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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Shirley M. v. State, Dept. of Health & Social Services, Office of Children's Services (1/9/2015) sp-6979

Shirley M. v. State, Dept. of Health & Social Services, Office of Children's Services (1/9/2015) sp-6979

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



SHIRLEY M.,                                          )  

                                                     )        Supreme Court No. S-15472  

                  Appellant,                         )  

                                                     )        Superior Court No. 3AN-12-00379 CN  

         v.                                          )  

                                                     )       O P I N I O N  

STATE OF ALASKA,                                     )  

DEPARTMENT OF HEALTH &                               )       No. 6979 - January 9, 2015  

SOCIAL SERVICES, OFFICE OF                           )  

CHILDREN'S SERVICES,                                 )  


                  Appellee.                          )  

_______________________________ )  

                  Appeal from the Superior Court of the State of Alaska, Third  

                  Judicial District, Anchorage, Erin B. Marston, Judge.  

                  Appearances:        Randall      S.   Cavanaugh,         Kalamarides        &  

                  Lambert, Anchorage, for Appellant.  David T. Jones, Senior  

                  Assistant  Attorney  General,  Anchorage,  and  Michael  C.  


                  Geraghty, Attorney General, Juneau, for Appellee.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  STOWERS, Justice.  


                  Shirley M. appeals termination of her parental rights to her child, Abigail,  


on the grounds that the trial court erred in finding that:  (1) Shirley failed to remedy the  


conduct that put Abigail at risk of harm; (2) the Office of Children's Services (OCS)  


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made reasonable efforts to provide services to reunify the family; (3) termination was in   

Abigail's best interests; and (4) OCS did not abuse its discretion in placing Abigail with         

her foster parents and not her great-grandmother, Rae. We affirm the decision of the trial          



           A.         The Family And Its History With OCS  


                                   is the mother of Abigail, born in April 2010.  For many years  


violence,  prostitution,  reported  substance  abuse,  and  other  crimes  have  consumed  


Shirley's life.  Abigail is Shirley's fifth child:  Haily was born in 2002, Daisy was born  


in 2003, Penny was born in 2005, and Andrew was born in 2008.  Shirley's involvement  

with  OCS  began  in  April  2003,  long  before  Abigail's  birth.    In  March  2004  OCS  

received a high priority report that the father of Shirley's older children was abusing  

Haily.  OCS removed the children but later returned them with in-home services and  

custody supervision.  OCS made a referral for in-home services, including parenting  


training  for  both  parents.    Although  the  family  participated  in  the  services,  OCS  


continued to have concerns.  In June 2005 OCS considered removing the children from  


the home again after receiving another report that the father was abusing Haily.  Shortly  


after Penny was born OCS petitioned to place the three children under supervision.  Not  


long after that, Penny died due to asphyxiation. It was suspected that Shirley rolled over  

onto  Penny  when  the  family  was  sleeping  in  a  tent  in  the  yard  at  Rae's  residence.  

According to the social worker who saw Haily and Daisy the day they were removed  


from Shirley's care, the children had low muscle tone and few speech skills.  The social  


worker also reported that the children were generally unruly, screaming and trying to  

break things, and hitting and pinching each other.  

           1          Pseudonyms have been used to protect the privacy of the parties.  

                                                                    -2-                                                                 6979  

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                     OCS arranged for Shirley to complete a psychological assessment, which  


took place in April 2006 with clinical psychologist Dr. Michael Rose.  After conducting  


multiple screening tests and an interview with Shirley, Dr. Rose concluded that she had  


a  personality  disorder  and  was  not  competent  to  parent  her  children  effectively.  

According to Dr. Rose, Shirley had significant psychological problems, including issues  


with  impulse  control,  difficulty  with  anger  management,  aggression,  feelings  of  

insecurity,  difficulty  with  relationships,  and  mistrust.    She  blamed  others  for  her  

problems, exhibiting anti-social, schizoid, or borderline personality features and possibly  


psychotic thinking processes. In spite of her attempts to present herself favorably during  


the evaluation, she showed elevated signs of abuse, distress, and rigidity, indicating a  


high risk of dysfunctional parenting; a second screening test showed a high probability  


of substance dependence.  Dr. Rose diagnosed Shirley with adjustment disorder with  


mixed disturbance of emotions, and borderline personality disorder as well as severe  

psychosocial stressors.  Dr. Rose recommended long-term individual psychotherapy,  


such  as  dialectical  behavior  therapy,  which  is  a  form  of  cognitive  behavior  therapy  

designed  for  individuals  with  borderline  personality  disorder  or  mood  disorders.  


According to Dr. Rose, this therapy usually takes at least one year for changes to be seen,  

and for someone with borderline personality disorder, treatment often takes several years.  


                     Shirley relinquished her parental rights to Haily and Daisy in 2007 and the  

children  were  adopted.    Meanwhile,  Shirley  was  running  an  escort  service  and  had  



several women working for her.                     Andrew was born in early 2008, but OCS took custody  


of him at ten days of age because Shirley had not engaged in OCS services and, after an  


unannounced home visit, Shirley's home was deemed unsafe for Andrew.  Shirley's  

          2          Shirley has been convicted of prostitution twice.  

                                                                -3-                                                              6979  

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parental  rights  to  Andrew  were  eventually  terminated  and  his  paternal  grandmother  

adopted him.  

