother's intellectual disability and mental health needs rendered her incapable of properly caring for the child, even with the parental training and other assistance she had been receiving and despite the government's reasonable efforts for over a year to help her ameliorate the conditions that led to her child's removal and achieve a safe reunification. An Associate Judge of the Superior Court reviewed and affirmed the Magistrate Judge's findings and conclusions.

         On appeal to this court, the mother does not dispute her impaired ability to parent her child, and she finds no fault or insufficiency with the constellation of services provided to help her overcome that obstacle to reunification. She contends, however, that in changing her child's permanency goal to adoption despite the availability of those services, the Superior Court violated her rights under federal law - the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 - to reasonable accommodations of her intellectual disability that would enable her to parent the child.

         We disagree with this contention. The ADA and the Rehabilitation Act do protect parents with disabilities, including intellectual and psychiatric disabilities, from discriminatory curtailment of their parental rights. The statutes require the provision of reasonable accommodations in order to afford such parents the same opportunities as other parents have to achieve family reunification. But where, as in this case, the evidence supports a finding that a mentally impaired parent poses a significant risk to a child's health and safety that cannot be eliminated by reasonable accommodations, the ADA and the Rehabilitation Act permit the court to decide against pursuing reunification and in favor of a permanency goal of adoption or another suitable placement in the child's best interest. We therefore affirm the order on appeal.

         I.

         Appellant K.C. gave birth to H.C., the child respondent in this appeal, on December 14, 2015. H.C.'s father is unknown; K.C. has been unable to identify him. Because H.C. was at risk of having contracted a life-threatening disease from her mother in utero, she was prescribed an antiretroviral medication when she was born. This medication would need to be given to H.C. once every twelve hours for three to six months after she went home from the hospital.

         H.C. remained in the hospital for several days following her birth. During that time, the Child and Family Services Agency ("CFSA") received a hotline report from a caller at the hospital expressing concern that K.C. would be unable to care for H.C. The caller advised that K.C. had been diagnosed with psychiatric disorders (Major Depressive Disorder with psychotic features and Post-Traumatic Stress Disorder) and intellectual disability, and that she received services from the Department of Disability Services ("DDS") and resided in a supportive housing program run by Frontline Community Services ("Frontline"). The caller also mentioned that K.C. had a history with CFSA that included the removal of her several prior children.

         Herbert Carr, a CFSA investigative social worker, went to meet with K.C. at the hospital. K.C. denied she had a mental-health diagnosis or cognitive limitations. She was unable to explain why DDS provided her with services. Mr. Carr then spoke with K.C.'s court-appointed guardian, who was empowered to make legal, financial, and medical decisions for K.C. because she could not make them for herself. The guardian confirmed that K.C. had intellectual deficits, suffered from depression and post-traumatic stress disorder, and received round-the-clock supportive services through Frontline. Next, Mr. Carr participated in a discharge planning meeting for H.C. at the hospital and met with hospital staff and personnel from DDS, Frontline, and the Georgetown Parenting Collaborative ("GPC")[1] to evaluate K.C.'s ability to care for the new-born child. Concluding that K.C. lacked that ability, Mr. Carr decided to remove H.C. from K.C.'s care. In the absence of an available kinship placement, [2] CFSA placed H.C. with foster parents when she was discharged from the hospital on December 22, 2015. The following day, CFSA filed a petition in Superior Court alleging that H.C. was a neglected child within the meaning of D.C. Code § 16-2301 (9)(A)(iii) (2012 Repl.) because her mother's intellectual disability and mental health needs rendered her incapable of discharging her parental responsibilities.

         The CFSA social worker then assigned to the case was Kristina McTigue. Ms. McTigue, a former special education teacher, had experience working with persons with intellectual and learning disabilities. In determining what reasonable efforts could be pursued to make it possible for H.C. to return safely to K.C., [3] Ms. McTigue confirmed the services that K.C. already was receiving through DDS. In addition to the help K.C. received from her legal guardian and the individual support provided by Frontline in conjunction with her residential placement (a two-bedroom apartment), these services included psychiatric medication management; other mental health services from a psychologist; enrollment in a day program (known as "Health Tech") that provided job training and instruction on managing daily tasks and activities; and collaborative parenting assistance from GPC and Mary's Center for Maternal and Child Care ("Mary's Center").[4] At the initial hearing in the neglect case on December 24, 2015, Ms. McTigue requested and the court ordered a psychological evaluation of K.C. to assess her current level of cognitive, emotional, and parenting functioning. Pending further developments, the court granted K.C. supervised visitation with H.C. on a schedule of at least twice a week.

