Appeals from the Superior Court of the State of Alaska No.
3AN-13-00386 CN, Third Judicial District, Anchorage, John
Suddock, Judge, and Pamela Scott Washington, Judge pro tern.
Rachel
E. Cella, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for Appellant/Appellee
Dara
S. Paul F. McDermott, Assistant Public Advocate, and Richard
Allen, Public Advocate, Anchorage, for Appellant Guardian Ad
Litem.
Laura
Fox, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellant/Appellee
Office of Children's Services.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
WINFREE, JUSTICE.
I.
INTRODUCTION
We
frequently review parental rights termination decisions. But
the appeals before us present not only the review of a
termination decision, which we affirm, but also the review of
a unique parental rights reinstatement decision. This
secondary aspect of our review causes us to revisit and
expound on issues arising from Rita T. v. State,
[1] in
which we held that a parent whose parental rights have been
terminated retains the right, upon a showing of good cause,
to request a review hearing, during which the parent may seek
to set aside a termination order and have parental rights
reinstated.[2] This then leads us to review the superior
court's reinstatement order in this case.
As we
explain below, Rita T. remains viable today. At a
Rita T. hearing, a termination order can be set
aside by clear and convincing evidence that the parent has
been sufficiently rehabilitated and is capable of providing
the care and guidance that will serve the child's moral,
emotional, mental, and physical welfare and that parental
rights reinstatement is in the child's best interests.
Because the factual findings supporting the parental rights
reinstatement in this case are inadequate for our review of
the necessary best interests finding, we remand for further
proceedings consistent with our opinion.
II.
FACTS AND PROCEEDINGS
A.
Termination
1.
Facts
a.
Dara and Paxton
Dara S.
is the mother of Paxton, [3] who was born in February 2011 with
serious kidney problems. Paxton had nine surgeries before the
age of two. Dara testified that parenting Paxton during this
period, which she did with "very little support,
"[4] "was incredibly stressful and
heartbreaking." Paxton's health improved while he
was in Dara's care; his right kidney function improved
from 0% to 30%, delaying surgery to remove it. Although
Paxton continues to require a strict diet and frequent
medical checkups, and will require a kidney transplant by his
teenage years, his health has generally improved.
b.
Dara's mental health episodes
In the
fall of 2011 Dara sought mental health counseling for
depression; she reported having used Zoloft, an
anti-depressant that also treats anxiety and other mood
disorders, [5] for about eight months. In October she was
diagnosed with attention-deficit/hyperactivity disorder
(ADHD), depressive disorder not otherwise specified, and
post-traumatic stress disorder (provisional). Dara's
psychiatrist increased her dosage of Zoloft, and planned to
prescribe Adderall, used in treating ADHD.[6] In October 2012
Dara also was directed to begin taking Viibryd, which treats
major depressive disorder, [7]and Xanax, for anxiety,
[8]
while decreasing her Zoloft dosage. Five months later Dara
expressed "that her medications weren't
working"; she felt her medications were contributing to
more aggressive behavior.
In June
2013 Dara and Paxton were taken to the hospital emergency
department after she contacted paramedics. Dara told hospital
staff she had a "cloudy mind," did not "know
if she[] [was] on the right medication," and had been
having trouble sleeping for the past three days. Hospital
staff noted that Dara was "scared and tearful,"
saying she needed "to be in a safe place."
According to staff, Dara was "significantly paranoid and
delusional"; for example: (1) she asked staff to hide
Paxton with a blanket because she was worried a woman who was
"impersonating" her would "take" him; (2)
she was "freaked out" by "motorcycles honking
and circling her apartment complex all day"; (3) she had
overheard "a man in the hallway talking about killing
her"; (4) she was worried "that her son ha[d] been
cut open and some of his organs were" missing; and (5)
her thinking was "not linear ...[, ] logical[, ] . . .
[or] reality based." Dara tested positive for
amphetamines, a result explained by her prescribed
medications; hospital staff "felt that her impaired
cognition [was] substance induced" and that
"medication management and further observation"
were warranted.
OCS
briefly took emergency custody of Paxton during Dara's
hospital stay. When Dara later brought Paxton for a medical
check up, providers noted that "[Paxton] ha[d] a nice
attachment to his mother" and that Dara was "very
attentive to [Paxton's] needs."
In
September Dara left her mother a voicemail "asking...
for help." Dara's mother - who lived in Oregon - was
concerned because Dara "was very distraught"; she
"said that she wasn't able to cope at that
moment," that "she had taken some pills," and
that she wanted her ashes to be "put... in a
dumpster." Dara's stepfather called Anchorage 911,
and the police and fire departments were "[despatched to
[Dara for] a suicide-threats call."
First
responders found Dara's apartment clean and well-kept;
Paxton was sleeping. Dara was "distraught" and
"somewhat uncooperative"; she told responding
police officers they would "have to shoot [her] to take
[her] to the hospital." She was "more cooperative
and less hostile" with the fire department responders,
admitting to them "that she had taken 30 pills of
Adderall." Both Dara and Paxton were taken to the
hospital.
