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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dara S. v. State, Dept. of Health & Social Services, Office of Children's Services (9/7/2018) sp-7288
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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DARA S., )
) Supreme Court Nos. S-16126/16526/
Appellant, ) 16527 (Consolidated)
)
v. ) Superior Court No. 3AN-13-00386 CN
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF HEALTH & SOCIAL SERVICES, )
OFFICE OF CHILDREN'S SERVICES, ) No. 7288 - September 7, 2018
)
Appellee. )
)
)
STATE OF ALASKA, OFFICE OF )
PUBLIC ADVOCACY, GUARDIAN )
AD LITEM, )
)
Appellant, )
)
v. )
)
DARA S., )
)
Appellee. )
)
)
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, )
OFFICE OF CHILDREN'S SERVICES, )
)
Appellant, )
)
v. )
----------------------- Page 2-----------------------
DARA S., )
)
Appellee. )
)
Appeals from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John Suddock, Judge, and
Pamela Scott Washington, Judge pro tem.
Appearances: Rachel E. Cella, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for
Appellant/Appellee Dara S. Paul F. McDermott, Assistant
Public Advocate, and Richard Allen, Public Advocate,
Anchorage, for Appellant Guardian Ad Litem. Laura Fox,
Assistant Attorney General, Anchorage, and Jahna
L in d e m u th , A tto r n e y G e n eral, J u n e a u , fo r
Appellant/Appellee Office of Children's Services.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting.
I. INTRODUCTION
We frequently review parental rights termination decisions. But the appeals
before us present not only the review of a termination decision, which we affirm, but also
the review of a unique parental rights reinstatement decision. This secondary aspect of
1
our review causes us t o revisit and expound on issues arising from Rita T. v. State , in
which we held that a parent whose parental rights have been terminated retains the right,
upon a showing of good cause, to request a review hearing, during which the parent may
1 623 P.2d 344 (Alaska 1981).
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2
seek to set aside a termination order and have parental rights reinstated. This then leads
us to review the superior court's reinstatement order in this case.
As we explain below, Rita T. remains viable today. At a Rita T. hearing,
a termination order can be set aside by clear and convincing evidence that the parent has
been sufficiently rehabilitated and is capable of providing the care and guidance that will
serve the child's moral, emotional, mental, and physical welfare and that parental rights
reinstatement is in the child's best interests. Because the factual findings supporting the
parental rights reinstatement in this case are inadequate for our review of the necessary
best interests finding, we remand for further proceedings consistent with our opinion.
II. FACTS AND PROCEEDINGS
A. Termination
1. Facts
a. Dara and Paxton
3 who was born in February 2011 with
Dara S. is the mother of Paxton,
serious kidney problems. Paxton had nine surgeries before the age of two. Dara testified
that parenting Paxton during this period, which she did with "very little support,"4 "was
incredibly stressful and heartbreaking." Paxton's health improved while he was in
Dara's care; his right kidney function improved from 0% to 30%, delaying surgery to
remove it. Although Paxton continues to require a strict diet and frequent medical
checkups, and will require a kidney transplant by his teenage years, his health has
generally improved.
2 Id. at 347.
3 We use pseudonyms to protect the parties' privacy.
4 Paxton's father was never involved in Paxton's life and relinquished his
parental rights in December 2014; he is not a party to this appeal.
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b. Dara's mental health episodes
In the fall of 2011 Dara sought mental health counseling for depression; she
reported having used Zoloft, an anti-depressant that also treats anxiety and other mood
5
disorders, for about eight months. In October she was diagnosed with attention-
deficit/hyperactivity disorder (ADHD), depressive disorder not otherwise specified, and
post-traumatic stress disorder (provisional). Dara's psychiatrist increased her dosage of
6
Zoloft, and planned to prescribe Adderall, used in treating ADHD. In October 2012
7
Dara also was directed to begin taking Viibryd, which treats major depressive disorder,
8
and Xanax, for anxiety, while decreasing her Zoloft dosage. Five months later Dara
expressed "that her medications weren't working"; she felt her medications were
contributing to more aggressive behavior.
In June 2013 Dara and Paxton were taken to the hospital emergency
department after she contacted paramedics. Dara told hospital staff she had a "cloudy
mind," did not "know if she[] [was] on the right medication," and had been having
trouble sleeping for the past three days. Hospital staff noted that Dara was "scared and
tearful," saying she needed "to be in a safe place." According to staff, Dara was
5 See Sertraline (marketed as Zoloft) Information, DRUG SAFETY AND
ADMIN ., https://www.fda.gov/Drugs/
AVAILABILITY , U .S. FOOD & DRUG
DrugSafety/ ucm053351.htm (last updated July 23, 20 15).
6 See Adderall and Adderall XR (amphetamines) Information , DRUG SAFETY
AND
AVAILABILITY , U.S. FOOD & DRUG ADMIN ., https://www.fda.gov/Drugs/
DrugSafety/ucm111441.htm (last updated July 8, 2015).
7 See Viibryd label, U.S. FOOD & DRUG ADMIN ., https://www.accessdata.
fda.gov/drugsatfda_docs/label/2011/022567s000lbl.pdf (last updated Jan. 2010).
8 See XANAX Medication Guide , U.S. FOOD & DRUG ADMIN ., https://www.
accessdata.fda.gov/drugsatfda_docs/label/2016/018276s052lbl.pdf#page=24 (last
updated Sept. 2016).
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----------------------- Page 5-----------------------
"significantly paranoid and delusional"; for example: (1) she asked staff to hide Paxton
with a blanket because she was worried a woman who was "impersonating" her would
"take" him; (2) she was "freaked out" by "motorcycles honking and circling her
apartment complex all day"; (3) she had overheard "a man in the hallway talking about
killing her"; (4) she was worried "that her son ha[d] been cut open and some of his
organs were" missing; and (5) her thinking was "not linear . . . [,] logical[,] . . . [or]
reality based." Dara tested positive for amphetamines, a result explained by her
prescribed medications; hospital staff "felt that her impaired cognition [was] substance
induced" and that "medication management and further observation" were warranted.
OCS briefly took emergency custody of Paxton during Dara's hospital stay.
When Dara later brought Paxton for a medical check up, providers noted that "[Paxton]
ha[d] a nice attachment to his mother" and that Dara was "very attentive to [Paxton's]
needs."
In September Dara left her mother a voicemail "asking . . . for help." Dara's
mother - who lived in Oregon - was concerned because Dara "was very distraught";
she "said that she wasn't able to cope at that moment," that "she had taken some pills,"
and that she wanted her ashes to be "put . . . in a dumpster." Dara's stepfather called
Anchorage 911, and the police and fire departments were "[d]ispatched to [Dara for] a
suicide-threats call."
First responders found Dara's apartment clean and well-kept; Paxton was
sleeping. Dara was "distraught" and "somewhat uncooperative"; she told responding
police officers they would "have to shoot [her] to take [her] to the hospital." She was
"more cooperative and less hostile" with the fire department responders, admitting to
them "that she had taken 30 pills of Adderall." Both Dara and Paxton were taken to the
hospital.
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Police officers came to the hospital to remove Paxton for OCS to take
emergency custody; Dara tried to fight them, and she ended up in handcuffs. Hospital
staff noted Dara was "rambling and not making sense." Initially she was "loud and
disruptive" and "very resistant to staying in" the hospital. Dara stayed at the hospital for
about 24 hours before being transported to Alaska Psychiatric Institute (API). Before
transferring to API, she was diagnosed with psychosis, suicidal gesture, and intentional
Adderall drug overdose. API diagnosed Dara with an "[a]mphetamine induced psychotic
disorder," and noted it was "resolved." API recommended that she abstain from
"addictive prescription medications such as benzodiazepine," an ingredient found in her
prescribed antidepressant medications.
During this time, OCS filed a petition for emergency custody of Paxton,
which the superior court granted.
c. OCS's initial involvement in Alaska
Dara and Paxton's case was assigned to OCS caseworker Michelle Virden
after Paxton was taken into emergency custody. After a first telephonic contact, Virden
met with Dara following an October 2013 court hearing. Dara said that during her
pregnancy with Paxton "she had been raped with shards of glass and sticks," causing his
health problems. Dara denied overdosing on Adderall, claiming that the idea she
attempted suicide was a fabrication by her mother, and Dara claimed family members
had verbally and physically abused her. She blamed her recent "episodes" on pesticides
used to treat bed bugs in her apartment. Virden treated Dara's case as a "mental health
case"; accordingly, Dara's November case plan included that she: (1) regularly meet
with her OCS social worker to identify and meet goals; (2) actively participate with
chosen mental health providers and maintain her mental health condition with
recommended medication and treatment; (3) manage her anger and emotions with
documented progress through counseling services and reports from providers; (4) obtain
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employment for six months or more; and (5) set healthy limits and boundaries in
personal relationships. As a first step in implementing the case plan, Virden referred
Dara to Dr. Michael Rose for a mental health evaluation.
Dr. Rose conducted a psychological evaluation of Dara in November,
administering five psychological and substance abuse tests. Dr. Rose diagnosed Dara
with psychotic disorder not otherwise specified (NOS), along with neglect of child,
history of ADHD, and prior amphetamine and cannabis abuse. He noted that the hospital
had diagnosed her with "Amphetamine-Induced Psychotic Disorder," and that because
her "problems have persisted, a Psychotic Disorder NOS is given but consideration
should be given to a formal thought disorder diagnosis such as Schizophrenia, Paranoid
Type." He recommended further assessment, and, concluding that Dara presented a
significant risk to abuse or neglect Paxton, recommended against reunification. Dr. Rose
recommended that Dara: (1) "work carefully with her psychiatrist and psychotherapist
to address her diagnosed problems"; (2) "maintain gainful employment over a sustained
period of time and show that she can obtain and maintain housing for herself and
[Paxton]"; and (3) obtain "individualized [parenting] education and instruction." In the
event Dara struggled to effectively parent or respond to treatment, Dr. Rose suggested
developing a legal guardianship for Paxton.
After obtaining Dr. Rose's psychological evaluation, Virden arranged for
Dara to obtain mental health services from Anchorage Community Mental Health.
Because of its lengthy waiting list, Dara's first appointment was not scheduled until the
end of May 2014, six months after Dr. Rose's evaluation. In the meantime Virden
helped Dara by providing her bus passes; having a social worker intern, who was
working on a mental health master's degree, help her with the issues Dr. Rose's
evaluation raised; encouraging her to apply for Supplemental Security Income (SSI);
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driving her to sell or return items to save money; supervising visits with Paxton; and
setting up extra visits with Paxton.
Before her mental health services appointment, Dara traveled to Santa Cruz,
California - where she had grown up - planning to live with a man with whom she
had gone to high school. But the relationship did not last and she soon came back to
Anchorage, where she obtained a job. Dara then lived with a roommate, whom Virden
described as "off" and "a little strange," for a month or two, before moving out and
"couch surfing."
