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Md. juvenile courts can order DHMH care of child after 21

Juvenile courts can order seriously disabled children under the guardianship of the state to continue receiving care after they age out of the foster system to prevent a lapse in services during the transition to the adult system, the state Court of Appeals has ruled.

Dustin R. turned 21 in 2013. During the process of planning his transition out of guardianship and the foster care system, his advocates argued he should continue receiving funding from the Department of Health and Mental Hygiene to provide “life-saving services.”

“The decision removes a critical barrier that had made transitions for severely disabled and medically fragile children out of the system very difficult, and possibly life-threatening,” said Mitchell Y. Mirviss, who represented Dustin on appeal along with Margaret Holmes from Maryland Legal Aid.

Dustin has an intellectual disability, severe seizure disorder, scoliosis, osteoporosis, cerebral palsy and other physical issues as well as the mental capacity of a six-month old and an inability to speak or control his movement, according to the opinion issued Dec. 21 by the Court of Appeals. He requires a full-time nurse.

In 2013, prior to Dustin’s 21st birthday, a juvenile court judge in Anne Arundel County Circuit Court issued an order to continue his care. DHMH appealed, challenging the court’s authority.

The state agency argued that the juvenile court lacked authority to order it to develop, approve and implement a plan for services because the order would be in place after the juvenile court lacked jurisdiction, according to the opinion.

The court ruled in Dustin’s favor, finding “the juvenile court had jurisdiction and the statutory authority to order DHMH to develop and approve a plan that ensured that Dustin would continue to receive services.”

Writing for the majority, Judge Shirley M. Watts said the law provided the juvenile court may extend jurisdiction until a child is 21 and the orders in question were issued prior to his 21st birthday. The law also allows the court to order DHMH to develop a plan for continued care after the state’s guardianship ends.

Mirviss, of Venable LLP in Rockville, said it is not uncommon for many children in the care of the Department of Social Services to age out of the foster system but not be prepared to live independent lives. For children with severe disabilities, like Dustin, the need to maintain services was immediate.

“The court’s ruling saved Dustin’s life,” he said.

Watts called the statute a “bridge” between the juvenile guardianship system and the adult guardianship system, not authority to mandate particular services for all time.

“The services ordered by the juvenile court cannot and do not continue necessarily until Dustin’s demise,” she wrote. The services should only continue until the transition is complete and the child’s guardian seeks authorization for the provision of substantially similar services.

‘They don’t get better’

Jackie Pratt, along with her husband, has cared for Dustin since he was two years old. She said the court process has been difficult and only one of the hurdles to clear for Dustin to get the care he needs.

“It’s very stressful and it’s gone on for so long that you just get worn out, but your child’s life is on the line and you can’t stop,” she said.

It was obvious early that Dustin’s level of care would never decrease, Pratt said, but it has always been a battle to get him that care.

“As children like this get older, they get worse, they don’t get better,” she said.

Dustin receives his care at home and does best with familiar care providers who need special training, according to Pratt. She said she feared he would not be able to receive the specialized care he needs in an institutionalized setting.

“He has a life and he has a good life, but it has to be with the proper care and it has to be here,” she said.

Holmes said she took over Dustin’s case around 2000 after he had been through the process of having his biological parents’ rights terminated and was placed under the guardianship of the state.

“It’s been a long, hard battle,” she said.

Though she agreed it is not uncommon for children with disabilities to age out of the system and still require services, Holmes said Dustin’s case is compelling.

“There were services in place that were keeping this young man alive,” she said.

Pratt said the Court of Appeals ruling helps clear the way for all parties to work out a service funding plan for Justin to solidify his care.

She said she also hopes other children in a similar position will benefit from the ruling.

Mirviss said the ruling is relatively narrow but the Maryland Disability Law Center filed an amicus brief, clearly recognizing the importance of the court’s ruling.

The full scope of the decision’s impact is unclear because the court was interpreting a statute that specifically referred to children under the guardianship of the state, Holmes said.

“I’m very hopeful that courts are going to use this as precedent to use the authority given to them by the legislature to order the services these youth need,” Holmes said.

The case is In re Adoption/Guardianship of Dustin R., No. 24, September Term 2015.