Police
officers came to the hospital to remove Paxton for OCS to
take emergency custody; Dara tried to fight them, and she
ended up in handcuffs. Hospital staff noted Dara was
"rambling and not making sense." Initially she was
"loud and disruptive" and "very resistant to
staying in" the hospital. Dara stayed at the hospital
for about 24 hours before being transported to Alaska
Psychiatric Institute (API). Before transferring to API, she
was diagnosed with psychosis, suicidal gesture, and
intentional Adderall drug overdose. API diagnosed Dara with
an "[a]mphetamine induced psychotic disorder," and
noted it was "resolved." API recommended that she
abstain from "addictive prescription medications such as
benzodiazepine," an ingredient found in her prescribed
antidepressant medications.
During
this time, OCS filed a petition for emergency custody of
Paxton, which the superior court granted.
c.
OCS's initial involvement in Alaska
Dara
and Paxton's case was assigned to OCS caseworker Michelle
Virden after Paxton was taken into emergency custody. After a
first telephonic contact, Virden met with Dara following an
October 2013 court hearing. Dara said that during her
pregnancy with Paxton "she had been raped with shards of
glass and sticks," causing his health problems. Dara
denied overdosing on Adderall, claiming that the idea she
attempted suicide was a fabrication by her mother, and Dara
claimed family members had verbally and physically abused
her. She blamed her recent "episodes" on pesticides
used to treat bed bugs in her apartment. Virden treated
Dara's case as a "mental health case";
accordingly, Dara's November case plan included that she:
(1) regularly meet with her OCS social worker to identify and
meet goals; (2) actively participate with chosen mental
health providers and maintain her mental health condition
with recommended medication and treatment; (3) manage her
anger and emotions with documented progress through
counseling services and reports from providers; (4) obtain
employment for six months or more; and (5) set healthy limits
and boundaries in personal relationships. As a first step in
implementing the case plan, Virden referred Dara to Dr.
Michael Rose for a mental health evaluation.
Dr.
Rose conducted a psychological evaluation of Dara in
November, administering five psychological and substance
abuse tests. Dr. Rose diagnosed Dara with psychotic disorder
not otherwise specified (NOS), along with neglect of child,
history of ADHD, and prior amphetamine and cannabis abuse. He
noted that the hospital had diagnosed her with
"Amphetamine-Induced Psychotic Disorder," and that
because her "problems have persisted, a Psychotic
Disorder NOS is given but consideration should be given to a
formal thought disorder diagnosis such as Schizophrenia,
Paranoid Type." He recommended further assessment, and,
concluding that Dara presented a significant risk to abuse or
neglect Paxton, recommended against reunification. Dr. Rose
recommended that Dara: (1) "work carefully with her
psychiatrist and psychotherapist to address her diagnosed
problems"; (2) "maintain gainful employment over a
sustained period of time and show that she can obtain and
maintain housing for herself and [Paxton]"; and (3)
obtain "individualized [parenting] education and
instruction." In the event Dara struggled to effectively
parent or respond to treatment, Dr. Rose suggested developing
a legal guardianship for Paxton.
After
obtaining Dr. Rose's psychological evaluation, Virden
arranged for Dara to obtain mental health services from
Anchorage Community Mental Health. Because of its lengthy
waiting list, Dara's first appointment was not scheduled
until the end of May 2014, six months after Dr. Rose's
evaluation. In the meantime Virden helped Dara by providing
her bus passes; having a social worker intern, who was
working on a mental health master's degree, help her with
the issues Dr. Rose's evaluation raised; encouraging her
to apply for Supplemental Security Income (SSI); driving her
to sell or return items to save money; supervising visits
with Paxton; and setting up extra visits with Paxton.
Before
her mental health services appointment, Dara traveled to
Santa Cruz, California - where she had grown up - planning to
live with a man with whom she had gone to high school. But
the relationship did not last and she soon came back to
Anchorage, where she obtained a job. Dara then lived with a
roommate, whom Virden described as "off and "a
little strange," for a month or two, before moving out
and "couch surfing."
In
April 2014 Paxton was placed with Dara's sister, Scarlet,
in Oregon. Scarlet gave Dara a laptop to Skype with Paxton;
they regularly Skyped three times a week, and Scarlet
permitted calls between Skype sessions.
Dara
did not attend her scheduled mental health services
appointment in late May. She instead moved to Wrangell to
live with a man she met online. This relationship lasted only
about a month, in part because the man was worried that
living with Dara would negatively impact his custody of his
own three children. In that time Dara became pregnant with
his child. Dara accused him of having an affair with Virden,
although he and Virden only had spoken once on the telephone.
Dara moved out around the end of June; she then stayed with a
friend.
d.
Dara's move to Oregon
OCS
pays to "fly families quarterly"; Dara stayed in
Wrangell until OCS paid for her travel in July to see Paxton
in Oregon, where she decided to stay. She was pregnant,
homeless, and "didn't have much money." Virden
informed Oregon's child protective services agency,
Department of Human Services (DHS), of Dara's arrival,
and Dara was able to obtain housing and prenatal care. Dara
took a job that she then lost for reasons beyond her control,
but by early 2015 she had found stable housing and work.
In
September 2014 Dara's Oregon caseworker referred her for
an evaluation at the local Center for Family Development.
