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Kiva O. v. State, Department of Health & Social Services

Supreme Court of Alaska

January 5, 2018

KIVA O., 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, Third Judicial District No. 3PA-15-00161 CN, Palmer, Jonathan A. Woodman, Judge.

          Appearances: Josie W. Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.

          Ruth Botstein, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

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

          OPINION

          MAASSEN, Justice.

         I. INTRODUCTION

         An Indian child in the custody of the Office of Children's Services (OCS) was diagnosed with post-traumatic stress disorder and depression. The child's psychiatrist recommended treating him with an antidepressant, with the addition of a mood stabilizer if it later became necessary. When the mother rejected the recommendation, OCS asked the superior court for authority to consent to the medications over the mother's objection. The court granted OCS's request.

         The mother appeals, arguing that the superior court failed to apply the correct standard for determining whether her fundamental constitutional rights as a parent could be overridden. We agree with her in part. We hold that the constitutional framework laid out in Myers v. Alaska Psychiatric Institute[1] applies to a court's decision whether to authorize medication of a child in OCS custody over the parent's objection. We conclude that the superior court's findings in this case regarding the antidepressant satisfy the Myers standard but that its findings regarding the optional mood stabilizer do not. We therefore affirm in part and reverse in part the superior court's order authorizing OCS to consent to the recommended medications.

         II. FACTS AND PROCEEDINGS A. Facts

         Alec, [2] born in October 2007 to Kiva O., is an Indian child under the Indian Child Welfare Act (ICWA).[3] He and his sister Maia are both in OCS custody. Alec was in a therapeutic foster home during the proceedings relevant to this appeal.

         Alec had behavioral problems, including being "irritable [] [and] disruptive, having conflicts with peers, struggling academically, and generally [being] despondent and tearful." His therapist referred him to a psychiatrist, Dr. Richard Brown. "Dr.

          Brown observed [Alec] to be tearful, frustrated, angry, and deeply disheartened" and reported that Alec "consistently expressed that he misses his mother, that he would like to see his mother, and that he gets frustrated when that [visitation] doesn't happen." Dr. Brown diagnosed Alec with post-traumatic stress disorder and adjustment disorder, revising the latter diagnosis later to "[m]ajor [d]epressive [d]isorder due to the length and severity of [Alec's] symptoms."

         1. Medication recommendation

         Dr. Brown tried to treat Alec's behavioral problems without medication. He "first concentrated on giving [Alec] time to establish a consistent therapeutic relationship, develop social strategies, and work on behavioral changes." But when Alec's symptoms persisted, Dr. Brown recommended treating him with Lexapro, an antidepressant. "Dr. Brown's professional expectation [was that] Lexapro would allow [Alec] to engage in his other therapeutic interventions in a more effective manner." He testified that the medication would probably decrease Alec's irritability and impulsiveness; he believed that if Alec could be "established] ... in a calmer mental status, " he could learn coping strategies, "make use of those, and... actually participate actively in the treatment process" through ongoing therapy. Dr. Brown intended "to treat [Alec] without the need of using an inpatient hospitalization if possible."

         Lexapro's potential side effects were addressed in Dr. Brown's courtroom testimony. Like other antidepressants of the same type, Lexapro may cause mild tiredness and increased excitation; it may in rare instances decrease libido; and "a small percentage of people (including younger people) experience increased suicidal thoughts within the first month of treatment." Lexapro has a "black-box" warning about its use with children under the age of 12 based on the associated risk of suicide, [4] but Dr. Brown testified that the warning did not necessarily contraindicate the drug's use in Alec's case. He emphasized that it is more dangerous not to treat a depressed patient at all: "[W]hen a person is depressed and they're not treated, they... have a higher propensity to either hurt themselves, kill themselves, or put themselves in [a] position [where] they could be hurt."

         The "black-box" warning notwithstanding, Dr. Brown testified that prescribing the drug for young people "is the national standard of practice amongst psychiatrists." He chose Lexapro for Alec because he hoped Alec would respond to it more quickly - the typical response time is within four to six weeks - than he would to an FDA-approved alternative like Prozac, which typically takes six to eight weeks for a response. He was also concerned that Prozac can cause increased irritability, which would be "anti-therapeutic" given Alec's symptoms and treatment goals.

         Dr. Brown expected Alec to be on Lexapro for nine months to a year. He testified that if Lexapro did not prove effective at a five milligram dosage "within a reasonable period of time, " he would try increasing it to the typical starting dosage often milligrams, [5] switching to a different antidepressant, or adding a mood stabilizer (an "atypical antipsychotic") like Risperdal. He testified that the side effects of these mood stabilizers can be serious.