         K.C.'s psychological evaluation was performed by Dr. Michael Gilliard, a forensic clinical psychologist in the Assessment Center at the District of Columbia Department of Behavioral Health. He diagnosed K.C. as having moderate intellectual disability as well as a major depressive disorder with a history of psychotic symptoms and post-traumatic stress disorder. K.C.'s overall cognitive functioning was in the extremely low range, [5] her overall adaptive functioning was borderline (with variation in her individual skills from extremely low to average), [6]and she displayed a range of depressive symptomatology and serious emotional limitations. Dr. Gilliam found that K.C. possessed "limited" and "impaired" emotional and interpersonal resources and functioning. She displayed "a limited degree of responsibility," "limited self-reliance [and] limited ability to consider the short term or long-term consequences of her actions," "limited temperance" (i.e., self-control and emotional modulation), and "limited empathy," among other deficiencies. Dr. Gilliam also reported that psychometric testing designed to evaluate parental functioning and the potential for child abuse indicated that K.C. had an unrealistically high evaluation of her own abilities and unduly "rigid" attitudes about children. He concluded that K.C.'s deficient cognitive, emotional, and interpersonal resources would make it "significantly challenging" for her to "attempt to successfully independently parent."

         In light of this report and the services already being provided to K.C., Ms. McTigue concluded that K.C. was not in need of any additional or alternative services as part of her case plan. K.C. has never disagreed with that assessment or sought other services or modifications of her programs. K.C. continued to have visits with H.C. twice a week, which Ms. McTigue supervised. The goal of CFSA's case plan was for K.C. to acquire and demonstrate the ability to parent H.C. safely and effectively with the resources and support provided by DDS and her court-appointed guardian, so as to permit reunification. To achieve this goal, in recognition of her intellectual deficits, the plan envisioned (among other things) that K.C.'s service providers and her CFSA social worker would engage with her through repeated behavioral modeling, prompting, and training exercises to help her modify her behavior and learn parenting skills.

         The neglect trial was held on March 25 and March 28, 2016. The court received testimony from Dr. Gilliard, Mr. Carr, Ms. McTigue, representatives of Frontline, GPC, and Mary's Center, and K.C. herself. By this time, K.C. had had approximately thirty supervised visits with H.C. The witnesses were in general agreement that K.C. struggled with the basic tasks of parenting and was not able at that time to independently and safely care for the child, though efforts were being made to assist her and tailor parental training and the method of presenting information to her individual capabilities. K.C. herself did not dispute that she lacked parental skills at that time. The court found H.C. to be a neglected child within the meaning of D.C. Code § 16-2301 (9)(A)(iii) because K.C.'s intellectual disability and mental health needs rendered her incapable of discharging her parental responsibilities. At disposition, the court committed H.C. to the care of CFSA and set reunification as the permanency goal. It found that CFSA had made reasonable efforts to avoid H.C.'s removal, granted K.C. weekly, supervised visitation, and directed CFSA to increase the visitation if possible.

         Following the neglect trial, Ms. McTigue continued to work with K.C.'s service providers on the plan that would enable K.C. to make progress towards reunification with H.C. K.C.'s visits with H.C. were increased to four hours per week and moved to K.C.'s home to enable her GPC and Mary's Center trainers to model and teach appropriate parenting behavior in that setting. The parenting training addressed both daily skills of parenting and child development.[7] At GPC's request, Ms. McTigue obtained H.C.'s daily schedule from her foster parents. GPC used this to create a visual calendar for K.C. to assist her in understanding H.C.'s daily needs. K.C. and Frontline staff were kept apprised of H.C.'s physicians and the time and place of her medical appointments so that K.C. could be taken to them. Over the course of the next year, Ms. McTigue held team meetings with all of K.C.'s service providers at least once every month to monitor K.C.'s progress and respond to her needs for assistance. Ms. McTigue's supervisor and other senior CFSA managers also were invited to these meetings.[8]

         On June 22, 2016, the court held a hearing to review H.C.'s disposition, the compliance with the case plan, and the progress that had been made toward reuniting K.C. and H.C.[9] It determined at the hearing that although CFSA was making reasonable efforts toward the goal of reunification, and K.C. was participating in the parenting and other services provided to her, "the progress that she has made is minor in comparison to what she'll need to make to properly care for her child." The court therefore decided to keep the goal of reunification but add an alternative goal of adoption for CFSA to pursue concurrently.[10] At the next review hearing, held on October 13, 2016, the court maintained these concurrent goals. Again the court expressed its concern that K.C. had made only "minimal progress" toward achieving reunification.