In April 2014 Paxton was placed with Dara's sister, Scarlet, in Oregon.
Scarlet gave Dara a laptop to Skype with Paxton; they regularly Skyped three times a
week, and Scarlet permitted calls between Skype sessions.
Dara did not attend her scheduled mental health services appointment in
late May. She instead moved to Wrangell to live with a man she met online. This
relationship lasted only about a month, in part because the man was worried that living
with Dara would negatively impact his custody of his own three children. In that time
Dara became pregnant with his child. Dara accused him of having an affair with Virden,
although he and Virden only had spoken once on the telephone. Dara moved out around
the end of June; she then stayed with a friend.
d. Dara's move to Oregon
O
CS pays to "fly families quarterly"; Dara stayed in Wrangell until OCS
paid for her travel in July to see Paxton in Oregon, where she decided to stay. She was
pregnant, homeless, and "didn't have much money." Virden informed Oregon's child
protective services agency, Department of Human Services (DHS), of Dara's arrival, and
Dara was able to obtain housing and prenatal care. Dara took a job that she then lost for
reasons beyond her control, but by early 2015 she had found stable housing and work.
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In September 2014 Dara's Oregon caseworker referred her for an
evaluation at the local Center for Family Development. Dara was diagnosed with
"Adjustment Disorder With Mixed Anxiety and Depressed Mood." A Global
Assessment of Functioning indicated Dara had anxiety to the point of "getting in the way
of . . . functioning." The Center recommended she attend weekly therapy sessions for
one year, and in October she began seeing counselor Alexa Jefferis for therapy.
Dara also began weekly DHS-supervised one-hour visits with Paxton
starting in September. These later turned into two-hour visits, and Dara occasionally
accompanied Scarlet and Paxton to his doctor appointments. Dara also attended one or
two of Paxton's soccer practices after getting approval from DHS. During these visits
there were few, if any, complaints about Dara's behavior; DHS noted that she was
receptive to parenting suggestions, rarely canceled appointments, respected her allotted
visitation time, and acted appropriately with Paxton. At this time Scarlet was fairly
supportive of Dara spending time with Paxton as long as she first received DHS
approval.
In October and November Dara met with Dr. David Truhn for "a
comprehensive psychological evaluation and parenting assessment." She was
administered seven intelligence, psychological, and parenting tests, and Dr. Truhn
reviewed her records, including Dr. Rose's previous evaluation.
Dr. Truhn diagnosed Dara with early onset persistent depressive disorder
and unspecified anxiety disorder, requiring further evaluation to rule out "unspecified
schizophrenia spectrum and other psychotic disorder." Dr. Truhn was confident in the
first two diagnoses; "at one point [Dara] bec[ame] so anxious she could not remember
where she currently lived." But he was less confident in his third diagnosis; he saw no
evidence of psychotic symptoms and recommended further evaluation. Dr. Truhn also
noted that Dara's "impulsivity . . . is a significant concern . . . regarding her ability to
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engage in more active parenting responsibilities and necessitates that her visitations
continue to be supervised." He recommended that Dara: (1) "participate in individual
psychotherapy"; (2) "engage in ongoing treatment and evaluation for anxiety";
(3) "participate in medication evaluation for the use of an antidepressant medication to
treat anxiety . . . [while] continu[ing] to be evaluated for any symptoms of psychosis and
need for an antipsychotic medication"; and (4) "participate in parent training programs."
During Thanksgiving Scarlet allowed Dara to spend about a half hour with
Paxton. Dara asked Scarlet if she could see Paxton on Christmas Day. Scarlet indicated
that she would discuss it with her husband, but by December 17 she had not responded
to Dara. On December 22 Dara spent four hours with Paxton at a DHS Christmas party.
After the party Dara repeated her request for time with Paxton on Christmas Day. After
Scarlet refused, Dara and Scarlet carried on the disagreement over the telephone and via
text, with Dara cursing at Scarlet and Scarlet saying that Dara was not immediate family.
Scarlet considered Dara's repeated communications during this time "harassment."
Early in 2015 Dara learned that some of her mail had been sent to her
father's house. Scarlet picked up the unopened mail and gave it to Dara. Dara then went
to the post office and, apparently at the post office manager's suggestion, filed a police
report claiming identity theft. Dara also left Virden a voicemail about the incident saying
she felt like she was being stalked. Dara later testified that she "immediately regretted
assuming that" her family was stalking her.
2. Proceedings
In December 2014 OCS petitioned to terminate Dara's parental rights, with
9 In February Dara sought a continuance because
trial scheduled to begin in March 2015.
9 Alaska retained jurisdiction as Paxton's home state when the child in need
of aid (CINA) proceeding commenced in September 2013. See S.B. v. State, Dep't of
(continued...)
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she was scheduled to give birth by Caesarean surgery, but her request was denied. After
Dara gave birth to a daughter, DHS did not believe she had "sufficient safety service
providers" to help her care for the infant and did not know whether she lived in "a calm
[home] setting"; Dara's daughter was removed from Dara's care and also placed with
Scarlet.
a. Testimony
The termination trial took place over three days in March 2015. Dara
participated telephonically from Oregon. OCS's case focused only on Dara's mental
10
illness. The court heard testimony from Dara, four family members, Dara's coworker
and friend, Dara's daughter's father, a police officer, three mental healthcare providers,
and OCS and DHS caseworkers.
Dara's father, brother, and sister all testified in favor of terminating Dara's
parental rights to Paxton. Her father described Dara as "very manipulative" and said
"[s]he looks to me like she's become a street person" because of her tattoos and different
hair color. But Dara's father had very little interaction with her in the past 20 years, and
he had not seen her since she moved to Oregon. Dara's brother also had very limited
interaction with Dara in the previous 10 years, but he characterized her as a "free spirit"
who lived "a gypsy kind of lifestyle." Scarlet recognized that "[Dara] loves her son very
much," but she also testified that Dara's paranoid and nervous actions had "remained
pretty steady over the last few years."
9 (...continued)
Health & Soc. Servs., Div. of Family & Youth Servs., 61 P.3d 6, 13 (Alaska 2002).
10 See AS 47.10.011(11) (stating a child may be found in need of aid if "the
parent . . . has a mental illness, serious emotional disturbance, or mental deficiency of a
nature and duration that places the child at substantial risk of physical harm or mental
injury").
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Dara's mother, Dara's friend in Oregon, therapist Jefferis, and DHS worker
Ryan Clemmons all testified against terminating Dara's parental rights to Paxton. Dara's
mother testified that she had no concerns about Dara's ability to parent. Jefferis, who
obtained a masters degree in marriage and family therapy in 2012, testified that she
observed no indications of psychosis during her sessions with Dara. Jefferis also
testified that Dara had been doing well dealing with the stresses related to employment,
pregnancy, and child custody issues, and that she needed "at least another six months"
of therapy. And although Jefferis had not "observed [Dara] actually parenting," Jefferis
had no "major concerns" about Dara's ability to parent. Clemmons, who had supervised
visits between Dara and Paxton at DHS, testified that Dara asked for parenting
suggestions, always made up canceled appointments, and acted appropriately with
Paxton. Dara's friend, who had known Dara since shortly after she moved to Oregon,
said that she considered herself part of Dara's "support system" and that she had been
impressed with Dara's ability to take care of herself and others. The friend also testified
that, "[a]s a mental health worker" who had a grandson "born with multiple heart
defects," she thought it was understandable Dara had difficulty taking care of Paxton by
herself in Alaska. But in part because Dara had "formed [a] support group" in Oregon,
Dara's friend thought Dara could take care of her children.
Dr. Truhn and Virden both expressed concerns at the termination trial about
Dara's ability to be a full-time parent. Dr. Truhn explained how his diagnoses for Dara
differed from Dr. Rose's; he noted that Dara appeared to have improved since her
psychotic episodes, and he attributed many of her behaviors to anxiety and depression
rather than psychosis. Dr. Truhn had recommended further evaluation to rule out a
psychotic disorder, and he had recommended continued supervised visitations with
Paxton because of Dara's impulsivity. Dr. Truhn also testified that if Dara had accused
her daughter's father of an affair with Virden it "sound[ed] kind of paranoid" and
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indicated that Dara's mental problems could "be more severe than what [he] saw in [his]
assessment."
Virden testified in favor of Paxton remaining with Scarlet. Virden relied
on DHS reports as she had not seen Dara in person in ten months. Virden believed Dara
continued to have unresolved mental health issues and found concerning Dara's repeated
denials that she had mental health issues. Because of Dara's mental health issues, Virden
testified that Dara was not ready to assume full-time responsibility for Paxton's care.
b. Decision11
The parties submitted written closing arguments. In June 2015 Superior
Court Judge John Suddock made oral findings and terminated Dara's parental rights. (In
October Superior Court Judge pro tem Pamela Washington issued a written decision
based on Judge Suddock's oral decision.)
Judge Suddock gave Jefferis's testimony little weight, emphasizing that she
was a "relatively young practitioner" who "presented as quite protective of her client"
and who "viewed the world through rose-colored glasses." He also gave little weight to
either Dara's father's or brother's testimony.
11 Under relevant CINA statutes and rules, parental rights may be terminated
at trial only if OCS shows:
(1) by clear and convincing evidence that: (a) the child has been subjected
to conduct or conditions enumerated in AS 47.10.011 (CINA Rule 18(c)(1)(A)); (b) the
parent has not remedied the conduct or conditions that place the child at substantial risk
of harm or has failed within a reasonable time to remedy the conduct or conditions so
that the child would be at substantial risk of physical or mental injury if returned to the
parent (CINA Rule 18(c)(1)(A)(i) - (ii)); and (c) reasonable efforts have been made to
provide family support services designed to prevent the breakup of the family (CINA
Rule 18(c)(2)(A)); and
(2) by a preponderance of the evidence that the child's best interests would
be served by termination of parental rights (CINA Rule 18(c)(3)).
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Judge Suddock looked disfavorably on Dara's decision to move to
Wrangell, "a place without the kind of health services that . . . [Paxton], who has
profound kidney problems, is going to need." He characterized the move as "[a] totally
unplugged, unhinged life move under the circumstances that reflects a delusional or an
irrational impulsive thought pattern." He also found it was "symbolic of just terribly
depreciated judgment to have a child in custody, to be fighting mental health problems,
and to decide that it's a good time to have a child with a stranger." Characterizing Dara's
life in the summer of 2013 as "kind of a psychiatric mess at that point," Judge Suddock
found Dara "was very unstable in the fall of 2013 and she's gradually gotten better from
there." Judge Suddock found Dara was having "serious . . . delusions" during that time
period.
