"[T]he question whether reunification services reasonably accommodated a parent's disability is already included within the question whether active or reasonable efforts were made to reunite the family." (footnote omitted)
How later courts described this case
- "[T]he question whether reunification services reasonably accommodated a parent's disability is already included within the question whether active or reasonable efforts were made to reunite the family." (footnote omitted)
Written by the judges who cited it.
The opinion
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 17-FS-892
IN RE H.C.; K.C., APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(NEG-490-15)
(Hon. Rahkel Bouchet, Magistrate Judge)
(Hon. Robert Okun, Associate Judge)
(Argued February 15, 2018 Decided July 5, 2018)
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
2
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
3
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
4
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
1
GPC is a group associated with Georgetown University’s Center for Child
and Human Development that provides parenting support. K.C. is a voluntary
participant in GPC’s program, which provided assistance both before and after
H.C. was born.
5
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.
2
CFSA explored the possibility of placing H.C. with her maternal
grandmother (i.e., K.C.’s mother), but the grandmother declined to complete the
process required to become a licensed kinship foster-care provider. K.C. did not
identify any other relative who might have cared for H.C. and, as previously
mentioned, the child’s father could not be identified.
3
See D.C. Code § 4-1301.09a (b)(3) (2012 Repl.) (“Reasonable efforts shall
be made to make it possible for the child to return safely to the child’s home.”).
The statute provides that CFSA is not required to make reasonable efforts to
reunite a child with a parent whose “parental rights have been terminated
involuntarily with respect to a sibling.” Id. § 4-1301.09a (d)(2). Although that
was the case with K.C., CFSA did not proceed under this exception and the
government has not relied on it. We express no view as to its applicability.
6
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
4
Mary’s Center is a community clinic that provides medical care and social
and mental health services.
7
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.”
5
Her full-scale IQ score of 47 placed her in the bottom .2% of persons her
age.
6
Dr. Gilliam’s report states that “[r]elative to individuals of comparable
age, currently, [K.C.] is functioning at the 3rd percentile,” i.e., below 97% of her
peers.
8
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
9
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
7
In her testimony at the permanency hearing in this case, Ms. McTigue
described the parenting services as follows:
She has two parenting services in place. Georgetown
Parenting Collaborative. Which, if I could wrap it
around, focuses on the daily skills of parenting. Feeding
a baby. You know, really engaging with the child.
Playing with the baby. So on, so forth. The day to day
(continued…)
10
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
(…continued)
needs of a child. Whereas Mary[’s] Center, which is the
second collaborative that she’s associated with, is more
developmental. At nine months, she should have teeth.
She should be having, you know, at this age, she should
be able to pull herself up. She should be walking. So
they, they focus on different aspects of parenting.
8
Ms. McTigue was assigned to H.C.’s case for approximately one year. In
December 2016, another CFSA social worker, Cherie Lopez, took over from her.
Ms. Lopez continued the monthly team meetings. They were still being held by
the time of the permanency hearing.
9
See D.C. Code § 16-2323 (a)(1), (b) (2012 Repl.).
11
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
10
See D.C. Code § 4-1301.09a (f) (2012 Repl.) (providing that reasonable
efforts to place a child for adoption may be made concurrently with reasonable
efforts to preserve and reunify the family and make it possible for the child to
return safely to the child’s home).
11
D.C. Code § 16-2323 (a)(4) (2012 Repl.) requires a permanency hearing
“for every child within 12 months after the child’s entry into foster care and at least
every 6 months thereafter, for as long as the child remains in an out-of-home
placement.” The primary purpose of the hearing is to “determin[e] the permanency
plan for the child including whether, and if so when,” the child will be returned to
the parent or placed for adoption or in another permanent living arrangement. Id. §
16-2323 (c).
12
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.
12
Department of Justice/Department of Health and Human Services Joint
Letter of Findings: Investigation of the Massachusetts Department of Children and
Families (Jan. 29, 2015), at https://www.ada.gov/enforce_current.htm.
13
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
14
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.