         2. Communication with Kiva

         OCS contacted Kiva to discuss Dr. Brown's recommendations for her son. Kiva looked up Lexapro on the internet and found warnings against prescribing it for children under 12. She "expressed immediate concerns about the possible side effects of Lexapro, " especially given Alec's age.

         OCS asserts that it attempted to set up meetings with Kiva to provide her with more information, including a meeting with OCS's psychiatric nurse. Kiva claims she attempted to call Dr. Brown's office directly for more information but her calls were never returned; Dr. Brown's nurse testified that Kiva never called. It is undisputed that when the OCS case manager tried to visit Kiva at home, Kiva refused to discuss the issue without her lawyer and a tribal representative present. The superior court found that OCS attempted to set up three other informational meetings with Kiva but she "failed to attend."

         B. Proceedings

         When it became clear that Kiva would not consent to the administration of Lexapro, OCS asked the superior court "for authority to consent to psychiatric medication for [Alec], as prescribed by treating physicians." OCS attached an affidavit from its psychiatric nurse, who gave her professional opinion that "[d]ue to the lack of engagement by mom in this child's case, and the escalation of the child's behaviors[, ]... OCS should be granted the authority to consent to medications for this child."

         Alec's tribe and his guardian ad litem both supported OCS's request. Kiva opposed it, arguing that the request was overbroad because it was not limited to a specific medication; she also argued that OCS had to support its request by reference to a test laid out in Myers[6] for the administration of psychotropic drugs to adults who have been involuntarily committed.

         The superior court held an evidentiary hearing over several days in December 2016 and January 2017. Dr. Brown testified about his diagnosis and his recommendation for Lexapro and possibly, in time, a mood stabilizer like Risperdal. The court also heard testimony from Dr. Brown's nurse, the OCS caseworker, and Kiva.

         On January 13, 2017, the superior court issued a single-page order granting OCS authority to consent to the administration of "Lexapro and an accompanying mood stabilizer (including Risperdal), as necessary, as determined and prescribed by [Dr. Brown]."[7] Kiva filed a motion to stay enforcement the same day, asserting that Alec would "suffer irreparable harm from the premature administration of psychiatric medication" and that "[a] stay of the [order] is necessary to avoid the harm arising from having [Alec] medicated and then abruptly un-medicated if [Kiva] prevails in her appeal." She also asked that the superior court make the specific findings of fact she argued were required by Myers. The superior court denied her request for a stay, reasoning that "[Alec] faces greater harm from not being medicated than he does from the potential side effects of medication." But the court did issue the requested findings of fact.

         In its findings, the court summarized Dr. Brown's testimony about his recommendations and OCS's attempts to contact Kiva. The court noted Kiva's testimony that she "might be willing to consent at some indefinite point in the future once she feels all options have been exhausted and it's truly necessary." But the court found that Kiva "placed a great degree of weight on the potential risks of medication, while displaying a poor understanding of [Alec's] diagnoses and the potential benefits of the medication." The court noted that Kiva also "refused to accept Dr. Brown's diagnosis of Major Depressive Disorder in the absence of an opportunity for her to independently observe [Alec]." Although noting that Kiva "spoke compellingly about her understanding of [Alec's] ongoing pain and struggles, " the court could not "credit [her] perspective in light of the collective scientific and medical fields of psychology and psychiatry and in light of Dr. Brown's testimony."

         The court found that "Dr. Brown's recommendation that [Alec] begin treatment with Lexapro at 5 mg, to increase to 10 mg and/or be accompanied with treatment of an atypical antipsychotic, as necessary, is narrowly tailored to treat [Alec's] specific diagnoses and to allow [him] to engage more functionally in his holistic treatment regimen." The court found that Dr. Brown's recommendation was both "well-considered and the least restrictive means necessary to alleviate [Alec's] psychiatric symptoms in an out-patient treatment setting." The court found that Kiva's refusal to consent was contrary to Alec's welfare and that OCS "presented clear and convincing evidence that conformity with Dr. Brown's psychiatric medication recommendation [was] in [Alec's] best interests." In a footnote, the court rejected Kiva's assertion that Myers applied, but it explained that it "provide[d] the extended Findings of Fact above [reflecting the factors addressed in Myers] to facilitate rapid resolution of any appellate point by the appellate court without further trial proceedings."

         Kiva filed a motion for reconsideration the same day. She cited Huffman v. State for the proposition that her "right to make decisions about medical treatments for" Alec "is a fundamental liberty and privacy right in Alaska."[8] The court denied reconsideration, explaining that OCS had "provided a compelling reason for the requested treatment that sufficiently overrides [Kiva' s] right to consent to medication per the state and federal constitution[s]." Kiva appeals.

