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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rick P. v. State, Office of Children's Services (4/1/2005) sp-5882

Rick P. v. State, Office of Children's Services (4/1/2005) sp-5882

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


RICK P.,                       )   Supreme Court No. S-11461
               Appellant,      )   Superior Court Nos.
                               )   3KN-99-92 CP
     v.                        )   3KN-01-54 CP
STATE OF ALASKA, OCS,          )   O P I N I O N
               Appellee.       )   [No. 5882 - April 1, 2005]

          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Harold M. Brown, Judge.

          Appearances:   Sharon Barr, Assistant  Public
          Defender,  Barbara K. Brink, Public Defender,
          Anchorage,  for  Appellant.  Megan  R.  Webb,
          Assistant Attorney General, Anchorage,  Gregg
          D.  Renkes,  Attorney  General,  Juneau,  for

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          MATTHEWS, Justice.


          Rick  P. appeals orders terminating his parental rights

over  his  children Dylan and Diane.1  The superior  court  found

that  Rick  shifted  households  frequently  and  assaulted   his

domestic  partners, and that this behavior, among  other  things,

caused  Dylan  mental  injury sufficient to  support  terminating

Rick's  rights.   Rick's  main argument on  appeal  is  that  his

conduct   was  not  necessarily  the  cause  of  Dylan's  serious

emotional problems.  We reject this as unsupported by the record.

The  superior  court  also  found that Rick  failed  to  maintain

          contact with his daughter Diane for several years, and that this

constituted abandonment sufficient to support terminating  Rick's

rights  over her.  Rick argues that this was unfair, because  for

much  of  Diane's  childhood he was unsure  whether  he  was  the

biological father, and was in prison at other times.   But  there

were  periods  when  Rick was out of prison and  he  had  claimed

paternity  in  a  formal custody pleading; we think  under  these

circumstances  his failure to maintain contact  was  abandonment.

We therefore affirm the orders terminating Rick's parental rights

over both children.


          Rick  did  not testify or call any witnesses at  trial,

and the facts presented below are undisputed except as noted.

     A.   Dylan

          Dylan  was  born  in January 1995.   Rick  and  Dylan's

mother  split  up soon after Dylan was born; Rick  got  fifty-one

percent custody and the mother got forty-nine percent.  In August

1999  the predecessor to the Office of Children's Services  (OCS)

received  a  report  of  harm, to the effect  that  the  mother's

husband  had sexually abused Dylan.  Around this time,  OCS  also

received  a  report  that Rick was leaving  Dylan  with  multiple

caregivers  (including  a friend who had been  recently  released

from  jail),  that  Rick and his girlfriend engaged  in  domestic

violence, and that Dylan was seen "playing in cocaine."

          This  led  OCS  to remove Dylan in November  1999  from

Rick's  custody.   He  was placed with a  foster  family.   Dylan

stayed  with this family between approximately November 1999  and

August 2001.  He initially showed disturbing behavior - choking a

cat,  killing a pet duck, fondling his foster mother -  but  over

time  became  better  behaved as he settled in  with  the  foster

family.   During  this period Dylan's parents  stipulated  to  an

adjudication  of  Dylan  as a child  in  need  of  aid  under  AS

47.10.011(6)  (physical  harm),  (7)  (sexual  abuse),  and   (9)


          Meanwhile,  in  December 1999, Rick  was  arrested  and

ultimately  convicted  for assaulting  his  girlfriend.   He  was

incarcerated  until April 2000.  By the fall of 2000  Rick  began

participating in his case plan, and married a woman  named  Leigh

B.   Leigh had prior convictions for assault.  Dylan visited with

Rick  and Leigh on the weekends, which seemed to go well but also

appeared  to  be correlated with increased misbehavior  upon  his

return to school and the foster home.

