L.S. v. D.C. Dep't on Disability Servs.
| Decision Date | 17 November 2022 |
| Docket Number | 21-FM-006 |
| Citation | 285 A.3d 165 |
| Parties | L.S., Appellant, v. DISTRICT OF COLUMBIA DEPARTMENT ON DISABILITY SERVICES, Appellee. |
| Court | D.C. Court of Appeals |
Pierre E. Bergeron, for appellant.
Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. Alikhan, Solicitor General at the time the brief was filed, Caroline S. Van Zile, Principal Deputy Solicitor General at the time the brief was filed, and Ashwin P. Phatak, Deputy Solicitor General, were on the brief, for appellee.
Before Glickman and Deahl, Associate Judges, and Thompson, Senior Judge.
In this matter, appellant L.S., a developmentally disabled ward of the District of Columbia Department on Disability Services ("the District" or "DDS"), challenges a December 11, 2020, order of the Superior Court affirming an October 1, 2020, order by a Magistrate Judge of the Mental Health and Habilitation Branch of the Family Court (the "Habilitation Court") that denied an emergency motion filed by L.S.’s counsel. We dismiss the appeal as moot insofar as it asks this court to mandate that the Habilitation Court assess the ability of L.S. to understand the risks of returning to work at his supported employment worksite and to order that L.S. not return to work until vaccination
against the COVID-19 virus is available. We affirm insofar as the appeal asks us to hold that the Superior Court erred in upholding the Habilitation Court's determination not to hold an evidentiary hearing on the motion.1
L.S. is an individual with severe intellectual disability who is committed to DDS for the provision of habilitation services pursuant to an individual support plan ("ISP"). The services described in L.S.’s ISP include supportive employment. As of early 2020, L.S.’s supportive employment included work as a custodian at a Department of Defense ("DoD") facility in Virginia, where he had worked since 2016. The COVID-19 pandemic and state and local stay-at-home orders led to a pause in that assignment in March 2020. In August 2020, however, L.S. expressed a desire to return to work, and DDS sought to facilitate that return. L.S.’s interdisciplinary team ("IDT") determined that a number of limitations and precautions would be implemented to enable L.S. to return to work. These included limiting L.S.’s work to two days per week for five hours each day; his wearing a face mask and face shield and observing social distancing protocols; being individually escorted to and from work; having his temperature checked upon arrival at work and again at the community residential facility where he lives; and monitoring him according to Centers for Disease Control and Prevention guidelines.
Under D.C. Code § 7-1304.13(a), "[p]ersons with an intellectual disability who have been committed ... shall have the assistance of an advocate for a person with an intellectual disability in every proceeding and at each stage in such proceedings under this chapter" (i.e., the so-called Habilitation Act, declaring the intent of the Council of the District of Columbia (the "Council") to "[s]ecure for each resident of the District of Columbia with intellectual or developmental disability ... such habilitation as will be suited to the needs of the person").2 The advocate has the duty "[t]o ensure by all means ... that the [committed] person is afforded all rights under the law." D.C. Code § 7-1304.13(c)(3).
In October 2017, the Habilitation Court appointed attorney Pierre Bergeron as counsel for L.S. to succeed his previous counsel. Mr. Bergeron has advocated for L.S. in various ways, including by successfully petitioning the Habilitation Court to direct that speech-language services for L.S. be reinstated and that L.S. be provided with a communication device.
By motion dated August 26, 2020, Mr. Bergeron filed in both the Habilitation Court and the Probate Court a motion entitled "Emergency Motion for an Emergency Order and/or Injunctive Relief to Prevent the Department of Disability Services and Its Contractor Ward and Ward from Sending [L.S.] to His Supported Employment Day Program [a reference to L.S.’s job at the DoD facility]" (the "Emergency Motion").3 Referring to an August 14, 2019, "Day Program Court Report" filed with the court, the Emergency Motion highlighted that L.S.’s work "consists in great part of cleaning toilets" at the DoD facility and referred the court to attached articles stating that COVID-19 can be transmitted via "aerosolized feces" propelled into the air by toilet flushing. The Emergency Motion asked the Superior Court to enjoin DDS from restarting L.S.’s employment "until further order of this Court and when a vaccine protecting against COVID[-]19 is available."