Dara was diagnosed with "Adjustment Disorder With Mixed
Anxiety and Depressed Mood." A Global Assessment of
Functioning indicated Dara had anxiety to the point of
"getting in the way of. . . functioning." The
Center recommended she attend weekly therapy sessions for one
year, and in October she began seeing counselor Alexa
Jefferis for therapy.
Dara
also began weekly DHS-supervised one-hour visits with Paxton
starting in September. These later turned into two-hour
visits, and Dara occasionally accompanied Scarlet and Paxton
to his doctor appointments. Dara also attended one or two of
Paxton's soccer practices after getting approval from
DHS. During these visits there were few, if any, complaints
about Dara's behavior; DHS noted that she was receptive
to parenting suggestions, rarely canceled appointments,
respected her allotted visitation time, and acted
appropriately with Paxton. At this time Scarlet was fairly
supportive of Dara spending time with Paxton as long as she
first received DHS approval.
In
October and November Dara met with Dr. David Truhn for
"a comprehensive psychological evaluation and parenting
assessment." She was administered seven intelligence,
psychological, and parenting tests, and Dr. Truhn reviewed
her records, including Dr. Rose's previous evaluation.
Dr.
Truhn diagnosed Dara with early onset persistent depressive
disorder and unspecified anxiety disorder, requiring further
evaluation to rule out "unspecified schizophrenia
spectrum and other psychotic disorder." Dr. Truhn was
confident in the first two diagnoses; "at one point
[Dara] bec[ame] so anxious she could not remember where she
currently lived." But he was less confident in his third
diagnosis; he saw no evidence of psychotic symptoms and
recommended further evaluation. Dr. Truhn also noted that
Dara's "impulsivity ... is a significant concern . .
. regarding her ability to engage in more active parenting
responsibilities and necessitates that her visitations
continue to be supervised." He recommended that Dara:
(1) "participate in individual psychotherapy"; (2)
"engage in ongoing treatment and evaluation for
anxiety"; (3) "participate in medication evaluation
for the use of an antidepressant medication to treat anxiety
... [while] continu[ing] to be evaluated for any symptoms of
psychosis and need for an antipsychotic medication"; and
(4) "participate in parent training programs."
During
Thanksgiving Scarlet allowed Dara to spend about a half hour
with Paxton. Dara asked Scarlet if she could see Paxton on
Christmas Day. Scarlet indicated that she would discuss it
with her husband, but by December 17 she had not responded to
Dara. On December 22 Dara spent four hours with Paxton at a
DHS Christmas party. After the party Dara repeated her
request for time with Paxton on Christmas Day. After Scarlet
refused, Dara and Scarlet carried on the disagreement over
the telephone and via text, with Dara cursing at Scarlet and
Scarlet saying that Dara was not immediate family. Scarlet
considered Dara's repeated communications during this
time "harassment."
Early
in 2015 Dara learned that some of her mail had been sent to
her father's house. Scarlet picked up the unopened mail
and gave it to Dara. Dara then went to the post office and,
apparently at the post office manager's suggestion, filed
a police report claiming identity theft. Dara also left
Virden a voicemail about the incident saying she felt like
she was being stalked. Dara later testified that she
"immediately regretted assuming that" her family
was stalking her.
2.
Proceedings
In
December 2014 OCS petitioned to terminate Dara's parental
rights, with trial scheduled to begin in March
2015.[9] In February Dara sought a continuance
because she was scheduled to give birth by Caesarean surgery,
but her request was denied. After Dara gave birth to a
daughter, DHS did not believe she had "sufficient safety
service providers" to help her care for the infant and
did not know whether she lived in "a calm [home]
setting"; Dara's daughter was removed from
Dara's care and also placed with Scarlet.
a.
Testimony
The
termination trial took place over three days in March 2015.
Dara participated telephonically from Oregon. OCS's case
focused only on Dara's mental illness.[10] The court
heard testimony from Dara, four family members, Dara's
coworker and friend, Dara's daughter's father, a
police officer, three mental healthcare providers, and OCS
and DHS caseworkers.
Dara's
father, brother, and sister all testified in favor of
terminating Dara's parental rights to Paxton. Her father
described Dara as "very manipulative" and said
"[s]he looks to me like she's become a street
person" because of her tattoos and different hair color.
But Dara's father had very little interaction with her in
the past 20 years, and he had not seen her since she moved to
Oregon. Dara's brother also had very limited interaction
with Dara in the previous 10 years, but he characterized her
as a "free spirit" who lived "a gypsy kind of
lifestyle." Scarlet recognized that "[Dara] loves
her son very much," but she also testified that
Dara's paranoid and nervous actions had "remained
pretty steady over the last few years."
