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Kylie L. v. State

Supreme Court of Alaska

October 13, 2017

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

         Appeal from the Superior Court of the State of Alaska, Fourth Judicial District No. 4FA-13-00120 CN, Fairbanks, Michael P. McConahy, Judge.

          Olena Kalytiak Davis, Anchorage, for Appellant.

          Megyn Greider, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices. [Carney, Justice, not participating]

          OPINION

          WINFREE, JUSTICE.

         I. INTRODUCTION

         After the trial court found that the Office of Children's Services (OCS) failed to demonstrate it had made reasonable efforts to reunify a family, the court nonetheless terminated the mother's parental rights to her daughter, finding that OCS's failure was "excused." The mother appealed; we earlier issued an order reversing the court's "excused" determination and vacating the trial court's termination order, indicating we would fully discuss our reasoning in a later opinion. We do so now.

         II. FACTS AND PROCEEDINGS

         Kylie L. and Kurt B. began a relationship in 2003 and had a daughter, Belinda B., in 2010.[1] Kurt was often abusive toward Kylie, who remained in the relationship partly because Kurt threatened that if she left him he would kill her and Belinda.

         OCS became involved with the family in May 2013 when Kurt injured Belinda. In the midst of an alcohol-fueled argument Kurt threw a glass beer bottle at Kylie; he instead hit Belinda in the back of the head, knocking her off the table on which she was seated. Kylie escaped to the bedroom with Belinda, but Kurt followed them, punching Kylie in the head and jumping on her as she attempted to protect Belinda with her body. Despite a "baseball sized lump" on Belinda's head, Kurt refused to let Kylie secure medical care, hiding Kylie's phone and car keys to prevent her taking Belinda to a doctor.

         The next morning Kurt returned Kylie's phone and keys so she could go to work. When Kylie arrived at work she called the police, reported the abuse to a child advocacy center, and brought Belinda to a hospital for medical attention. Kurt was arrested and OCS opened an investigation. Belinda received a forensic evaluation and follow-up care. In June Kylie obtained a domestic violence protective order to keep Kurt away from her and Belinda.

         Kylie soon entered into a relationship with Lou C. Lou was not a safe companion; he used methamphetamine and "had a lot of involvement with the law." Yet Kylie had difficulty accepting that Lou was dangerous because he "didn't physically harm her like her past partners had."

         OCS closed its investigation in August, substantiating findings that Kurt had harmed Belinda. Only a week after closing its first investigation, OCS received another report of harm to Belinda. Kylie, Belinda, Lou, and Lou's son had gone on a road trip. Kylie explained that during this trip she noticed Belinda was not placing weight on one of her legs. The day after they returned from the trip, Kylie took Belinda to the hospital; Kylie and Lou told the hospital staff they did not know how Belinda had been injured but thought perhaps Lou had reclined his car seat onto the girl's ankle. They told the doctor that Belinda had not cried out when they thought the injury might have occurred, nor had she cried during the trip. The doctor believed the injury - two broken bones in Belinda's leg - was not consistent with Kylie's explanation and reported to OCS his suspicions of non-accidental trauma.

         OCS initiated an investigation and implemented a protective action plan under which Belinda stayed with a family friend. OCS requested that Kylie and Lou submit to urinalysis (UA) testing, but neither showed up. The OCS caseworker referred Kylie and Belinda to a family preservation program. The caseworker, who had received reports that Lou was involved in drug trafficking, discussed with Kylie that Lou was an unsafe person, emphasizing the danger of exposing children to methamphetamine. By September Kylie had begun to express that she understood the danger Lou posed and had told OCS the relationship was over. The OCS worker felt Kylie "had begun to demonstrate protective capacities" and moved Belinda from an out-of-home safety plan to an in-home safety plan, requiring supervision by Kylie's mother.

         Problems with the in-home safety plan quickly developed; Kylie's mother was leaving Belinda alone with Kylie and failing to report to OCS as required. In October Kylie moved to modify the protective order against Kurt, telling the court she wanted "[t]o re-establish [the] relationship between [Kurt] and his daughter." During this period the case was transferred to an OCS family services worker who spoke with Kylie about how her pattern of engaging with dangerous men posed a threat to Belinda. The OCS worker believed Kylie was not internalizing these messages: because Lou did not physically abuse Kylie, she continued to have trouble accepting that he was unsafe, and she was planning to visit an old friend who recently had been released after serving time in prison for a manslaughter conviction resulting from a road rage incident.

         In November, after Belinda had been returned to Kylie's care under the in-home safety plan, OCS received a third report of harm, this time concerning a cigarette burn on Belinda's lower back. Kylie told Belinda's daycare workers that she had been holding a cigarette while removing her daughter from a car seat and that the "cherry" fell into Belinda's diaper and burned the girl. OCS took emergency custody of Belinda the day after receiving the report; OCS filed an adjudication and temporary custody petition the following day asserting that Kylie had minimized the incident.

         After assuming custody and placing Belinda in foster care, OCS continued providing services to Kylie and Belinda. OCS arranged visitation between the two and made service referrals for relationship classes, a parental risk assessment, a substance abuse assessment, and dyadic therapy, which focuses on the parent-child relationship with the goal of healing the child's trauma within the context of an attachment relationship. OCS also assisted Kylie in meeting basic needs by obtaining food boxes and assisting her efforts to secure housing and heating fuel.