                      B.         Shirley And Abigail  

                      Abigail was born in the spring of 2010.  In May 2011 an OCS investigator  

received a protective service report alleging that Shirley was physically abusing Abigail,         


prostituting from her home, and using drugs while breast-feeding.  Although OCS was  

unable to substantiate this report, OCS received another report in October 2012 and  


confirmed that Shirley was still or again engaging in prostitution.  Things came to a head  

in  early  November  2012;  on  November  1  and  2,  OCS  received  several  calls  from  


Abigail's paternal aunt, who was babysitting Abigail. Abigail had awoken with a fever,  

and her aunt gave her some cold medicine.  Several hours later, the fever spiked and they  

went to Providence Alaska Medical Center.  Abigail had a seizure on the way to the  


hospital.  Shirley arrived at the hospital and caused a scene. Toxicology results indicated  

Abigail had been exposed to methamphetamine.  Because of concerns that Abigail's  


seizure was caused by a drug overdose, OCS scheduled a urinalysis (UA) for Shirley, but  


Shirley failed to comply.  Abigail's seizure was later believed to be caused by her high  

fever and a genetic condition.  

                      An OCS representative met with Shirley to discuss her recent behavior.  


Shirley implied that she had stopped engaging in prostitution but had started again two  


months earlier because she needed money.  Shirley blamed Abigail's aunt for Abigail's  

suspected exposure to drugs.  


                      On November 3 OCS filed an emergency petition for adjudication of child  


in need of aid and for temporary custody of Abigail alleging that Abigail was a child in  

                                                                      -4-                                                              6979

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need of aid under AS 47.10.011(6), (7), (8), (9), (10), and (11).   Abigail was placed in  


foster care upon her discharge from the hospital.  Six months later, OCS filed a petition  


for termination of parental rights on the grounds that Shirley had subjected Abigail to  

                                                                                   4       5 


conditions or conduct described in AS 47.10.011(1),  (4),  (6), (9), (10), and (11); that 


Shirley had not remedied her conduct within a reasonable time; and that termination of  

Shirley's parental rights was in Abigail's best interests.6  

           C.        Shirley's Behavior And OCS's Efforts  

                     OCS transferred Shirley's case to protective service specialist Michelle  

Virden, who had been involved with Shirley and her children since 2004.  Virden met  

with Shirley and initiated a case plan; this case plan followed a long line of case plans  


OCS had initiated with Shirley over the years.  This plan, effective in January 2013,  

identified the following safety threats to Abigail:  (1) there was no adult in the home  

          3          Alaska Statute 47.10.011 provides in pertinent part that the trial court may  

find a child to be a child in need of aid if it finds by a preponderance of the evidence that  


the child has been subjected to: (6) substantial physical harm or risk of physical harm as  


a result of conduct by or conditions created by the parent; (7) sexual abuse or substantial  

risk of sexual abuse as a result of the parent's conduct; (8) conduct or conditions created  


by the parent resulting in mental injury or substantial risk of mental injury; (9) neglect  


created or caused by the parent; (10) the parent's substantial impairment or addictive or  


habitual use of an intoxicant resulting in harm or risk of harm; and (11) the parent's  

mental illness or serious emotional disturbance or mental deficiency placing the child at  


risk of harm.  



                     Under AS 47.10.011(1), the trial court may find a child to be a child in need  


of aid if it finds by a preponderance of the evidence that the child has been abandoned.  



                     Under AS 47.10.011(4), the trial court may find a child to be a child in need  


of  aid  if  it  finds  by  a  preponderance  of  the  evidence  that  the  child  needs  medical  


treatment  to  cure,  alleviate,  or  prevent  substantial  physical  harm  or  is  in  need  of  


treatment for mental injury and the parent has knowingly failed to provide the treatment.  



                     Abigail's father relinquished his parental rights to Abigail in early 2013.  

                                                                  -5-                                                           6979

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performing parenting duties; (2) Shirley was unable to control her behavior and lacked  

parenting  skills;  (3)  Shirley  was  engaging  in  prostitution  and  drug  abuse  and  was  


associating with other prostitutes and drug users; and (4) Shirley or someone she trusted  


with Abigail exposed Abigail to methamphetamine.  During the meeting Shirley denied  

using  methamphetamine.    The  case  plan  established  goals  that  Shirley  be  a  sober  

caregiver,  have  appropriate  housing,  make  safe  decisions  for  Abigail,  manage  her  

hostility, change her impulsive behavior, and address her victimization issues.  Shirley  


indicated to Virden that she did not believe she had significant psychological problems  

and that she felt she had done everything she needed to do for OCS.  


                     Shirley did not show up for a single scheduled UA despite the case plan  


requirements that she submit to UAs.  Eventually OCS requested that Shirley submit to  


a hair follicle test to establish whether she was using methamphetamine during the time  


Abigail was hospitalized.  Because Shirley refused, OCS had to obtain a court order for  


a hair sample test and UA.  In March 2013 Virden drove Shirley to the lab for a hair  

follicle test, which was positive for methamphetamine.  

                     Shirley  actively  avoided  contact  with  OCS.    She  gave  Virden  an  old  


address, which caused Shirley to miss a pre-arranged home visit.  It was not until April  


2013, after Shirley was arrested and charged with vehicle theft, assault, failure to stop  


at the direction of a police officer, and eluding a police officer,  that Shirley showed any  


intention of getting Abigail back.   While awaiting disposition of the criminal case,  

Shirley was incarcerated at Hiland Mountain Correctional Center.  During that time  

Virden and Shirley met to discuss options for substance abuse treatment and mental  


health therapy, and to develop a new case plan.  Shirley began therapy and began taking  




                    After Shirley was arrested she informed OCS that she was involved with  


a dangerous person who she was concerned might retaliate against her and harm Abigail.  

To protect Abigail, OCS kept confidential Abigail's contact information.  

