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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Timothy G. v. State, Dept. of Health & Social Services, Office of Children's Services (4/29/2016) sp-7099

Timothy G. v. State, Dept. of Health & Social Services, Office of Children's Services (4/29/2016) sp-7099

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

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                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

TIMOTHY  G.,                                                 )  

                                                             )     Supreme  Court  No.  S-15725  

                            Appellant,                       )  


                                                             )     Superior Court No. 3AN-12-07478 CI  

          v.                                                 )  


                                                             )    O P I N I O N  


STATE OF ALASKA, DEPARTMENT                                  )


OF HEALTH & SOCIAL SERVICES,                                 )                                    

                                                                  No. 7099 - April 29, 2016




                            Appellee.                        )  



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


                   Judicial District, Anchorage, Paul E. Olson, Judge.  


                   Appearances: Kevin G. Brady, Brady Law Office, Anchorage,  


                   for Appellant.  Ali Moser Rahoi, Assistant Attorney General,  


                   Anchorage, and Craig W. Richards, Attorney General, Juneau,  


                   for Appellee.  


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


                   Justices. [Winfree, Justice, not participating.]  


                   BOLGER, Justice.  



                   Timothy G. asserted in the superior court that the statute of limitations had  


been  tolled  on  his  claim  against  the  Office  of  Children's  Services because  he  was  


mentally incompetent following years of abuse by his stepfather. The superior court held  

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an evidentiary hearing on this issue and concluded that Timothy had failed to prove that                                                                                                            

he was incompetent.                                On appeal, Timothy argues that the superior court should have                                                                                

ruled   in   his   favor   if   he   produced   more   than   a   scintilla   of   evidence   to   support   his  

assertion.   But we conclude that the superior court applied the proper burden of proof                                                                                                        

and the proper test for competency, and that the court did not clearly err in finding that                                                                                                         

Timothy did not prove his incompetence.                         

II.             FACTS AND PROCEEDINGS              


                                Timothy G.                                                                                                                                              

                                                               alleges he was abused by his stepfather repeatedly between  


 1997 and 2006.  In 2006, Timothy reported the abuse to his mother.  She took Timothy  


and his four siblings to a shelter, sought a protective order against the stepfather, and  


instituted  divorce  proceedings.                                                   The  Office  of  Children's  Services  (OCS)  then  


substantiated the report of harm, removed the children from their mother's care, and  


placed them in foster care.  


                                On  May  25,  2012,  Timothy  filed  a  complaint  naming  OCS  and  his  



stepfather as defendants.                                      He sought compensatory damages from OCS, claiming that  


"[a]s a direct and proximate consequence of [OCS's] breach of [its] dut[y] of care, [he]  


suffered physical injury, psychological and emotional injury and distress, psychological  


torment, torture and sexual abuse, pain and suffering, and resultant loss of earning  


capacity."   Timothy alleged that OCS had investigated at least ten reports of harm  


involving him and his siblings, but had taken no action.  


                                In response, OCS moved under Alaska Civil Rule 12(b)(6) to dismiss  


Timothy's claims as time-barred.   It argued that the applicable statute of limitations  

                1              We use a pseudonym in lieu of the party's name to protect his privacy.                                                                              



                                The  superior  court  dismissed  Timothy's  claims  against  the  stepfather  


because he was never properly served.  Timothy does not appeal this order.  

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required Timothy's claim to be filed within two years of its accrual;                                                     although the statute     


of limitations was tolled during Timothy's minority,                                                                                                    

                                                                                               he turned 18 on May 27, 2009, but  


did not file his complaint until nearly three years later.  


                        Timothy replied that he was incompetent by reason of mental disability and  

                                                                                                                            5   He stated that he  


that the statute therefore remained tolled after his eighteenth birthday. 

had been diagnosed with "severe post[-]traumatic stress disorder, ADHD, [b]i-polar  


disorder, and obsessive compulsive disorder," stemming from his abuse at the hands of  


his stepfather.  


                        Along with his opposition to OCS's motion to dismiss, Timothy submitted  


an affidavit fromhis friend Sarah G. describing his mental disability. Sarah met Timothy  


in 2008, and in 2010, when she learned he was homeless, she invited him to live in her  


home.  She asserted that "based upon [her] personal involvement with [Timothy], his  


treating mental health care professionals[,] and various state and federal agencies, [it was  


her belief] that Timothy suffers from a mental disability."  