Dara's
mother, Dara's friend in Oregon, therapist Jefferis, and
DHS worker Ryan Clemmons all testified against terminating
Dara's parental rights to Paxton. Dara's mother
testified that she had no concerns about Dara's ability
to parent. Jefferis, who obtained a masters degree in
marriage and family therapy in 2012, testified that she
observed no indications of psychosis during her sessions with
Dara. Jefferis also testified that Dara had been doing well
dealing with the stresses related to employment, pregnancy,
and child custody issues, and that she needed "at least
another six months" of therapy. And although Jefferis
had not "observed [Dara] actually parenting,"
Jefferis had no "major concerns" about Dara's
ability to parent. Clemmons, who had supervised visits
between Dara and Paxton at DHS, testified that Dara asked for
parenting suggestions, always made up canceled appointments,
and acted appropriately with Paxton. Dara's friend, who
had known Dara since shortly after she moved to Oregon, said
that she considered herself part of Dara's "support
system" and that she had been impressed with Dara's
ability to take care of herself and others. The friend also
testified that, "[a]s a mental health worker" who
had a grandson "born with multiple heart defects,"
she thought it was understandable Dara had difficulty taking
care of Paxton by herself in Alaska. But in part because Dara
had "formed [a] support group" in Oregon,
Dara's friend thought Dara could take care of her
children.
Dr.
Truhn and Virden both expressed concerns at the termination
trial about Dara's ability to be a full-time parent. Dr.
Truhn explained how his diagnoses for Dara differed from Dr.
Rose's; he noted that Dara appeared to have improved
since her psychotic episodes, and he attributed many of her
behaviors to anxiety and depression rather than psychosis.
Dr. Truhn had recommended further evaluation to rule out a
psychotic disorder, and he had recommended continued
supervised visitations with Paxton because of Dara's
impulsivity. Dr. Truhn also testified that if Dara had
accused her daughter's father of an affair with Virden it
"sound[ed] kind of paranoid" and indicated that
Dara's mental problems could "be more severe than
what [he] saw in [his] assessment."
Virden
testified in favor of Paxton remaining with Scarlet. Virden
relied on DHS reports as she had not seen Dara in person in
ten months. Virden believed Dara continued to have unresolved
mental health issues and found concerning Dara's repeated
denials that she had mental health issues. Because of
Dara's mental health issues, Virden testified that Dara
was not ready to assume full-time responsibility for
Paxton's care.
b.
Decision[11]
The
parties submitted written closing arguments. In June 2015
Superior Court Judge John Suddock made oral findings and
terminated Dara's parental rights. (In October Superior
Court Judge pro tern Pamela Washington issued a written
decision based on Judge Suddock's oral decision.)
Judge
Suddock gave Jefferis's testimony little weight,
emphasizing that she was a "relatively young
practitioner" who "presented as quite protective of
her client" and who "viewed the world through
rose-colored glasses." He also gave little weight to
either Dara's father's or brother's testimony.
Judge
Suddock looked disfavorably on Dara's decision to move to
Wrangell, "a place without the kind of health services
that . . . [Paxton], who has profound kidney problems, is
going to need." He characterized the move as "[a]
totally unplugged, unhinged life move under the circumstances
that reflects a delusional or an irrational impulsive thought
pattern." He also found it was "symbolic of just
terribly depreciated judgment to have a child in custody, to
be fighting mental health problems, and to decide that
it's a good time to have a child with a stranger."
Characterizing Dara's life in the summer of 2013 as
"kind of a psychiatric mess at that point," Judge
Suddock found Dara "was very unstable in the fall of
2013 and she's gradually gotten better from there."
Judge Suddock found Dara was having "serious .. .
delusions" during that time period.
Judge
Suddock noted that both Scarlet and Virden testified about
Dara's lack of awareness of her mental health issues. He
noted that to Dara "[t]here always seemed to be some
cause, external, that explained everything." He
characterized the incidents around the Christmas Day visit
and Dara's mail as "[s]ome frankly paranoid style
stuff that occurred relatively recently. He found Dr.
Truhn's testimony "a lighter psychiatric diagnosis
than Dr. Rose, but... it could be mild symptoms of
psychosis" that would need to be looked at for another
year.
Judge
Suddock noted that this was "a difficult and interesting
case .... with issues of a mentally ill mom who [was] getting
better." He found OCS had proved "by clear and
convincing evidence that [Paxton] was subjected to conduct
that [made] him a child in need of aid. That's because of
the severe mental illness." He also found that OCS made
reasonable efforts because Dara was not always "fully
engaged" in her treatment plans. He found Dara had
"not remed[ied] the conduct within a reasonable
time" because she "spent essentially the better
part of her first year spinning her wheels, not adequately
engaging with mental health treatment." He acknowledged
Dara's recent improvements, but concluded that "[i]t
appears just overwhelming to me that the clock's run out,
that the best interests of [Paxton] are to be parented by
[Scarlet]." Given Paxton's age and medical
condition, Judge Suddock was unwilling to wait an additional
six months to a year to see if Dara's condition improved.
c.
Dara's appeal
Dara
appealed Judge Suddock's termination order, arguing that:
(1) as of the termination trial Paxton no longer was a child
in need of aid due to Dara's mental health issues because
she no longer posed a risk of harm to him; (2) OCS failed to
make reasonable reunification efforts; and (3) Dara was not
afforded reasonable time to remedy the condition causing
Paxton to be a child in need of aid.
B.
Reinstatement
1.
Facts
a.