15
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
13
The two CFSA witnesses were called by the District in its case-in-chief.
The two parent trainers and the Frontline program manager were called by K.C.
16
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
17
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.
18
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
14
On a typical day, Ms. Johnson explained, one staff member would work
from 3:00 to 11:00 p.m., and another staff member then would take over from
11:00 to 7:00 a.m.
19
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 care for
H.C. when K.C. would be out at her day program or at work. K.C. “would have to
develop a plan for child care, et [] cetera,” though Ms. Johnson envisioned that
Frontline and “other resource specialists” such as Mary’s Center might help “to
identify what childcare is available, and what, where her child could go during the
day.”
Ms. Johnson testified that Frontline and GPC had developed “what we call a
safety plan for mom and the baby.” “It just outlines some parameters or things, the
expectations of being parent, and what you should do and . . . how she could
communicate, not only her [own] needs, but the needs of the baby as well, to the
DSP [direct support professional].” Otherwise, Ms. Johnson explained, “We
necessarily don’t develop a plan for the baby.” While K.C. has some parenting
goals in her own individual support plan, “her plan is going to be for her.” Ms.
Johnson emphasized that Frontline contracts with DDS to “provide support for
20
adults with intellectual disabilities” and relies on other services to assist with
parent training because “we are not the experts . . . in that realm.”
Based on her own observations and interactions with K.C. and the support
she had received up to the time of the permanency hearing, Ms. Johnson stated that
she did not believe K.C. “could parent independently.” Acknowledging that K.C.
would “continue to need additional supports as the baby changes and develops,”
Ms. Johnson said that Frontline “would be there to help and assist, and we still
would have to have someone, other additional resources to effectively do that.”
Giving the greatest credence to the testimony of Ms. McTigue and Ms.
Lopez, the Magistrate Judge found that the District had met its burden to prove by
a preponderance of the evidence (1) that CFSA provided K.C. with an appropriate
plan for achieving reunification, recognizing that her “mental health is the most
significant barrier to reunification”; (2) that CFSA made reasonable efforts to help
K.C. ameliorate the conditions that led to H.C.’s removal from her care and
achieve reunification; (3) that although K.C. complied with the services and loves
her daughter, she failed to make adequate progress toward satisfying the
requirements of the case plan to achieve the goal of reunification; (4) that CFSA
adequately explored alternatives to the termination of K.C.’s parental rights (i.e., in
21
the circumstances of this case, a kinship placement); and (5) that adoption was in
H.C.’s best interest. Regarding K.C.’s lack of progress toward demonstrating her
capacity to parent H.C. safely even with the supports and services provided to her,
the Magistrate Judge noted, among other things, that the social workers and K.C.’s
parent trainers “sought to model, prompt, and educate [K.C.] on the skills she
needed to properly care for [H.C.],” yet their support did not result in K.C.
“advancing to unsupervised visits” and she “still required prompting for basic
parenting activities, which will undoubtedly become increasingly more
complicated as [H.C.] ages.” The Magistrate Judge found “no evidence to suggest
that [the service providers’] involvement would provide safety for the child to
achieve reunification.” The Magistrate Judge ordered that the permanency goal for
H.C. be changed to adoption.
K.C. requested review of the Magistrate Judge’s decision by an Associate
Judge in Superior Court. On review, she claimed she had been denied her rights
under the ADA and the Rehabilitation Act because (1) CFSA, like the Department
of Children and Families in the Massachusetts case, failed to make reasonable
accommodations for her intellectual disability in creating and implementing the
case plan for H.C.; and (2) the Magistrate Judge did not consider her access to
parenting assistance and other resources before finding she did not make adequate
22
progress towards reunification and could not parent H.C. safely. The Associate
Judge rejected K.C.’s claims, finding (1) that CFSA (unlike the agency in the
Massachusetts matter) adopted and pursued an appropriate and reasonable plan for
reunification based on an individualized assessment of K.C.’s cognitive limitations
and the extensive parenting assistance available to her, and (2) that the evidence
supported the Magistrate Judge’s determination that even with the services and
support K.C. received, she did not make adequate progress to meet the plan’s
requirements for reunification by demonstrating that with appropriate assistance
she could parent H.C. effectively and safely. Concluding that the Magistrate Judge
had not abused her discretion or otherwise erred in changing H.C.’s permanency
goal to adoption, the reviewing judge affirmed the order granting the District’s
request for that change. This appeal followed.
