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Dara S. v. State, Department of Health & Social Services

Supreme Court of Alaska

September 7, 2018

DARA S., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. STATE OF ALASKA, OFFICE OF PUBLIC ADVOCACY, GUARDIAN AD LITEM, Appellant,
v.
DARA S., Appellee. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellant,
v.
DARA S., Appellee.

          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 ...


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