          By  August 2001 Rick had completed all the requirements

of  his case plan, and Dylan was returned to Rick's home.  Rick's

case   plan  had  included  anger  management  and  psychological

assessments by Dr. Paul E. Turner and Dr. Jackie Bock.  Prior  to

Rick's  resumption  of custody, Dr. Turner found  that  Rick  had

significant  parenting deficits, particularly  vis-a-vis  Dylan's

problems  with  sexuality and aggression. In  his  sessions  with

Rick,  Dr. Turner stressed the importance of providing  a  secure

home  for  Dylan when Rick resumed custody, and keeping track  of

Dylan's academic program.

          Dylan  stayed  with  his father  from  August  2001  to

December   2002,   when  OCS  removed  him.   This   period   was

characterized  by a marked increase in Dylan's anger  and  sexual

misbehavior, including an incident in which Dylan shoved a girl's

head  into his crotch.  Toward the end of this period, Rick began

shifting households and domestic partners rapidly.  In June  2002

Leigh kicked Rick out and he moved in with another woman, Stella.

In  November  2002  Rick  and  Dylan apparently  became  somewhat

vagrant,  shifting  multiple  times between  Stella's  house  and

Leigh's  house, with a brief stay in the house of  a  woman  Rick

claimed  was  his  sister.   Domestic  violence  and  absenteeism

remained  a  problem in these households.  Leigh got  a  domestic

violence  restraining order against Rick, and claimed  that  Rick

was  never at home.  Stella claimed that she was Dylan's  primary

caregiver.  There were physical fights between Stella  and  Rick,

which  Dylan seems to have witnessed.  During this period,  Dylan

attempted to run away to his foster family.  Dylan testified (and

the  superior court found) that Rick slapped Dylan at  one  point

during  this  period, leaving marks serious enough for  a  church

pastor  to call the police to investigate (the investigation  did

not  result in a prosecution, and during the investigation  Dylan

denied  having  been slapped, a denial Rick  relies  on  in  this

appeal  to argue that the slap did not in fact in occur).   Dylan

testified  that  Rick  disciplined him  by  hitting  him  with  a

spatula, by making him eat soap, and by making him drink vinegar.

          Participation in counseling also declined  during  this

period:   Dylan  began missing sessions with Dr. Bock,  and  Rick

missed  seven of seventeen home family sessions.  Dylan and  Rick

would  return to counseling sporadically in response to  specific

incidents.    Rick  then  dropped  the  family  out-of-home-based

services.   Toward the end of the period of Rick's  custody  over

Dylan,  in  fall 2002, Dr. Turner evaluated Dylan and  Rick.   He

diagnosed  Dylan  as having "Reactive Attachment Disorder,  Major

Depression, and Oppositional Defiant features.  [Dylan] was  also

sexually reactive."  Dr. Turner concluded that this was caused by

Dylan's chaotic, violent home life, and recommended foster  care.

During  this period, Dylan also failed to show up for a  remedial

summer reading program in which he was enrolled.

          Rick's custody ended in December 2002.  On December  12

no  one  picked up Dylan from the school bus stop.  The next  day

OCS  removed  Dylan from Rick's care. OCS returned Dylan  to  the

foster   home  where  he  had  been  placed  before,  and   Dylan

immediately  called these foster parents his mom  and  dad.   The

foster parents noticed that Dylan was dirty by the time he got to

them; he had also been dirty and badly clothed during one of  his

recent visits to Dr. Bock.  Rick visited Dylan until March  2003,

when   he   was  convicted  of  assaulting  Stella.    Rick   was

incarcerated from March 2003 to February 2004, a month before the

termination  trial began.  Dylan is doing well  with  the  foster


     B.   Diane

          Diane was born in May 1998.  Her father is Rick (though

his paternity was not definitively established until much later),

and her mother is another woman, not Dylan's mother.