II.
Permanency goal decisions are committed to the trial court’s “broad
discretion,” and thus the scope of this court’s review of a change in the goal is
“limited.” 15 While we accord de novo review to questions of law, 16 we must defer
15
In re Ta.L., 149 A.3d 1060, 1081 (D.C. 2016) (en banc).
23
to the trial court’s factual findings unless they are clearly erroneous 17 and affirm
the court’s exercise of its discretion so long as it is “within the range of permissible
alternatives, based on all relevant factors and no improper factor.” 18
When the government requests that a neglected child’s permanency goal be
changed from reunification to adoption, it bears the burden of proving by a
preponderance of the evidence “[1] that it has provided the parents with a
reasonable plan for achieving reunification, [2] that it expended reasonable efforts
to help the parents ameliorate the conditions that led to the child being adjudicated
neglected, and [3] that the parents have failed to make adequate progress towards
satisfying the requirements of that plan.”19 If the trial court properly finds that the
government has made this tripartite evidentiary showing, a goal change to adoption
“would be presumptively consistent with the requirement that we act in the best
interest of the child”20 and should be upheld.
(…continued)
16
In re M.V.H., 143 A.3d 94, 97 (D.C. 2016).
17
Id.
18
In re Ta.L., 149 A.3d at 1079 (internal quotation marks omitted).
19
Id. at 1078.
20
Id.
24
In this appeal, K.C. does not challenge the trial court’s determinations that
the first two criteria were satisfied, i.e., that CFSA formulated a reasonable plan to
address the obstacles to reunification arising from K.C.’s cognitive disabilities, and
that CFSA expended reasonable efforts to implement that plan and help K.C.
achieve reunification by demonstrating her capacity with appropriate support to
parent H.C. safely and without jeopardizing the child’s health and welfare. Indeed,
neither in the trial court nor in this appeal has K.C. identified any shortcoming in
the reunification plan or in CFSA’s efforts to help her attain her goal. K.C.
challenges only the trial court’s finding that the third criterion was satisfied, i.e.,
that she did not make adequate progress toward satisfying the requirements of the
plan. In making this finding, K.C. asserts, the court “failed to give adequate
consideration to [her] right to reasonable accommodations” under the ADA and the
Rehabilitation Act. 21 More specifically, K.C. claims the evidence established that
“she could effectively and safely parent [H.C.] with the assistance of Frontline and
the other services that are available to her.” 22 K.C. argues that Frontline would
provide a home for her and H.C. and “24 hour supervision to assist [her] in caring
for the child,” and that she also would have the services of her “parenting tutors”
21
Br. for Appellant at 9.
22
Id.
25
and “the assistance of [her] court-appointed guardian.”23 These services, K.C.
argues, “constitute [the] reasonable accommodations to which she is entitled
[under the ADA and the Rehabilitation Act].” 24
We take no issue with K.C.’s contention that Title II of the ADA and
Section 504 of the Rehabilitation Act entitled her to reasonable accommodation of
her intellectual and psychiatric disabilities in the provision of reunification services
and the proceedings to determine the permanency goal for her child. Title II of the
ADA provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 25 Section 504 applies this same requirement to entities that
receive federal financial assistance. 26 Entities subject to these requirements must
make “reasonable modifications” in their policies, practices, and procedures to
avoid discrimination and allow disabled persons to participate in and receive the
23
Id. at 10.
24
Id. at 9.
