Appeal from the Superior Court of the State of Alaska, No. 3AN-12-07478 CI Third Judicial District, Anchorage, Paul E. Olson, Judge.
Kevin G. Brady, Brady Law Office, Anchorage, for Appellant.
Ali Moser Rahoi, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Fabe, Maassen, and Bolger, Justices. [Winfree, Justice, not participating.]
Timothy G. asserted in the superior court that the statute of limitations had been tolled on his claim against the Office of Children's Services because he was mentally incompetent following years of abuse by his stepfather. The superior court held an evidentiary hearing on this issue and concluded that Timothy had failed to prove that he was incompetent. On appeal, Timothy argues that the superior court should have ruled in his favor if he produced more than a scintilla of evidence to support his assertion. But we conclude that the superior court applied the proper burden of proof and the proper test for competency, and that the court did not clearly err in finding that Timothy did not prove his incompetence.
II. FACTS AND PROCEEDINGS
Timothy G. alleges he was abused by his stepfather repeatedly between 1997 and 2006. In 2006, Timothy reported the abuse to his mother. She took Timothy and his four siblings to a shelter, sought a protective order against the stepfather, and instituted divorce proceedings. The Office of Children's Services (OCS) then substantiated the report of harm, removed the children from their mother's care, and placed them in foster care.
On May 25, 2012, Timothy filed a complaint naming OCS and his stepfather as defendants. He sought compensatory damages from OCS, claiming that "[a]s a direct and proximate consequence of [OCS's] breach of [its] dut[y] of care, [he] suffered physical injury, psychological and emotional injury and distress, psychological torment, torture and sexual abuse, pain and suffering, and resultant loss of earning capacity." Timothy alleged that OCS had investigated at least ten reports of harm involving him and his siblings, but had taken no action.
In response, OCS moved under Alaska Civil Rule 12(b)(6) to dismiss Timothy's claims as time-barred. It argued that the applicable statute of limitations required Timothy's claim to be filed within two years of its accrual; although the statute of limitations was tolled during Timothy's minority,  he turned 18 on May 27, 2009, but did not file his complaint until nearly three years later.
Timothy replied that he was incompetent by reason of mental disability and that the statute therefore remained tolled after his eighteenth birthday. He stated that he had been diagnosed with "severe post[-]traumatic stress disorder, ADHD, [b]i-polar disorder, and obsessive compulsive disorder, " stemming from his abuse at the hands of his stepfather.
Along with his opposition to OCS's motion to dismiss, Timothy submitted an affidavit from his friend Sarah G. describing his mental disability. Sarah met Timothy in 2008, and in 2010, when she learned he was homeless, she invited him to live in her home. She asserted that "based upon [her] personal involvement with [Timothy], his treating mental health care professionals[, ] and various state and federal agencies, [it was her belief] that Timothy suffers from a mental disability."
The superior court treated OCS's motion to dismiss as a motion for summary judgment because in ruling on it the court considered matters outside of the pleadings, including Sarah's affidavit and OCS's responses to the affidavit. The court found that although Sarah's affidavit would be insufficient to establish Timothy's incompetency, "it [was] sufficient to overcome the low ...