          Rick  and the mother apparently separated before  Diane

was  born.  Rick met Diane for the first time at a birthday party

for  another  child.  He took her home to his house  for  several

nights,  and  unsuccessfully  petitioned  a  court  to  issue   a

protective order to save "my child" (his words) from the  mother,

whom Rick accused of abusing the child.  In August 2001 the state

developed a case plan that called for Rick to visit Diane to  get

to  know her, but it appears Rick did not sign the case plan  and

did  not attempt to visit Diane.  OCS took emergency custody from

the   mother   in  October  2001,  at  which  point  Rick   again

unsuccessfully  sought  custody,  even  though  he  also   denied

paternity. OCS then returned Diane to her mother.

          In January 2002 a paternity test confirmed Rick was the

father.  OCS took custody of Diane for good in August 2002, based

on  serious neglect and physical abuse by the mother.  It appears

the first supervised visitation with Rick began five months later

in  January  2003.  The visits went poorly, with Diane  rejecting

Rick.  The visits lasted less than three months because Rick  was

incarcerated in March 2003.

          These supervised visits in early 2003 appear to be  the

only  contact  Rick  ever had with Diane, the  four-day  birthday

party  interlude  aside.   According to  Rick's  attorney,  these

visits "were, outside of a one-week prior period of time, .  .  .

the only time [Rick] ever got to see his daughter."  OCS sent  an

updated  case  plan  to Rick in prison in January  2004,  but  he

replied  by  saying OCS should not send him any  more  forms  and

should  contact  his  attorney.2  Rick was released  in  February

2004, and made no attempt to contact OCS in the month between his

release and the termination trial.

     C.   Proceedings and Decision of the Superior Court

          OCS  filed termination petitions in April 2003  (Dylan)

and   December  2003 (Diane).  By stipulation, both children  had

previously been adjudicated as children in need of aid.  In  both

cases the mothers ultimately did not contest termination of their


          Rick's  termination  trial lasted four  days,  and  was

devoted  almost  exclusively to issues related to  Dylan.   OCS's

witnesses  included  Dylan, Dr. Bock,   Dr.  Turner,  the  foster

mother, and OCS case workers.  Rick did not testify himself,  and

did not present any other witnesses.

          Superior  Court  Judge Harold M. Brown issued  separate

orders  terminating Rick's rights to both children.   In  Dylan's

case,  the termination was based on a finding of neglect,  mental

abuse, and physical abuse.  In Diane's case, the termination  was

based on a finding of abandonment and neglect.


     A.   Statutory Scheme, Claims of Error, Standard of Review

          To  terminate  parental  rights,  the  department  must

establish  by clear and convincing evidence that the  child  "has

been subjected" to one of the eleven conditions enumerated in  AS

47.10.011  that  establish that a child is a "child  in  need  of

aid."3  As described more below, one of these conditions is where

the  parent  is responsible for a "mental injury" to the  child.4

Another   condition  occurs  where  a  parent  or  guardian   has

"abandoned" the child.5

          A  second  relevant prerequisite to  termination  is  a

finding  (also by clear and convincing evidence) that the  parent

has  either  (i) "not remedied the conduct or conditions  in  the

home  that place the child at substantial risk of harm," or  (ii)

"failed,  within  a  reasonable time, to remedy  the  conduct  or

conditions  in the home that place the child in substantial  risk

so  that returning the child to the parent would place the  child

at substantial risk of physical or mental injury."6

          Rick  challenges  the  superior court's  order  on  the

          ground  that both these prerequisites were not properly

established with respect to either child - i.e., that  there  was

not  clear and convincing evidence that the children were in need

of  aid,  and that he failed to remedy these harmful  conduct  or


          To  the  extent Rick's challenges are to  the  superior

court's  factual  findings,  our  review  is  for  clear  error.7

Whether particular facts are sufficient to support termination is

a question of law that we review de novo.8

     B.   Rick's Rights over Dylan Were Properly Terminated.

          1.   The superior court properly found that Dylan was a
               child in need of aid.
          The  superior  court  found  by  clear  and  convincing

evidence  that  Dylan was a child in need of  aid  based  on  its

finding  that  Rick was responsible for mentally  injuring  Dylan

under AS 47.10.011(8).  We think this was not erroneous.