25
42 U.S.C. § 12132 (2016).
26
29 U.S.C. § 794 (a) (2015).
26
benefits of their services and programs. 27 We agree with the numerous other
courts that have held or assumed that these requirements apply to reunification
services provided by states to parents whose children have been removed in
neglect proceedings. 28 We consider this requirement of reasonable
accommodation to be entirely consistent with, and perhaps subsumed within,
CFSA’s general statutory obligation to expend reasonable efforts to make
reunification possible. 29 It is necessary for present purposes to be clear about what
Title II and Section 504 do and do not require, however.
Guidance on this subject is provided in a 2015 publication of the Department
of Justice and the Department of Health and Human Services entitled “Protecting
the Rights of Parents and Prospective Parents with Disabilities: Technical
27
28 C.F.R. § 35.130 (b)(7) (2017); Fry v. Napoleon Cmty. Sch., 137 S. Ct.
743, 749 (2017); Alexander v. Choate, 469 U.S. 287, 299-301 (1985).
28
See, e.g., Lucy J. v. State Dep’t of Health & Social Servs., 244 P.3d 1099,
1115-16 (Alaska 2010); People ex rel. C.Z., 360 P.3d 228, 234 (Colo. App. 2015);
In re Elijah C., 165 A.3d 1149, 1164-66 (Conn. 2017); Adoption of Gregory, 747
N.E.2d 120, 125-26 (Mass. 2001); In re Hicks/Brown, 893 N.W.2d 637, 640
(Mich. 2017); State ex rel. K.C. v. State, 362 P.3d 1248, 1252 (Utah 2015).
29
See D.C. Code § 4-1301.09a (2012 Repl.). Cf. Lucy J., 244 P.3d at 1116
(“[T]he question whether reunification services reasonably accommodated a
parent’s disability is already included within the question whether active or
reasonable efforts were made to reunite the family.” (footnote omitted)).
27
Assistance for State and Local Child Welfare Agencies and Courts under Title II of
the Americans with Disabilities Act and Section 504 of the Rehabilitation Act”
(hereinafter referred to as the “DOJ/HHS Technical Assistance”).30 As this
publication explains, child welfare agencies and courts may not “engage in
practices or methods of administration that have the effect of discriminating on the
basis of disability, or that have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the child welfare agency’s or
court’s program for persons with disabilities.”31 Rather, it is “fundamental” to
Title II of the ADA and Section 504 that child welfare programs must be
administered in accordance with the principles of individualized treatment and full
and equal opportunity. 32
The principle of individualized treatment means that persons with
disabilities “must be treated on a case-by-case basis consistent with facts and
30
Available at https://www.ada.gov/doj_hhs_ta/child_welfare_ta.pdf.
31
Id. at 4 (citing 28 C.F.R. § 35.130 (b)(3) (2017); 45 C.F.R. § 84.4 (b)(4)
(2017); 28 C.F.R. § 42.503 (b)(3) (2017)).
32
Id.
28
objective evidence,” and “not . . . on the basis of generalizations or stereotypes.”33
Thus, Title II and Section 504 prohibit “the removal of a child from a parent with a
disability based on the stereotypical belief, unsupported by an individual
assessment, that people with disabilities are unable to safely parent their
children.”34
In the present context, the principle of full and equal opportunity means that
“[i]ndividuals with disabilities must be provided opportunities to benefit from or
participate in child welfare programs, services, and activities that are equal to those
extended to individuals without disabilities.”35 In order to achieve that goal,
agencies must make reasonable changes in their practices and services to
accommodate the individual needs of disabled parents. 36 For example, for parents
like K.C. who have cognitive or other mental disabilities and need help acquiring
33
Id. (citing 28 C.F.R. § 35.130 (b); 28 C.F.R. pt. 35, App. B (2017); and
School Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 285 (1987)).
34
Id.
35
Id. (citing 28 C.F.R. §§ 35.130 (b)(1)(ii)-(iv), (vii), (b)(7); 45 C.F.R. §
84.4 (b)(1)(ii)-(iii); 28 C.F.R. § 42.503 (b)(1)(ii), (iii)).
