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Denny M. v. State

Supreme Court of Alaska

January 13, 2016

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

Appeal from the Superior Court No. 3PA-13-00053 CN and 3PA-13-00054 CN (consolidated) of the State of Alaska, Third Judicial District, Palmer, Gregory Heath, Judge.

Appearances: Lars Johnson, Assistant Public Defender, and Quinlan G. Steiner, Public Defender, Anchorage, for Appellant. David A. Wilkinson, Assistant Attorney General, Fairbanks, and Craig W. Richards, Attorney General, Juneau, for Appellee.

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

OPINION

MAASSEN, Justice.

I. INTRODUCTION

The Office of Children's Services (OCS) filed a petition to terminate a mother's parental rights to two of her daughters. The superior court granted the petition. The mother appeals the superior court's finding that OCS made active efforts to reunify the family, as required by state and federal law, as well as a few of the factual findings underlying this conclusion. Because the superior court did not clearly err in finding that OCS made active efforts by providing services geared toward reunification - some by OCS directly and others through the mother's involvement in a therapeutic court - we affirm the termination decision.

II. FACTS AND PROCEEDINGS

Denny M. is the mother of three daughters, two of whom, Tony (born in 2008) and Kam (born in 2010), are involved in this case.[1] They are Indian children for purposes of the Indian Child Welfare Act of 1978 (ICWA).[2] OCS first became involved with Denny's family in 2010, when it received a report that Denny abused alcohol and marijuana while pregnant with Kam and said she hated the baby. OCS removed Tony and Kam from Denny's care and began a trial home visit with their father, Tyler Y., who in April 2011 was given permanent custody of the girls.

On May 30, 2013, OCS removed Tony and Kam from Tyler's home after Kam "showed up at her day care provider's house with two black eyes, a blackened nose and swollen face, " allegedly caused by Tyler. The next day OCS filed an emergency petition for temporary custody based on both Tyler's physical violence and Denny's mental health. OCS placed the children with their aunt, Denny's sister.[3]

OCS developed a case plan intended to promote the family's eventual reunification. Denny started work on the plan in July 2013, [4] but her progress stopped in August when she was arrested for assaulting her father - her fourth arrest for assault since 2010. She was incarcerated until October. The disposition of her criminal case required that she participate in a variety of services provided through a therapeutic mental health court, including counseling, psychiatric care, medication management, and residence in an assisted living facility. Despite those resources, Denny was admitted to the Anchorage Psychiatric Institute (API) in December 2013, her thirteenth admission.

Beginning in February 2014, secondary OCS caseworkers in Anchorage[5]made near-monthly in-person visits to Denny to track her progress with the case plan. In March 2014, to advance one of the plan's goals, OCS referred her to Dr. Heather Macomber for a neuropsychological evaluation. Dr. Macomber diagnosed Denny with "schizoaffective disorder and post traumatic stress disorder" and made a number of recommendations. Among other things, she recommended that Denny have "ongoing psychiatric care" and "frequent appointments" with a doctor "to ensure her optimal response to psychotropic medications"; that she "maintain consistency with [her] medications to ensure her emotional stability, behavioral control, and improve her reality testing"; that she remain in assisted living and have a guardian appointed "to ensure that she is protected from legal and financial predation"; and that she undergo another psychiatric evaluation to identify "the true limitations of her parenting skills, and the ways in which her current psychiatric symptoms impact her judgment and decision making skills in the context of parenting." Denny's primary OCS caseworker, Raymond Edwards, called Denny to explain these recommendations to her; a secondary caseworker later did the same in person.

These recommendations prompted OCS to refer Denny to Dr. Melinda Glass, a clinical psychologist, in March 2014, for an evaluation of her prospects as a parent. Dr. Glass found it difficult to clarify Denny's history "due to her tangential and bizarre thinking, " but she reported Denny's claims that through prayer she had learned to read, healed animals, and fixed her teeth. Dr. Glass attributed these claims to delusional thinking rather than any religious or cultural belief. Denny told Dr. Glass that her daughter had visited her in her dreams but stopped doing so when both of them "shut down." She admitted to Dr. Glass that she had frequent emotional breakdowns that led to suicidal thoughts, though she said these resolved at least temporarily with visits to API and medication.[6] She admitted that she had reconciled with Tyler, who was still in prison, but she contended that he would not have assaulted the children in her presence and would not do it again.

Dr. Glass diagnosed Denny with schizoaffective disorder-bipolar type and substance abuse but ruled out "anxiety disorder related to a history of trauma." She considered Denny's "grandiose delusions" about her "special powers" to be particularly concerning, especially when they involved her children. Dr. Glass concluded that Denny did not have the capacity to parent young children and that her long-term prognosis was poor. She concluded that Denny required a precise combination of medications and therapy to address her illness but that she had long struggled with consistency in both areas.[7] Dr. Glass noted that finding the right balance would be difficult: "[I]t could never happen or it could happen within a week or two." Regardless, Dr. Glass did not believe Denny's children could be safely returned to her care in the near future. She wrote, "[Denny] has a serious mental illness and her acting out is dangerous. The best a consistent treatment program might provide is containment . . . but this would still not make her able to protect and appropriately parent her children. [Denny] would require constant supervision." Dr. Glass testified at trial that Denny's schizoaffective disorder was "one of the hardest to manage" and unlikely to ever go away.

Following Dr. Glass's report, Denny's secondary caseworkers continued their meetings with her at the assisted living facility. But Edwards testified that OCS's last contact with Denny was in August 2014. After that, OCS mailed three certified letters to her at the assisted living facility between October 2014 and January 2015 requesting contact but ...


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