The Emergency Motion acknowledged that a decision was made at an IDT meeting on August 20, 2020, that (then 70-year-old) L.S. should return to his supported employment and that L.S.’s limited medical guardian (appointed for L.S. in 2008 in a Probate proceeding) had concurred in that decision. The Emergency Motion asserted, however, that counsel did not believe that the decision to return L.S. to supported employment at a "highly contagious" site during the pandemic, at a time when DDS workers, Department of Defense employees, attorneys, and others were being permitted to work from home, "belong[ed] to the Limited Medical Guardian." The Emergency Motion asserted that because of L.S.’s severe intellectual disability, he would not be able to process the "potentially deadly risks of returning to work," which assertedly had not been explained to him by his case manager or by the limited medical guardian.4
DDS opposed the Emergency Motion, asserting that L.S. had "not been declared incapacitated to make a decision whether to maintain his employment and he ha[d] expressed his interest in returning to work" and arguing that the Habilitation Act safeguarded L.S.’s decision to return to work. DDS noted that the IDT decision had been upheld by the DDS Human Rights Advisory Committee and that the IDT had put safety protocols in place and contended that to grant the motion would violate L.S.’s civil rights and his right to meaningful employment.
Magistrate Judge Katherine M. Wiedmann denied the Emergency Motion in a bench ruling on September 17, 2020, and in a written order dated October 1, 2020. Magistrate Judge Wiedmann reasoned that while the Habilitation Court has jurisdiction to determine whether an individual habilitation plan satisfies the requirements of the Habilitation Act, it does not have authority to adjudicate a "perceived violation sound[ing] in tort or some other legal theory stemming from health and safety concerns" or relating to medical issues. Magistrate Judge Wiedmann found that the Emergency Motion was not challenging any deficiency in L.S.’s habilitation plan and emphasized that under the law, L.S. "is presumed to have capacity to make his own decisions regarding whether he wants to return to work" and to do so in consultation with his limited medical guardian to the extent that health and safety issues related to his work present medical issues. The Magistrate Judge declined to make any determination regarding health and safety risks at L.S.’s workplace. She also remarked that counsel for L.S. should "proceed with caution" to the extent that he was advocating the overruling of L.S.’s decision about returning to work despite his expressed wishes because counsel owed "[u]ndivided loyalty to [the] client ... [as] a fundamental tenet of the attorney-client relationship."
Judge McLean found, however, that the Habilitation Court did not have the authority to grant the requested relief. She found that the Emergency Motion's argument that L.S. lacked the capacity to decide to re-engage in supportive employment services was without merit as in direct conflict with the legal presumption of capacity. She noted that under D.C. Code § 21-2002(d), "[a]n individual shall be presumed competent and to have the capacity to make legal, health-care, and all other decisions for himself or herself, unless certified otherwise under section 21-2204 or deemed incapacitated or incompetent by a court," and that under the Habilitation Act, "[a] determination by the [c]ourt ... that a person 14 years of age or older is incompetent to refuse commitment shall not be relevant to a determination of the person's competency with respect to other matters not considered by the [c]ourt." D.C. Code § 7-1303.13. Judge McLean found no "provision that identifies or elucidates a procedure for a Habilitation Court to separately determine an individual's competency or capacity for discrete habilitation decisions."5
This appeal followed on January 6, 2021. Appellant's briefs argue that the reviewing Associate Judge erred in upholding the order by which the Habilitation Court (1) declined to assume "jurisdiction over ... the health and safety of [L.S.’s] habilitation work place" and (2) failed to "assess[ ] [L.S.’s] capacity to make health and safety decisions based on the clinical data" and to hold an evidentiary hearing on these issues.
The record indicates that since the filing of the Notice of Appeal, L.S. has received a COVID-19 vaccine in February...
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