                        The  superior  court  treated  OCS's  motion  to  dismiss  as  a  motion  for  


summary judgment because in ruling on it the court considered matters outside of the  


pleadings, including Sarah's affidavit and OCS's responses to the affidavit.6                                                              The court  


            3           See  AS 09.10.070(a) (establishingatwo-year limitations period for tort                                                       and  

personal injury claims).     

            4           AS 09.10.140(a).  


            5           See id.  (tolling  the limitations period  "if a person  entitled to  bring  an  


action . . . is at the time the cause of action accrues . . . incompetent by reason of mental  


illness or mental disability").  


            6           See Alaska R. Civ. P. 12(b) ("If, on a motion . . . to dismiss for failure of  


the pleading to state a claim upon which relief can be granted, matters outside the  


pleading are presented to and not excluded by the court, the motion shall be treated as  


one for summary judgment . . . .").  


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found  that  although  Sarah's  affidavit  would  be  insufficient  to  establish  Timothy's  


incompetency, "it [was] sufficient to overcome the low threshold that applies at the  


summary judgment stage."  Accordingly, the court denied OCS's motion.  


                     The  court  scheduled  an  evidentiary  hearing  to  resolve  the  statute  of  


limitations dispute, noting that the parties had raised "preliminary questions of fact that  


should be decided by the court."  The court stated that at this hearing, "[t]he burden  


[would] be on . . . [Timothy] to establish that he was incompetent as contemplated by  


AS []09.10.140(a) . . . during the relevant period."  


                     The superior court held the hearing on September 4, 2014.  Two witnesses  


testified on Timothy's behalf: Sarah and Timothy's formerpsychiatrist. Sarah described  


her role in Timothy's life as an "advocate."  She testified that she tried to help Timothy  


find work, complete high school, and obtain disability benefits and counseling and that  


she routinely transported him to appointments and court appearances.  Timothy signed  


a medical release giving Sarah access to his medical records, and she sometimes sat in  


on his counseling sessions. She testified that without her help, Timothy would not make  


it to his court dates or appointments:   "He misses court dates[;] he can't remember  


them[;] . . . he doesn't have the ability to keep track of [his appointments]."  


                     Timothy'sformer psychiatrist testifiedas an expert in psychiatry; hetreated  


Timothy from approximately 2007 to 2013.  According to the psychiatrist, "[Timothy]  


was diagnosed  with  [p]ost[-][t]raumatic [s]tress [d]isorder  and  his case was a very  


complicated case dealing with sexual abuse and sexual trauma.  [Timothy] . . . also had  


depression and anxiety . . . [and] [b]i-polar disorder."  The psychiatrist also verified the  


accuracy of a letter he wrote in 2012 to support Timothy's claim for disability benefits  


in which he stated: "[T]he trauma that he has suffered is one of the most egregious cases  

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I have ever had to manage." The psychiatrist specifically testified that he did not believe  


Timothy was capable of understanding his legal rights or advocating for himself without  




                    OCS called Timothy as a witness. He stated that in 2010, when he testified  


before a grand jury about his stepfather's abuse, he understood that what his stepfather  


had done was wrong.  Timothy testified that after the grand jury proceedings he "just  


kind of wanted to walk away from it," but Sarah encouraged him to file this lawsuit.  He  


acknowledged that, although he had  appeared in court several times before to face  


criminal charges and to obtain a divorce, he had never claimed to be incompetent and  


had expressly stated that he understood his legal rights.  And he testified that he felt  


comfortable asking clarifying questions to the judge during those proceedings if he did  


not understand a particular point.  


                    On cross-examination, Timothy testified that Sarah helped him with most  


of his criminal cases and that although he represented himself in his divorce, Sarah  


helped him understand and fill out the paperwork.  He also testified that he frequently  


missed court dates when he was not living with Sarah, for a variety of reasons. Timothy  


stated:  "[A]ll my other rides fall through, people don't pick me up, I miss the bus[,] . . .  


I forget times . . . or my phone will die and I won't . . . make it in time."  Finally, he  


testified that although he is "reluctant to tell society and average people [about his mental  


disability], . . . [he is] not afraid to . . . tell [courts, doctors, and professional people]  


about [his] issues," and he is "not afraid to ask . . . for help when needed."  