36
A change is not required, however, if it would fundamentally alter the
nature of the service, program, or activity in question or would result in undue
financial or administrative burdens. See id. at 10 n.67 (citing 28 C.F.R. § 35.130
(b)(7); 45 C.F.R § 84.22 (a)).
29
parenting skills, “child welfare agencies may be required to provide enhanced or
supplemental training, to increase frequency of training opportunities, or to provide
such training in familiar environments conducive to learning,”37 and to
“incorporate the use of visual modeling or other individualized techniques to
ensure equal opportunity to participate in and benefit from the training.” 38 Courts
likewise must modify their policies, practices and procedures to the extent
reasonably necessary to avoid discriminating against disabled parents in
permanency and other proceedings, for example by providing assistance to enable
such parents to participate fully in the proceedings, 39 and by exercising discretion –
where authorized and consistent with the best interests of the children involved in
the proceedings – to allow more time to permit disabled parents, with appropriate
supportive services, to achieve goals for reunification. 40
37
Id. at 10.
38
Id. at 15; see, e.g., State ex rel. K.C., 362 P.3d at 1254 (child welfare
agency reasonably accommodated mother with mental illness by adopting
recommendations of mental health professionals, providing extra peer parenting
sessions, and allowing mother additional time to complete tasks); cf. Hicks/Brown,
893 N.W.2d at 642 (child welfare agency failed to make reasonable efforts to
reunify mother with her child when it ignored recommendations of medical
professionals that mother would benefit from services tailored to her disability).
39
DOJ/HHS Technical Assistance at 9.
40
See id. at 13-14.
30
Importantly, these requirements do not mean the “lowering [of] standards for
individuals with disabilities.”41 Child welfare agencies and courts are obligated to
ensure the health and safety of children.42 The ADA and the Rehabilitation Act do
not override that obligation; they incorporate an exception where an individual
with a disability poses a “direct threat,” meaning “a significant risk to the health or
safety of others that cannot be eliminated by a modification of policies, practices,
or procedures, or by the provision of auxiliary aids or services.”43 Thus, “in some
cases, a parent or prospective parent with a disability may not be appropriate for
child placement because he or she poses a significant risk to the health or safety of
the child that cannot be eliminated by a reasonable modification.” 44 The ADA and
the Rehabilitation Act permit a child welfare agency or a court to make that
determination in a given case, “based on an individualized assessment and
41
Id. at 5.
42
Id. at 16.
43
Id. (citing 28 C.F.R. § 35.139(b); Arline, 480 U.S. at 288).
44
Id. at 5; see, e.g., State ex rel. K.C., 362 P.3d at 1253 (“[T]he ADA
requires only reasonable modifications…. In assessing what sorts of modifications
to the plan might be reasonable, . . . the juvenile court was entitled to take into
account the core principles and policies of our Termination of Parental Rights Act
– including, of course, ‘the paramount concern,’ which is the best interest of the
child.”) (emphasis in the original).
31
objective facts, including the nature, duration, and severity of the risk to the child,
and the probability that the potential injury to the child will actually occur.”45
The trial court made just such a determination in this case, albeit implicitly,
in finding that even with all the individualized assistance and support provided and
available to K.C., she had not made adequate progress toward reunification and
could not care for H.C. safely and effectively now or in the foreseeable future.
Taken as a whole, the evidence before the court supported that determination. Like
the trial court, we are not without empathy for K.C. and her maternal desire to keep
H.C. in her life, but the evidence supported a conclusion that K.C.’s cognitive
limitations make it impossible for her to do so without endangering the child she
loves. The testimony of the CFSA social workers in particular supported the
court’s conclusions that, despite some modest improvements in her parenting
skills, K.C. never reached the point where unsupervised (or even prolonged)
visitation with H.C. could be considered. Without constant oversight, assistance,
and prompting, witnesses testified that K.C. was unable, even during the brief
supervised visits, to maintain a safe environment for H.C., to perform basic and
routine caregiving tasks, or to recognize and attend properly to H.C.’s basic needs.
45
DOJ/HHS Technical Assistance at 5; see 28 C.F.R. § 139 (b).
