Mullins v. North Dakota Dept. of Human Services, 910077

• Decision Date: 19 March 1992
• Docket Number: No. 910077,910077
• Citation: 483 N.W.2d 160
• Parties: 2 NDLR P 296 Christopher MULLINS, Appellee, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellant. Civ.
• Court: North Dakota Supreme Court

Page 160

483 N.W.2d 160

2 NDLR P 296

Christopher MULLINS, Appellee, v. NORTH DAKOTA DEPARTMENT OF HUMAN SERVICES, Appellant.

Civ. No. 910077.

Supreme Court of North Dakota.

March 19, 1992.

Sidney J. Hertz Fiergola (argued), Asst. Atty. Gen., Bismarck, for appellant.

Gerry Gunderson (argued), of Wheeler Wolf, Bismarck, for appellee.

MESCHKE, Justice.

The North Dakota Department of Human Services appeals an order of the district court directing the Department to find Christopher Mullins "eligible for all developmental disability services if it is determined that he meets the definitional criteria contained in the North Dakota Century Code, without distinguishing between the mentally retarded or mentally ill." Because the Department now concedes that Christopher is developmentally disabled, and because Christopher acknowledges that the Department presently furnishes him with all appropriate services, we affirm.

Christopher Mullins is an adolescent of normal intelligence who is chronically mentally ill. His diagnoses include Tourette's syndrome, ¹ attention deficit hyperactive disorder, schizophreniform disorder in remission, and aggressive conduct disorder--undersocialized type. Christopher needs daily medication to treat his illnesses and needs special education to deal with his uncontrolled behavior. He was first hospitalized at the North Dakota State Hospital; then from 1987-1990, he was at the Archbishop Gilfillan Residential Treatment Center in Bemidji, MN; and, since 1990, he has been living in a licensed foster home at Grafton, closer to his family's home in Minto.

Years ago, those helping Christopher began to seek developmental disability services for him from the Department. In 1986, Christopher, represented by Legal Assistance of North Dakota, asked the Federal District Court for North Dakota to include Christopher in the protected class of developmentally disabled persons entitled to receive services under the implementation order in Association for Retarded Citizens of North Dakota v. Olson, 561 F.Supp. 473 (D.N.D.1982), [A.R.C.], affirmed and remanded in part, 713 F.2d. 1384 (8th Cir.1983). Inclusion in that protected class would have entitled Christopher to services, treatment, and habilitation, including food, clothing, shelter, medical care, and education, regardless of age or condition. 561 F.Supp. at 494.

The Federal District Court ruled that Christopher was developmentally disabled under both federal and state statutes--42 U.S.C. Sec. 6001 and NDCC 25-01.2-01. Association For Retarded Citizens of North Dakota v. Sinner, 115 F.R.D. 28, 31-32 (D.N.D.1987). However, because Christopher is mentally ill, not mentally retarded, the Court ruled that he is not a member of the class protected in that implementation order. Id. at 32. The Court concluded that Christopher "qualifies for the services and techniques which are embodied in the 'developmental model' of assistance," but was unwilling to redefine the protected class of mentally retarded persons to include those who are mentally ill. Id. Another reason that the Court refused Christopher class status was that "there was no showing that the residential educational program and the case management service presently provided to Christopher do not meet the necessary elements of a developmental model for his proper assistance." Id.

In 1987, assisted by representatives of the Protection and Advocacy Committee, ² Christopher renewed his application to the Department for case-management services for the developmentally disabled. The Department denied that application, relying on the criteria in the Service Chapters of its Manual for identifying mentally retarded persons protected by the A.R.C. class action decree. The Department ruled that Christopher is not mentally retarded, that he is not a member of the class protected by the A.R.C. decree, and that it is not necessary to determine whether Christopher is developmentally disabled. The Department reasoned that Christopher is of average intelligence, and that his disability, consisting of psychiatric disorders, is dissimilar to mental retardation.

On appeal, the district court reversed that decision by the Department, and remanded "with instructions to make a determination whether Christopher is 'developmentally disabled' as defined under the statute, and to provide the appropriate services thereunder." The Department appealed to this court.

