Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge. Superior Court No. 3PA-09-00074 CN.
Christi A. Pavia, Pavia Law Office LLC, Anchorage, for Appellant.
Jacqueline G. Schafer, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices. STOWERS, Justice, dissenting in part.
The superior court terminated a mother's parental rights based on evidence of her chronic delusions and the danger these delusions
posed to her child. On appeal, the mother argues that several aspects of the court's decision are not adequately supported. In particular, she argues that the Office of Children's Services (OCS) should have required an assessment of her psychiatric condition and monitored the course of her psychological therapy. But the record shows that the mother did receive a psychiatric evaluation at OCS's direction and that it would likely have been harmful to disrupt the positive relationship she had with her counselor. We thus conclude that the record supports the superior court's conclusion that OCS fulfilled its duty to make active efforts to provide this mother with services designed to prevent the breakup of her family.
II. FACTS AND PROCEEDINGS
Ronnie L. was ten years old when he was taken into OCS custody on July 31, 2009. On July 6, 2009, OCS received a protective services report stating that Ronnie's mother, Grace, had appeared with him at a hospital emergency room, complaining that they had been sexually assaulted by women. The report reflected that Grace showed no physical signs of sexual abuse and that Ronnie denied knowledge of any abuse. Christine Sheridan, the social worker who investigated the report, interviewed Grace and Ronnie.
Because Grace was exhibiting troubling behavior, June Ober of Mat-Su Behavioral Health Services provided a crisis screening. Grace told Ober that she had taken medications for mental illness in the past but that she had not stayed on them because she disliked their side effects. Ober recommended that Grace participate in a psychological evaluation and receive medication. Grace signed a safety plan and agreed to seek mental health treatment in order to keep Ronnie safe. Sheridan attempted multiple times to follow up with Grace, but when she finally reached Grace by phone on July 20, 2009, Grace told her that she had consulted a lawyer and did not intend to participate in treatment for her mental illness.
OCS then filed an emergency petition to have Ronnie adjudicated a child in need of aid. The petition cited a number of protective services reports received over many years by OCS and OCS's attempts to intervene with the family. The petition concluded:
[Grace] has demonstrated she will not follow through with the department's recommendations or follow through with her treatment plan regarding her mental health. Currently [Grace] is not on any psychotropic medication and [is] refusing treatment. [Ronnie] is exposed to her paranoia and frightening delusions on a daily basis. . . . [Children's Services Specialist] Sheridan and Supervisor Jones have observed [Ronnie] demonstrating paranoid behaviors. . . .
The department feels that [Ronnie] is negatively impacted by his mother's untreated mental illness and intervention is required at this time.
The superior court held an emergency hearing and authorized OCS to take Ronnie into custody.
OCS referred Grace for an assessment with clinical psychologist Dr. Grace Long, who reviewed Grace's medical history and conducted a brief interview with her. Dr. Long recommended that Grace continue in therapy, and that she also be evaluated by a psychiatrist to determine if medication would be appropriate for her.
Soon thereafter OCS entered into a case plan with Grace that identified Grace's priority needs as " [u]nresolved chronic or severe diagnosed mental health problems, [h]ealth problem or disability, [and] [i]neffective/harmful parenting skills." The plan stated that Grace " has [a] long history of untreated mental health and instability in her life." The plan acknowledged that Grace and Ronnie share a strong, supportive, loving bond. It called for Grace to engage in mental health services and follow all recommendations,
and its stated goals for Grace included decreasing or stopping the delusions, obtaining stable housing, completing a course of parenting classes, and participating in regular visitation with Ronnie.
In March 2010 Grace participated in a psychological evaluation with Dr. Melinda H. Glass, to whom OCS had referred her. The purpose of the evaluation was to determine how Grace's mental illness impacted her ability to act as an appropriate and protective parent. Grace told Dr. Glass that she had been working with Richard Gustafson, a clinician at South Central Foundation Behavioral Health; Grace stated that she wanted Gustafson to discuss the results of the evaluation with her.
Dr. Glass interviewed Grace, administered a number of tests, and reviewed collateral information. Dr. Glass diagnosed Grace with " [d]elusional disorder, mixed type, primarily persecutory and grandiose." She reported that Grace " has been inconsistent in her accessing of mental health treatment, in spite of it repeatedly being recommended. She has been fairly consistently diagnosed with delusional disorder with some questions of schizophrenia, but has apparently only taken medication for a short period of time."
Dr. Glass concluded that Grace " is likely to experience great difficulty safely and appropriately parenting any child . . . and is likely to be unable to provide [Ronnie] with guidance or stability." Dr. Glass noted indications that Grace had involved Ronnie in her delusions in the past, and she stated that such involvement " would have the potential of being destructive for him and his developing understanding of reality." Dr. Glass concluded, " As long as [Grace] continues to function with an untreated delusional disorder she has the potential of causing great harm to her son as well as to herself."