32
She also was unable to make informed medical and educational decisions on
H.C.’s behalf.
Nor, critically, did the evidence establish that if H.C. were returned to K.C.’s
full-time care, her well-being would be ensured by the round-the-clock presence of
Frontline staff in the apartment and the occasional additional support provided by
GPC, Mary’s Center, and K.C.’s court-appointed guardian. H.C. required a
capable parent. These service providers might be available to advise and prompt
K.C. and attempt to intervene when they perceived H.C.’s safety to be jeopardized,
but they could not serve as surrogate parents or guardians for H.C. and they were
not about to assume direct responsibility for the child’s care and upbringing.
Important and valuable as their services were to K.C., their roles were limited.
Frontline’s program manager confirmed that the staff were there to support K.C.’s
needs, not those of her child. There is no evidence that Frontline personnel had the
responsibility or training to protect or care for a small child or ensure that K.C. did
so properly, let alone to take charge of all the manifold tasks and make all the vital
judgments involved in raising the child. Moreover, Frontline staff would not
always be present. K.C. was free to go out on her own and come and go as she
pleased, without supervision, and she would be free to take her child with her. In
addition, there was no evidence as to who (if anyone) would be available to care
33
for H.C. when K.C. was attending her day program or receiving mental health
services or out for other reasons; but even if H.C. were to be provided with
adequate daycare during those periods of K.C.’s absence, concerns about her
ability to parent H.C. at other times would still be determinative. Similarly, the
involvement of GPC and Mary’s Center trainers was limited to only a few hours a
week, and they too were not directly responsible for providing child care. And
K.C.’s court-appointed guardian was charged with making legal, financial, and
other decisions for K.C. herself, not for K.C.’s child. K.C. had the parental
authority to make the innumerable, important life decisions for and affecting H.C.
– but not, the evidence showed, the judgmental capacity to exercise that authority
properly for the safety, health and welfare of the child.
K.C. nonetheless claims that her case resembles the 2015 case in which the
Departments of Justice and Health and Human Services found violations of the
ADA and the Rehabilitation Act by the Massachusetts Department of Children and
Families (“DCF”). 46 We disagree. Although the Massachusetts case also
concerned the adequacy of accommodations for an intellectually disabled mother
46
See Department of Justice/Department of Health and Human Services
Joint Letter of Findings: Investigation of the Massachusetts Department of
Children and Families (Jan. 29, 2015) (“DOJ/HHS Letter”), at
https://www.ada.gov/enforce_current.htm.
34
seeking reunification with her child and a change in the child’s permanency goal to
adoption, it otherwise bears little resemblance to this case. In the Massachusetts
case, unlike in this one, the child’s mother lived with her parents, i.e., the child’s
grandparents, who were not disabled and who desired to provide full-time,
permanent support in their home for both their daughter and her baby, with the
grandmother maintaining guardianship of the child. Unlike in this case, there was
substantial evidence in the Massachusetts case that this family plan for
reunification was a viable and attractive option – according to the DOJ/HHS
Letter, “multiple community-based service providers, two experts who ha[d]
completed parenting assessments, [the child’s] court-appointed attorney, and even
a majority of DCF’s most recent Foster Care Review panel all ha[d] agreed that
[the] family-supported parenting plan would be appropriate.” 47 Unlike in this case,
the agency rejected this option, withheld support services from the mother, and
restricted her visitation with her child, based (the DOJ/HHS Letter found) not on
an individualized assessment of the evidence, but on stereotypical, discriminatory
assumptions about the mother’s disability.
47
DOJ/HHS Letter at 2.
35
We conclude that the trial court in the present case did not violate the ADA
or the Rehabilitation Act in finding that even with the services and support K.C.
received, she did not make adequate progress to meet the plan’s requirements for
reunification or demonstrate that with appropriate assistance she could parent H.C.
without jeopardizing the child’s safety, health, and welfare. We perceive no abuse
of discretion in the court’s decision to change H.C.’s permanency goal to adoption.
Affirmed.