          Alaska  Statute 47.10.011(8) says that a  child  is  in

need of aid where, among other things,  "conduct by or conditions

created by the parent . . . have (A) resulted in mental injury to

the  child."   Rick seems to concede that Dylan has suffered  the

requisite   mental  injury,  manifested  by  Dylan's  aggressive,

sexually inappropriate behavior. Instead, Rick's argument is that

OCS  failed  to prove the cause of these injuries.  Specifically,

Rick argues that the cause could have been the stepfather's early

sexual  abuse of Dylan, rather than anything that Rick did  while

he  had  custody.  As proof, Rick notes that Dylan  continued  to

behave  badly  during Dylan's first placement in a  foster  home,

before he was returned to Rick's care.  Rick also cites testimony

by  Dr.  Bock  that  childhood sexual abuse would  usually  leave

permanent  scars.   On  this basis, Rick argues  that  the  state

failed  to carry its burden of proving that he caused the  mental

injury by clear and convincing evidence.

          We  reject  this  argument,  which  is  essentially  an

argument that the superior court's factual findings were  clearly

erroneous.  Judge Brown based his "mental injury" finding on  the

          testimony of Dr. Turner and Dr. Bock, two clinical psychologists

who worked with Dylan and Rick over the years.  Although Dr. Bock

agreed  on  cross-examination that any victim of sex  abuse  "may

well  need  periodic counseling," she and Dr. Turner  were  quite

clear that they thought Rick was, at a minimum, a major factor in

Dylan's emotional problems.  Dr. Bock testified:

          Any  child,  I  think,  that's  involved   in
          [Rick's]  home  will run into  problems  with
          using  aggression and violence as a means  of
          problem-solving,  they will lack  appropriate
          social  skills, they will lack a stable  home
          and safety, they'll lack consistent parenting
          by  a  set  of  parents,  they  will  develop
          difficulties  or  continue difficulties  with
          trust,  autonomy and security, thus  possible
          atypical   attachment  patterns.   They   are
          likely  to  have  poor  physical  and  sexual
          boundaries.  They are very unlikely  to  have
          appropriate adult role models, either male or
          female,  and  they will also  be  exposed  to
          illegal behavior.
               They  will be exposed, likely, to  adult
          sexuality  which is age-inappropriate.   They
          will   not  have  an  opportunity  to   learn
          appropriate, age-appropriate, social  skills,
          sexual   behavior.   Thus,  their   long-term
          relationships  in  terms  of   intimacy   and
          generativity will be impaired.
Similarly, Dr. Turner said it was "extremely important" for Dylan
to  live in a family free from violence and with a stable set  of
caregivers.  He also said that a "whole lot" of Dylan's emotional
disturbance  was attributable to the instability and violence  in
Rick's households:
          He  wasn't  supervised.   He  was  exhibiting
          behaviors that you see with children who have
          multiple  caregivers.  They tend to get  real
          chaotic  in  their  behavior  and  a   little
          unpredictable.  That  he  had  -  he  has   a
          negative view of women and relationships with
          women,  in  part  because -  because  of  his
          father's modeling.
               I  felt  that  some  of  his  opposition
          behavior  -  I  felt  a  whole  lot  of   his
          oppositional behavior and the behaviors  that
          were  being  seen with aggression and  sexual
          activity were what had been modeled  for  him
          and  there wasn't parenting specific to those
          specific problems.  And I had concerns  about
          [Rick's] ability to do so.
On  the  basis of this testimony, the superior court  found  that

Dylan's "sexual and aggressive behaviors were believed to be  the

result  of  poor  role modeling in the home." The superior  court

also  found  that  Dylan's  problems "would  increase  with  poor

supervision   and   monitoring,  neglect,  changing   caregivers,

conflict,  and  change in residence" - these  being  the  central

problems  with  Rick's custody of Dylan.  These are  findings  of

fact,  and  the  evidence above shows that they are  not  clearly


          The superior court also found that Dylan was a child in

need  of aid based on other subsections of AS 47.10.011 (such  as

physical  injury), but our determination that the  mental  injury

finding was not erroneous makes it unnecessary to consider Rick's

challenges to these other findings.