                                                                -6-                                                              6979  

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medication to help control her moods and temper, and in compliance with the new plan,  


she participated in the prison's parenting classes, took her medication, and participated  


in  services  provided  upon  her  release.    The  new  plan  also  provided  that  clinical  


psychologist Dr. Melinda Glass would conduct a mental health evaluation, which took  


place while Shirley was incarcerated. Just as Dr. Rose had concluded in 2006, Dr. Glass  


concluded in 2013 that Shirley's mental illness, chaotic lifestyle, and parenting choices  


demonstrated her need for substance abuse treatment and long-term dialectical behavior  



                    In  August  2013  Shirley  was  released  from  Hiland  Mountain  to  live  in  


Sterling with Rae as her third-party custodian.  Based on Dr. Glass's evaluation, Virden  

referred  Shirley  to  Akeela  House  for  a  substance  abuse  assessment,  but  dialectical  


behavior therapy was not an option on the Kenai Peninsula.  Although Virden did find  

a provider in Anchorage who would conduct the recommended therapy on a sliding fee  


scale, Shirley decided to go to Serenity House Treatment Center in Soldotna because of  

its proximity to Rae's home.  But Shirley could not comply with the Serenity House  


outpatient treatment requirements because Rae was unable to drive her  to  all of her  

appointments or Shirley had to leave half way through her 90-minute appointments  


because Rae had other things to do.  So when a bed became available in late November  


2013,  Shirley  moved  into  Serenity  House's  residential  treatment  center.    Shirley  


successfully completed residential treatment but was discharged from the program in  

January 2014 so she could attend the termination trial.  She requested continuation of  

services to complete treatment after the termination trial.  Shirley's primary counselor  

at Serenity House testified at trial that Shirley had made progress but would need more  


time to change; she was on step four of a 12-step program and required further intensive  


outpatient treatment.  Dr. Glass similarly testified that based on her review of Shirley's  

                                                                -7-                                                         6979

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treatment  records  from  Serenity  House,  Shirley  still  needed  at  least  one  year  of  

dialectical behavior therapy and substance abuse treatment.  

          D.        Abigail's Care And Placement  


                    Abigail has significant special needs, including severe tremors, low muscle  


tone,  delayed  fine  motor  skill  development,  and  symptoms  of  post-traumatic  stress  


disorder (PTSD).  Abigail has trouble moving from one activity or place to another;  


when she is in transition or among strangers, she freezes and needs a few minutes to  

figure  out  what  is  going  on  and  whether  she  is  safe,  or  she  throws  an  intense,  ear- 


piercing,  screaming  tantrum.    OCS  arranged  neurological  and  neuropsychological  


examinations and an evaluation and services from Programs for Infants & Children. OCS  


tried  to  involve  Shirley  in  Abigail's  treatment  but  Shirley  did  not  attend  Abigail's  

medical and dental appointments or her numerous evaluations, therapy sessions, and  

education planning meetings.  

                    Abigail's   foster   mother,   Mandy   Reed,   testified   at   trial   about   her  


qualifications as a licensed foster parent, her relationship with Abigail, and the care  

Abigail requires.  Mandy has a master's degree in public health, and she works as a nurse  


for people with disabilities.  She and her husband live with their two teenage sons and  


three foster children including Abigail.  Mandy's testimony provided additional insight  


into Abigail's disabilities. Abigail has significant motor skill delays, speech delays, and  


dental problems. She cannot feed or dress herself because of her severe tremors and low  

muscle tone.  She has trouble negotiating obstacles and frequently falls.  Mandy testified  


that although Abigail is sweet and charming, she is hyper-vigilant about who is near her  


and what they are doing, and she is prone to running away.  She is easily distracted and  

thus unaware of safety matters such as cars in the street.  

                    Abigail attends weekly play therapy through the Alaska Community Mental  


Health Services' child trauma project to address her PTSD and the resulting tantrums.  

                                                               -8-                                                         6979

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She also attends a special education preschool five mornings a week, as well as weekly  

speech therapy and occupational therapy.  At home Mandy and Abigail work together  


on speech and occupational therapy.  Abigail refers to Mandy as "mom" and enjoys  

being with the other family members and pets.  

                    Before   OCS   filed   the   termination   petition   it   considered   placement  


possibilities for Abigail, taking into account her special needs and Shirley's preferences.  

Shirley requested that Abigail be placed with Rae.  OCS agreed to investigate Rae's  


home as a placement option, but because OCS was advised that Rae was not considered  

Abigail's  "grandparent"  for  placement  purposes,  OCS  had  not  treated  Rae  as  a  



grandparent and had not been in contact with Rae about Abigail until April 2013. 


denied Shirley's request and eventually placed Abigail in foster care  with the Reed  


family in September 2013.  Shirley renewed her motion for review of OCS's denial of  


her placement request in early September, just a few months before the termination trial.  

          E.	       The  Termination  Trial,  The  Placement  Hearing,  And  The  Trial  

                    Court's Decision  


                    A termination trial was held on January 21-23 and February 3, 2014, before  


Superior Court Judge Erin B. Marston. At that time, Shirley still had four felony charges  


pending, including vehicle theft, and she faced two to three years in prison if convicted.  

The court heard testimony from OCS representatives, doctors who had evaluated Shirley,  

Mandy, Shirley, and Rae.  At the end of trial the court issued an oral decision terminating  


Shirley's  parental  rights  to  Abigail,  followed  by  its  written  order  memorializing  its  


decision.  The trial court found clear and convincing evidence that Abigail was a child  

          8         As we discuss in part IV, OCS is required to place a child with an "adult     

family member," and "adult family member" is defined in pertinent part as "the child's  

'grandparent.' "  AS 47.14.100(e)(3), (t); AS 47.10.990(1)(A).  Rae is Abigail's great- 


grandmother,  and  under  a  technical  reading  of  the  statutory  definition,  Rae  is  not  a  

statutorily preferred placement.  