Judge Suddock noted that both Scarlet and Virden testified about Dara's
lack of awareness of her mental health issues. He noted that to Dara "[t]here always
seemed to be some cause, external, that explained everything." He characterized the
incidents around the Christmas Day visit and Dara's mail as "[s]ome frankly paranoid
style stuff" that occurred relatively recently. He found Dr. Truhn's testimony "a lighter
psychiatric diagnosis than Dr. Rose, but . . . it could be mild symptoms of psychosis" that
would need to be looked at for another year.
Judge Suddock noted that this was "a difficult and interesting case . . . .
with issues of a mentally ill mom who [was] getting better." He found OCS had proved
"by clear and convincing evidence that [Paxton] was subjected to conduct that [made]
him a child in need of aid. That's because of the severe mental illness." He also found
that OCS made reasonable efforts because Dara was not always "fully engaged" in her
treatment plans. He found Dara had "not remed[ied] the conduct within a reasonable
time" because she "spent essentially the better part of her first year spinning her wheels,
not adequately engaging with mental health treatment." He acknowledged Dara's recent
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improvements, but concluded that "[i]t appears just overwhelming to me that the clock's
run out, that the best interests of [Paxton] are to be parented by [Scarlet]." Given
Paxton's age and medical condition, Judge Suddock was unwilling to wait an additional
six months to a year to see if Dara's condition improved.
c. Dara's appeal
Dara appealed Judge Suddock's termination order, arguing that: (1) as of
the termination trial Paxton no longer was a child in need of aid due to Dara's mental
health issues because she no longer posed a risk of harm to him; (2) OCS failed to make
reasonable reunification efforts; and (3) Dara was not afforded reasonable time to
remedy the condition causing Paxton to be a child in need of aid.
B. Reinstatement
1. Facts
a. Stay of termination order for review hearing
In September 2015, after the June oral termination decision but before the
October written termination order, Dara moved for a review hearing. Dara argued that
because she had "made significant progress on her case plan and [would] soon be
reunited with her daughter, . . . there [was] good cause for the court to order a review
hearing . . . so that she [could] show that it is in [Paxton's] best interest to return to her
care and custody." Judge Washington, who was covering Judge Suddock's cases, found
good cause for a review hearing and stayed the termination order. The parties were
granted a continuance for Dr. Erik Sorensen to assess Paxton's attachment to Dara
compared with his attachment to Scarlet and her husband, Paxton's functioning and
needs, and a potential plan for reunifying Paxton with Dara. Although OCS agreed to
facilitate interim visits between Dara and Paxton, no visits occurred.
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We then stayed Dara's appeal of the termination order pending the outcome
12
of the review hearing.
b. Dara's stabilization and custody of her daughter
Dara continued improving after the termination trial. She continued weekly
therapy sessions with Jefferis, and since December 2014 had maintained full-time
employment with the same employer. By April 2016 Jefferis believed Dara had become
"much more grounded and calm," confident, and better at "creating a stable life for
herself." Early in 2016 Jefferis changed the frequency of Dara's sessions to only once
or twice each month.
In June 2015 Dara met with Dr. Truhn for an updated psychological
assessment. Dr. Truhn thought that Dara was "significantly more stable since the
previous evaluation," and that she seemed "on track with the projected prognosis . . .
from October [2014]." Based on information Dara provided, Dr. Truhn further believed
that a plan for reunification with Paxton could be possible "within the next two to three
months."
Dara also met with a psychiatric mental health nurse practitioner, Karla
Marvich, who was authorized to prescribe psychotropic medication. Dara first met with
Marvich in October 2015 and had met three times with her by February 2016. Marvich
concluded that Dara did not meet "criteria for any specific diagnosis" and did not need
"any medication." Marvich instead thought that the medications Dara was prescribed in
the summer of 2013 "were excessive," and the combination of medications "could have
caused increased anxiety" and Dara's psychosis.
12
Dara S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
No. S-16126 (Alaska Supreme Court Order, Dec. 11, 2015).
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In November 2015, despite Scarlet's opposition, Dara's daughter was
returned to Dara's care. Because DHS had no lingering concerns regarding Dara's
ability to care for her daughter, it was anticipated that DHS would dismiss that child's
case in May 2016.
c. Dara's deteriorating relationship with Scarlet
Until August 2015 Dara continued visiting with Paxton through DHS,
usually during supervised visits with her daughter. DHS social worker Sara Rich
provided one-on-one parent coaching for Dara during some visits. And when Paxton
was present at these joint visits, Rich "did not have any concerns" about Dara's ability
to parent. Rich later characterized Dara's interactions with Paxton as being "[v]ery good
interactions, very kind and compassionate," as well as positive and appropriate. For
example, Rich observed Paxton once telling Dara that she was "the best" and once saying
he wanted to go home with her. Dara responded appropriately in both instances, telling
Paxton "he was the best" also and answering his request to go home with her only by
saying she knew that and she loved him.
But by then Dara's relationship with Scarlet had deteriorated. After the
superior court's oral termination of Dara's parental rights to Paxton, Scarlet left "it up
to [Paxton] [to decide] if he wanted to" have visitation with Dara and his sister.
According to Scarlet, Paxton went to only a couple of visits thereafter because "he didn't
care to go into the visits and see [Dara]." Scarlet did not seem upset by Paxton not
wanting to attend visits; she characterized Dara as "a toxic person" and seemed "very
upset" when Dara's daughter was returned to Dara's care. Once Dara regained custody
of her
daughter and DHS no longer assisted in arranging visits, Scarlet never arranged
for Paxton and his sister to visit. In March 2016 Dara and Paxton saw each other for
the first time in six months at a joint psychological assessment with Dr. Sorensen.
- 17- 7288
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Dr. Sorensen, who had been asked to assess Paxton's attachment to both
Dara and Scarlet, reported that "[c]ontinued placement with [Scarlet] appears the safest
and most supportive option that would likely meet [Paxton]'s needs over time."
Dr. Sorensen noted that Paxton considered Scarlet his mother, that Paxton had no
problems living with her, and that she and her husband adequately cared for his
medical needs. Dr. Sorensen also noted that Scarlet had little interest in
sen believed Dara had "made
facilitating visits between Dara and Paxton. Dr. Soren
remarkable progress" since the incidents in 2013 and 2014, and she "demonstrated
ample skill in engaging her son"; he did not note any concerns about her ability to
parent. But Dr. Sorensen emphasized that any change in custody for Paxton would
be "likely to [cause] distress" and recommended careful monitoring of his medical
condition if a custody change occurred. Dr. Sorensen also was concerned that
Paxton's language limitations and "general tendency to answer 'yes' to most
q
uestions" might lead to difficulties. Finally, Dr. Sorensen recommended that, if a
change in custody were to occur, it take place incrementally with extensive
monitoring. 2. Proceedings
a. Hearing
A review hearing took place in April and May of 2016. Testimony
primarily concerned Dara's recent progress and Paxton's best interests. OCS presented
no expert testimony concerning Dara's current mental health, instead relying on Scarlet's
testimony that she believed Dara was "not capable" of parenting and was mentally ill.
Dara, her mother, and Scarlet all indicated that Dara would see little of Paxton in the
current custody situation.
Hearing testimony indicated that any transition would be difficult for
Paxton. Scarlet testified it would be "extremely difficult" for Paxton to be removed from
her home "to be placed with a family that he doesn't really know anymore."
-18- 7288
----------------------- Page 19-----------------------
Dr. Sorensen thought Paxton had "really adapted well into [Scarlet's] family," and
although Dr. Sorensen thought Paxton would be able to adapt to a new family situation,
"there's no guarantee that [it would] . . . go well and sometimes kids really struggle when
they're forced to leave attachment figures." Dr. Sorensen thought a change in custody
would be "a highly confusing event for [Paxton] and one that could very well have a
lasting effect" because he would have no memory of living with Dara. Dr. Sorensen
thought that Paxton would "have a really hard time for quite some time" before being
able to verbalize his concerns. Dr. Sorensen "recommended that [Paxton] remain in his
current placement . . . indefinitely as a means of maintaining his emotional stability and
general safety." Notwithstanding this recommendation, Dr. Sorensen outlined how a
reunification could happen to minimize disruption and how it would take at least three
to four months. However, he cautioned against removing Paxton from Scarlet's care,
stating it would be "a guaranteed loss" for Paxton and "certainly take a toll on him." Dr.
Sorenson added: "Whether that [loss] will be made up for through the reconnection with
his mother and the connection with his sister, I couldn't . . . say."
b. Decision
In
July 2016 Judge Washington issued a written decision reinstating Dara's
parental rights to Paxton. Judge Washington first noted that she had "heard testimony
from multiple witnesses, listened to the termination trial and Judge Suddock's decision
on the record, and reviewed medical records, including reports from API, Dr. Michael
Rose, and Dr. David Truhn as requested by the parties." Judge Washington then outlined
relevant facts leading up to termination, including: (1) Dara's psychotic break due to an
Adderall overdose in September 2013; (2) Dr. Rose's report and recommendations;
(3) Dara's "erratic[]" period of time when she "was in complete denial about her mental
illness" and "made some irrational decisions" prior to moving to Oregon; (4) Dr. Truhn's
report and recommendations; (5) Dara's starting individual counseling with Jefferis;
-19- 7288
----------------------- Page 20-----------------------
(6) Dara's daughter's birth; (7) the termination trial and the court's findings; and (8) the
procedural posture of the review hearing.
Judge Washington made 19 factual findings after the review hearing.
Notably, she found Dara was "no longer exhibiting delusional or psychotic behaviors,"
and she was "not taking psychotropic medications and no medication [was]
recommended"; Dara had "been successfully parenting [her daughter] since November
. . . 2015"; "[t]he hostility [between Dara and Scarlet] [was] great and ha[d] caused a
division in the family"; "Dr. Sorensen reported that [Paxton] . . . [was] 'likely' to
experience distress if moved"; and "Dr. Sorensen conclude[d] that the safest result with
the least amount of risk to [Paxton's] emotional well[-]being would be to keep [Paxton]
with [Scarlet]."
Judge Washington then outlined what she considered the applicable law:
As long as a child remains the ward of the court under
[13]
AS 47.10.080(f) his or her natural parents are entitled to a
review of the order terminating their parental rights upon a
showing of good cause for the hearing. Good cause could be
established if the parent or parents show that it would be in
the best interests of the child to resume living with him or her
because he or she has sufficiently rehabilitated him or herself
such that he or she can provide proper guidance and care for
[14]
the child.
13 See AS 47.10.080(f) ("A child found to be a child in need of aid is a ward
of the state while committed to the department or the department has the power to
supervise the child's actions."). The balance of this statutory provision relates to the
right to request a permanency hearing. Cf. AS 47.10.080(l) (providing standards for
permanency plans, hearings, and court findings regarding various permanency matters).
14
Judge Washington cited Rita T. v. State , 623 P.2d 344, 347 (Alaska 1981),
for this legal proposition.
Rita T. was based on an interpretation of former AS 47.10.080(f), which at
(continued...)