         III. STANDARDS OF REVIEW

         We review questions of statutory interpretation and constitutional law de novo, "adopting the rule of law that is most persuasive in light of precedent, reason, and policy."[9] "We review a trial court's factual findings for clear error. Factual findings are clearly erroneous if a review of the entire record leaves us with a definite and firm conviction that a mistake has been made."[10]

         "[W]hether there is a less intrusive alternative is a mixed question of fact and law."[11] Whether a particular medical treatment is in a patient's best interests is also a mixed question of fact and law.[12]

         IV. DISCUSSION

         Kiva's primary argument is that the superior court erred in granting OCS's request for the authority to medicate Alec over her objection because its findings failed to satisfy the standard developed in Myers v. Alaska Psyhicatric Institute, [13] a case decided in the different context of an institution's request to medicate an adult patient who had been involuntarily committed. We agree with Kiva that the Myers standard must apply to protect her fundamental constitutional rights as a parent to consent to her child's medical treatment. We conclude that the superior court's findings about Lexapro satisfied that standard, but that the court should have waited to decide whether to authorize the administration of Risperdal until the need for the drug was less hypothetical and the court could better weigh the available alternatives.

         A. The Myers Constitutional Standard Applies To OCS's Request To Medicate A Child Over Parental Objection.

         Kiva argues that her right to consent to medical treatment on behalf of Alec is a "fundamental liberty and privacy right" deserving a very high level of protection. "The analysis required to resolve an individual rights claim depends upon the type of right being asserted."[14] We have explained that we

determine the boundaries of individual rights guaranteed under the Alaska Constitution by balancing the importance of the right at issue against the state's interest in imposing the disputed limitation. When a law places substantial burdens on the exercise of a fundamental right, we require the state to "articulate a compelling [state] interest" and to demonstrate "the absence of a less restrictive means to advance [that] interest." But when the law "interferes with an individual's freedom in an area that is not characterized as fundamental, " we require the state to "show a legitimate interest and a close and substantial relationship between its interest and its chosen means of advancing that interest."[15]

         The first question under this test is whether Kiva had a fundamental right that was substantially burdened by OCS's request for authority to treat her child over her objection.

         1. Medicating Alec over Kiva's objection substantially burdens her fundamental constitutional rights.

         Alaska case law recognizes the fundamental right to consent to medical treatment for oneself[16] and one's children.[17] We addressed the rights relevant to an individual's own medical treatment in Myers.[18] Myers, a patient with a long history of mental illness, had been involuntarily committed.[19] She "refused to discuss treatment options with institute doctors, " and the hospital sought authority to medicate her without her consent.[20] The superior court granted that authority, and Myers appealed.[21]

         Vacating the treatment order, we held that "the right to refuse to take psychotropic drugs is fundamental" because of "the nature and potentially devastating impact of psychotropic medications - as well as the broad scope of the Alaska Constitution's liberty and privacy guarantees."[22] Our conclusion was strengthened by "the truly intrusive nature of psychotropic drugs, " which "are literally intended to alter the mind."[23] Because "a mental patient's right to refuse psychotropic medication" is a fundamental right, we held that, in the absence of emergency, "the state may override [that right] only when necessary to advance a compelling state interest and only if no less intrusive alternative exists."[24]

         We later extended Myers's reasoning - about a patient's own decisionmaking - to parents' medical decisions on behalf of their children.[25] In Huffman we reviewed a school district's decision that the Huffmans' sons could attend school only if they received a particular type of skin test for tuberculosis or qualified for a medical exemption.[26] The Huffmans objected to the test because of its intrusiveness; it required the injection of "a solution containing purified protein into the skin on the forearm" in order to detect latent or active tuberculosis infection.[27]

         We held that "the right to make decisions about medical treatments for oneself or one's children is a fundamental liberty and privacy right in Alaska" because "controlling one's medical treatment falls into the same category of personal physical autonomy" that we already held was entitled to constitutional protection in other contexts.[28] We explained that compelling students to submit to the skin test over their parents' objection, without considering less intrusive alternatives, unconstitutionally infringed on the parents' rights.[29]

         OCS argues that in this case the parent's fundamental rights are of a different character because of Alec's status as a child in need of aid in OCS custody. OCS points out that by statute it bears "the responsibility of physical care and control of a child in its custody, including "the duty of providing the child with food, shelter, education, and medical care."[30] At the same time, OCS acknowledges that "[t]hese obligations are subject to any residual parental rights and responsibilities, "[31] statutorily defined to "include ... the right and responsibility of. . . consent to major medical treatment"; and "major medical treatment" is defined to include "the administration of medication used to treat a mental health disorder."[32] OCS contends, however, that the parent's "residual right" may "be overruled when the parent's preference is contrary to the child's best interests, " citing K.T.E. v. State[33] as providing the appropriate best interests standard for deciding the issue.