          2.   Rick failed to remedy the conduct placing Dylan at
               substantial risk of harm.
          Judge  Brown  found  that Rick  failed  to  remedy  the

conduct  placing Dylan at substantial risk of harm.  This finding

was  based  on  "the  continued chaos in [Rick's]  relationships,

repetitive  assaultive and sexually inappropriate behaviors,  and

chronic neglect of the child."

          Rick's  first  challenge to this  finding  is  that  he

attended various counseling sessions, and that this constitutes a

remedy  of  his  conduct.  But this argument does  not  speak  to

whether he had succeeded at controlling his anger, which was  the

root  cause  of all the violence and chaos that produced  Dylan's

mental  injuries.  The superior court finding cited  above  shows

Judge Brown's view that Rick had not succeeded at controlling his

anger.   There was sufficient evidence to support this, including

Rick's  assault  of his girlfriend Stella in 2003  after  several

years  of  counseling.   We believe this behavior  is  a  legally

adequate  basis to conclude that he had not remedied the  conduct

that led to Dylan's mental injuries.

          Rick's  second argument is that things were not so  bad

for Dylan while he lived with Rick.  Specifically, he argues that

Dylan  was  not  present during any physical assaults  of  Rick's

spouses,  and  that he and Dylan lived mainly with  only  two  of

Rick's  girlfriends.  But the discussion in the preceding section

establishes  that things were bad indeed - i.e.,  the  conditions

were  sufficient to make Dylan a child in need  of  aid.   Rick's

attempt  to minimize the conduct that led to the adjudication  is

not  an independent argument about whether he ever remedied  that


          We  therefore conclude that the superior court did  not

err  in  its finding that Rick failed to remedy the conduct  that

led to Dylan's mental injuries.

     C.   Rick's Rights over Diane Were Properly Terminated.

          Rick  also challenges Judge Brown's findings that Diane

was  a  child in need of aid and that Rick failed to  remedy  the

conduct or conditions that harmed Diane.

          1.   The superior court properly found that Diane was a
               child in need of aid.
          Judge Brown found that Diane was a child in need of aid

based  on abandonment, AS 47.10.011(1), and based on neglect,  AS

47.10.011(9).   We  conclude that Judge  Brown  did  not  err  in

finding that Rick abandoned Diane, which makes it unnecessary  to

consider Rick's challenges to the neglect finding.

          Alaska  Statute 47.10.011(1) authorizes an adjudication

where  "a parent or guardian has abandoned the child as described

in  AS 47.10.013, and the other parent is absent or has committed

conduct or created conditions that cause the child to be a  child

in  need of aid under this chapter."  The mother relinquished her

parental  rights  to Diane and seriously neglected  her,  so  the

prerequisite related to "the other parent" is met.  The remaining

requirement is in AS 47.10.013(a), which provides:

               For  purposes of this chapter, the court
          may  find abandonment of a child if a  parent
          or  guardian has shown a conscious  disregard
          of parental responsibilities toward the child
          by  failing  to  provide reasonable  support,
          maintain  regular contact, or provide  normal
          supervision, considering the child's age  and
          need for care by an adult.
The  statute  goes  on to list certain instances  that  are  also

included  within the definition of abandonment;  among  these  is

where  the parent has "without justifiable cause . . . made  only

minimal efforts to support and communicate with the child."9   In

G.C.  v.  State, Department of Health & Social Services, Division

of Family & Youth Services, we interpreted section .013 to impose

a  two-part test: (1) there must be parental conduct evidencing a

"willful disregard" for parental obligations, leading to (2)  the

destruction  of the parent-child relationship.10  Rick  does  not

challenge  the  destruction  of  any  parent-child  relationship,

presumably  because of the uncontested evidence  that  Diane  was

unfamiliar  with  Rick and overtly rejected his  affection;  this

contrasted  with  her  attachment to her foster  mother  and  was

obviously  based at least partially on Rick's absences  from  her


          Instead, Rick's arguments focus on whether his  conduct

evidenced  a  "willful  disregard" for his parental  obligations.

