Appeal from the Superior Court of the State of Alaska, Nos. 3PA-11-00110/ 00111 CN Third Judicial District, Eric Smith, Judge.
Julie Fields, Contract Attorney for the Public Defender Agency, Anchorage, for Appellant.
Ruth Botstein, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Junau, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
A mother appeals the termination of her parental rights to her two youngest children; the children are now teenagers and testified that they did not want her rights to be terminated. The trial court decided that the children were in need of aid because of mental injury and that termination was in the children's best interests. The mother argues that the Office of Children's Services (OCS) did not meet its burden of proving mental injury and that the trial court clearly erred in deciding that termination was in the children's best interests because of their ages, their stated wishes, and their lack of a permanent placement. We issued an order reversing the trial court's decision because OCS presented insufficient evidence that the children suffered a mental injury. This opinion explains our reasoning.
II. FACTS AND PROCEEDINGS
Theresa L. is the mother of Alicia, Maia, and Zane. Alicia is now over 18; Theresa's parental rights to her were not terminated. At issue in this appeal is the order terminating Theresa's parental rights to Maia, who is currently 16, and Zane, now 14.
Theresa lived in Wasilla for many years before leaving Alaska for Arizona in October 2011; she currently resides in Texas. In February 2011 Alaska State Troopers came to the family's home "regarding a domestic disturbance" between Theresa and Alicia. According to the emergency petition filed in the younger children's case, Theresa had contacted the Troopers because of Alicia's "behaviors." The Troopers reported "that the disturbance had not escalated to the point of becoming physical." The Troopers called OCS because Alicia "was adamant that she didn't want to stay at the home." Theresa agreed that Alicia could leave, and Theresa knew of "no other safe place" where Alicia could go. Because neither Theresa nor Alicia was "willing or able" to create a protective action plan, OCS took custody of Alicia and placed her at a youth shelter. Alicia remained in OCS custody throughout the pendency of the younger children's cases, and OCS initially included her in the termination petition.
At the time OCS took custody of Alicia, Theresa's mother, Janet, was living with the family. Janet had been convicted of a sex offense in another state about 20 years before Alicia was taken into custody. Janet has not been charged with or investigated for any sex offenses since then. An OCS worker interviewed Maia and Zane separately at school about a month after the incident with Alicia, and they told the worker that their grandmother was living in the household. OCS did not remove Maia or Zane from the home then and did not open a case for them.
Theresa began to plan a move to Arizona at some point after OCS took custody of Alicia. OCS was aware that Theresa was planning to move to Arizona and had talked about a possible visit between Alicia and Theresa in Arizona after the move. Theresa sent Maia and Zane to Arizona with Janet in the summer; she planned to move there after Alaska Permanent Fund Dividends were distributed. According to an OCS worker, OCS did not have custody of or an open case on Maia or Zane then, nor did it tell Theresa that the children had to remain in Alaska; nonetheless, OCS considered her sending the children to Arizona "unauthorized" because the worker thought there was "an agreement for the two younger children to be in her home, and for them to be in a safe environment with her."
In Arizona the children lived with Janet and Theresa's brother Jake. Jake was alleged to have sexually abused Maia and Alicia in 2003. At the time of the allegations Theresa took the girls for an evaluation and reported the incident to police.No action was taken against Jake based on the allegations, and no allegations have been made against him since then. Theresa severed ties with Janet and Jake for a number of years because of the allegations, but she later resumed communications with them.
In September 2011 OCS contacted its counterpart in Arizona, and Arizona removed the children from Janet's and Jake's care. Arizona and OCS filed nearly simultaneous petitions for emergency custody of Maia and Zane at that time. The children were placed in foster care in Arizona, and courts in both Alaska and Arizona held jurisdictional hearings. Theresa moved up her departure date from Alaska and arrived in Arizona at about the time of the jurisdictional hearing in Arizona. Arizona decided that Alaska was the children's "home state" under the Uniform Child Custody Jurisdiction and Enforcement Act and transferred custody of them to Alaska because the Alaska court did not decline jurisdiction. The children were returned to Alaska and placed in foster care; Theresa remained in Arizona. She testified at the termination trial that although she had the money to buy a return ticket to Alaska, she did not have enough money to establish herself here again at that time.
Theresa remained in the general geographic area where her mother and brother lived for approximately a year, but she did not live with her family because of OCS's concern about them. While there Theresa met and became romantically involved with a woman named Tracy, who had two children of her own. Theresa and Tracy moved to Texas because Tracy was offered a job there; Theresa also felt that Texas offered better financial opportunities for her.
After Theresa moved to Texas she received a settlement from a personal injury lawsuit. Using this money Theresa purchased a home in Texas, where she was residing at the time of the termination trial. At the time of the trial Theresa was a lead teacher at a preschool, and she and Tracy were no longer living together because Theresa's children had expressed to her that they were uncomfortable with the idea of living with Tracy and her children.
Theresa completed a psychological evaluation with Dr. Melinda Glass on one of her visits to Alaska. Theresa attended individual therapy in both Arizona and Texas; she saw an individual counselor in Texas roughly once a month, for a total of 13 times in 16 months. She also attended family therapy with Zane and Maia, mostly by phone, although she attended sessions in person when she was in Alaska for visits. Theresa missed or was late to several sessions with Zane and Maia, and the counselor terminated family therapy with Theresa on December 4, 2013. At the time of the ...