Stay of termination order for review hearing
In
September 2015, after the June oral termination decision but
before the October written termination order, Dara moved for
a review hearing. Dara argued that because she had "made
significant progress on her case plan and [would] soon be
reunited with her daughter, . . . there [was] good cause for
the court to order a review hearing ... so that she [could]
show that it is in [Paxton's] best interest to return to
her care and custody." Judge Washington, who was
covering Judge Suddock's cases, found good cause for a
review hearing and stayed the termination order. The parties
were granted a continuance for Dr. Erik Sorensen to assess
Paxton's attachment to Dara compared with his attachment
to Scarlet and her husband, Paxton's functioning and
needs, and a potential plan for reunifying Paxton with Dara.
Although OCS agreed to facilitate interim visits between Dara
and Paxton, no visits occurred.
We then
stayed Dara's appeal of the termination order pending the
outcome of the review hearing.[12]
b.
Dara's stabilization and custody of her daughter
Dara
continued improving after the termination trial. She
continued weekly therapy sessions with Jefferis, and since
December 2014 had maintained full-time employment with the
same employer. By April 2016 Jefferis believed Dara had
become "much more grounded and calm," confident,
and better at "creating a stable life for herself."
Early in 2016 Jefferis changed the frequency of Dara's
sessions to only once or twice each month.
In June
2015 Dara met with Dr. Truhn for an updated psychological
assessment. Dr. Truhn thought that Dara was
"significantly more stable since the previous
evaluation," and that she seemed "on track with the
projected prognosis . . . from October [2014]." Based on
information Dara provided, Dr. Truhn further believed that a
plan for reunification with Paxton could be possible
"within the next two to three months."
Dara
also met with a psychiatric mental health nurse practitioner,
Karla Marvich, who was authorized to prescribe psychotropic
medication. Dara first met with Marvich in October 2015 and
had met three times with her by February 2016. Marvich
concluded that Dara did not meet "criteria for any
specific diagnosis" and did not need "any
medication." Marvich instead thought that the
medications Dara was prescribed in the summer of 2013
"were excessive," and the combination of
medications "could have caused increased anxiety"
and Dara's psychosis.
In
November 2015, despite Scarlet's opposition, Dara's
daughter was returned to Dara's care. Because DHS had no
lingering concerns regarding Dara's ability to care for
her daughter, it was anticipated that DHS would dismiss that
child's case in May 2016.
c.
Dara's deteriorating relationship with Scarlet
Until
August 2015 Dara continued visiting with Paxton through DHS,
usually during supervised visits with her daughter. DHS
social worker Sara Rich provided one-on-one parent coaching
for Dara during some visits. And when Paxton was present at
these joint visits, Rich "did not have any
concerns" about Dara's ability to parent. Rich later
characterized Dara's interactions with Paxton as being
"[v]ery good interactions, very kind and
compassionate," as well as positive and appropriate. For
example, Rich observed Paxton once telling Dara that she was
"the best" and once saying he wanted to go home
with her. Dara responded appropriately in both instances,
telling Paxton "he was the best" also and answering
his request to go home with her only by saying she knew that
and she loved him.
But by
then Dara's relationship with Scarlet had deteriorated.
After the superior court's oral termination of Dara's
parental rights to Paxton, Scarlet left "it up to
[Paxton] [to decide] if he wanted to" have visitation
with Dara and his sister. According to Scarlet, Paxton went
to only a couple of visits thereafter because "he
didn't care to go into the visits and see [Dara]."
Scarlet did not seem upset by Paxton not wanting to attend
visits; she characterized Dara as "a toxic person"
and seemed "very upset" when Dara's daughter
was returned to Dara's care. Once Dara regained custody
of her daughter and DHS no longer assisted in arranging
visits, Scarlet never arranged for Paxton and his sister to
visit. In March 2016 Dara and Paxton saw each other for the
first time in six months at a joint psychological assessment
with Dr. Sorenson.
Dr.
Sorensen, who had been asked to assess Paxton's
attachment to both Dara and Scarlet, reported that
"[c]ontinued placement with [Scarlet] appears the safest
and most supportive option that would likely meet
[Paxton]'s needs over time." Dr. Sorensen noted that
Paxton considered Scarlet his mother, that Paxton had no
problems living with her, and that she and her husband
adequately cared for his medical needs. Dr. Sorenson also
noted that Scarlet had little interest in facilitating visits
between Dara and Paxton. Dr. Sorenson believed Dara had
"made remarkable progress" since the incidents in
2013 and 2014, and she "demonstrated ample skill in
engaging her son"; he did not note any concerns about
her ability to parent. But Dr. Sorensen emphasized that any
change in custody for Paxton would be "likely to [cause]
distress" and recommended careful monitoring of his
medical condition if a custody change occurred. Dr. Sorenson
also was concerned that Paxton's language limitations and
"general tendency to answer 'yes' to most
questions" might lead to difficulties. Finally, Dr.
Sorensen recommended that, if a change in custody were to
occur, it take place incrementally with extensive monitoring.
2.
Proceedings
a.
