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Emma D. v. State, Dep't of Health & Soc. Servs.

Supreme Court of Alaska

April 11, 2014

EMMA D., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee

Page 843

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay, Judge. Superior Court No. 3AN-12-00035 CN.

Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Appellant.

David A. Wilkinson, Assistant Attorney General, Fairbanks, and Michael C. Geraghty, Attorney General, Juneau, for Appellee State of Alaska.

Lisa M. Wilson, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for Guardian Ad Litem.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

Page 844

FABE, Chief Justice.

I. INTRODUCTION

Emma D.[1] has a history of mental health issues, particularly bipolar disorder, dating back to her early childhood. The Office of Children's Services (OCS) became involved with Emma and her newborn son, Joey, following reports from Covenant House expressing concern about Emma's homelessness, inability to care for an infant, and feelings of depression and aggression toward Joey. OCS took the then-six-month-old Joey into emergency custody during Joey's hospitalization for respiratory syncytial virus and dehydration, during which he was also diagnosed with supraventricular tachycardia, a heart disorder that required regular attention and treatment.

OCS staff subsequently made attempts to assist Emma in obtaining regular mental health treatment in order to reunite her with Joey. OCS staff had difficulty communicating and meeting with Emma; she failed to engage in regular treatment, maintain consistent visitation with Joey, or attend her appointments with case workers and service providers.

The superior court terminated Emma's parental rights 14 months after OCS assumed emergency custody. The superior court made the required statutory findings, including the findings by clear and convincing evidence that OCS had made reasonable efforts toward family reunification and that Emma had failed to remedy her conduct in a reasonable time. Emma argues that OCS failed to consider adequately her mental health issues and therefore its efforts were not reasonable. She also appeals the superior court's finding that she had failed to remedy her conduct in a reasonable time.

After reviewing the record, we conclude that OCS was aware of Emma's mental health issues and made reasonable efforts to engage her but was hampered by her refusal to communicate and her lack of consistent attendance at meetings, visitations, or treatment appointments. We also conclude that the superior court did not err in finding that Emma had failed to remedy her conduct in a reasonable time. Therefore, we affirm the superior court's decision terminating Emma's parental rights.

II. FACTS AND PROCEEDINGS

A. Emma's Background

Emma is the 21-year-old mother of Joey. Emma suffered sexual, emotional, and physical abuse as a child and was in foster care between ages five and seven. She testified at her parental rights termination hearing that she was first diagnosed with bipolar disorder when she was seven, spent time in hospitals as a child, and between the ages of 13 and 17 was in an out-of-state residential treatment program. She has also been diagnosed with post-traumatic stress disorder " stemming from multiple sexual assaults as a child."

The record indicates that even before Joey's birth and Emma's involvement with OCS, Emma had difficulty finding an effective treatment regime for her bipolar disorder. While she was in the residential treatment program, Emma was treated with therapy and extensive mood-stabilizing and anti-depressant medication for her bipolar disorder. When asked whether the therapy was helpful, Emma testified " [a]s far as emotionally, yes. As far as my behaviors and my actions and my thought process, no." She also detailed her persistent problems finding an effective and sustainable medication regime:

I was released at 17, but . . . over the years, trying to give me therapy kind of got frustrating because I would get better over six to eight months and then I would . . . slide right back down the hill. . . . I would get to a therapeutic level [of medication] and I'd do good, good, good, but then I'd have a medical issue with the medication as far as Depakote made me stop the production of my white blood cells, Seroquel made me gain too much weight, Lithium dried me out too much and then I would ask to switch something,

Page 845

but when I would switch it, I would just start going back downhill.

Since returning to Alaska, Emma has not engaged in regular mental health treatment and has been unable to find regular employment or housing, periodically staying at Covenant House or at the Brother Francis Shelter.

B. Joey's Birth And Subsequent Hospitalization

Emma gave birth to Joey in August 2011.[2] She used Covenant House services throughout her pregnancy. Ten days after Joey's birth, Emma came to the Covenant House shelter in distress. She told staff members that he wouldn't stop crying and hadn't eaten since the previous night; she also described feelings of being " overwhelmed" and suffering from " post-partum psychosis." Emma stated that she had felt like hurting Joey " three different times today" and that " sometimes I think about throwing him against the wall just to get him to shut up." She described feeling like she couldn't take care of him and didn't " even want to touch him." She had been using maxi pads and garbage bags as diapers, and Joey had developed a persistent rash. Covenant House staff filed a report with OCS and called the police.

An OCS specialist attempted to contact Emma and after two days was able to meet with her. Emma denied all the allegations in the Covenant House report but admitted having bipolar disorder for which she was not receiving any treatment or services. The OCS specialist offered Emma mental health services, but Emma declined the services and indicated that she did not want to be medicated. The specialist thought that Joey appeared healthy and that Emma " was able to articulate how to care for a child" ; OCS took no further action at that time.

In September 2011 OCS received another report from Covenant House indicating concern about Joey's health due to Emma's homelessness, inability to care for an infant, and unrealistic expectations of an infant. After speaking with Joey's primary care physician, the OCS specialist again determined that no further action was necessary at that time. OCS received an additional report in October 2011 indicating that a medical professional had seen Joey and that Joey had smelled of body odor and urine. Another report in January 2012 detailed an incident at the Brother Francis Shelter where Emma appeared at the shelter screaming, temporarily left Joey unattended, and left in an angry and unstable state.

On January 28, 2012, Joey was admitted to Providence Hospital with respiratory syncytial virus and dehydration. The hospital record reports that Emma " has had very poor visitation since the date of admission" and that she provided staff with inoperable phone numbers. On several occasions, Emma was aggressive and abusive toward the hospital staff. Hospital staff also reported " aggressive speech towards the infant as well as aggressive touch." Joey was diagnosed with a heart rhythm disorder called supraventricular tachycardia, meaning that his heart beat could accelerate up to 300 beats per minute. This condition could be life threatening if left untreated or ...


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