Wednesday, January 25, 2012

Sad Termination of Parental Rights Case

I read a lot of termination of parental rights cases, both because it's an area that interests me generally and because disability issues are often implicated in those cases.  Every termination of parental rights case seems to me almost unfathomably sad, but I came across one today that is unusually so from a disability perspective.  The case, which resulted in an unpublished decision from the Michigan Court of Appeals last month, involved a father's parental rights with respect to his son, DC, who is now 14.  DC has been diagnosed with an intellectual disability, ADD, and PTSD -- the last a result of sexual abuse perpetrated against DC by his mother's boyfriend.  After that incident of sexual abuse, DC was removed from his mother's care and placed in his father's.  DC's father has been diagnosed with depression and anxiety, has what the court called "cognitive challenges," and, in the court's words, "likely has an IQ of less than 87" (so specific and yet so not).  It became clear that the father needed assistance in supervising and advocating for DC, and the state seems to have provided it, though only after taking DC back into its custody:
Respondent removed DC from therapeutic services through Community Mental Health Services (CMHS) and claimed to follow a doctor’s advice in seeking increased doses of the child’s medications as a method of controlling his behavior. The DHS took DC back into custody in December 2009 after DC started a small house fire with a lighter left out by respondent. The initial Child Protective Services (CPS) worker who investigated the allegations suggested that DC remain in the home with the implementation of a safety plan. Respondent refused to accept a safety plan and the worker had to summon police assistance to remove the child from the home.

Over the next 17 months, the DHS provided various intensive services to respondent, all modified to accommodate his special needs. Respondent received a psychological evaluation and was referred to a psychiatrist to reevaluate his own dosage of psychotropic medications. Respondent participated in parenting and life skills classes. A life skills mentor worked closely with respondent, visiting him more than twice each week for a six-month period. The mentor tried to teach respondent personal and environmental hygiene, budgeting, and how to organize appropriate activities for DC. The life skills mentor also supervised home visits and advised respondent regarding parenting skills. Respondent participated in meetings with DC’s school, doctors, psychiatrists and other service providers but often left prematurely. After each meeting, DHS staff utilized many methods to assist respondent in understanding DC’s goals and needs. A DHS staff member even created a binder with visual aids to assist respondent’s memory regarding DC’s care. But respondent was reluctant to accept the help given, throwing the binder at the care worker in the courtroom. And, after each meeting, respondent complained to his life skills mentor that he did not understand what was expected of him.

Despite the intensive, specially coordinated services provided to respondent, he did not actually benefit. Respondent did not attempt to maintain structure or cleanliness in his home and failed to engage in activities with DC. During parenting time, respondent usually watched television while DC played alone. Respondent still could not recognize DC’s special needs and blatantly asserted that he would discontinue DC’s services through CMHS as soon as the child was returned to his care. Exacerbating the troublesome situation, respondent’s live-in girlfriend, who had served as DC’s primary caregiver, lost her sight in 2010.

DC, on the other hand, thrived while in DHS care. He received specialized services to teach him basic life skills, regulate his medication, improve behavioral issues and increase his academic success. Through visual aids, structured schedules and a combination of reduced medication with increased therapy, DC flourished.
The trial court terminated the father's parental rights on a number of grounds, including that there was a reasonable likelihood that DC would be harmed if he was returned to his father's home.  The court of appeals, however, found insufficient evidence of the likelihood of harm:
Respondent clearly did not make the best choices in relation to DC’s medical and psychiatric care. Petitioner presented some testimony regarding corporeal [sic] punishment used in the home, but nothing reaching the level of abuse. The petitioner presented no real evidence that DC would be in physical or emotional danger if returned to respondent’s care to support termination on this ground.
But the court of appeals affirmed the termination of parental rights on the ground that there was no reasonable expectation that the father could provide DC proper care and custody within a reasonable time.  The court's analysis on this point is what struck me:
While the care and custody provided by respondent might have been sufficient for an average child, DC requires more. When DC came into care, he was failing academically, had severe behavior issues and lacked basic life skills such as managing his personal hygiene. DC’s treating psychiatrist reduced the amount and type of psycho-stimulant medications he was given. In exchange, DC attended group, individual and family therapy sessions several times a week. With the advocacy of a caseworker, the school district provided a more intensive Individual Education Plan (IEP) and DC’s performance improved. Care providers instituted a system of visual aids, which allowed DC to remain on task, and imposed a highly structured schedule on his day, which greatly reduced DC’s stress levels. DC’s occupational therapist discovered that he could focus better when wearing a weighted vest and using a “sit in move cushion.” Over time, DC improved so much that he needed to attend counseling only once per week.

DHS workers explained the benefits of these various methods to respondent many times and in many different ways. One caseworker even tried visual aids to explain DC’s needs to respondent, a method that had proven successful with DC. Yet, when questioned to determine his level of comprehension and retention, respondent could provide only vague or superficial answers. Even at trial, respondent could not provide a clear example of something he learned through services; respondent merely testified that he learned that DC has ADD and the family would have to learn to work around it. Respondent refused to impose any structure during unsupervised parenting time and instructed DC to keep that a secret. Although respondent requested a weighted vest and “sit in move cushion” for DC’s use at home, respondent self- reported that they did not use these tools. Respondent failed to advocate for DC to receive a specialized IEP, which would have resulted in the loss of special education services had the caseworker not intervened. Most troubling, despite significant evidence of DC’s improvement on lower doses of medication and higher levels of therapeutic services, respondent still insists that DC needs only medication and minimal counseling.

From this evidence, it does not appear that respondent intentionally neglected DC’s special needs. Rather, DC requires a proactive parent who will advocate for necessary services and accommodations and provide a rigid structure to ease DC’s stress and confusion. Unfortunately, because of his own cognitive limitations, respondent cannot provide this necessary higher level of care and custody. * * *.

We similarly conclude that termination was in DC’s best interests. By continuing in care, DC will be represented by caseworkers who will advocate for his IEP and other necessary services. Potentially, DC will be placed with foster or adoptive parents who are able to provide the structure and sensory tools he needs to succeed. Most importantly, DC will not be in danger of being over-medicated and under-served. Although respondent and DC love each other, the record evidence more than adequately supports that termination of respondent’s parental rights serves DC’s physical and emotional best interests.
There's a lot going on here.  Note the many places where disability comes into the analysis:  DC's disabilities, which require services and a parent who will advocate for them; DC's father's disabilities, which interfere with his ability to understand and advocate for the services and supports DC needs; DC's father's girlfriend's loss of her sight, which (to the court at least) seems to make her unqualified to serve as DC's caregiver.  The court of appeals shows a commendable concern with overmedication of kids with disabilities, and it also shows a realistic sense of the immense degree of parent advocacy that our system effectively requires if a kid with a disability is to get appropriate services and supports.  But without necessarily quarreling with the result in this case given the system we have, the facts do highlight for me the limitations of that system.  As a practical matter, there are very few parents who have the time, the education, the money, and the overall efficacy to effectively advocate for their kids with disabilities under the IDEA.  The IDEA system works very well for the kids of those parents.  But it does not work as well for the very, very large number of other kids with disabilities.  And -- again, leaving aside what should happen in this particular case -- the systemic solution cannot be to find different parents for those kids.  Despite what seem like the commendable efforts of the CMHS workers here, I can't help but think that there should be a way to keep a loving family like this one intact in a system that both did a better job of providing support to parents of kids with disabilities (parents both with and without disabilities themselves) and that did not require them to carry so much of the load of obtaining the necessary support for their kids.  Maybe someday I'll write that book.

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