Judge  Brown  found  that  Rick abandoned  Diane  by  failing  to

maintain  contact in the periods before and after the  supervised

visits  of  early 2003.  But Rick argues that it was unreasonable

to  expect  him to visit or care for Diane during  much  of  this

time, because his paternity was not confirmed until January 2002,

and  because he was incarcerated between March 2003 and  February


          We  reject Rick's arguments because there is undisputed

evidence  that  he  had  good reason to  believe  Diane  was  his

daughter dating back at least to May 2001, well before he went to

prison.  It was at that time that Rick referred to Diane  as  "my

child"  in court papers; he also sought custody on this basis  on

several  occasions before January 2002.  This does not show  that

Rick  was sure of his paternity before the January 2002 paternity

          test, but it does indicate he thought his paternity was at least

a  likely  possibility; in fact, OCS thought the  likelihood  was

high  enough  to give Rick a case plan to visit Diane  in  August

2001.   This means that Rick knew Diane might well be his  child,

was growing up without him, potentially in the same conditions of

neglect that led to his petition for a protective order after the

birthday party.  Under these circumstances, we think it  is  fair

to  say  that  Rick's failure to visit Diane during  this  period

constitutes a "conscious disregard" of parental obligations,  and

a  lack  of effort to communicate with Diane "without justifiable


          We  therefore think Rick's conduct in the period before

his  incarceration  was  sufficient to  sustain  the  abandonment

finding, but we note that the evidence also shows Rick's "willful

disregard"  of his parental obligations in the period during  and

after  his  prison sentence.  Rick failed to contact OCS  in  the

month after he was released from prison in February 2004, and  he

reacted negatively to OCS's case plan while in prison. Although a

parent  may  insist  that OCS communicate  through  the  parent's

lawyer, the tone of Rick's response ("I think you and your office

has  caused  me  enough stress and abuse by kidnaping  my  son.")

makes  it clear that Rick was not interested in participating  in

the  case plan, and by extension, not interested in visiting  his


          Finally, we reject an argument Rick makes based  on  AS

47.10.080(o).   This  statute  authorizes  courts  to   terminate

parental   rights   where  the  parent  "is  scheduled"   to   be

incarcerated for "significant" periods of time and the parent has

not  provided for any other caregiver.  Rick points out that this

statute  requires  findings that were  not  made  here,  such  as

whether  Rick's  period of incarceration was "significant."   But

the  statute  is merely an additional, independent authority  OCS

may  rely  on  to  terminate rights in cases where  the  parent's

incarceration itself is likely to injure the child in the future;

          it does not supplant AS 47.10.088(a)(1)(A) and 47.10.011(1)

(abandonment) as grounds for terminating the rights of  a  parent

who  has  been  previously incarcerated, and  who  has  willfully

disregard  parental obligations either before, during,  or  after

that incarceration.

          Based on the foregoing, we conclude that termination of

Rick's rights to Diane was properly based on abandonment under AS


          2.   Rick failed to remedy his abandonment of Diane.

          Judge  Brown  found  that Rick  failed  to  remedy  his

abandonment of Diane based on "the child's rejection and fear  of

her  father  which the child demonstrated during  visits."   Rick

argues that this finding was erroneous, because Diane's rejection

of  Rick "may well have been based on unrelated problems that had

occurred  in her mother's household."  It is plausible to  assume

that   Diane's  abuse  at  the  hands  of  her  mother  may  have

contributed  to her distrust of Rick, but it defies common  sense

to suppose that the rejection was not also based in major part on

Rick's  absence from her life.  For example, Diane seems to  have

bonded  quite  well with her foster mother.  Rick's  argument  is

speculative,  and  does not establish that  Judge  Brown  clearly

erred  in  his determination that Rick was to blame  for  Diane's


          An  additional  issue, not raised by Rick,  is  whether

Judge  Brown's  findings  constitute a  finding  that  Rick  "has

failed,  within  a  reasonable time, to  remedy  the  conduct  or

conditions  in the home that place the child in substantial  risk

so  that returning the child to the parent would place the  child

at  substantial  risk of physical or mental  injury"  within  the

meaning of the failure-to-remedy provision.12  Specifically,  the

question  is  whether  Judge  Brown's  findings  establish   that

reuniting  Diane with Rick would place the child  at  substantial

risk of a "mental injury."