                                                              -9-	                                                       6979

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in need of aid pursuant to AS 47.10.011(1), (4), (6), (9), (10), and (11); that Shirley  


failed to remedy the conduct or conditions that placed Abigail at substantial risk of  

injury; and that OCS made timely reasonable efforts to provide family support services     

towards reunification.  The trial court also found by a preponderance of the evidence that  

termination of Shirley's parental rights to Abigail was in Abigail's best interests.  


                      The trial court also conducted a placement review hearing at the conclusion  

of the termination trial and made findings regarding placement.  In support of OCS's  

decision  not  to  place  Abigail  with  Rae,  Virden  explained  that  OCS  had  denied  the  


request due to ongoing safety concerns, Shirley's long history of living in and out of  


Rae's home, and Abigail's special needs.  Virden did not believe Rae could adequately  

meet Abigail's special needs, and she felt that Rae either did not understand or was in  


denial  about  Shirley's  behavior  and  her  children's  needs.    OCS  previously  had  


investigated requests and denied Rae placement of Shirley's other children for the same  



                      Rae testified about her qualifications as a potential placement for Abigail  


and gave her opinion as to Shirley's parenting abilities.  At the time of trial, Rae was 67  

years  old  and  believed  she  was  in  good  health.    She  had  worked  for  23  years  as  a  


certified caregiver in Sterling taking care of a family friend with Down's syndrome.  Her  


job  required  cooking,  cleaning,  helping  with  exercise,  driving  to  and  from  medical  

appointments, paperwork, and general care.  

                      Although  Shirley  had  lived  with  Rae  off  and  on  for  many  years,  Rae  

claimed  that  she  was  not  aware  of  Shirley's  drug  problem.    Nor  did  Rae  accept  as  

accurate Penny's autopsy report.  Instead, she firmly believed that Penny died from  

carbon monoxide because the family truck emitted  noxious  fumes.  Rae considered  


 Shirley to be a very loving and good mother.  Rae's testimony also revealed that she did  


not know the extent of Abigail's special needs or what would be required of her if she  

                                                                  -10-                                                             6979

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had custody of Abigail. Although Rae did not explain how she would handle her current  


job and custody of Abigail, she said she would relocate to Soldotna if necessary to be  


near facilities for Abigail and would abide by any restrictions regarding contact with  



                    The  trial  court  found  clear  and  convincing  evidence  that  continuing  


Abigail's placement in licensed foster care with the Reed family was appropriate and in  


Abigail's best interests, and that OCS did not abuse its discretion by denying placement  


with Rae.  The trial court elected not to make a finding whether a great-grandmother falls  

under the statutory relative preference but instead found that OCS had good cause to  

deny  placement  with  Rae,  primarily  because  of  Abigail's  special  needs  and  Rae's  


inability to meet those needs. Shirley appeals both the termination of parental rights and  

the trial court's upholding of OCS's placement decision.  


                    In a child in need of aid (CINA) case, "we review the trial court's factual  


findings for clear error and its legal determinations de novo."   "Factual findings are  

clearly erroneous if, after a review of the entire record in the light most favorable to the  


prevailing party, we are left with a definite and firm conviction" that a mistake has been  


made.           "Conflicting  evidence  is  generally  not  sufficient  to  overturn  a  trial  court's  

factual  findings,  and  we  will  not  reweigh  evidence  when  the  record  provides  clear  

          9         Emma D. v. State, Dep't of Health & Soc.  Servs., Office of Children's   

Servs., 322 P.3d 842, 849 (Alaska 2014) (citations and internal quotation marks omitted).  

          10        Id. (citation and internal quotation marks omitted).  

                                                              -11-                                                           6979  

----------------------- Page 12-----------------------


support for a trial court's ruling."              Whether the trial court's factual findings satisfy the  


CINA statutes is a question of law.12  


                   We review the superior court's finding of good cause to deviate from . . .  


                                                                          "It would be an abuse of discretion  

placement preferences for an abuse of discretion." 

for a superior court to consider improper factors or improperly weigh certain factors in  


making its determination."14  


         A.	       The Trial Court Did Not Clearly Err In Finding That Shirley Failed  

                   To Remedy Her Conduct Within A Reasonable Time.  

                   Before  terminating  parental  rights,  a  trial  court  must  find  by  clear  and  

convincing  evidence  that  the  parent  has  not  remedied  within  a  reasonable  time  the  

conduct or conditions in the home that placed the child at substantial risk of harm.15  


Whether the parent has remedied the conduct is a factual determination best made by a  



trial  court  after  hearing  witnesses  and  reviewing  evidence.                           A  reasonable  time  is  


statutorily defined as "a period of time that serves the best interests of the child, taking  

          11	      Id . (citation and internal quotation marks omitted).  

          12       Casey  K.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  

Servs., 311 P.3d 637, 643 (Alaska 2013) (citing J.S. v. State , 50 P.3d 388, 391 (Alaska  



          13       Native Vill. of Tununak v. State, Dep't of Health & Soc. Servs., Office of  

Children's Servs., 303 P.3d 431, 440 (Alaska 2013) (citing In re Adoption of Sara J. , 123  

P.3d 1017, 1021 (Alaska 2013)).  

          14       Id. (quoting Sara J., 123 P.3d at 1021).  

          15       AS 47.10.088(a)(2).  

          16       Ralph  H.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  

Servs., 255 P.3d 1003, 1008-09 (Alaska 2011) (citation omitted).  