Dr. Glass stated that, while it was important for Grace to receive mental health treatment if she were to have a safe and appropriate parenting relationship with Ronnie, her persecutory delusions would likely hinder her ability to participate in treatment. Dr. Glass noted that Grace appeared to have a good relationship with Gustafson, who " appears to understand some of her problems." Dr. Glass recommended that Grace continue in therapy, that she be referred to a psychiatrist for a medication review, and that she take any recommended medication to try to improve her ability to discern reality. Dr. Glass noted that Grace " is unlikely to do this without a court order, and may not even then."
In addition to referring Grace to Dr. Glass for an evaluation, OCS helped her locate stable housing, enroll in multiple parenting classes, and engage in family contact with Ronnie.
In June 2011 OCS filed a permanency report indicating that while Grace had attended parenting classes and therapy sessions with Gustafson, she had not resolved her mental health issues to the extent necessary to allow her to provide a safe and stable home for Ronnie, she had not sought medication or direct intervention to address her mental illness, and she had refused to divulge her housing situation to OCS.
On January 6, 2012, OCS filed a petition to terminate Grace's parental rights to Ronnie. On May 3, 2012, in preparation for the termination trial, Dr. Glass conducted an updated psychological evaluation of Grace. Dr. Glass's report noted that Grace's delusional behaviors were ongoing. It stated that Grace's response pattern, in which she " endorsed a significant number of psychological symptoms related to paranoia, dissociation, flashback, and avoidance," was similar to her earlier evaluation, but that Grace " presented with more symptoms of depression than she did in the previous evaluation." Dr. Glass diagnosed Grace with " [d]elusional disorder, mixed type, primarily persecutory and grandiose," and identified " [m]ood disorder, [not otherwise specified]" as a rule-out diagnosis.
In her conclusions, Dr. Glass stated that Grace's " delusions appear somewhat more bizarre than they did in the previous evaluation," and she noted that " [i]n this evaluation she had difficulty completing an interview or making sense. It would appear that her
paranoia is heightened and her ability to stay grounded in reality is less than it was in the past evaluation." Dr. Glass went on to state that Grace demonstrated no positive changes to her mental health status but instead appeared " somewhat worse." Dr. Glass found that " [t]reatment does not appear to be helping [Grace] address her mental illness and it is not known whether medication would have a significant impact. It is unlikely [Grace] would consider it as she has refused medication in the past."
The superior court held a trial on OCS's petition to terminate Grace's parental rights in May and August 2012. Following the trial, the superior court terminated Grace's parental rights to Ronnie.
Grace appeals the order terminating her parental rights. She argues that the superior court erred in finding that: (1) Ronnie was a child in need of aid; (2) Grace did not remedy in a timely fashion conduct or conditions that endangered Ronnie; (3) OCS made active reunification efforts to allow Ronnie to be returned to Grace's care; (4) Ronnie would likely suffer serious physical or emotional damage if Grace's custody were not terminated; and (5) termination of Grace's parental rights was in Ronnie's best interests. She also argues that she received ineffective assistance of counsel during the superior court proceedings.
III. STANDARDS OF REVIEW
In child in need of aid cases we review a superior court's factual findings for clear error. We review questions of law de novo. A finding is clearly erroneous if our review of the entire record in the light most favorable to the party that prevailed at trial leaves us definitely and firmly convinced that the finding is mistaken. Whether OCS made active, but unsuccessful, efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family is a mixed question of fact and law. We review de novo " a request for disqualification of a judge based on the appearance of impropriety." 
A. The Superior Court Did Not Err When It Concluded That Ronnie Was A Child In Need Of Aid, That Grace Did Not Remedy The Conditions That Placed Ronnie At Risk Of Harm, And That Ronnie Would Likely Suffer Serious Harm If Grace's Custody Were Continued.
Before terminating parental rights, a superior court must find, by clear and convincing evidence, that the child was in need of aid and that the parent did not timely remedy conduct or conditions that placed the child at risk of harm. When, as here, the child is an Indian child, the superior court must find, by evidence beyond a reasonable doubt, that the child would likely suffer serious physical or emotional harm if the parent's custody were to continue. The superior court made these findings in this case, basing them on the testimony and report of Dr. Glass. The superior court found Dr. Glass's testimony " quite credible" and noted that no expert testimony was presented that would call into question Dr. Glass's assessment and conclusions.
Grace argues that OCS did not present any evidence to support the superior court's finding that she had a mental illness that ...