          Our  cases  indicate  that  a parent's  willingness  to

          resume parental duties does not "remedy" abandonment if this

change  of heart comes too late for the parent to bond  with  the

child during the critical early phase of the child's life.13   In

M.W. v. State, Department of Health & Social Services, the father

said  he  was ready to resume a role in his daughter's life,  and

argued  that  under these circumstances there was no  failure  to

remedy  the  conduct that put the child at risk  of  harm.14   We

rejected this argument.  We noted expert testimony in the  record

in  that case that it was important for a child to bond with  its

parent  in  the  "early  months"  of  its  life;  we  also  noted

legislative findings indicating "the importance of expediting the

placement process for children under six years of age."15  On this

basis,  we  concluded  that  the  "parent's  attempt  to  resolve

abandonment by reappearing does not remedy the conduct unless the

attempt occurs within a reasonable amount of time."16

          We  believe the assumption underlying this decision  is

that,  where  a young child has lived without the  parent  for  a

significant  period  of  time, that  in  and  of  itself  may  be

sufficient evidence to establish that reunification would put the

child  at  "substantial risk of . . . mental injury"  within  the

meaning  of AS 47.10.088(a)(1)(B)(ii).  Here, there is no  expert

testimony about the importance of early bonding, but it was clear

that  Rick spent almost no time with Diane in the five  years  of

her  life  preceding  the  termination  trial.   There  was  also

compelling evidence of Diane's "rejection and fear of her father"

during  the  brief supervised visits that did occur   We  believe

this  rejecting  behavior  indicates the  mental  injury  clearly

enough to establish Rick's failure "within a reasonable time"  to

remedy  the  conduct  that  led to Diane's  mental  injury,  even

assuming Rick were ready to assume custody or visitation of Diane

today.   We  therefore find no error in Judge Brown's failure-to-

remedy finding.


          We AFFIRM the judgments of the superior court.

     1    Pseudonyms have been used to protect the privacy of the

     2     According to the caseworker who received the note  and
appeared to read from it at trial, Rick said, "I do not  wish  to
receive any type of forms or letters from you.  Please contact me
through  my  [attorney] . . . .  I think you and your office  has
caused  me  enough  stress  and  abuse  by  kidnaping  my   son."
According to court papers submitted by Rick's attorney, the  case
plan covered Diane as well Dylan.

     3     AS 47.10.088(a)(1)(A).  Where as here the parents have
previously stipulated that a child should be adjudicated as being
in  need  of  aid,  OCS still has the burden of  proving  in  the
subsequent termination proceeding that the children were in  need
of  aid  by  the "clear and convincing" standard.   See  D.M.  v.
State,  Div. of Family & Youth Servs., 995 P.2d 205, 208  (Alaska

     4    AS 47.10.011(8)(A).

     5    AS 47.10.011(1).

     6    AS 47.10.088(a)(1)(B).

     7     E.g.,  G.C.  v. State, Dep't of Health & Soc.  Servs.,
Div. of Family & Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003).

     8    Id.

     9    AS 47.10.013(a)(2).

     10    67 P.3d 648, 651-52 (Alaska 2003).

     11    AS 47.10.013(a) & (a)(2).

     12    AS 47.10.088(a)(1)(B)(ii).

     13     See M.W. v. State, Dep't of Health & Soc. Servs.,  20
P.3d 1141 (Alaska 2001).

     14    Id. at 1145.

     15    Id. (footnote omitted).

     16    Id.