Hearing
A
review hearing took place in April and May of 2016. Testimony
primarily concerned Dara's recent progress and
Paxton's best interests. OCS presented no expert
testimony concerning Dara's current mental health,
instead relying on Scarlet's testimony that she believed
Dara was "not capable" of parenting and was
mentally ill. Dara, her mother, and Scarlet all indicated
that Dara would see little of Paxton in the current custody
situation.
Hearing
testimony indicated that any transition would be difficult
for Paxton. Scarlet testified it would be "extremely
difficult" for Paxton to be removed from her home
"to be placed with a family that he doesn't really
know anymore." Dr. Sorensen thought Paxton had
"really adapted well into [Scarlet's] family,"
and although Dr. Sorensen thought Paxton would be able to
adapt to a new family situation, "there's no
guarantee that [it would]... go well and sometimes kids
really struggle when they're forced to leave attachment
figures." Dr. Sorensen thought a change in custody would
be "a highly confusing event for [Paxton] and one that
could very well have a lasting effect" because he would
have no memory of living with Dara. Dr. Sorensen thought that
Paxton would "have a really hard time for quite some
time" before being able to verbalize his concerns. Dr.
Sorensen "recommended that [Paxton] remain in his
current placement.. . indefinitely as a means of maintaining
his emotional stability and general safety."
Notwithstanding this recommendation, Dr. Sorensen outlined
how a reunification could happen to minimize disruption and
how it would take at least three to four months. However, he
cautioned against removing Paxton from Scarlet's care,
stating it would be "a guaranteed loss" for Paxton
and "certainly take a toll on him." Dr. Sorenson
added: "Whether that [loss] will be made up for through
the reconnection with his mother and the connection with his
sister, I couldn't. . . say."
b.
Decision
In July
2016 Judge Washington issued a written decision reinstating
Dara's parental rights to Paxton. Judge Washington first
noted that she had "heard testimony from multiple
witnesses, listened to the termination trial and Judge
Suddock's decision on the record, and reviewed medical
records, including reports from API, Dr. Michael Rose, and
Dr. David Truhn as requested by the parties." Judge
Washington then outlined relevant facts leading up to
termination, including: (1) Dara's psychotic break due to
an Adderall overdose in September 2013; (2) Dr. Rose's
report and recommendations; (3) Dara's
"erratic[]" period of time when she "was in
complete denial about her mental illness" and "made
some irrational decisions" prior to moving to Oregon;
(4) Dr. Truhn's report and recommendations; (5)
Dara's starting individual counseling with Jefferis; (6)
Dara's daughter's birth; (7) the termination trial
and the court's findings; and (8) the procedural posture
of the review hearing.
Judge
Washington made 19 factual findings after the review hearing.
Notably, she found Dara was "no longer exhibiting
delusional or psychotic behaviors," and she was
"not taking psychotropic medications and no medication
[was] recommended"; Dara had "been successfully
parenting [her daughter] since November . . . 2015";
"[t]he hostility [between Dara and Scarlet] [was] great
and ha[d] caused a division in the family"; "Dr.
Sorensen reported that [Paxton] . . . [was] 'likely'
to experience distress if moved"; and "Dr. Sorensen
conclude[d] that the safest result with the least amount of
risk to [Paxton's] emotional well[-]being would be to
keep [Paxton] with [Scarlet]."
Judge
Washington then outlined what she considered the applicable
law:
As long as a child remains the ward of the court under AS
47.10.080(f)[13] his or her natural parents are entitled
to a review of the order terminating their parental rights
upon a showing of good cause for the hearing. Good cause
could be established if the parent or parents show that it
would be in the best interests of the child to resume living
with him or her because he or she has sufficiently
rehabilitated him or herself such that he or she can provide
proper guidance and care for the child.[14]
The
court also listed AS 47.10.011(11)[15] and AS
47.10.088(b)(1)-(5)[16] as bases for its decision.
Judge
Washington began by acknowledging Judge Suddock's June
2015 termination findings. But she then stated that
"[t]oday, the record presents a new picture of [Dara].
She has clearly overcome the severe mental impairment that
set this case in motion nearly three years ago." Judge
Washington noted that Dara had "complied with all five
of Dr. Rose's treatment recommendations." And Judge
Washington pointed out that "[n]either OCS nor the
guardian ad litem contested [Dara]'s completion of goals
set in her case plan and her current stability." Judge
Washington determined that Dara had proved, "by clear
and convincing evidence, that she has remedied the conduct
and conditions in the home that placed [Paxton] at
substantial risk of harm."
Judge
Washington then found, by clear and convincing evidence, that
it was in Paxton's best interests to return to Dara's
care because:
1) The state favors reuniting children with biological
parents.
2) Mental illness alone cannot support termination of
parental rights. 3) There was no harm caused to the child and
it is unlikely harmful conduct will happen. 4) The
child's bond with the biological parent can be restored.
5) The child can be returned to the parent within a
reasonable time based on [the] child's age and needs. 6)
The parent has put in a great amount of effort to remedy the
conduct or conditions in the home.