-20- 7288
----------------------- Page 21-----------------------
15 16
The court also listed AS 47.10.011(11) and AS 47.10.088(b)(1)-(5) as bases for its
decision.
Judge Washington began by acknowledging Judge Suddock's June 2015
termination findings. But she then stated that "[t]oday, the record presents a new picture
of [Dara]. She has clearly overcome the severe mental impairment that set this case in
motion nearly three years ago." Judge Washington noted that Dara had "complied with
14 (...continued)
that time provided for review hearings rather than permanency hearings. Id. at 346-47.
(This is why the superior court described Dara's hearing as a review hearing or a Rita T.
hearing.) Well after our Rita T. decision, however, the legislature amended
AS 47.10.080(f), and the statute now relates to permanency hearings rather than review
hearings. See Ch. 99, § 26, SLA 1998. Compare former AS 47.10.080(f) (1980), with
AS 47.10.080(f). We discuss this more fully below.
15 Providing for a child in need of aid finding if "the parent, guardian, or
custodian has a mental illness, serious emotional disturbance, or mental deficiency of a
nature and duration that places the child at substantial risk of physical harm or mental
injury."
16 Providing that:
In making a [failure to remedy] determination under . . . this
section, the court may consider any fact relating to the best
interests of the child, including
(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 the 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 parent.
-21- 7288
----------------------- Page 22-----------------------
all five of Dr. Rose's treatment recommendations." And Judge Washington pointed out
that "[n]either OCS nor the guardian ad litem contested [Dara]'s completion of goals set
in her case plan and her current stability." Judge Washington determined that Dara had
proved, "by clear and convincing evidence, that she has remedied the conduct and
conditions in the home that placed [Paxton] at substantial risk of harm."
Judge Washington then found, by clear and convincing evidence, that it was
in Paxton's best interests to return to Dara's care because:
1) The state favors reuniting children with biological parents.
2) Mental illness alone cannot support termination of parental
rights. 3) There was no harm caused to the child and it is
unlikely harmful conduct will happen. 4) The child's bond
with the biological parent can be restored. 5) The child can
be returned to the parent within a reasonable time based on
[the] child's age and needs. 6) The parent has put in a great
amount of effort to remedy the conduct or conditions in the
home.
Judge Washington emphasized a "presumption for keeping families
together when the parents have demonstrated that they are capable of meeting the child's
needs." She additionally noted that "a parent's mental illness alone may not form the
basis of a termination of . . . parental rights"; that "[w]hatever nexus the court found at
the time of termination" relating to Dara's mental illness placing Paxton at harm, "it [did]
not exist now"; that it was possible to restore Paxton's bond with Dara; and that Dara
"ha[d] put in a lot of effort to remedy the conduct and conditions in the home that caused
her son to be taken." Judge Washington then ordered OCS to "begin a transition plan"
to return full custody of Paxton to Dara.
After OCS moved for reconsideration, in October Judge Washington
clarified her previous findings. OCS had argued that Judge Washington created a
burden-shifting presumption that reuniting with a biological parent is in a child's best
-22- 7288
----------------------- Page 23-----------------------
interests. Judge Washington responded that she instead "simply . . . acknowledg[ed] the
legislative preference in favor of keeping a child with his or her biological parents."
Judge Washington then noted OCS's renewed arguments - that it was not in Paxton's
best interests to return to Dara considering permanency and the length of time necessary
for reunification. Judge Washington first rejected any suggestion that she had not taken
into account Paxton's age, the length of time he had lived with Scarlet, and his
attachment to Scarlet. Judge Washington stated that she also had considered Paxton's
prior bond with Dara and his bond with Dara during visitations. And Judge Washington
expressly rejected OCS's argument that Dara was a stranger to Paxton.
Although Judge Washington noted that her decision had involved a best
interests analysis, she also explained her view that "[o]nce good cause is established for
a review hearing, . . . the court is not required to undertake a best interest analysis if
circumstances have changed so much that the child is no longer a child in need of aid."
Judge Washington indicated that "[a] best interest analysis is only done when it is first
determined that the child is in need of aid." She emphasized that in the reinstatement
context, "[a] best interest analysis is not necessary to determine if a child should return
home, but only required to determine when a child will return home." (Emphases in
original.) Finally, Judge Washington modified her original order to include a future
"hearing on the timetable for reunification."
c. OCS's and guardian ad litem's appeals
OCS and Paxton's guardian ad litem (GAL) appealed the reinstatement
order. Although OCS does not directly challenge Rita T. 's holding, it questions that
holding's foundation after subsequent statutory changes. OCS asks us to clarify and
limit Rita T. 's application, primarily arguing that: (1) a Rita T. proceeding is not
appropriate when a child is in an adoptive placement; (2) it was legal error to apply a
presumption in favor of reunification; and (3) it was clear error to find it was in Paxton's
-23- 7288
----------------------- Page 24-----------------------
best interests to return to Dara. The GAL joins in OCS's arguments and also argues that
a Rita T. proceeding is intended only in an extraordinary case when permanency has not
been established post-termination.
III. DISCUSSION
A. The Termination Of Dara's Parental Rights17
Dara argues the superior court erred by finding that: (1) her mental illness
led to Paxton being a child in need of aid and that she had not remedied the conduct or
conditions initially placing him at risk; (2) OCS made reasonable efforts to reunify her
family; and (3) she was afforded reasonable time to remedy. Because Dara's arguments
are not convincing, we affirm the superior court's decision terminating her parental rights
to Paxton.
1. Child in need of aid finding
Dara makes two separate arguments why the superior court erred by finding
Paxton was a child in need of aid. First, Dara argues that the court improperly made its
CINA finding "based upon Dara's mental illness alone." Second, Dara argues that the
court clearly erred by finding her mental illness continued to pose Paxton "substantial
risk of physical harm or mental injury" at the time of trial.
17 In a case involving parental rights termination we review a trial court's
findings of fact for clear error. Martin N. v. State, Dep't of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003). Findings are clearly erroneous
if, after reviewing 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." Brynna B.
v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529
(Alaska 2004) (quoting A.B. v. State, Dep't of Health & Soc. Servs. , 7 P.3d 946, 950
(Alaska 2000)). "We review de novo whether a trial court's findings satisfy the
requirements of the child in need of aid statute." Barbara P. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1253 (Alaska 2010) (citing Carl
N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 102 P.3d 932,
935 (Alaska 2004)).
-24- 7288
----------------------- Page 25-----------------------
a. Child in need of aid finding not based on Dara's mental
illness alone
Alaska Statute 47.10.011(11) permits courts to find that a child is in need
of aid if "the parent . . . has a mental illness, serious emotional disturbance, or mental
deficiency of a nature and duration that places the child at substantial risk of physical
18
Because AS 47.10.011(11) has two requirements - parental
harm or mental injury."
mental illness and substantial risk of harm to the child - we have repeatedly held that
"mental illness alone may not form the basis of a [CINA] finding."19
Dara argues that the "court failed to articulate in either its oral or written
findings the specific conduct flowing from Dara's mental illness that placed Paxton at
risk as required under subsection (11)." In its oral findings the court stated OCS proved
"by clear and convincing evidence that [Paxton] was subjected to conduct that makes
him a child in need of aid. That's because of the severe mental illness." The court's
written findings are similarly succinct: "There is clear and convincing evidence that the
child has been subjected to conduct or conditions described in AS 47.10.011(11). The
court adopts herein the oral record of its findings . . . regarding the underlying bases of
these findings in their entirety."
But Dara does not consider the underlying oral findings the superior court
made in reaching its decision. The court made explicit oral findings concerning
Dara's September 2013 "suicide attempt [from] overdosing on . . . Adderall"; her May
18 AS 47.10.011(11).
19 Barbara P. , 234 P.3d at 1255 (citing K.N. v. State , 856 P.2d 468, 475
(Alaska 1993); V.S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 45 P.3d 1198, 1206 n.22 (Alaska 2002)); see also Alyssa B. v. State, Dep't of
Health & Soc. Servs., Div. of Family & Youth Servs. , 165 P.3d 605, 618 (Alaska 2007)
("Mental illness, absent related conduct, cannot be a basis for termination of parental
rights." (alteration omitted) (quoting V.S.B., 45 P.3d at 1206 n.22)).
-25- 7288
----------------------- Page 26-----------------------
2014 "totally unplugged, unhinged life move" to Wrangell "that reflects a delusional or
an irrational impulsive thought pattern"; her November 2014 diagnoses by Dr. Truhn of
persistent depressive disorder and anxiety disorder; her December 2014 "verbally
abusive" and "unrealistic demands" to spend time with Paxton on Christmas, symbolic
of her general tendency to make unrealistic demands about visitation; and her January
2015 "paranoid style" "identity theft" allegations relating to her mail.
These underlying factual findings of specific conduct are sufficient to
support the superior court's finding that Paxton is a child in need of aid under
AS 47.10.011(11), especially given his elevated medical needs. For example, in
Barbara P. v. State, Department of Health & Social Services, Office of Children's
Services we affirmed a termination finding under AS 47.10.011(11) because of evidence
that the mother "had attempted suicide when [the child] was one year old"; might
"attempt suicide again" "if her depression remain[ed] untreated"; had "a pattern of
entering into relationships with abusive men with substance abuse problems"; and had
20
"impact[ed] her ability to safely care for her children" by not treating her depression.
We similarly affirmed a termination finding under AS 47.10.011(11) in Alyssa B. v.
State, Department of Health & Social Services, Division of Family & Youth Services
because the superior court adequately linked evidence of the mother's mental illness and
other "actual conduct-based problems creating a risk of substantial harm" including a
refusal to get psychological treatment.21
20 234 P.3d at 1255-56; see also id. at 1255 ("[M]ental health issues had a
'very clear ramification[]' for 'her ability to parent . . .' impacting her 'day-to-day
functioning and her judgment.' " (alteration in original)).
21 165 P.3d at 618-19.
-26- 7288
----------------------- Page 27-----------------------
b. Substantial risk of physical harm or mental injury at the
time of trial finding not clearly erroneous
Dara also argues that the superior court clearly erred by finding that she
posed a substantial risk of physical harm or mental injury to Paxton at the time of the
termination trial. When reviewing factual findings we "ordinarily will not overturn a
trial court's finding based on conflicting evidence,"22 and will not re-weigh evidence
23
It "is the function
"when the record provides clear support for the trial court's ruling."
of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting
24
evidence." In this admittedly close case, the court did not clearly err in its findings;
"[m]erely because the superior court reached a different conclusion than [Dara] desired
25
does not constitute legal error." As discussed above, the court identified manifestations
of Dara's then-untreated mental illness - including "unhinged" life moves, continued
paranoia, and suicidal ideation - that placed Paxton, a child with acute medical needs,
at substantial risk of physical harm and mental injury at the time of trial unless Dara's
parental rights were terminated. Because the record provides clear support for the
superior court's ruling, Dara's argument is unavailing.