                                                          -12-	                                                    6979

----------------------- Page 13-----------------------

in account the affected child's age, emotional and developmental needs, and ability to  

form and maintain lasting attachments."17  In determining whether a parent has remedied  


her conduct in a reasonable time, the trial court may consider any fact relating to the best  


interests  of  the  child.              Where  OCS  has  had  significant  involvement  with  a  parent  


relating to the parent's previous children, we have upheld termination of parental rights  


even when the termination petition was filed very shortly after OCS took custody of the  


child currently at risk.               These decisions are made in light of the legislature's finding  


"that children undergo a critical attachment process before the age of six, and 'suffer  

tremendously when their bonding processes are interrupted.' "20  


                     The trial court found clear and convincing evidence that Shirley failed,  


within a reasonable time, to remedy the conduct or conditions that placed Abigail at risk.  

          17        AS 47.10.990(28).  

          18        AS 47.10.088(b).  

          19        See Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's               

Servs., 234 P.3d 1245, 1251-52, 1263-64 (Alaska 2010) (affirming termination judgment  

where petition was filed one month after child's birth, based in part on trial court's  


finding that parent failed to remedy substance abuse issues in a reasonable time, given  


her  history  of  substance  abuse  and  relapses,  the  questionable  degree  to  which  she  

accepted her substance abuse problems, and the trial court's credibility findings); see  

also Amy M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 320 P.3d  


253,  257-58  (Alaska  2013)  (upholding  trial  court's  finding  of  failure  to  remedy  

substance abuse, where the termination petition was filed three months after the child's  


birth, and the trial court found that the mother had a ten-year substance abuse history and  


relapses,  failed  to  take  concrete  steps  toward  obtaining  the  long-term  residential  

treatment  required  by  her  current  case  plan,  and  OCS  had  already  spent  several  

unsuccessful years working with the mother regarding her previous children).  

          20        Amy M. , 320 P.3d at 259 (quoting Martin N. v. State, Dep't of Health &  

Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 56 (Alaska 2003) (explaining that  


a child's need for permanency must reasonably limit the length of time accorded to the  

parent to remedy her behavior)).  

                                                               -13-                                                          6979

----------------------- Page 14-----------------------


The  trial  court  was  concerned  that  even  though  OCS  took  custody  of  Abigail  in  

November 2012, Shirley did not start working her case plan seriously until she was  


arrested months later.  Given Shirley's long history of OCS involvement and that she  


clearly knew  or  should have known what was expected of her to regain custody of  


Abigail, the trial court was disturbed that Shirley began a methamphetamine habit while  


she was on bail for felony charges.  The trial court also pointed out that Shirley failed to  


comply with both Dr. Rose's 2006 recommendation of long-term individual therapy and  

cognitive  behavior  training,  and  Dr.  Glass's  2013  recommendation  of  dialectical  


behavior therapy and long-term care.  Based on Dr. Glass's evaluation and testimony,  


the trial court found that Shirley had not improved her life but in fact had made it worse,  

and she was in no condition to parent a child.  

                    Shirley argues that the trial court erred in finding that she had not remedied  


the  issues  set  forth  in  the  petition  in  a  timely  fashion  because  she  made  substantial  


progress on her case plan but was not allowed sufficient time to engage meaningfully in  


treatment.  Shirley maintains that at the time of trial, she was no longer was escorting or  

using  drugs,  and  she  was  engaging  in  mental  health  counseling,  substance  abuse  

treatment, and parenting classes.  

                    The record supports the trial court's finding of failure to timely remedy.  

Although it is true that OCS filed the termination petition only six months after taking  


custody of Abigail, the petition was based on OCS's many years of experience with  

Shirley  involving  her  other  children,  followed  by  six  months  of  Shirley's  failure  to  


participate in her case plan involving Abigail.                            Before Shirley was incarcerated, she  

          21        Cf. Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 322 P.3d 842, 853 (Alaska 2013) (upholding trial court's finding that mother  


failed to remedy her conduct in a reasonable time, based on the child's age and the  



                                                              -14-                                                             6979  

----------------------- Page 15-----------------------


refused to participate in a single UA, and her court-ordered hair follicle test was positive  


for methamphetamine.  She also failed to maintain regular contact with Abigail and  


actively avoided contact with OCS.  Not only did  Shirley continue to live a chaotic  

lifestyle and engage in criminal behavior, she also habitually used methamphetamine  

while Abigail was in OCS custody.  It was not until Shirley's incarceration that she made  


any effort towards following her case plan and improving her life.  While these recent  

changes are commendable, the trial court did not clearly err in finding that Shirley's  


efforts came too late,  given the clear evidence of Abigail's age and significant special  


          B.	       The  Trial  Court  Did  Not  Err  In  Concluding  That  OCS  Made  

                    Reasonable Efforts Towards Reunification.  


                    Before terminating parental rights, the trial court must find by clear and  


convincing evidence that OCS made timely, reasonable efforts to provide family support  


services to the child and parents designed to prevent out-of-home placement or enable  

                                                                    22  Whether OCS made reasonable efforts  


the safe return of the child to the family home. 


to  promote  reunification  is  a  mixed  question  of  law  and  fact.                               OCS's  statutorily  


mandated duties include the duty to:  (1) identify family support services that will assist  


the parent in remedying her conduct; (2) actively offer and refer the parent to the services  



identified;  and  (3)  document  the  department's  actions.                                  OCS's  duty  to  offer  

reunification services "is fulfilled by setting out the types of services that a parent should  



parent's lack of progress); see also Christina J. v. State, Dep't of Health & Soc. Servs.,  


Office of Children's Servs., 254 P.3d 1095, 1105-07 (Alaska 2011).  

