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B.R. v. Missouri Dep't of Social Services

Court of Appeals of Missouri, Eastern District, Fourth Division

May 12, 2015

B.R. AND M.S., for themselves and As next friend of J.R., a minor child, Appellants,
v.
MISSOURI DEPARTMENT OF SOCIAL SERVICES, et al., Respondents

Page 658

Appeal from the Circuit Court of St. Louis County. Honorable Tom W. DePriest, Jr.

FOR APPELLANT: John C. Grellner, St. Louis, MO.

FOR RESPONDENT: CHRIS KOSTER, Denise G. McElvein, St. Louis, MO.

ROY L. RICHTER, Judge. Patricia L. Cohen, P.J., concurs. Robert M. Clayton III, J., concurs.

OPINION

Page 659

ROY L. RICHTER, Judge

B.R. and M.S. (" Appellants" ) appeal from the trial court's judgment involving administrative review of the decision and order of the Children's Division of the Missouri Department of Social Services (" the Division" ), denying Appellants' request for an adoption care subsidy for the residential treatment of their daughter, J.R., at a specific residential care facility. We reverse and remand.

I. BACKGROUND

J.R., born in November 1996, and her younger brother, J.A.R., born in November 1998, were placed in Appellants' foster care in August of 2000. Their biological father was incarcerated and their biological mother had a history of drug dependence and had given birth to J.R. while she was in her " mid to late teens." As a result of their early childhood circumstances, both children were considered " special needs" children by the Division. In 2001, Appellants adopted four-year-old J.R. and her little brother J.A.R. through the Division (formerly known as the Division of Family Services). In February 2001, Appellants applied for an adoption subsidy agreement for J.R., noting that she may need residential treatment.[1] The Division approved the application and entered an adoption subsidy agreement (" Subsidy Agreement" ) for J.R., specifically covering maintenance, day care, and certain one-time expenses associated with J.R.'s adoption. The Subsidy Agreement also stated J.R. was eligible for Medicaid. The original Subsidy Agreement did not provide for residential treatment services for J.R., but the adoption subsidy plan prepared in conjunction with the Subsidy Agreement noted that " [r]esidential treatment services are requested should it be needed in the future." From 2001 through 2008, Appellants and the Division further entered into several subsidy agreement attachments that all continued to provide a subsidy to Appellants for J.R. for maintenance and day care and noting that J.R. was eligible for Medicaid.

In 2010, J.R.'s mental health needs required two hospitalizations: at St. John's Mercy Hospital in St. Louis and at CenterPointe Hospital in St. Charles. CenterPointe's licensed psychologist, Dr. Schiltte, entered his diagnostic impression on Axis I for J.R. as mood disorder, past sexual abuse of a child, post-traumatic stress disorder, " rule out reactive attachment disorder," attention deficit/hyperactive disorder, and " rule out" learning disorder. Appellants told the Division that they were experiencing difficult behaviors from J.R. and that they had to place J.R. in CenterPointe.

Page 660

From the fall of 2011 through spring of 2012, J.R.'s mental health condition severely worsened; she repeatedly ran away from home, was sexually abused multiple times, became violent with family members, and dropped out of school. Appellants alleged her treatment needed to be increased significantly.

J.R.'s treating psychiatrist, Dr. Gary Boxer, recommended seeking residential care for J.R. She also was evaluated by CenterPointe, an in-patient psychiatric hospital where she was admitted and also was recommended for residential treatment. Based on the recommendations of Dr. Boxer and Angie Kovath, the child and adolescent therapist at CenterPointe, Appellants decided to seek residential treatment for J.R. Dr. Boxer and Ms. Kovath also recommended residential treatment specifically at Change Academy of the Lake of the Ozarks (" CALO" ). In his May 21, 2012 letter, Dr. Boxer stated: " [g]iven [J.R.'s] history of foster care and adoption, I feel that the program offered at CALO would be well-matched to [J.R.'s] psychological needs." Dr. Boxer had been seeing J.R. as a patient since 2009 and diagnosed her as having " mood disorder and attachment disorder." He also stated that in his professional medical opinion, residential treatment at CALO is the least restrictive treatment setting and program appropriate for J.R.'s needs, and that the services offered at CALO are unique in Missouri and not available from any other provider of which he is aware.

Additionally, Ms. Kovath stated:

[o]ur treatment team feels as though [J.R.] exhibits several symptoms of Reactive Attachment Disorder. Although we have not had enough time treating [J.R.] to give her this as a concrete diagnosis, we feel it is likely. It is the treatment team's recommendation that residential treatment, specifically at CALO in Lake of the Ozarks due to their attachment focused therapy, is the next step in the course of treatment.[2]

Appellants also sought advice from a well-known expert for his work with reactive attachment disorder for children thirteen years and younger in the state of Washington, and he recommended only two places in the country: CALO and another facility in Quincy, Illinois. Appellants looked into both. Appellants testified that CALO was unique in providing an evidence-based tactic called didactic developmental therapy, which was one of the only therapies known to treat reactive attachment disorder effectively. Additionally, the outcomes from CALO impressed Appellants and gave them hope that CALO could make their daughter healthier. Appellants met with the director of the facility, the therapy director, the clinical director, the admissions director, and spoke with many of the children in the middle of treatment there, and then took the information to the Division for approval for J.R.

Appellants made an emergency request to the Division for residential treatment when J.R. was discharged from CenterPointe. Because CALO did not have any openings, Appellants testified that they " discussed nearly all the facilities in the eastern part of Missouri. It was determined that [Good Shepherd in St. Louis] would be the safest one for her" for residential treatment. The Division approved a subsidy for treatment of J.R. at a level four, residential treatment facility, al

Page 661

though not for a specifically named facility. " Level four is considered our psychiatric care level," according to the Division. Appellants testified that they were told orally that J.R. was approved for a level " four plus" of residential treatment, but on the paper adoption subsidy amendment, it was a level four. Appellants signed the contract for residential treatment with a starting date of June 5, 2012, the day that J.R. was discharged from CenterPointe. The agreement did not restrict where J.R. could receive residential treatment. The adoption subsidy amendment added a maximum amount of $4,452.53 per month from June 5, 2012, to December 4, 2012, ($26,715.18- six month rate; $53,430.36- annual rate) for residential treatment of J.R. The Division has made considerations for higher payments in other cases, if a child was seen to meet the criteria for level " four plus," according to Division Program Development Specialist, Ms. Emily Montgomery. Good Shepherd, a level four residential treatment center, had a contract with the Division to provide ...


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