                    On September 12, 2014, the superior court issued an order granting OCS's  


motion to dismiss, finding that Timothy's mental condition did not toll the statute of  


limitations.  The court noted that the standard for mental incompetency is "whether a  


person could know or understand his legal rights sufficiently well to manage his personal  


affairs,"  and  the  court  found  that  Timothy  had  not  met  his  burden  to  show  his  

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incompetency during the period following his eighteenth birthday.  The court found it  

telling that during Timothy's prior interactions with the legal system, both as a plaintiff  


and  as  a  defendant,  "[h]e  repeatedly  asserted  his  competence  to  courts  .  .  .  and  


represented himself."   While the court was careful not to "minimize the trauma . . .  


[Timothy] endured or his diagnosis of bi-polar and post-traumatic stress disorder," it  


found that he had not shown that he could not understand his legal rights during the  


relevant period, and accordingly granted OCS's motion to dismiss.  


                      Timothy now appeals, arguing that the superior court should instead have  


applied the summary judgment standard at the hearing and denied the motion.  




                      "When the superior court holds an evidentiary hearing to resolve factual  


disputes  about  when  a  statute  of  limitations  began  to  run,  we  review  the  resulting  


findings of fact for clear error."7  


                                                         Clear error is present "if, after reviewing the entire  


record in the light most favorable to the party prevailing below, we are left with a  



definite and firm conviction a mistake has been made." 



           A.         The Superior Court Applied The Correct Burden of Proof.  


                      Timothy'sprimary argument on appeal is that thesuperior court applied the  


wrong legal standard when granting OCS's motion to dismiss.  He interprets the court's  

           7          Christianson v. Conrad-Houston Ins.                           , 318 P.3d 390, 396 (Alaska 2014)                

(citing   Williams v. Williams                , 129 P.3d 428, 431 (Alaska 2006)).             

           8          Id. (citing John'sHeating Serv.v. Lamb,129P.3d 919, 922 (Alaska2006)).  


                                                                     -6-                                                              7099

----------------------- Page 7-----------------------

order as a grant of summary judgment and argues that the court should therefore have                                                 

denied OCS's motion if there was "more than a scintilla of . . . evidence" supporting his                                                                                                    


claim of mental incompetency.                                            


                              In Cikan v. ARCO Alaska, Inc. we held that if material questions of fact  


exist as to a statute of limitations issue, summary judgment is improper and the superior  



court should instead consider the statute of limitations defense at a pre-trial hearing. 

Timothy  incorrectly  assumes  that  the  standard  to  be  applied  at  that  hearing  is  the  


summary judgment standard.   The hearing is only required if the court has already  


determined, as it did here, that summary judgment is improper; our prior cases make  


clear that the purpose of the hearing is to resolve the factual issues, not simply to flag  


their existence.11  


                              The superior court precisely followed the procedure set out in Cikan: After  


determining that summary judgment was improper because Timothy had raised a factual  


               9              See   Alaska R. Civ. P. 56(c) (stating that summary judgment should be                                                                                         

granted if "there is no genuine issue as to any material fact and . . . any party is entitled                                                                                     

to a judgment as a matter of law");                                               Kalenka v. Infinity Ins. Cos.                                      , 262 P.3d 602, 607                  

(Alaska 2011) ("Any evidence sufficient to raise a genuine issue of material fact, so long                                                                                                

as it amounts to more than a scintilla of contrary evidence,                                                                                   is  sufficient to oppose           

summary judgment." (quoting                                          Beal v. McGuire                       , 216 P.3d 1154, 1161 (Alaska 2009))).                                

               10              125 P.3d 335, 342 (Alaska 2005).  We have approved of this procedure in  


several other cases, both before and after Cikan.  See, e.g., Richardson v. Municipality  


of Anchorage, 360 P.3d 79, 91 (Alaska 2015); Catholic Bishop of N. Alaska v. Does 1-6,  


 141 P.3d 719, 725 (Alaska 2006); Williams, 129 P.3d at 431; Lamb, 46 P.3d at 1033;  


Pedersen v. Zielski, 822 P.2d 903, 907 n.4 & 908 (Alaska 1991).  


               11             See Catholic Bishop, 141 P.3d at 725 ("If a genuine issue of material fact  


 [about the statute of limiations] is presented it should be resolved in advance of trial . . .  


following an appropriate evidentiary hearing."); Cikan, 125 P.3d at 342 ("[A] factual  


dispute over mental incompetency [should] be resolved . . . by the court after conducting  


an evidentiary hearing.").  