          22        AS 47.10.086(a); AS 47.10.088 (a)(3).  

          23        Emma D., 322 P.3d at 849 (citation omitted).  

          24        AS 47.10.086(a).  

                                                             -15-	                                                       6979

----------------------- Page 16-----------------------

avail  .  .  .  herself  of  in  a  manner  that  allows  the  parent  to  utilize  the  services."25  


Reunification  efforts  need  not  be  perfect;  they  need  only  be  reasonable  under  the  


circumstances depending upon: the parent's substance abuse history, if there is one; her  

                                                             26                                                                   27 


willingness to participate in treatment;                         the history of services provided by OCS;                            and  


the parent's level of cooperation with OCS's efforts.                                     The reasonableness of OCS's  

efforts may also depend on the parent's expressed interest in parenting, with OCS's  



responsibility for reunification efforts decreasing as the parent's interest decreases. 


OCS's prior efforts on behalf of other children in the family are relevant to whether OCS  

has satisfied its requirements.30  


                     Here, the trial court found clear and convincing evidence that OCS's efforts  

towards reunification were reasonable but unsuccessful.  The court considered Shirley's  

history and prior involvement with OCS regarding her four other children, noting the  

multiple case plans and referrals for evaluation, treatment, and parenting classes.  The  

           25        Audrey H. v. State, Office of Children's Servs.                           , 188 P.3d 668, 679 (Alaska   

2008) (quoting Frank E. v. State , 77 P.3d 715, 720-21 (Alaska 2003)).  

           26        Amy M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  


320 P.3d 253, 259 (Alaska 2013) (citations omitted).  

           27        Audrey H. , 188  P.3d at 679 n.35 (Alaska 2008) ("the determination of  


whether  OCS  made  reasonable  efforts  may  involve  consideration  of  all  interactions  

between the parent and OCS"); see also Ralph H. v. State, Dep't of Health & Soc. Servs.,  


Office  of  Children's  Servs.,  255  P.3d  1003,  1006  (Alaska  2011)  (upholding  an  


adjudication of children as in need of aid based in part upon OCS's prior contact with the  





                     Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's  

Servs., 310 P.3d 943, 953 (Alaska 2013) (citations omitted).  

           29        Audrey H. , 188 P.3d at 679 (citation omitted).  

           30        Amy M. , 320 P.3d at 260; Sherman B., 310 P.3d at 953.  

                                                                  -16-                                                             6979

----------------------- Page 17-----------------------

trial court pointed out that while OCS was attempting to develop a schedule to implement  


some structure in the children's lives, the parents were more interested in watching  


television.  The trial court remarked that, through many case plans and for many years,  


OCS  social  workers  provided  Shirley  with  assistance,  opportunities  for  counseling,  


referrals  for  substance  abuse  evaluation  and  treatment,  and  transportation  to  UAs.  

                     Shirley argues that the trial court erred in finding that OCS made reasonable  

efforts because neither OCS nor the court took into account the limitations Shirley's  

cognitive impairments put on her ability to understand and comply with the case plan.  


Shirley  argues  that  OCS  should  have  tailored  the  plan  to  address  her  needs  and  

intellectual abilities as documented by Dr. Rose and Dr. Glass, should have provided  


Shirley's treatment providers with the case plan, and should have provided Shirley with  


better ways to understand the plan, such as checklists.  In support Shirley cites Lucy J.  


v. Department of Health & Social Services, Office of Children's Services , in which we  


addressed a mother's disabilities and stated that "[i]n order to 'take[] the client through  


the steps of reunification' in a way that will satisfy the active efforts requirement [under  


the Indian Child Welfare Act], OCS must reasonably tailor those steps to the client's  

                                      31   Although the efforts required of OCS are less stringent in this  

individual capabilities."                                                                                         

case because it does not involve an Indian child,32  OCS is nonetheless required to take  


into   account   the   parent's   limitations   or   disabilities   and   make   any   reasonable  



           31         244 P.3d 1099, 1116 (Alaska 2010) (second alteration in original) (quoting     

Wilson W. v. State, Office of Children's Servs., 185 P.3d 94, 101 (Alaska 2008)).  

           32        Compare 25 U.S.C.  1912(d) (2012), and CINA Rule 18(c)(2)(B), with  


AS 47.10.088(a)(3), and CINA Rule 18(c)(2)(A).  

           33        Lucy J. , 244 P.3d at 1116 (citing In re Terry , 610 N.W.2d 563, 570 (Mich.  


                                                                 -17-                                                            6979

----------------------- Page 18-----------------------

                    The record supports the trial court's conclusion that OCS made reasonable           

efforts  to  reunite  Shirley  and  Abigail  and  that  OCS  took  Shirley's  limitations  into  


consideration in initiating and working through her case plans. Years before Abigail was  

born, OCS began providing Shirley in-home services, parenting training, a psychological  


evaluation, and case plan development, despite Shirley's apparent lack of interest.  After  


taking custody of Abigail, OCS met with Shirley and developed updated case plans,  

arranged  for  drug  testing,  referred  her  to  additional  psychological  evaluation  and  

counseling,  provided  a  bus  pass,  attempted  a  home  visit,  and  visited  her  in  jail  on  

multiple  occasions  to  continue  services  and  generate  case  evaluations.    OCS  also  

provided  Shirley  with  a  referral  to  Akeela  House  for  substance  abuse  assessments.  

Through the Department of Corrections, Shirley received additional parenting training,  

counseling   and   medication   for   her   mental   health   treatment,   a   substance   abuse  


assessment, and substance abuse therapy.  Upon Shirley's release from incarceration,  


OCS provided referrals for the recommended long-term therapy and substance abuse  


treatment, paid for additional substance abuse assessments, and provided Serenity House  


copies of her most recent case plan and of Dr. Glass's report.  OCS also arranged visits  

between  Abigail  and  Shirley,  provided  Abigail  with  physical  and  psychological  

evaluations, arranged therapy and services, and provided for Abigail's medical needs.  