Judge
Washington emphasized a "presumption for keeping
families together when the parents have demonstrated that
they are capable of meeting the child's needs." She
additionally noted that "a parent's mental illness
alone may not form the basis of a termination of. . .
parental rights"; that "[w]hatever nexus the court
found at the time of termination" relating to Dara's
mental illness placing Paxton at harm, "it [did] not
exist now"; that it was possible to restore Paxton's
bond with Dara; and that Dara "ha[d] put in a lot of
effort to remedy the conduct and conditions in the home that
caused her son to be taken." Judge Washington then
ordered OCS to "begin a transition plan" to return
full custody of Paxton to Dara.
After
OCS moved for reconsideration, in October Judge Washington
clarified her previous findings. OCS had argued that Judge
Washington created a burden-shifting presumption that
reuniting with a biological parent is in a child's best
interests. Judge Washington responded that she instead
"simply ... acknowledg[ed] the legislative preference in
favor of keeping a child with his or her biological
parents." Judge Washington then noted OCS's renewed
arguments - that it was not in Paxton's best interests to
return to Dara considering permanency and the length of time
necessary for reunification. Judge Washington first rejected
any suggestion that she had not taken into account
Paxton's age, the length of time he had lived with
Scarlet, and his attachment to Scarlet. Judge Washington
stated that she also had considered Paxton's prior bond
with Dara and his bond with Dara during visitations. And
Judge Washington expressly rejected OCS's argument that
Dara was a stranger to Paxton.
Although
Judge Washington noted that her decision had involved a best
interests analysis, she also explained her view that
"[o]nce good cause is established for a review hearing,
. . . the court is not required to undertake a best interest
analysis if circumstances have changed so much that the child
is no longer a child in need of aid." Judge Washington
indicated that "[a] best interest analysis is only done
when it is first determined that the child is in need of
aid." She emphasized that in the reinstatement context,
"[a] best interest analysis is not necessary to
determine if a. child should return home, but only
required to determine when a child will return
home." (Emphases in original.) Finally, Judge Washington
modified her original order to include a future "hearing
on the timetable for reunification."
c.
OCS's and guardian ad litem's appeals
OCS and
Paxton's guardian ad litem (GAL) appealed the
reinstatement order. Although OCS does not directly challenge
Rita TVs holding, it questions that holding's
foundation after subsequent statutory changes. OCS asks us to
clarify and limit Rita TVs application, primarily
arguing that: (1) a Rita T. proceeding is not
appropriate when a child is in an adoptive placement; (2) it
was legal error to apply a presumption in favor of
reunification; and (3) it was clear error to find it was in
Paxton's best interests to return to Dara. The GAL joins
in OCS's arguments and also argues that a Rita
T. proceeding is intended only in an extraordinary case
when permanency has not been established post-termination.
III.
DISCUSSION
A.
The Termination Of Dara's Parental
Rights[17]
Dara
argues the superior court erred by finding that: (1) her
mental illness led to Paxton being a child in need of aid and
that she had not remedied the conduct or conditions initially
placing him at risk; (2) OCS made reasonable efforts to
reunify her family; and (3) she was afforded reasonable time
to remedy. Because Dara's arguments are not convincing,
we affirm the superior court's decision terminating her
parental rights to Paxton.
1.
Child in need of aid finding
Dara
makes two separate arguments why the superior court erred by
finding Paxton was a child in need of aid. First, Dara argues
that the court improperly made its CINA finding "based
upon Dara's mental illness alone." Second, Dara
argues that the court clearly erred by finding her mental
illness continued to pose Paxton "substantial risk of
physical harm or mental injury" at the time of trial.
a.
Child in need of aid finding not based on Dara's mental
illness alone
Alaska
Statute 47.10.011(11) permits courts to find that a child is
in need of aid if "the parent. . . has a mental illness,
serious emotional disturbance, or mental deficiency of a
nature and duration that places the child at substantial risk
of physical harm or mental injury."[18] Because AS
47.10.011(11) has two requirements - parental mental illness
and substantial risk of harm to the child - we have
repeatedly held that "mental illness alone may not form
the basis of a [CINA] finding."[19]
Dara
argues that the "court failed to articulate in either
its oral or written findings the specific conduct flowing
from Dara's mental illness that placed Paxton at risk as
required under subsection (11)." In its oral findings
the court stated OCS proved "by clear and convincing
evidence that [Paxton] was subjected to conduct that makes
him a child in need of aid. That's because of the severe
mental illness." The court's written findings are
similarly succinct: "There is clear and convincing
evidence that the child has been subjected to conduct or
conditions described in AS 47.10.011(11). The court adopts
herein the oral record of its findings . . . regarding the
underlying bases of these findings in their entirety."
But
Dara does not consider the underlying oral findings the
superior court made in reaching its decision. The court made
explicit oral findings concerning Dara's September 2013
"suicide attempt [from] overdosing on . . .
Adderall"; her May 2014 "totally unplugged,
unhinged life move" to Wrangell "that reflects a
delusional or an irrational impulsive thought pattern";
her November 2014 diagnoses by Dr. Truhn of persistent
depressive disorder and anxiety disorder; her December 2014
"verbally abusive" and "unrealistic
demands" to spend time with Paxton on Christmas,
symbolic of her general tendency to make unrealistic demands
about visitation; and her January 2015 "paranoid
style" "identity theft" allegations relating
to her mail.