                                                                                              -7-                                                                                       7099

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 issue as to his competency during the relevant period, the court held an evidentiary                                                                                                       


 hearing to weigh the evidence and resolve the factual issue prior to trial.                                                                                                                               

                                                                                                                                                                                                     A party  


 claiming that the limitation period was tolled due to a disability has the burden of  

                                                                                                                                               13 Accordingly, for Timothy's  



proving that disability by a preponderance of the evidence. 

 claim to survive, he needed to show by a preponderance of the evidence that he was  


 mentally  incompetent during the relevant period.                                                                                  The court weighed the evidence  


presented by the parties, as it was permitted to do, and determined that Timothy had not  


 shown that he was incompetent during the relevant period.14  


                 12               Timothy argues in his reply brief that by making this factual determination                                                                         

 itself, the court impermissibly deprived him of the right to have that issue decided by a                                                                                                                            

jury.   But "the task of interpreting and applying a statute of limitations traditionally falls                                                                                                               

 within the province of the courts."                                                         Cikan, 125 P.3d at 339.                                           And we have already                   

 expressly held that "to the extent the superior court does not address the substantive                                                                                                     

 merits of a case, the use of evidentiary hearings to decide statutes-of-limitations issues                                                                                                               

 is constitutional."                         Gefre v. Davis Wright Tremaine, LLP                                                             , 306 P.3d 1264, 1279 (Alaska                           


                 13              Adkins v. Nabors Alaska Drilling, Inc. , 609 P.2d 15, 22 (Alaska 1980)  


 (when it is undisputed that the limitations period has run, a party asserting incompetency  


 has the burden of proof on that issue); Fernandes v. Portwine, 56 P.3d 1, 5 (Alaska  


 2002) (the general civil standard of proof is "a preponderance of the evidence").  


                 14               The superior court assumed that if Timothy was incompetent by reason of  


 mental disability when he turned 18, the statutory period would have remained tolled.  


 We have not directly addressed whether this approach is correct or whether he must have  


been incompetent when his cause of action accrued for that disability to toll the statute  


 of limitations.  Cf. Cikan, 125 P.3d at 341 n.18.  We need not consider the issue now.  


 Because we affirm the superior court's finding that Timothy was not incompetent after  


 his eighteenth birthday, the statutory period has expired regardless of whether he was  


 incompetent when his cause of action accrued.  


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                              We find that the superior court followed the correct procedure for resolving                                                                   

 factual disputes over statute of limitations issues, as set out in                                                                           Cikan, and applied the     

proper burden of proof to the evidence presented at the hearing.                                                             

               B.             Timothy's Remaining Arguments Are Waived.                                                   

                              Timothy also argues that the superior court erred in finding that he was                                                                                  

competent.   He argues that the court applied the wrong test and that the court's factual                                                                                         

 finding was erroneous.  Both of these arguments appear only in his reply brief and are                                                                                                   


therefore waived.                                                                                                                                                                           

                                             But even if the arguments had been properly raised, they would be  


unavailing because they have no merit.  


                              1.            Adkins provides the correct test for mental competency.  


                              The superior court used the test set out by this court in Adkins v. Nabors  

                                                                                                                          16    Under the Adkins test, "[t]he  



Alaska Drilling, Inc. to determine mental competency. 

general test [of mental competency] is whether a person could know or understand his  


legal rights sufficiently well to manage his personal affairs."17  



                              Timothy argues that the superior court should also have asked whether,  


even if he could understand his legal rights, he "nevertheless failed to act upon those  


rights because of [his] mental disability."  He cites to two cases in which he claims this  


court  adopted  his  preferred  test.                                             In  Hikita  v.  Nichiro  Gyogyo  Kaisha,  Ltd.,  we  


characterized the issue as whether the individual claiming mental incompetency "was  

                                                                                                                                                                                   18 And  


 sufficiently competent to run his own legal affairs during the period in question." 

               15             Barnett  v.  Barnett,  238  P.3d  594,  603  (Alaska  2010)  ("[W]e  deem  waived  

any  arguments  raised  for  the  first  time  in  a  reply  brief  .  .  .  .").  

               16             609  P.2d   15  (Alaska   1980).   

               17             Id.  at  23.  

               18             713  P.2d   1197,   1203  (Alaska   1986).  