Shirley's case workers made sure that Shirley knew about the case plans and knew what  


needed to be done.  As the trial court noted, Shirley had clear notice that she needed to  


change given the earlier termination of parental rights to her first two children.  We  

conclude that the trial court did not err in determining that OCS's efforts were timely and  



App. 2000); In re Antony B. , 735 A.2d 893, 899 n.9 (Conn. App. 1999)).  

                                                             -18-                                                          6979  

----------------------- Page 19-----------------------


           C.	       The Trial Court Did Not Clearly Err In Finding That Termination Of  

                     Shirley's Parental Rights Was In Abigail's Best Interests.  


                     Alaska Statute 47.10.088(c) requires a court to consider the best interests  

of the child in a proceeding involving termination of parental rights.  Alaska Child in  


Need of Aid Rule 18(c)(3) specifies that a trial court may terminate parental rights only  


if it finds by a preponderance of the evidence that termination is in the child's best  

interests.  In making a best interests determination, the trial court may consider any fact  

relating to the best interests of the child, including but not limited to:  


                     (1) the likelihood of returning the child to the parent within  

                     a reasonable time based on the child's age or needs;  


                     (2) the amount of effort by the parent to remedy the conduct  

                     or conditions in the home;  

                     (3) the harm caused to the child;  


                     (4) the likelihood that the harmful conduct will continue; and  

                     (5)  the history of conduct by or conditions created by the  



The factors listed in the statute are not exclusive, and the trial court need not accord a  

particular weight to any given factor.35  


                     The trial court found by a preponderance of the evidence that termination  


of  Shirley's  parental  rights  was  in  Abigail's  best  interests  because  of  Abigail's  


undisputed special medical and mental health needs and her foster family's demonstrated  


ability to provide the support, love, and care Abigail needed.  The court found that it was  


impossible for Shirley to meet Abigail's special needs care and moreover that Shirley did  

not seem to recognize the existence or extent of Abigail's special needs.  Therefore,  

          34         AS 47.10.088(b).  

          35         Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's   

Servs.,  234 P.3d 1245, 1263 (Alaska 2010).  

                                                                -19-                                                               6979  

----------------------- Page 20-----------------------

because of Abigail's struggles with transition and her need for routine, predictability, and  

a stable lifestyle, the trial court found that returning Abigail to Shirley would put Abigail  


in serious physical and mental jeopardy.  


                    Shirley argues that the trial court erred in finding that termination of her  


parental rights was in Abigail's best interests because her offending conduct was short  

in duration given a child's overall life span.  Shirley maintains that she never harmed  


Abigail, that Abigail's aunt was to blame for Abigail's hospitalization, and that Shirley  


had  begun  to  cooperate  with  OCS  and  improve  her  life  by  receiving  mental  health  

counseling, going on medication, and moving into Rae's home which she claims was a  

stable environment.  

                    The  trial  court's  decision  is  supported  by  the  testimony  of  OCS  social  


worker Virden, who believed termination of Shirley's parental rights was in Abigail's  

best  interests,  and  Dr.  Glass,  who  believed  Shirley's  mental  health  conditions  had  

worsened and would require at least one year of intense therapy and substance abuse  


treatment  before  she  could  potentially  parent  effectively.    There  was  also  abundant  

evidence that Abigail's foster family was skillfully managing Abigail's therapy and  

providing excellent care to Abigail.  We therefore conclude that the trial court did not  


clearly err in determining which factors to consider in its best interests analysis and how  


much weight to give those factors, and in ultimately finding that termination was in  

Abigail's best interests.  


          D.	       The Trial Court Did Not Err In Upholding OCS's Decision Not To  

                   Place Abigail With Her Great-Grandmother.  


                   When a child is removed from a parent's home, OCS is required to place  


the child with an adult family member, absent clear and convincing evidence of good  

                                                            -20-	                                                      6979

----------------------- Page 21-----------------------


cause to the contrary.            The statute provides placement preferences as follows:  

                   (e)  When  a  child  is  removed  from  a  parent's  home,  the  

                   department shall place the child, in the absence of clear and  


                   convincing evidence of good cause to the contrary,  

                   (1)    in   the    least    restrictive      setting     that    most     closely  


                   approximates  a  family  and  that  meets  the  child's  special  

                   needs, if any;  

                   (2) within reasonable proximity to the child's home, taking  

                   into   account   any   special   needs   of   the   child   and   the  

                   preferences of the child or parent;  

                   (3) with, in the following order of preference,  

                   (A) an adult family member;  

                   (B)  a  family  friend  who  meets  the  foster  care  licensing  

                   requirements established by the department;  

                   (C) a licensed foster home that is not an adult family member  


                   or family friend;  

                   (D) an institution for children that has a program suitable to  



                   meet the child's needs.  

Alaska Statute 47.10.990(1) defines "adult family member" as "a person who is 18 years  


of age or older and who is (A) related to the child as the child's grandparent, aunt, uncle,  

or sibling; or (B) the child's sibling's legal guardian or parent."  


                   Shirley argues that the trial court violated AS 47.14.100(e)(3) by placing  


Abigail with foster parents instead of Rae.  She argues that common sense dictates that  

a great-grandparent be included as a "family member" under the statutory placement  

         36        AS 47.14.100(e)(3)(A).  

         37        AS 47.14.100(e).  

                                                          -21-                                                     6979  

----------------------- Page 22-----------------------


preferences.          Shirley also argues that OCS failed to prove by clear and convincing  

evidence that it had good cause to deny placement of Abigail with Rae.  