         The permanency hearing in this case was scheduled to be held on February 17, 2017.[11] Two months before that date, CFSA filed its pre-hearing report, in which it recommended that H.C.'s permanency goal be changed solely to adoption because K.C. had shown herself unable to acquire the necessary skills to parent the child independently. H.C.'s guardian ad litem supported this recommendation. In response, K.C. filed a "statement of counsel" asserting that, as an intellectually disabled mother seeking the return of her child, she is entitled to reasonable accommodations under Title II of the ADA and Section 504 of the Rehabilitation Act of 1973. K.C. claimed that the evidence to be presented at the permanency hearing would show she "is able to parent her child with reasonable accommodations being made for her disability" and the permanency goal therefore should be to reunite her with H.C. In support of her claim, K.C. cited a January 29, 2015, letter in which the United States Departments of Justice and Health and Human Services charged the Massachusetts Department of Children and Families with having violated the ADA and the Rehabilitation Act by rejecting an intellectually disabled mother's family reunification plan based on discriminatory and stereotypical assumptions about her disability and without affording her opportunities to benefit from the support of her family and other services that might have enabled her to preserve her relationship with her child.[12] K.C. asserted that her situation was "similar" to that of the mother in this Massachusetts matter.

         The evidentiary hearing on the permanency plan for H.C. lasted two days. It commenced on February 17 and concluded, after a break, on April 27, 2017. The District called K.C. as its first witness. K.C. testified that Frontline gave her a place to live and provided her with clothing and food to eat, and that she had a nurse who handled her medical appointments and needs. She did not know why she qualified for her DDS services. K.C. also did not know why H.C. had been removed from her care. "They took my baby for no reason," she said, "[a]nd it's not right at all." K.C. said she had been lied to and that she loved and missed H.C. and wanted her back.

         K.C. testified that she had attended all of H.C.'s medical appointments and was present at her then recent one-year check-up. The only thing K.C. could recall about that check-up was that H.C. had gotten "like, five shots." K.C. could not say what the shots were for, and she did not know when H.C.'s next medical appointment would occur. She did not remember the name of H.C.'s doctor. K.C. could not explain why H.C. had been seeing an immunologist and could not remember anything about her immunology appointments.

         H.C. was brought to K.C.'s home for visits on Tuesdays and Thursdays. The visits typically lasted two hours, from 10:30 a.m. to 12:30 p.m. The foster parents sent H.C.'s lunch, which K.C. would warm up and feed H.C. K.C. testified that her parenting trainers from Mary's Center and GPC helped her care for H.C. when she came to visit and were teaching her "[h]ow to be a mother" to H.C. The Mary's Center trainer, for example, would "tell" or ask K.C. what "we're going to do" with H.C. During their visits, K.C. changed H.C.'s diaper and played with H.C., sang to her, painted and colored with her, read picture books to her, and showed her pictures. K.C. admitted that she had had problems learning to do things like preparing H.C.'s formula properly, which she attributed to nervousness, but she insisted that it did not take her long to "catch on." She believed she was "a good mother to [her] baby."

         K.C. agreed that she would "need help" if H.C. were returned to her care. She said she would need somebody to watch H.C. for her at times, for example, when she had to go to the bathroom or was busy in the kitchen. K.C. acknowledged that she would need assistance with making medical appointments for H.C. and other matters. In addition, K.C. said she would need to place H.C. in daycare so that she could continue to participate in the Health Tech training program or work at a job she had applied for at a Macy's in Prince George's County. K.C. had not identified any suitable daycare program that would be available for H.C.

         After K.C., the court heard from the two CFSA social workers, Ms. McTigue and Ms. Lopez; the parent trainers from GPC and Mary's Center who had worked with K.C.; and K.C.'s program manager from Frontline.[13] These witnesses addressed the formulation, implementation, and on-going review of the case plan for reunification, the services and efforts that had been put forth to enable K.C. to achieve the goal of reunification, the extent of K.C.'s progress toward that goal, and the availability of alternatives to termination of her parental rights.