2. Reasonable efforts finding
Dara argues that the superior court erred by finding OCS made reasonable
22 Martin N. , 79 P.3d at 53.
23 See D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 214
(Alaska 2000); see also Barbara P. , 234 P.3d at 1260 ("We . . . believe that the
deference accorded to a superior court's factual findings is particularly appropriate in
close cases.").
24
See In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001) (quoting
Knutson v. Knutson , 973 P.2d 596, 599-600 (Alaska 1999)).
25
See Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 289 P.3d 924, 933 (Alaska 2012).
-27- 7288
----------------------- Page 28-----------------------
efforts to reunify the family. She disputes the superior court's factual finding that she
was uncooperative and unwilling to engage in treatment necessary for reunification.
Dara also contends that OCS's "failure to pursue critical mental health services in a
prompt fashion," and its reliance on Oregon DHS to connect her with adequate mental
health providers, render the superior court's reasonable efforts finding clearly erroneous.
We disagree. Although Dara claims the record shows she was cooperative
and willing to engage in treatment, ample evidence presented at the termination trial
suggests otherwise. The court considered evidence that Dara did not acknowledge her
mental illness; that she missed her mental health and SSI appointments by moving to
Wrangell; and that she "spent essentially the better part of her first year spinning her
wheels, not adequately engaging with mental health treatment." Given this evidence, the
court's finding that Dara was uncooperative with OCS's efforts to engage her in
treatment was not clearly erroneous.
Although Dara had to wait six months to begin services at Anchorage
Community Mental Health, the existence of a waiting list or delay in the provision of
26
This is
services does not automatically preclude a reasonable or active efforts finding.
particularly true when, as here, OCS's reasonable efforts were frustrated or limited by
26 See Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 309 P.3d 850, 854, 857 (Alaska 2013) (affirming active efforts finding despite
"little success [with obtaining treatment] other than to have [the parent's] name added
to months-long waiting lists for several programs"); E.A. v. State, Div. of Family & Youth
Servs., 46 P.3d 986, 990-91 (Alaska 2002) (holding seven month lapse not fatal to active
efforts finding where extensive other efforts were made and parent's evasive, combative
conduct made providing further services practically impossible). Because the active
efforts requirement is more stringent than reasonable efforts, cases concluding that active
efforts were made are relevant in evaluating reasonable efforts. Kylie L. v. State, Dep't
of Health & Soc. Servs, Office of Children's Servs., 407 P.3d 442, 448 n.6 (Alaska 2017).
-28- 7288
----------------------- Page 29-----------------------
27
the parent's actions and unwillingness to engage in treatment. We agree with the
superior court that OCS's efforts were timely under the circumstances. The OCS
caseworker quickly referred Dara for a psychological evaluation by Dr. Rose, referred
Dara to a program equipped to address the severity of her mental illness, got her on the
program's "significant" waiting list, and made an appointment with the program to
provide Dara with resources and information about medication management while she
waited for an opening. Moreover, OCS continued to support Dara in finding stability in
the interim. Although a waiting list at the suitable program presented unfortunate
barriers to immediate treatment, OCS's efforts were on the whole timely and reasonable.
The court's finding was not clearly erroneous in this regard.
Finally, we are unpersuaded by Dara's argument that there was a lapse in
reasonable efforts when she relocated to Oregon. Dara asserts that "OCS should have
exercised oversight designed to ensure the services satisfied OCS, not just Oregon DHS."
28
It was
We note OCS is not required to duplicate the efforts of other service providers.
not unreasonable for OCS to cede some responsibility to DHS to connect Dara with
29
mental health services when she abruptly left Alaska and relocated to Oregon. And
DHS's efforts were successful; after initially taking custody of Dara's infant daughter,
27 See E.A., 46 P.3d at 991 ("We have consistently held that '[a] parent's
demonstrated lack of willingness to participate in treatment may be considered in
determining whether the state has taken active efforts.' " (alteration in original) (quoting
N.A. v. State, Div. of Family & Youth Servs., 19 P.3d 597, 603-04 (Alaska 2001))).
28
See Jude M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 394 P.3d 543, 555 (Alaska 2017) (observing "[w]e have approved superior
courts' consideration of efforts made by outside entities" in active efforts analysis and
holding "the rationale extends to services provided by others that OCS should not be
required to duplicate").
29 See id. at 556.
-29- 7288
----------------------- Page 30-----------------------
it provided assistance that led to her return to Dara's care.
The record nonetheless shows that OCS exercised a reasonable degree of
oversight while Dara was in Oregon. OCS communicated Dara's case plan to Oregon
DHS, faxed the assessments by Dr. Rose and Dr. Truhn, and received updates regarding
Dara's progress. Oregon DHS in turn referred Dara to the Center for Family
Development, a program with psychiatrists on staff with whom OCS encouraged Dara
to consult. OCS conveyed to Dara and her Oregon providers its concern that she remain
compliant with her prescribed psychotropic medication. Dara's Oregon therapist was
aware of OCS's recommendation and provided Dara with a list of psychiatrists who
would accept her insurance in the area. These facts suggest OCS was involved at every
level to ensure Dara's access to adequate mental health treatment while in Oregon.
Moreover, an Oregon DHS representative testified that DHS adopted
OCS's case plan and assigned workers to implement it. DHS also spoke with Dara about
her previous diagnoses and agreed with OCS that she required a "higher level of care,"
possibly including medication. DHS's deferential approach, described by the superior
court as "Alaska did it, then Oregon should do it, too," further cuts against Dara's
argument that OCS did not sufficiently steer the out-of-state agency to provide services
designed to satisfy Alaska's reunification requirements. In light of the foregoing, we
conclude it was not clearly erroneous for the superior court to find OCS made reasonable
efforts even while Dara was in Oregon.
3. Reasonable time to remedy finding
Dara argues that the superior court clearly erred by finding she "was given
a reasonable time to remedy." Dara contends she was following her case plan, it would
take less than a year for her to be ready for reunification, and there was no evidence
suggesting Paxton would be harmed by continuing to live with Scarlet during that time.
-30- 7288
----------------------- Page 31-----------------------
Alaska Statute 47.10.088(a)(2)(B) allows for termination of parental rights
if the parent "has failed, within a reasonable time, to remedy the conduct or conditions
in the home that place the child at substantial risk of physical or mental injury." We have
"emphasize[d] that the [legislature] clearly put[] the criteria for 'reasonable time' in
terms of the child's needs,"30 and we have indicated that what constitutes a reasonable
31 Failing to follow a case plan may
time "is likely to be shorter for younger children."
show that a parent did not remedy the situation,32 and even "completion of a case plan
does not guarantee a finding that [a parent] has remedied [her] conduct."33
The superior court did not clearly err in finding that Dara was given a
reasonable amount of time to remedy OCS's concerns. Dara's case plan required her to
engage fully in mental health treatment, and, contrary to her assertions, she failed to do
so. Dara did not follow her case plan when she missed her mental health and SSI
appointments in May 2014, and her continued denial of any mental health issues, despite
evidence of paranoia and delusion shortly before trial in 2015, demonstrates that she had
34
not remedied her conduct. There was testimony that Dara might be ready for
30 Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 254 P.3d 1095, 1108 (Alaska 2011).
31 See id. at 1107.
32 Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 310 P.3d 943, 952 (Alaska 2013) ("A failure to comply with a case plan may
constitute a failure to remedy." (citing Maisy W. v. State, Dep't of Health & Soc. Servs.,
Office of Children's Servs., 175 P.3d 1263, 1268 (Alaska 2008))).
33 Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 234 P.3d 1245, 1260 (Alaska 2010) (citing V.S.B. v. State, Dep't of Health & Soc.
Servs., Div. of Family & Youth Servs., 45 P.3d 1198, 1208 (Alaska 2002)).
34 See id.; Sherman B., 310 P.3d at 952.
-31- 7288
----------------------- Page 32-----------------------
reunification within six months. But we are unable to say it was clear error for the court
to find that six months was an optimistic estimate for full reunification and that waiting
six months to another full year was unreasonable from Paxton's perspective, given his
young age, acute medical needs, and bond with Scarlet, with whom he had already been
35
living for nearly a year. We conclude the court did not clearly err in finding that OCS
had given Dara a reasonable time to remedy between the establishment of her case plan
in November 2013 and the termination of her parental rights in June 2015.
4. Summary
Because the superior court's findings to which Dara objects are not clearly
erroneous, all of the necessary findings for the termination of Dara's parental rights were
made by the superior court. We therefore affirm the termination order.
B. The Reinstatement Of Dara's Parental Rights
Resolving OCS's and the GAL's appeal of the superior court's
reinstatement order requires us to confront a number of issues. We first will outline our
existing case law giving rise to a parent's right to a conditional post-termination
reinstatement hearing. We then will examine relevant statutory changes since our
original decision about reinstatement hearings. After explaining why, despite some
statutory changes, our existing case law regarding reinstatement of parental rights retains
vitality, we will address the appropriate substantive- and evidentiary-proof standards to
apply at reinstatement hearings. Finally, we will review the court's decision in this case
in light of our holdings along the way.
35 See Christina J., 254 P.3d at 1107 ( "[T]he statute defines 'reasonable time'
not as a specific number of months or by reference to parents' needs, but as 'a period of
time that serves the best interests of the child, taking in account the affected child's age,
emotional and developmental needs, and ability to form and maintain lasting
attachments.' " (quoting AS 47.10.990(28))).
-32- 7288
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1. Rita T. v. State and subsequent case law
a. Rita T.
Our 1981 Rita T. v. State decision established a limited opportunity to
36
In Rita T. the superior court
reinstate parental rights post-termination but pre-adoption.
37 The mother requested a hearing to review
had terminated the mother's parental rights.
that termination order, which "the superior court denied . . . without explanation."38 We
reversed the superior court's decision, holding that "as long as a child remains the ward
of the court . . . natural parents are entitled to a review of the order terminating their
parental rights upon a showing of good cause for the hearing."39
We began by examining former AS 47.10.080(f), which then, in relevant
part, governed periodic superior court review of certain disposition orders relating to
children in need of aid:
A minor found to be . . . a child in need of aid is a ward of the
state as long as he is committed to the department (of health
and social services) or the department has the power to
supervise his actions. The court shall review an order made
under . . . (c)(1) or (2) of this section annually, and may
review the order more frequently to determine if continued
placement, probation, or supervision, as it is being provided,
is in the best interest of the minor and the public. The
department, the minor, the minor's parents, guardian, or
custodian are entitled, when good cause is shown, to a review
36 623 P.2d 344, 346-47 (Alaska 1981).
37 Id. at 345 (citing In re C.L.T. , 597 P.2d 518 (Alaska 1979)).
38 Id. at 346.
39 Id. at 347.
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[40]
on application.