Christopher's appeal was consolidated with the appeals of two other applicants seeking case-management services from the Developmental Disabilities Division of the Department. The other applicants, too, had been denied services by the Department's application of the Service Chapters of its Manual for identifying mentally retarded persons protected by the A.R.C. decree. In that appeal, this court reasoned that the Department's reliance upon the criteria in the Service Chapters of its Manual "results in the inclusion or exclusion of applicants for case management services...." We ruled that the relevant parts of the Manual had not been adopted as rules, and hence were invalid and ineffective. Mullins v. North Dakota Department of Human Services, 454 N.W.2d 732 (N.D.1990). Accordingly, we affirmed the district court's judgment that reversed the Department's refusal to decide whether Christopher was developmentally disabled. We remanded with directions that the Department determine Christopher's eligibility for services under the relevant statute, NDCC 25-01.2-01(1), that defines "developmental disability". ³

After remand, two multi-disciplinary meetings were conducted by the Department to evaluate Christopher's current treatment and continuing needs. Christopher's eligibility for developmental disability services was not addressed, and six months after remand, the Department had not yet acted on his eligibility. Impatient with this procrastination, counsel for Christopher moved the district court for an order directing the Department to show cause why it had not complied with the directions on remand. See Luithle v. Burleigh County Social Service, 474 N.W.2d 497 (N.D.1991) (The district court retains jurisdiction when an appeal of a decision by an administrative agency is remanded to the agency for reconsideration). The Department then notified Christopher's father that Christopher was not eligible for "Developmental Disabilities services" because he was not mentally retarded, and because "his needs were being met through existing behavioral interventions." Notwithstanding that determination, the court heard both sides on the show-cause question.

From testimony of Robert Sanderson, the Department's Regional Director of the Northeast Human Services Center at Grand Forks, and of Sandi Noble, Director of the Developmental Disability Division of the Department, the district court understood the Department's position to be that, because Christopher "is not mentally retarded, he is not eligible for certain services," particularly case-management services from its Developmental Disability Division. The court ruled that the statute did not distinguish between those who are mentally retarded and thus developmentally disabled, on the one hand, and those who are mentally ill and thus developmentally disabled, on the other hand. The court drew this conclusion from the relevant statute that says:

All persons with developmental disabilities have a right to appropriate treatment, services, and habilitation for those disabilities. Treatment, services, and habilitation for developmentally disabled persons must be provided in the least restrictive appropriate setting.

NDCC 25-01.2-02 (1991). (Emphasis supplied). The court went on to say that the Department "must realize that it has to provide services to all developmentally disabled persons, not just those who are mentally retarded" and that "if [Christopher] is developmentally disabled, then he must be provided D[evelopmental] D[isability] services, which include case management services."

The district court reasoned that the Department "may not pick and choose who gets what services; it must provide the applicants for services with objective eligibility criteria before making such a decision." Because the Department determined Christopher's eligibility for developmental disability services "without some type of objective criteria," the court concluded that it acted arbitrarily, capriciously, and unreasonably. Therefore, the court directed that the Department "find [Christopher] eligible for all developmental disability services if it is determined that he meets the definitional criteria contained in the North Dakota Century Code, without distinguishing between the mentally retarded or mentally ill."

The Department appeals, declaring:

Although the Department asserted that it did not need to determine whether Mullins was developmentally disabled because appropriate services were provided and available to him, the Department ... now concede[s] that [Christopher] is developmentally disabled in order to put all the issues before this court.

The Department then argues that the district court "abused its discretion in requiring all D[evelopmental] D[isability] services to be provided to all developmentally disabled," and that, therefore, its decision should be reversed.

Because the Department says that it is furnishing appropriate services to Christopher primarily through educational placements, the Department asserts that it is discharging its duties to him as a person with developmental disabilities. The Department argues that additional services are neither necessary nor appropriate for Christopher. According to the Department, because it "stands ready, willing, and able to provide treatment, services, or habilitation that are appropriate to meet his needs," there is nothing more that the Department can be compelled to do for Christopher. The Department declares that it "does not have a duty to provide services...