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in  Hernandez-Robaina v. State                     , we cited with approval the                   Black's Law Dictionary     

definition   of   "mental   incompetency,"   which   defined   the   term   as  "incapable   of  


understanding and acting with discretion in the ordinary affairs of life."                                           


                     However,  both  Hikita  and  Hernandez-Robaina  reaffirm  that  Adkins  


provides the appropriate test.  In Hikita, we began our discussion of Hikita's mental  

                                                               20  It is clear from the context that the language  


competency by citing to the Adkins test. 

upon which Timothy relies was simply a paraphrase of the Adkins  test and did not  


announce  a  separate  test.21                    Similarly,  in  Hernandez-Robaina,  the  discussion  of  


Hernandez's mental incompetency centered on the application of the Adkins test.22   The  


supposedly different test quoted by Timothy was immediately followed in the opinion  


by our conclusion:  "For these reasons, we reaffirm our commitment to the Adkins test  


as interpreted in this opinion."23  


                     Here, we likewise reaffirm our commitment to the Adkins test.  Timothy  


presents no authority that would justify a departure from this established test.  


                     2.	        The  superior  court's  factual  finding  of  competence  was  not  


                                clearly erroneous.  


                     Timothy also argues that thesuperiorcourt"abused its discretion by finding  


           19        849   P.2d   783,   785   (Alaska   1993)   (emphasis   omitted)   (quoting Mental  

Incompetence;  Mental  Incompetency,  BLACK 'S  LAW  DICTIONARY  (6th  ed.   1990)).  

           20        Hikita,  713  P.2d  at   1202  n.13.  

           21        See  id.  at   1202-03.  

           22        Hernandez-Robaina,  849  P.2d  at  784-85.  

           23        Id.  at  785.   In  Hernandez-Robaina,  this  court  interpreted  the  Adkins  test  as  

asking  not  whether  a  party  actually  did  understand  his  or  her  rights,  but  whether  a  party  

could  "comprehend  the  concepts  and  ideas  of  which  his  or  her  rights  consist  if  those  

matters  were  adequately  communicated."   Id.  

                                                                 -10-	                                                           7099

----------------------- Page 11-----------------------

that '[Timothy] ha[d] not shown he was unable to understand his legal rights following                                                                                                                                                                                                                              

the   removal   of   his   disability   of   minority.'   "     But   there   was   considerable   evidence  

presented at thehearing                                                                       to support that finding. Timothy                                                                                                 consistently acknowledged that  

he understood his legal rights in previous court proceedings, and he testified that he was                                                                                                                                                                                                                                                  

telling the truth when he did so.                                                                                                He testified that he had discussed filing a lawsuit with                                                                                                                                                 

 Sarah as early as 2008, when they first met.                                                                                                                                            He confirmed that he had successfully                                                         

represented   himself   in   his   divorce   litigation,   and   he   specifically   testified   that   he  

understood that if his ex-wife's child had been born while they were still married, he                                                                                                                                                                                                                                                           

could be liable for child support, even though the child was not his.  Although he also   

testified that he relied heavily on Sarah's help in his divorce and in his other legal                                                                                                                                                                                                                                                 

proceedings, requiring assistance to pursue one's legal rights does not necessarily mean                                                                                                                                                                                                                                              

that one is incapable of understanding them.                                                                                                                                        

                                                      Timothy himself acknowledged in his brief that "an inference may be                                                                                                                                                                                                                        

drawn that [his] pro se divorce litigation demonstrated an understanding of matters                                                                                                                                                                                                                                         

legal."    Although he went on to argue that this evidence "falls short of conclusively                                                                                                                                                                                                                

proving that [he] met the                                                                         Adkins  test for competency," OCS did not have to conclusively                                                                                                                                         

                                                                                                                                                                                                                                                                                                                                   24         We  

prove anything; rather, Timothy had the burden to prove his own incompetency.                                                                                                                                                                                                                                                               

 see  no  clear  error  in  the  superior  court's  conclusion  that  Timothy  was  capable  of  


understanding his rights and was thus not mentally incompetent under the Adkins test.  


V.                         CONCLUSION  

                                                      We  AFFIRM  the  superior  court's  order  dismissing  Timothy's  claims  


against OCS.  


                           24                         See  Adkins  v.  Nabors  Alaska  Drilling,  Inc.,  609  P.2d  15,  22  (Alaska  1980).  

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