         Ms. McTigue and Ms. Lopez testified that K.C. had not advanced beyond supervised visitation and was still unable to provide H.C. with the most basic care. Ms. Lopez, for example, reported that K.C. was still unable to properly perform such tasks as changing H.C.'s diaper or securing her in her highchair and car seat (despite repeated training); to know when to feed H.C. or recognize the child's needs during the visits; or to convey information to H.C.'s doctor about her medical needs. She noted that the activities K.C. engaged in with H.C. were usually led by the GPC trainer. Ms. McTigue similarly testified that for a year she had watched K.C. "immensely struggle to master even the most basic of parenting skills, making a bottle, unbuckling a car seat, and this baby is . . . developing at a normal and rapid rate, and [K.C.] is unable, in my opinion, to meet the needs of that child." For example, despite working with two different parent trainers for a year, K.C. could never master making a bottle independently - she often used too much formula and not enough water or too little formula and too much water and, at times, she overheated the formula in the microwave so that it was too hot for H.C. to drink safely. And after H.C. starting eating solid foods, K.C.'s service providers often had to tell her when it was time for H.C. to eat. Further, according to Ms. McTigue, K.C. "really struggled" with knowing how to comfort H.C. when the child was "clearly discomforted" or in distress. Ms. McTigue also noted that although K.C. received assistance from Frontline and the two parent trainers, they would not step in to serve in a primary caretaking role for H.C. or take responsibility for H.C.'s safety if the child were to reside with K.C.

         Both CFSA social workers expressed the concern that K.C. could not maintain a safe environment for H.C. This was a persistent problem over the entire period they had worked with K.C.; when Ms. Lopez (who had taken over the case from Ms. McTigue) was asked whether she had identified any safety concerns during H.C.'s visits with K.C., she answered that she had "observed" K.C.'s "inability to consistently assess the risk and safety" threats to which the child was exposed. The social workers testified to what they considered to be some illustrative examples of K.C.'s persistent inattentiveness to safety concerns notwithstanding their efforts to sensitize her to them. For instance, K.C. continued to wear acrylic nails that frequently fell off during H.C.'s visits, despite repeated warnings by the social workers and parenting trainers that the loose nails posed a hazard for H.C., who was teething. One time, H.C.'s foster parents found two of the acrylic nails in H.C.'s car seat when she returned home; another time, one of K.C.'s nails was discovered in H.C.'s diaper. When confronted with this problem, K.C. would respond with assurances that she picked up and threw out all of the nails that fell off, but Ms. McTigue continued to find them in places where H.C. could reach them. K.C. also had to be prompted to pick up her earrings off the floor so that H.C. would not place them in her mouth, to remove all of the plastic wrapping from a new toy, and to rinse off H.C.'s pacifier when it fell on the ground.

         Toya Buchanan and Clarissa Williamson, the Mary's Center and GPC parent trainers, each met with K.C. twice a week for approximately one to two hours at a time during H.C.'s home visits. They both testified to their observations that, although K.C. still benefited from prompting to recognize and attend to H.C.'s needs and not leave her unsupervised, she had made considerable progress in acquiring basic parenting skills and establishing a nurturing relationship with H.C. They expressed confidence in K.C.'s ability to attend to H.C.'s daily needs independently, and they confirmed that the supportive services of Mary's Center and GPC would continue to be available to K.C. if she wanted them.

         Sophia Johnson, a Qualified Developmental Disabilities Professional with Frontline, testified that K.C. had been receiving a range of services from her organization for the past six years pursuant to an individual behavioral support plan under its contract with DDS and that K.C.'s participation in the program is voluntary. In accordance with her plan, the program provides K.C. with the two-bedroom apartment in which she resides. K.C. is free to come and go as she pleases without supervision, and she leaves her apartment in the morning to attend the day program run by Health Tech, but when she is at home, a Frontline direct support professional is there with her around the clock to help her with all her needs and the activities of her daily life.[14] The direct support professional was present during H.C.'s supervised visits with K.C. Ms. Johnson testified that if H.C. were returned to K.C., they could live together in the apartment and the Frontline support staff on site would be able to assist K.C. with her day-to-day parenting, for example by modeling appropriate behavior and advising K.C. on safety issues. The staff would not, however, be able to intervene or make decisions on behalf of the child if a safety issue arose; if necessary they would contact "the proper authorities." The staff could assist K.C. in getting her child to medical appointments or school, but they "would not play any role" in making medical or educational decisions for the child. Nor would Frontline support staff ...


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