These
underlying factual findings of specific conduct are
sufficient to support the superior court's finding that
Paxton is a child in need of aid under AS 47.10.011(11),
especially given his elevated medical needs. For example, in
Barbara P. v. State, Department of Health & Social
Services, Office of Children's Services we affirmed
a termination finding under AS 47.10.011 (11) because of
evidence that the mother "had attempted suicide when
[the child] was one year old"; might "attempt
suicide again" "if her depression remain[ed]
untreated"; had "a pattern of entering into
relationships with abusive men with substance abuse
problems"; and had "impact[ed] her ability to
safely care for her children" by not treating her
depression.[20]We similarly affirmed a termination
finding under AS 47.10.011(11) in Alyssa B. v. State,
Department of Health & Social Services, Division of
Family & Youth Services because the superior court
adequately linked evidence of the mother's mental illness
and other "actual conduct-based problems creating a risk
of substantial harm" including a refusal to get
psychological treatment.[21]
b.
Substantial risk of physical harm or mental injury at the
time of trial finding not clearly erroneous
Dara
also argues that the superior court clearly erred by finding
that she posed a substantial risk of physical harm or mental
injury to Paxton at the time of the termination trial. When
reviewing factual findings we "ordinarily will not
overturn a trial court's finding based on conflicting
evidence, "[22] and will not re-weigh evidence
"when the record provides clear support for the trial
court's ruling."[23] It "is the function of
the trial court, not of this court, to judge witnesses'
credibility and to weigh conflicting
evidence."[24] In this admittedly close case, the court
did not clearly err in its findings; "[m]erely because
the superior court reached a different conclusion than [Dara]
desired does not constitute legal error."[25] As discussed
above, the court identified manifestations of Dara's
then-untreated mental illness - including
"unhinged" life moves, continued paranoia, and
suicidal ideation - that placed Paxton, a child with acute
medical needs, at substantial risk of physical harm and
mental injury at the time of trial unless Dara's parental
rights were terminated. Because the record provides clear
support for the superior court's ruling, Dara's
argument is unavailing.
2.
Reasonable efforts finding
Dara
argues that the superior court erred by finding OCS made
reasonable efforts to reunify the family. She disputes the
superior court's factual finding that she was
uncooperative and unwilling to engage in treatment necessary
for reunification. Dara also contends that OCS's
"failure to pursue critical mental health services in a
prompt fashion," and its reliance on Oregon DHS to
connect her with adequate mental health providers, render the
superior court's reasonable efforts finding clearly
erroneous.
We
disagree. Although Dara claims the record shows she was
cooperative and willing to engage in treatment, ample
evidence presented at the termination trial suggests
otherwise. The court considered evidence that Dara did not
acknowledge her mental illness; that she missed her mental
health and SSI appointments by moving to Wrangell; and that
she "spent essentially the better part of her first year
spinning her wheels, not adequately engaging with mental
health treatment." Given this evidence, the court's
finding that Dara was uncooperative with OCS's efforts to
engage her in treatment was not clearly erroneous.
Although
Dara had to wait six months to begin services at Anchorage
Community Mental Health, the existence of a waiting list or
delay in the provision of services does not automatically
preclude a reasonable or active efforts
finding.[26] This is particularly true when, as here,
OCS's reasonable efforts were frustrated or limited by
the parent's actions and unwillingness to engage in
treatment.[27] We agree with the superior court that
OCS's efforts were timely under the circumstances. The
OCS caseworker quickly referred Dara for a psychological
evaluation by Dr. Rose, referred Dara to a program equipped
to address the severity of her mental illness, got her on the
program's "significant" waiting list, and made
an appointment with the program to provide Dara with
resources and information about medication management while
she waited for an opening. Moreover, OCS continued to support
Dara in finding stability in the interim. Although a waiting
list at the suitable program presented unfortunate barriers
to immediate treatment, OCS's efforts were on the whole
timely and reasonable. The court's finding was not
clearly erroneous in this regard.
Finally,
we are unpersuaded by Dara's argument that there was a
lapse in reasonable efforts when she relocated to Oregon.
Dara asserts that "OCS should have exercised oversight
designed to ensure the services satisfied OCS, not just
Oregon DHS." We note OCS is not required to duplicate
the efforts of other service providers.[28] It was not
unreasonable for OCS to cede some responsibility to DHS to
connect Dara with mental health services when she abruptly
left Alaska and relocated to Oregon.[29] And DHS's efforts
were successful; after initially taking custody of Dara's
infant daughter, it provided assistance that led to her
return to Dara's care.
The
record nonetheless shows that OCS exercised a reasonable
degree of oversight while Dara was in Oregon. OCS
communicated Dara's case plan to Oregon DHS, faxed the
assessments by Dr. Rose and Dr. Truhn, and received updates
regarding Dara's progress. Oregon DHS in turn referred
Dara to the Center for Family Development, a program with
psychiatrists on staff with whom OCS encouraged Dara to
consult. OCS conveyed to Dara and her Oregon providers its
concern that she remain compliant with her prescribed
psychotropic medication. Dara's Oregon therapist was
aware of OCS's recommendation and provided Dara with a
list of psychiatrists ...