We explained that "[i]t is clear that [termination] orders . . . are not entitled
to automatic review, inasmuch as subsection (f) specifies which orders are entitled to this
41
But we
review and [termination] orders . . . are not included within the list."
nonetheless held that termination orders conditionally could be reviewed upon request.
Our examination of the underlying public policy and purposes of Title 47, the CINA
42
statutes, "convince[d] us" of this result. We held that even termination orders would
be subject to review upon request if the "interested party . . . establishes good cause . . .
and if the child is still a ward of the court."43
40 Id. at 346 (quoting former AS 47.10.080(f) (1980)). The reference to
reviews for "an order made under . . . (c)(1) or (c)(2) of t his section" referred to orders
committing children in need of aid to state custody for appropriate placement ((c)(1)),
or to a parent or suitable person under state supervision ((c)(2)). Id. at 346 & n.2.
41 Id. at 346.
42 Id.
43 Id. Termination orders were referenced in former AS 47.10.080(c)(3)
(1980).
Although not mentioned in Rita T. , language in the then-current statute
providing continuing court jurisdiction over a child in need of aid was consistent with
our view of review hearings under former AS 47.10.080(f):
(a) The court retains jurisdiction over the case and may
at any time stay execution, modify, set aside, revoke, or
enlarge a judgment or order, or grant a new hearing, in the
exercise of its power of protection over the minor and for his
best interest, for a period of time not to exceed two years or
in any event extend past the day the minor becomes 19,
unless sooner discharged by the court, except that the
department may apply for and the court may grant an
(continued...)
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Our public policy and purpose discussion derived from former
AS 47.05.060:
The purpose of this title as it relates to children is to secure
for each child the care and guidance, preferably in his own
home, that will serve the moral, emotional, mental, and
physical welfare of the child and the best interests of the
community; to preserve and strengthen the child's family ties
whenever possible, removing him from the custody of his
parents only as a last resort when his welfare or safety or the
protection of the public cannot be adequately safeguarded
without removal; and, when the child is removed from his
[44]
family, to secure for him adequate custody and care.
We then explained:
We believe that an interpretation of [former
AS 47.10.080](f) which permits the review of an order that
terminates parental rights is most consonant with these
purposes because it provides an opportunity for the child to
43 (...continued)
additional one-year period of supervision past age 19 if
continued supervision is in the best interests of the person
and the person consents to it. An application for any of these
purposes may be made by the parent, guardian, or custodian
acting in behalf of the minor, or the court may, on its own
motion, and after reasonable notice to interested parties and
the appropriate department, take action which it considers
appropriate.
(b) If the court determines at a rehearing that it is for
the best interests of the minor to be released to the care or
custody of the minor's parent, guardian, or custodian, it may
enter an order to that effect and the minor is discharged from
the control of the department.
Former AS 47.10.100(a)-(b) (1977) (emphasis added).
44 Rita T. , 623 P.2d at 346 (quoting former AS 47.05.060 (1980)).
-35- 7288
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resume living with his or her parents when the parents
become capable of providing "adequate custody and care" for
the child. While it may not be true of all, some parents are
capable of changing and overcoming the problems that
caused the termination of their parental rights. For those who
can now provide the care and guidance "that will serve the
moral, emotional, mental and physical welfare of the child,"
good cause exists for reviewing the order that terminated
their parental rights. Many children who become wards of
the court when their parents' rights are terminated are not
adopted and they therefore remain wards of the court
throughout their minority. Permitting a renewal of the
relationship between the child and his parents if the child is
still a ward of the court and the parents have undergone a
substantial rehabilitation fulfills the purposes of [T]itle 47 as
much, if not more, than permitting the child to spend his or
[45]
her entire minority in a succession of foster homes.
We clarified that this holding "[did] not conflict" with the statutory requirement to
"attempt to find a permanent placement for the child when the parental rights of his
46
And we stated that "[o]nce the child has been
natural parents have been terminated."
adopted, he or she is no longer a ward of the court and the natural parents cannot seek
47
review of the order that terminated their parental rights."
We "conclude[d] that as long as the child remains the ward of the court,
under [former] AS 47.10.080(f) his or her natural parents are entitled to a review of the
48
order terminating their parental rights upon a showing of good cause for the hearing."
We noted that "[g]ood cause could be established if the parents showed that it would be
45 Id. at 347 (citation omitted) (quoting former AS 47.05.060).
46 Id. (citing former AS 47.10.080(c)(3)).
47 Id.
48 Id.
-36- 7288
----------------------- Page 37-----------------------
in the best interests of the child to resume living with them because they have sufficiently
rehabilitated themselves so that they can provide proper guidance and care for the
49
child." Turning to the facts of Rita T. , we held that the mother had made "a sufficient
showing of good cause to entitle her to a review of the order terminating her parental
50
rights if [her child] ha[d] not yet been adopted."
b. Nada A.
In Nada A. v. State we considered the State's argument that allowing a
51
The superior court had
Rita T. review violates a minor's equal protection rights.
terminated a mother's parental rights, but it also had ordered that, in the event of changed
circumstances, the mother could seek reconsideration of the termination any time before
52
the child was adopted. The mother appealed the termination order, and the State cross-
appealed the order allowing the mother to seek reconsideration of the termination order.53
The State based its equal protection argument on a claim that children have
constitutional rights to permanent, adequate homes, and that allowing some children's
49 Id.
50 Id. We expressly noted that when the mother in Rita T. had applied for her
review hearing, adoption proceedings already had commenced. Id. at 347 n.6. We stated
that if a final adoption decree already had been entered by the time of our decision, the
review hearing request should be denied. Id. But in a later case we stated, without
citation, that in Rita T. we interpreted former AS 47.10.080(f) to permit "any natural
parent to stay adoption proceedings upon a showing of good cause." Nada A. v. State ,
660 P.2d 436, 441 (Alaska 1983), superseded by statute on other grounds, Ch. 99, §§ 1,
18, SLA 1998, as recognized in David S. v. State, Dep't of Health & Soc. Servs., Office
of Children's Servs., 270 P.3d 767, 776 & n.20 (Alaska 2012).
51 660 P.2d at 441.
52 Id. at 437.
53 Id. at 437, 441.
-37- 7288
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parents to seek review of their termination orders, but not others, leads to disparate
treatment of children in this context.54 Asserting "that the issuance of a termination order
[should] overcome[] the statutory presumption in favor of a natural parent's fitness," the
State asked us to overrule or modify Rita T. because it "undermines finality by
55 The State proposed that courts consider "the best
resurrecting this preference."
interests of the child (as determined in a neutral adoption process), rather than parental
rehabilitation alone."56
We stated we would adhere to Rita T. 's "good cause" formulation57 and
rejected the State's finality and equal protection arguments, explaining:
Termination of parental rights is a drastic measure resulting
in severance of all legal ties between the child and parent.
The revocability of termination orders up until the time of
adoption is a necessary compromise between the desire for
finality and the desire to avoid unnecessary interference by
the state in the natural parent-child relationship. Rita T.
recognizes, and seeks to accommodate, the inherent potential
for fallibility in judicial determinations based upon
predictions of human behavior with respect to the likelihood
of continued parental misconduct. The subsequent review of
termination orders permitted by that decision cannot be said
to deny equal protection to . . . other children similarly
[58]
situated who are awaiting adoption.
54 Id. at 441 n.5.
55 Id. at 441.
56 Id.
57 Id.
58 Id.
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c. Alden H.
Over two decades later we assumed without deciding that a father who had
voluntarily relinquished his parental rights could seek a Rita T. hearing, and we then
decided the superior court had not abused its discretion by determining the father had
59
failed to show good cause for a hearing. We first noted OCS's misplaced "concern that
60
Rita T. reflects an anachronistic emphasis on family reunification." We explained that
"Rita T. does not privilege a parent's desire to regain custody over the best interests of
the child" because "a Rita T. hearing requires a parent to show both that she is
rehabilitated and that she is currently capable of providing 'the care and guidance "that
will serve the moral, emotional, mental and physical welfare of the child." ' "61
We then made clear that "it is not only appropriate but necessary for a court
62
to consider the needs of the child who is the subject of a Rita T. motion." The needs
of the child play a determinative role in whether a putatively rehabilitated parent can
"provide the care and guidance 'that will serve the moral, emotional, mental[,] and
63
physical welfare of the child,' " i.e., whether there is good cause for a Rita T. hearing.
In light of the weak evidence of the father's rehabilitation, the child's special needs, and
the father's failure to demonstrate a capability of providing for those needs, we affirmed
59 Alden H. v. State, Office of Children's Servs. , 108 P.3d 224, 231 (Alaska
2005).
60 Id. at 231 n.21.
61 Id. (emphasis added) (quoting Rita T. v. State , 623 P.2d 344, 347 (Alaska
1981)).
62 Id. at 232.
63 Id. (quoting Rita T. , 623 P.2d at 347 (quoting AS 47.05.060)).
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----------------------- Page 40-----------------------
the superior court's denial of a Rita T. hearing.64
2. Post-Rita T. statute changes
Alaska Statute 47.10.080(f) was amended in 1998,65 replacing references
to review hearings with references to permanency hearings required after a child has
66
been in state custody for a certain time. This change seems to have been prompted by
64 Id. at 233.
65 Ch. 99, § 26, SLA 1998.
66 See AS 47.10.080(f):
A child found to be a child in need of aid is a ward of the
state while committed to the department or the department
has the power to supervise the child's actions. For an order
made under (c)(1) of this section, the court shall hold a
permanency hearing as required by (l) of this section and at
least annually thereafter during the continuation of foster care
to determine if continued placement, as it is being provided,
is in the best interest of the child. The department, the child,
and the child's parents, guardian, and guardian ad litem are
entitled, when good cause is shown, to a permanency hearing
on application. . . . After the permanency hearing, the court
shall make the written findings that are required under (l) of
this section. The court shall review an order made under
(c)(2) of this section at least annually to determine if
continued supervision, as it is being provided, is in the best
interest of the child; this review is not considered to be a
permanency hearing and is not governed by the provisions of
this subsection that relate to permanency hearings.
See also 47.10.080(l) (providing that a permanency hearing shall be held "[w]ithin 12
months after the date a child enters foster care"); 47.10.088(f) (defining entry into foster
care on earlier of (1) date of first judicial filing of child abuse or neglect or (2) 60 days
after removal of child from child's home).
The reference in AS 47.10.080(f) to permanency hearings for "an order
(continued...)
-40- 7288
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a then-new federal requirement that permanency hearings - designed to reach decisions
regarding permanent placements of children in need of aid67 - be held at least every 12
68
months for a child in state custody.
