In re Dustin R., 24, Sept. Term, 2015.

• Decision Date: 21 December 2015
• Docket Number: No. 24, Sept. Term, 2015.,24, Sept. Term, 2015.
• Citation: 445 Md. 536,128 A.3d 80
• Parties: In re Adoption/Guardianship of DUSTIN R.
• Court: Court of Special Appeals of Maryland

445 Md. 536
128 A.3d 80

In re Adoption/Guardianship of DUSTIN R.

No. 24, Sept. Term, 2015.

Court of Appeals of Maryland.

Dec. 21, 2015.

128 A.3d 82

Mitchell Y. Mirviss (Venable, LLP, Rockville, MD; Margaret F. Holmes, Legal Aid Bureau, Inc., Annapolis, MD), on brief, for petitioner.

Kathleen A. Ellis, Asst. Atty. Gen. (Julia Doyle Bernhardt, Asst. Atty. Gen., Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Raymond L. Marshall, Esq., Chason, Rosner, Leary & Marshall, LLC, Towson, MD, for Amici Curiae brief of Maryland Disability Law Center, Inc., the ARC Maryland, Inc., the Maryland Coalition of Families for Children's Mental Health, the Maryland Association of Community Services, Accessible Resources for Independence, Inc., the League for People with Disabilities, the Freedom Center, Inc., and

128 A.3d 83

the Community Behavioral Health Association of Maryland, Inc. in support of Petitioner.

Jonathan G. Cedarbaum, Esq., Paul R.Q. Wolfson, Esq., Shirley C. Woodward, Esq., Lauren N. Moore, Esq., Wilmer, Cutler, Pickering, Hale and Dorr, LLP, Washington, DC, for Amici Curiae brief of First Star, Inc., et al., in support of Petitioner Dustin R.

Argued before BARBERA, C.J., BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, GLENN T. HARRELL, JR. (Retired, Specially Assigned), JJ.

WATTS, J.

445 Md. 540

This case concerns whether the Court of Special Appeals erred in dismissing on its own initiative an appeal by the Department of Health and Mental Hygiene ("DHMH"), Respondent, and whether the Circuit Court for Anne Arundel County, sitting as a juvenile court ("the juvenile court"), had the authority to order DHMH to continue to provide services after age twenty-one to Dustin R. ("Dustin"), Petitioner, a medically fragile child who needed life-sustaining care.

We hold that: (I) the Court of Special Appeals erred in dismissing DHMH's appeal because the juvenile court's order was immediately appealable at a minimum as an interlocutory order granting injunctive relief; (II) the juvenile court had jurisdiction and the statutory authority to order DHMH to develop and approve a written plan of clinically appropriate services in the least restrictive setting that ensured that Dustin would continue to receive services, where Dustin was not yet twenty-one years old when the juvenile court issued its order and where such services were required to protect Dustin's health and welfare, and where the juvenile court's order served to bridge the gap in services as Dustin transitioned from his juvenile guardianship case to adult guardianship care and the final outcome (meaning judicial review, including the appellate process) may be of any Medicaid fair hearing proceedings; and (III) the juvenile court did not violate the separation of powers.

BACKGROUND

On December 16, 1992, Dustin was born. In February 1995, when he was two years old, Dustin entered foster care. In that year, the juvenile court terminated Dustin's biological parents' parental rights and granted guardianship to the Anne Arundel County Department of Social Services ("DSS") with

445 Md. 541

the right to consent to adoption or long-term care short of adoption. On March 28, 1995, DSS placed Dustin in a treatment foster care home with Jacqueline and Darrell P. ("Mrs. P." and "Mr. P.," respectively).¹ DUSTIN'S PLACEMENT with mr. and mrs. p. wAs succeSsful; mr. and mrs. P.'s home was designated by court order as Dustin's permanent placement; and the juvenile court gave Mr. and Mrs. P. limited guardianship authority to make medical (including mental and dental health), educational, and out-of-State travel decisions on Dustin's behalf. Dustin has lived with Mr. and Mrs. P. since March 28, 1995.