         By all reports the dyadic therapy began very well. At some point Kylie revealed to her therapist that she was still in a relationship with Lou and that he was living in her home. But when the therapist attended a February 2014 OCS meeting addressing the possibility of a trial home visit, she did not pass on to OCS information about Lou's continued presence in the home.

         OCS learned that Kylie was pregnant with Lou's child the following month. Because Kylie had previously revealed the pregnancy and continuing relationship to her therapist, OCS was concerned that Kylie was triangulating providers - "telling one professional one thing, another professional something else" - making it difficult to work as a team. The therapy center did not agree with that assessment.

         Kylie contended that her relationship with her daughter began to deteriorate in March, when Belinda was transferred to new foster parents who had little experience. Belinda began telling her new foster parents that her mother and father had hurt her; this led to another forensic interview, but no abuse was substantiated. OCS also moved visits from an off-site center to its own facilities. Belinda soon began exhibiting troubling behaviors and resisting visitation.

         In April OCS referred Belinda to individual therapy. This decision was made in part by an OCS supervisor who was herself receiving therapy from the same therapist and who was going through a contentious divorce involving significant domestic violence allegations. The original dyadic therapist tried unsuccessfully to coordinate efforts with this new therapist and address issues that might arise if Belinda were to continue seeing them both.

         In May OCS abruptly ended Kylie and Belinda's dyadic therapy sessions. Also in May Lou was arrested on suspicion of involvement in a child's death; another woman he was seeing apparently killed her son and Lou was later convicted of failing to report the crime. Lou's arrest effectively terminated his relationship with Kylie.

         In July OCS cancelled visitation between Kylie and Belinda. OCS made the decision to cancel visitation based on the advice of Belinda's new therapist, although that therapist had never met Kylie.

         Kylie began receiving individual therapy in August. In September OCS filed a petition for the termination of Kylie's and Kurt's parental rights. This situation generally continued-no dyadic therapy or visitation between Kylie and Belinda, each of them receiving individual therapy-until December, when Kylie engaged Dr. Marti Cranor, a licensed psychologist, to review the OCS file and give an opinion on OCS's decision-making in the case. Dr. Cranor was critical of OCS's efforts; she did not believe Belinda's individual therapy was appropriate, she believed dyadic therapy should not have been terminated, and she believed OCS had displayed a pattern of misrepresentation and exaggeration.

         In January 2015 an OCS staff manager reviewed the case and found it was not being handled appropriately. She believed OCS was not being very helpful and that providers were working at odds and not communicating. She directed visitation to resume, which it did in late January after almost seven months without any contact between Kylie and Belinda.

         The OCS staff manager also replaced Belinda's individual therapist. The new therapist restarted dyadic therapy and diagnosed Belinda with post-traumatic stress disorder, observing a wide range of associated symptoms. The therapist noted that although Belinda and Kylie appeared to be making progress, things soon deteriorated again. She believed contact with Kylie was triggering Belinda's traumatic symptoms and that as a consequence their bond was weakening.

         In July Kylie made what she later acknowledged was a poor choice; she emailed Kurt after he was released from jail and arranged to meet with him in a public parking lot so she could update him on Belinda. Kylie told the new therapist about the incident but then denied the contact when an OCS caseworker questioned her about it, maintaining her denial until the caseworker confronted her with a copy of the email she had sent Kurt.

         In September OCS issued a Quality Assurance Report-an internal review of its management of the case. The review documented a number of significant concerns, including that: services "have not been well organized and have not served to facilitate reunification"; OCS was not providing a warm environment for visitation; and documentation of visits was "overly negative, " contributing to an unwarranted negative "narrative or belief system" about Kylie.

         Belinda's behavior surrounding visitation continued to regress; by October OCS workers and her foster parents had to physically force her to attend. Her therapist was concerned that visitation had become re-traumatizing for Belinda and that forcing her to attend threatened her ability to maintain safe relationships. Based on these concerns OCS made visitation voluntary, giving Belinda the option of attending visitation every week; Belinda consistently declined, effectively terminating visitation.

         In November Kylie obtained a neuropsychological assessment at OCS's request. The assessment was generally quite positive, concluding that Kylie understood the impact on her daughter of past trauma and that Kylie could safely care for her daughter as long as she avoided abusive relationships.

         Although visitation had been effectively suspended, dyadic therapy continued. But by early 2016 the therapist, who had grown increasingly concerned about the risk continued joint therapy sessions posed to Belinda's mental health, discontinued dyadic therapy and limited Belinda to individual therapy instead.

         Meanwhile, Kylie secured a full-time job with the local school district, obtained affordable permanent housing, and completed a number of relevant training courses on her own initiative. Kylie had not been in a relationship since Lou's arrest in May 2014.

         A termination trial was held in June 2016. The trial court issued its decision on record in October. The court found that OCS met its burden of proof on all issues except for the requirement that it make reasonable efforts to reunify the family.[2]Despite OCS's failure to demonstrate that it had made reasonable efforts, the court nonetheless terminated Kylie's parental rights, holding that the reasonable efforts requirement was "excused" because remedying the deficiency by providing OCS more time would be pointless and harmful to Belinda due to the ruptured mother-child bond.

         Kylie appealed, and we earlier issued an order vacating the termination of her parental rights. This opinion ...


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