The significant change driven by the statutory amendment is reflected by
the subsequent change in our Child In Need of Aid rules. Prior to the amendment, the
relevant rule provided for annual reviews of disposition orders - with or without a
hearing - and required findings focused on why the child was removed from the home,
what efforts had been made to facilitate the child's return to the home, and when the
69
child was expected to return to the home. After the amendment, the rules provided for
both annual reviews of disposition orders releasing a child to a parent or suitable person
70
under state supervision, and, for a child in state custody, permanency hearings
evaluating the appropriateness of the child's foster placement and establishing
66 (...continued)
made under (c)(1) of this section" continues to refer to an order committing a child in
need of aid to state custody for appropriate placement. AS 47.10.080(c)(1). The
reference to "an order made under (c)(2) of this section" continues to refer to an order
releasing a child in need of aid to a parent or suitable person under state supervision.
AS 47.10.080(c)(2). (Recall that Rita T. had interpreted former AS 47.10.080(f) to
implicitly provide potential review hearings of termination orders under former
AS 47.10.080(c)(3). Rita T. , 623 P.2d at 347.)
67 See AS 47.10.990(27) (defining "permanency hearing" as designed for this
purpose); CINA Rule 17.2(a) (stating purpose of hearing is "to establish a permanency
plan for each child committed to state custody").
68
See Adoption & Safe Families Act of 1997, 42 U.S.C. § 675(5)(c) (2012).
69 See former CINA Rule 19 (1987).
70 CINA Rule 19 amended by Alaska Supreme Court Order No. 1355
(July 15, 1999) (providing reviews for children under state supervision pursuant to (c)(2)
orders); see also Ch. 99, § 75, SLA 1998.
-41- 7288
----------------------- Page 42-----------------------
permanency plans for the child.71
In 2005 the legislature enacted AS 47.10.089, regarding the voluntary
72
Subsection (h) provides a Rita T.-like review hearing
relinquishment of parental rights.
for a parent voluntarily relinquishing parental rights, and it sets out the required
evidentiary and substantive standards for setting aside a subsequent termination order:
After a termination order is entered and before the entry of an
adoption or legal guardianship decree, a person who
voluntarily relinquished parental rights to a child under this
section may request a review hearing, upon a showing of
good cause, to vacate the termination order and reinstate
parental rights relating to that child. A court shall vacate a
termination order if the person shows, by clear and
convincing evidence, that reinstatement of parental rights is
in the best interest of the child and that the person is
rehabilitated and capable of providing the care and guidance
that will serve the moral, emotional, mental, and physical
[73]
welfare of the child.
Alaska Statute 47.10.089(h) was enacted during the legislative session when our
Alden H. decision was issued and we noted that it was an open question whether a parent
who voluntarily relinquished parental rights was entitled to request a Rita T. review
hearing.74
71 CINA Rule 17.2 enacted by Alaska Supreme Court Order No. 1355
(July 15, 1999).
72 Ch. 64, § 17, SLA 2005.
73 AS 47.10.089(h).
74 See Alden H. v. State, Office of Children's Servs., 108 P.3d 224, 231
(Alaska 2005) (noting in March 2005 "[w]e have never decided whether the right
announced in Rita T. is available to parents who voluntarily relinquish their parental
rights . . . and we need not address this issue here"); Ch. 64, § 17, SLA 2005 (effective
(continued...)
-42- 7288
----------------------- Page 43-----------------------
Finally, in 2012 the legislature added a statutory presumption, found at
AS 47.10.080(w), regarding sibling relationships: "The court shall recognize a
presumption that maintenance of a sibling relationship, including with a sibling who is
75
related by blood, marriage, or adoption through one parent, is in a child's best interest."
3. Rita T. 's continued validity
At oral argument before us, OCS represented that it has agreed to
reinstatement of parental rights in some cases after those rights have been terminated,
and that reinstatement of parental rights sometimes can be in the best interests of a child
in OCS custody. OCS, joined by the GAL, nonetheless in its briefing attacked Rita T. 's
statutory underpinning, arguing that "[a]ssuming Rita T. remains viable," we should
preclude its applicability when a child is in an adoptive placement. The GAL drew the
line on Rita T. 's possible application at what it described as permanent placement rather
than adoptive placement.
In their briefing to us, neither OCS nor the GAL sought outright reversal
of Rita T. , and they did not argue that Rita T. was wrong when initially decided. Put
more directly, they did not argue that it was originally wrong to interpret former
AS 47.10.080(f) to allow a parent the right to request that the court review an
AS 47.10.080(c)(3) termination order and consider reinstatement of parental rights.
OCS's focus instead is on the legislative change to AS 47.10.080(f) - the original
statutory underpinning for Rita T. - which eliminated "review hearings" and instituted
74 (...continued)
June 30, 2005).
75 See Ch. 59, § 4, SLA 2012 (establishing the new presumption).
-43- 7288
----------------------- Page 44-----------------------
76
"permanency hearings."
OCS argues that permanency hearings are held for all children in state
custody and do not involve reconsidering finalized termination orders. OCS also argues
that permanency hearings do not involve parents whose parental rights have been
77
terminated because they no longer are "parents" under our court rules. OCS finally
argues that if Rita T. remains viable based on the modified version of AS 47.10.080(f),
then courts handling permanency hearings for children whose parents have had their
parental rights terminated must consider reinstatement at every one of those hearings.
OCS protests too much.
The modification to AS 47.10.080(f) regarding permanency hearings did
not create the sudden statutory void advanced by OCS. Under the modified provision
courts must at some point hold permanency hearings regarding AS 47.10.08(c)(1)
disposition orders,78 just like courts previously were required to conduct reviews of those
79
disposition orders. Parents can apply, with good cause shown, for permanency
hearings regarding those disposition orders,80 just like parents previously were able to
76 See infra notes 78, 79, 80, 81 and accompanying text.
77 In 1999 we amended the definition of "parent" in our Child In Need of Aid
Rules of Procedure to mean "a biological or adoptive parent whose parental rights have
not been terminated." CINA Rule 2(k) amended by Alaska Supreme Court Order
No. 1355 (July 15, 1999).
78 See AS 47.10.080(f), (l).
79
See former AS 47.10.080(f) (1980) ("The court shall review an order made
under . . . (c)(1) or (2) of this section annually . . . .").
80 See AS 47.10.080(f) ("The department, the child, and the child's parents
. . . are entitled, when good cause is shown, to a permanency hearing on application.").
-44- 7288
----------------------- Page 45-----------------------
81
request reviews of those disposition orders. Continued reliance on AS 47.10.080(f) for
the right of parents to apply for hearings regarding termination orders - just as parents
could previously ask for hearings regarding termination orders under AS 47.10.080(c)(3)
- fits just as well, if not better, with the label "permanency hearing" as it does with the
label "review hearing."
82
and
The focus of a permanency hearing is a permanency plan for a child,
the focus of Rita T. is a pathway to permanency for a child through possible
reinstatement of parental rights and return of the child to the parent. If - as OCS
represented at oral argument - OCS actively works with some parents to have their
parental rights reinstated, it presumably is in the context of post-termination permanency
83
plans or hearings. Because Paxton is in a foster care placement, we know this case
84
involves that context. A Rita T. hearing request therefore generally should arise only
when a parent and OCS engage in post-termination permanency discussions and OCS,
in its discretion, rejects the parent's proposal for reinstatement of parental rights. And
81 See former AS 47.10.080(f) (1980) ("The department, the minor, [and] the
minor's parents . . . are entitled, when good cause is shown, t o a review on application.").
82 See CINA Rule 17.2(a).
83 See AS 47.10.080; CINA Rule 17.2.
84 See AS 47.10.088(f) (providing "[a] child is considered to have entered
foster care" upon the earlier of "the date of the first judicial finding of child abuse or
neglect" or "60 days after the date of removal of the child from the child's home"). We
note that foster care placement generally implies that the child is temporarily in a "home
with a person or persons who provide parental care for th e c hild," a s Paxton is here. See
Foster-Care Placement , B
LACK 'S LAW DICTIONARY (10th ed. 2014); AS 47.10.990(25)
(defining "out-of-home care provider" as "a foster parent or relative other than a parent
with whom the child is placed"). Although we use the term "foster care placement," we
wish to clarify this holding applies to children in out-of-home placements more broadly.
-45- 7288
----------------------- Page 46-----------------------
a Rita T. hearing, then, essentially would focus on a contested permanency plan.85
Absent a Rita T. hearing, the reinstatement decision would be left entirely to OCS's
discretion. This certainly would be inconsistent with the legislature's creation of a Rita
T.-like process for parents who voluntarily relinquish their parental rights and later seek
86
to set aside the termination of their parental rights. And it would be ironic if, after the
legislature apparently enacted AS 47.10.089(h) to ensure Rita T. parity for parents whose
parental rights are voluntarily and involuntarily terminated, an actual disparity arose
because the legislature eliminated the Rita T. process for those parents whose rights are
involuntarily terminated when it amended AS 47.10.080(f), even though OCS concedes
there is no clear reason to believe the legislature intended such action.
We emphasize that maintaining parents' rights to ask for Rita T. hearings
does not mean that courts must, on their own, consider reinstatement at every
permanency hearing involving children whose parents have had their parental rights
87
terminated. Rita T. did not in any way direct or otherwise suggest that courts had to
85 We wish to make clear that we are not suggesting parents whose parental
rights have been terminated necessarily are, in the normal course, parties to permanency
plans and hearings. The context of our discussion must be understood to involve parents
whose parental rights have been terminated but who have reappeared for the purpose of
seeking relief.
86
See AS 47.10.089(h) ("[A] person who voluntarily relinquished parental
rights to a child under this section may request a review hearing, upon a showing of good
cause, to vacate the termination order and reinstate parental rights . . . .").
87 OCS's reliance on our court rule defining "parent" as a parent whose
parental rights have not been terminated cannot help OCS in this context. Our rules are
procedural; they do not override statutes. For example, under AS 47.10.080(i) "the
child's parents" may appeal from an order terminating their parental rights:
A child or the child's parents, guardian, or guardian ad litem,
(continued...)
-46- 7288
----------------------- Page 47-----------------------
88
consider reviewing termination decisions absent a request by a parent. Nor do we
direct or suggest such a thing today.
We reiterate that, although it was not mentioned in our Rita T. decision and
the parties do not discuss it in their briefing, AS 47.10.100(a) continues seemingly to
provide express statutory authority for the superior court to stay, grant a new hearing, or
set aside a parental rights termination judgment, upon a parent's application:
The court retains jurisdiction over the case and may at any
time stay execution, modify, set aside, revoke, or enlarge a
judgment or order, or grant a new hearing, in the exercise of
its power of protection over the child and for the child's best
interest . . . . An application for any of these purposes may
be made by the parent, guardian, or custodian acting in behalf
of the child, or the court may, on its own motion, and after
reasonable notice to interested parties and the appropriate
department, take action that it considers appropriate.
(Emphasis added.)
With this authority, we can think of no better overall context for reevaluating a
termination decision and considering reinstatement of parental rights than a permanency
hearing.