There is no dispute that Dustin is medically fragile and has special needs. Dustin has, among other conditions, an intellectual disability, severe seizure disorder, cortical visual impairment, gastro-esophageal reflux, scoliosis, osteoporosis, ischemic encephalopathy, global orthopedic impairments, cerebral palsy, and an Unidentified Long Chain Fatty Acid Syndrome with a Mitochondrial

128 A.3d 84

Disease (a metabolic disorder ).² Dustin has a tracheostomy, full glottal closure,³ a colostomy, and a gastrostomy tube for feeding. DHMH administers the Maryland Medical Assistance Program ("Medicaid"), which has paid Dustin's medical expenses in foster care.

As Dustin grew older, his condition worsened. On February 18, 2005, when Dustin was twelve years old, after an

445 Md. 542

emergency hearing, the juvenile court ordered DSS to secure round-the-clock (twenty-four hours per day, seven days per week) nursing services for Dustin.⁴ In response, DSS filed an emergency motion requesting to remove Dustin from the home of Mr. and Mrs. P. and to move him to another placement that would cost "substantially less[,]" as the cost of round-the-clock nursing services exceeded the Medicaid rates. Ultimately, DSS reached an agreement to provide the additional private nursing care to Dustin by supplementing the Medicaid rates through splitting the cost of the supplemental payments between the Developmental Disabilities Administration ("DDA") (which DHMH administers) and the Department of Human Resources. In 2006, DSS contracted with MedSource Community Services, Inc. ("MedSource") to provide round-the-clock nursing services at an hourly rate that exceeded the Medicaid reimbursement rate. Since that time, Dustin has had a rotating team of eight registered nurses providing round-the-clock services.

As early as 2010, Dustin began to seek the provision of services for himself after age twenty-one. In March 2010, at age seventeen, Dustin filed a petition for co-commitment to DHMH and DSS. The juvenile court denied the petition without prejudice. In June 2011, Dustin filed an amended petition for co-commitment to DHMH and DSS, requesting that the juvenile court require DHMH and DSS to "present a written plan to provide for the care of Dustin [ ] in the [ ] home [of Mr. and Mrs. P.], including 24 hour skilled nursing care, upon turning" twenty-one years old. Dustin described his medical condition at that time in the amended petition as follows:

[ ] Dustin, now 18 ½ years old, is a severely medically fragile child with special needs. He is diagnosed with Unidentified Long Chain Fatty Acid Syndrome with a Mitochondrial Disease (metabolic disorder ), Mental Retardation, Severe

445 Md. 543

Seizure Disorder, Gastro–Esophageal Reflux, Cortical Visual Impairment, Scoliosis, Osteoporosis, Global Orthopedic Impairments, and Cerebral Palsy. Because Dustin has limited ability to metabolize long chain fatty acids, has severe protein allergies, and frequent dramatic fluctuations in his blood sugar levels, he is fed a reduced protein formula and

128 A.3d 85

must be assessed a minimum of every 4 hours to prevent a metabolic crisis which may impact multiple body systems. He has a gastrostomy tube [,] as well as an intravenous port for antibiotic administration and blood sample draws. [On] March 8, 2011[,] his rectum was permanently[,] surgically closed[,] and the surgeons created a permanent colostomy. He has fragile skin with a history of pressure ulcers, a history of gastrointestinal bleeding, and urinary retention with a history of bladder infections. At the time of this [amended] petition, he has been diagnosed with Neutropenia, a condition that compromises the body's ability to heal or fight infection due to an extremely low white blood cell count. This condition further complicates the metabolic disorder.

[ ] He functions at the cognitive level of about a [six-]month[-]old. He does not have the ability to control his movement[,] and is transferred throughout the day from bed to wheelchair to standing frame frequently. In each piece of equipment, he is repositioned frequently[,] with multiple soft pads to prevent pressure sores and to stimulate long bone growth. He can[ ]not make sound[,] so he must be within sight of the nurse at all times. He receives all nutrition and most of his medication through a gastrostomy tube into his stomach and receives all intravenous medications and nutrition through the surgically implanted BardPort that provides direct access to the heart through the Vena Cava. He has doctor's orders to receive 16 medications at specified times every day[,] and receives 5 additional medications on a "prn [,]" or as needed[,] basis. He receives oxygen through [a] tube in his trachea when his blood oxygen saturation is low. Because he can[ ]not swallow or clear his airway, he is suctioned through the trachea

445 Md. 544

tube when necessary, as determined by the nurse, to prevent aspiration of fluid into his lungs. He is also catheterized for urine every four hours and more frequently if he has an infection.

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