                    At trial OCS argued that there was clear and convincing evidence of good  

cause to deviate from the statutory priority list because Rae could not provide the level  


of care that would meet Abigail's significant special needs, and Mandy could.  OCS  


presented testimony that its decision to deny Shirley's placement request was based on  


current concerns that Rae's home was unsafe and that she was unable to provide the  

necessary care for Abigail's special needs.  The  trial court found that OCS had not  


abused its discretion under AS 47.14.100(e) by placing Abigail with the Reed family.  

The trial court also found that it did not need to make the determination whether a great- 


grandmother qualifies as an adult family member because clear and convincing evidence  

supported placement with the Reed family rather than Rae, due to Abigail's "extreme  

special needs," Mandy's "unbelievable commitment to . . . addressing those special  


needs, which is fantastic, and . . . [Rae's] true lack of recognition of . . . the special needs,  


and inability to meet those needs."  The trial court further noted its concern that Rae was  

"very  angry"  with  OCS  and  joined  Shirley  in  her  belief  that  the  problem  was  not  

Shirley's parenting but OCS's interference with their family.  


                    We  will  generally  consider  a  challenge  to  a  termination  order  and  a  

          38        Shirley also argues that OCS failed to provide clear justification for its  

decision not to place Abigail with Rae, failed to reconsider the placement, and waited too  


long to conduct the placement review hearing. Shirley also asserts that OCS should have  


assisted Rae in maintaining contact with Abigail so the two could bond, which might  

ultimately have affected the placement decision.  Given the hostility OCS encountered  


in its efforts to communicate with Rae and the trial court's finding that OCS had good  

cause  to  deny  placement  with  Rae,  it  is  not  likely  that  an  earlier  placement  review  

hearing would have impacted the final result.  

                                                             -22-                                                       6979

----------------------- Page 23-----------------------



challenge to a placement decision separately.                               Although we recognize that placement  


under AS 47.14.100(e) does take into account "the preferences of the child or parent,"  


we question whether Shirley has standing to appeal the trial court's finding regarding  



placement after termination of her parental rights;                              Rae did not seek her own ruling and  


has not appealed the placement decision.  And we question whether great-grandparents  

                                                                                                                 41   But we need  

are entitled to preferential relative placement under AS 47.14.100(e)(3).                                                    

not resolve either of these issues.  Even assuming Shirley has standing to raise this  

placement  issue  on  appeal,  and  even  assuming  that  Rae  is  a  statutory  relative,  we  

conclude that OCS presented clear and convincing evidence at the hearing supporting  


the trial court's determination to uphold OCS's decision to deny placement of Abigail  

with Rae.  OCS already had considered and denied Rae placement of Shirley's other  


children because  of home safety concerns.  Although Rae testified that those safety  

           39        Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth                               

Servs., 165 P.3d 605, 617, 625 (Alaska 2007) (refusing to review a placement review     

decision as part of a termination proceeding because the placement decision was a final     

and appealable order).  



                     Cf. In re Adoption of Keith M.W., 79 P.3d 623, 626 (Alaska 2003) (citation  

omitted) (questioning whether mother had standing to state a "parental preference" once  

her rights were terminated).  

           41        Before the legislature adopted the current language in AS 47.14.100(e),  

former AS 47.14.100(e) (2004) provided a preference for any "relative by blood or  

marriage"  who  requested  placement  of  the  child.    This  broad  language  would  have  

included  a great-grandparent.                     When  the legislature amended  the provision, it  gave  


placement preference to "an adult family member," which it defined more specifically  

as a child's grandparent, aunt, uncle, sibling, or sibling's legal guardian or parent.  See  


ch. 64,  34, SLA 2005.  The legislature could have expanded the preference, using "a  


member  of  the  child's  extended  family"  as  the  Indian  Child  Welfare  Act  does,  see  

25 U.S.C.  1915(a)(1) (2012), but it did not.  OCS's position that "grandparent" does  


not include "great-grandparent" under the current version of AS 47.14.100(e) seems  


plausible, but we leave this issue open for a future case.  

                                                                 -23-                                                            6979

----------------------- Page 24-----------------------

concerns had been addressed, Virden stated that concerns were ongoing in light of police  



reports in 2012 involving Rae's son, whom she believed still lived on the property. 


was  also  clear  from  Rae's  own  testimony  that  she  did  not  recognize  the  extent  of  


Abigail's special needs or Shirley's limitations as a parent.  Rae maintained that Shirley  


had always been a good mother, that it was Shirley's poor choices in men that caused her  


problems, and that Shirley did not have a drug problem.  It was up to the trial court to  

determine Rae's credibility and how much weight to give her testimony.  Perhaps of  

greatest significance, evidence at trial showed that Shirley was unable to attend her own  

counseling  sessions  while  she  lived  with  Rae  because  of  Rae's  conflicting  work  


schedule; if Rae could not consistently assist Shirley's needs to attend weekly 90-minute  


counseling sessions, it was not clear error for the trial court to conclude that Rae would  

be incapable of meeting Abigail's significantly greater daily needs.  

V.        CONCLUSION  

                    For  the  foregoing  reasons,  we  AFFIRM  the  superior  court's  judgment  

terminating  Shirley's  parental  rights  to  Abigail  and  upholding  OCS's  placement  




                    Shirley argues that after OCS denied Rae's request for custody of Shirley's  


other  children,  she  made  safety  changes  to  her  residence.    But  Virden  testified  that  


although Rae told her she had addressed a wiring issue, this did not resolve concerns that  

she was unable to protect Abigail or address her special needs.  

                                                             -24-                                                           6979  

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