         K. T.E. addressed "reasonable visitation, " which is another of the "residual rights and responsibilities of the parent" specifically reserved to the parent by AS 47.10.084(c). In K. T.E., the mother objected to the Division of Family and Youth Services' discontinuation of her visitation with her daughter, arguing that the Division's action violated this statutory reservation of rights.[34] We concluded, however, that "[t]he phrase 'reasonable visitation' does not imply an absolute right to visitation" and should be read in conjunction with the rest of the statute to allow the Division to deny visitation when visits would not be in the child's best interests.[35] The superior court had found that visitation caused the daughter "extensive emotional harm."[36] Citing the testimony and credibility assessments that supported this finding, we affirmed the superior court's determination that the Division's decision was in the child's best interests.[37]

         We decline to read the K. T.E. best interests test as controlling here, for several reasons. First, in K. T.E. we were asked to decide only the "right to reasonable visitation under section .084(c), "[38] not whether the right acknowledged by statute was a fundamental constitutional right. The only constitutional issue raised on appeal in K.T.E. was whether the procedures for denying visitation rights complied with due process; finding the constitutional issue waived because it had not been preserved in the superior court, we nonetheless held that procedures outlined in the opinion as guidelines for future cases would be "constitutionally adequate."[39] Second, we noted in K. T.E. that "[t]he [statutory] phrase 'reasonable visitation' does not imply an absolute right to visitation";[40] the statutory phrase "consent to major medical treatment" contains no such modifier and explicitly defines major medical treatment as including administration of psychiatric medication. And third, K. T.E. was decided over two decades before our discussions of fundamental rights as they relate to medical decision-making in Myers and Huffman.

         In this case we conclude, as we did in Huffman, that because the parent is asserting a fundamental constitutional right in the context of medical treatment for her child, Myers provides the appropriate analytical framework. Our review of AS 47.10.084 convinces us that its express recognition of the parent's residual right "to consent to major medical treatment" does not signal a weakening of the fundamental constitutional right.

         We also conclude that Kiva's right is substantially burdened in this case. OCS's proposed treatment of Alec is significantly more invasive than the tuberculosis skin test at issue in Huffman: as we explained in Myers, treatment with psychotropic drugs is "truly intrusive" and "literally intended to alter the mind."[41]

         2. OCS has a compelling interest in Alec's medical care.

         We must next determine "whether the State ... met 'its substantial burden of establishing that the abridgement in question was justified by a compelling governmental interest.' "[42] If so, we must decide whether OCS proved that the proposed treatment was in Alec's best interests and "that 'no less restrictive means could advance' the compelling interest it has articulated."[43]

         Kiva does not dispute that OCS has a compelling interest in providing necessary medical care for children in its custody. We concluded in Myers that the State's parens patriae power "to protect 'the person and property' of an individual who 'lack[s] legal age or capacity' "[44] gave it "a compelling interest in administering psychotropic medication to unwilling mental patients in some situations."[45] We agree that OCS has a similarly compelling interest in this case in providing adequate medical care to Alec.[46] Its parens patriae power and its statutory obligations justify its interference in Kiva's reserved parental rights under some circumstances.[47] To determine whether those circumstances exist here, we move to the next step of the constitutional inquiry - the best interests test.[48]

         3. The administration of Lexapro is in Alec's best interests,

         a. The Myers best interests factors

         In Myers, after concluding that the State had a compelling interest that could justify interference in the patient's fundamental rights, we laid out a "constitutional balancing test" for determining the issue.[49] We explained that "adequate protection of [a patient's liberty and privacy rights] can only be ensured by an independent judicial determination of the patient's best interests considered in light of any available less intrusive treatments."[50] Proving that its proposal is in the patient's best interests is the burden of the State, which must carry its burden with clear and convincing evidence.[51]Discussing the "appropriate criteria to guide courts" in the best interests inquiry, we directed courts to consider, at a minimum, "the information that our statutes direct the treatment facility to give to patients" regarding the proposed treatment, including:

(A) an explanation of the patient's diagnosis and prognosis, or their predominant symptoms, with and without the medication;
(B) information about the proposed medication, its purpose, the method of its administration, the recommended ranges of dosages, possible side effects and benefits, ways to treat side effects, and risks of other conditions, such as tardive dyskinesia;
(C) a review of the patient's history, including medication history and previous side effects from medication;
(D) an explanation of interactions with other drugs, including over-the-counter drugs, street drugs, and alcohol; and
(E) information about alternative treatments and their risks, side effects, and benefits, including the risks of nontreatment[.][52]

         We explained that "[considering these factors will be crucial in establishing the patient's best interests as well as in illuminating the existence of alternative treatments."[53]

         We also cited favorably other sometimes-overlapping factors identified ...


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