87 (...continued)
or attorney, acting on the child's behalf, or the department
may appeal a judgment or order, or the stay, modification,
setting aside, revocation, or enlargement of a judgment or
order issued by the court under this chapter.
If our court rules overrode this statutory directive regarding who can appeal from court
orders, then Dara had no right to appeal the order terminating her parental rights. OCS's
argument has no merit.
88 See 623 P.2d 344, 346 (Alaska 1981) (distinguishing between orders
entitled to automatic review and orders reviewed upon application).
-47- 7288
----------------------- Page 48-----------------------
We finally note that the relevant Rita T. public policy - that of preferably
maintaining children in their homes and strengthening family ties whenever possible89
- has not gone away in the intervening years. In 1990 the legislature modified
AS 47.05.060, but it maintained the statutory purpose of securing "for each child the care
and guidance, preferably in the child's own home, that will serve" the child's welfare and
90
The legislature also maintained the statutory purpose
the community's best interests.
of preserving and strengthening family ties, although it expressly conditioned that upon
the child's best interests, as follows: "unless efforts to preserve and strengthen the ties
91
The legislature in
are likely to result in physical or emotional damage to the child."
1998 added a specific best interests consideration - "the potential harm to the child
caused by removal of the child from the home and family environment" - in disposition
orders under AS 47.10.080(c).92 And in 2005 the legislature modified AS 47.10.005, in
relevant part, to clarify that statutes in AS 47.10 - the CINA statutes - "shall be
liberally construed" so a child in need of aid may receive the care, guidance, treatment,
and control promoting "the child's welfare and the parents' participation in the
upbringing of the child to the fullest extent consistent with the child's best interests."93
In sum, although now expressly subject to the child's best interests, the legislature's
preference for parental participation in the upbringing of their children in the home has
not wavered.
89 See id. (quoting former AS 47.05.060 (1980)).
90 Ch. 29, § 2, SLA 1990; see also AS 47.05.060 (1990).
91 Ch. 29, § 2, SLA 1990; see also AS 47.05.060 (1990).
92 Ch. 99, § 31, SLA 1998; see also AS 47.10.082(3).
93 Ch. 64, § 6, SLA 2005 (emphasis added).
-48- 7288
----------------------- Page 49-----------------------
With the foregoing in mind, what of OCS's putative challenge to the
continuing vitality of Rita T.? We could start and stop with the obvious point that OCS
did not ask us to overrule Rita T. OCS's primary concern seems to be that because we
have not had occasion to address the substance of a Rita T. hearing and neither a
"review" under former AS 47.10.080(f) nor a "permanency hearing" under current
AS 47.10.080(f) contemplates the substance of a Rita T. hearing, it is unclear when and
how Rita T. should apply. OCS's concern is real, and we will address it below. But that
concern is untethered to the continuing vitality of Rita T.
We reject OCS's suggestion that there is no statutory underpinning for a
Rita T. hearing. OCS does not challenge Rita T. 's original premise that former
AS 47.10.080(f) implicitly provided a parent the right to seek review of a parental rights
termination order under AS 47.10.080(c)(3). OCS's primary argument, that the statutory
change from "reviews" to "permanency hearings" eviscerates our interpretation of
AS 47.10.080(f), is unpersuasive. And AS 47.10.100(a) provides an express grant of
authority to the court to stay, grant a new hearing, modify, or set aside any order or
judgment entered in a CINA matter - upon application by, among others, a parent -
which does not exclude termination orders. A Rita T. hearing fits comfortably within the
statutory framework of AS 47.10.100(a) and AS 47.10.080(f). This conclusion remains
true to the public policy articulated in Rita T. and the legislative purpose of the Title 47
statutes regarding children. If it might ultimately be in a child's best interests to be with
parents in the family home - assuming the parents are fit parents and not a danger to the
child - then the CINA statutes should be liberally construed to provide an opportunity
for parents to demonstrate everything necessary to set aside a prior termination of
parental rights and to obtain reinstatement of those rights.
Having concluded that the Rita T. hearing process remains viable, we next
confront the GAL's and OCS's arguments that a parent should not be allowed to apply
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for a Rita T. hearing if a child is in a "permanent" placement, a "pre-adoptive
placement," or an "adoptive placement." The fundamental flaw in those arguments is
that those placements are simply foster placements with descriptive labels apparently
intended to convey meanings beyond foster placements. Neither OCS nor the GAL
supplies statutory or other definitions suggesting otherwise. We find it only logical that
a child is in foster care placement until adoption, or perhaps legal guardianship, is
completed and permanency is actually achieved. Defining some attempted out-of-home
placements as "permanent," "pre-adoptive," or "adoptive" would render the definition
of true permanency meaningless, and the GAL's and OCS's arguments are better suited
to the best interests analysis, discussed below. Consistent with the legislature's view
when it enacted its Rita T.-like provision for parents who had executed voluntary
relinquishments,94 we believe that actual adoption or legal guardianship is the correct
place to draw the line.
The more difficult, and more practical, problem arises when a parent seeks
to stay an adoption pending Rita T. proceedings. We leave this issue to the capable
hands of our superior court judges. Such a judge generally will: (1) have presided over
the termination trial and be familiar with the family and all of the relevant child in need
of aid issues, past and present; (2) have participated in post-termination permanency
planning for the child; (3) be in a position to determine whether adoption or other
appropriate permanent placement actually is close to fruition; and (4) be in a position to
determine whether a stay in adoption or legal guardianship is in the child's best interests
pending a Rita T. hearing. Rigid rules from our court would be no substitute for the
appropriate exercise of discretion by the superior court in the child's best interests.
94 See AS 47.10.089(h) (allowing request for review hearing "before the entry
of an adoption or legal guardianship decree").
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4. The substantive and evidentiary standards for granting a Rita T.
hearing and for reinstating parental rights
OCS is correct that we have not had occasion to define the contours of the
Rita T. process or expound upon what must be proved - or at what evidentiary level -
to obtain reinstatement of parental rights. Rita T. and Nada A. at best stand for the
proposition that a parent's "good cause" showing for a Rita T. hearing is sufficient
rehabilitation from the factors that led to the termination of parental rights in the first
95
place. Not until Alden H. did we make clear that a child's needs play a part in this
consideration, stating that at an actual Rita T. hearing "a parent [would have] to show
both that she is rehabilitated and that she is currently capable of providing 'the care and
guidance "that will serve the moral, emotional, mental and physical welfare of the
child." ' "96 And we concluded that it is "not only appropriate but necessary" to consider
the needs of a child for a Rita T. hearing request.97
We have never had occasion to consider what must be proved at a Rita T.
hearing or the evidentiary standard of proof required. But as we have discussed, in 2005
the legislature created an express statutory provision for a Rita T.-like hearing for parents
98 and there the legislature expressed both
who voluntarily relinquish their parental rights,
the necessary substantive and evidentiary standards:
After a termination order is entered and before the entry of an
adoption or legal guardianship decree, a person who
95 See Rita T. v. State , 623 P.2d 344, 347 (Alaska 1981); Nada A. v. State , 660
P.2d 436, 441 (Alaska 1983).
96 Alden H. v. State, Office of Children's Servs. , 108 P.3d 224, 231 n.21
(Alaska 2005) (emphasis added) (quoting Rita T., 623 P.2d at 347).
97 Id. at 232.
98 Ch. 64, § 17, SLA 2005.
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voluntarily relinquished parental rights to a child under this
section may request a review hearing, upon a showing of
good cause, to vacate the termination order and reinstate
parental rights relating to that child. A court shall vacate a
termination order if the person shows, by clear and
convincing evidence, that reinstatement of parental rights is
in the best interest of the child and that the person is
rehabilitated and capable of providing the care and guidance
that will serve the moral, emotional, mental, and physical
[99]
welfare of the child.
We believe the legislature's approach to vacating termination orders under
AS 47.10.089(h) reflects its continued statutory emphasis on children's best interests and
articulates appropriate substantive and evidentiary standards of proof for reinstatement
of parental rights. We therefore adopt these standards for a Rita T. hearing.100
5. Remand for clarifying findings regarding Paxton's best interests
Because OCS did not really challenge either Dara's rehabilitated status or
that she was capable of caring for Paxton, the superior court's decision to set aside the
termination order and reinstate Dara's parental rights was based on its view that Dara
99 AS 47.10.089(h) (emphasis added).
100 In Lara S. v. State, Department of Health & Social Services, Office of
Children's Services, 209 P.3d 120, 121-22 (Alaska 2009) we considered whether a
parent who had voluntarily relinquished her parental rights submitted an affidavit
sufficient to entitle her to a hearing on reinstatement under the statute. We interpreted
AS 47.10.089(h) and held that to demonstrate "good cause" for such a hearing, "a person
must make a prima facie showing that: (1) it is in the child's best interest that the
person's parental rights be reinstated, (2) the person is rehabilitated, and (3) the person
is capable of caring for the child's moral, emotional, mental, and physical welfare." Id.
at 125. Because the mother's affidavit failed to meet these statutory requirements, we
affirmed the superior court's decision to decline to hold a hearing on possible
reinstatement. Id. at 125-28. In light of our adoption of AS 47.10.089(h)'s substantive
standards for a Rita T. hearing, the Lara S. test for a "good cause showing" appears to
be the appropriate test for a Rita T. hearing. See id. at 125.
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proved by clear and convincing evidence that it was in Paxton's best interests to be
reunited with her. This conforms to the substantive and evidentiary standards we
adopted above. But after OCS moved for reconsideration, the court also explained its
view that "if circumstances [had] changed so much that the child is no longer a child in
need of aid," our case law did not require a best interests analysis and that the child
should be reunited automatically with the parent. This latter reasoning was erroneous,
but - except as noted below - somewhat immaterial to the disposition of the case,
because the initial decision was based on the correct substantive and evidentiary
standards. We therefore review OCS's challenges to the court's initial decision,
specifically that the court erred by allegedly applying a presumption in favor of
reunification and that the court's best interests finding was clearly erroneous.
We start with the general concept of the child's best interests in this context,
and we conclude that, just as in a termination trial, the superior court may consider any
101
factor relevant to the child's best interests for possible reinstatement of parental rights.
The dispute here is whether, or to what extent, the court may consider the previously
described legislative preference for keeping families together. OCS maintains that the
court improperly crafted a burden-shifting presumption from this legislative preference,
101 See Thea G. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 291 P.3d 957, 967 (Alaska 2013) (noting we have held "a superior court may
consider 'any fact relating to the best interests of the child in its best-interests analysis' "
and "the superior court need not accord a particular weight to any given factor" (quoting
Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 289 P.3d
924, 932 (Alaska 2012))); see also Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177,
185 (Alaska 2008) (holding lack of permanent placement may be a factor in deciding
whether termination would be in the child's best interests); AS 47.10.088(b) (setting out
factors to consider when determining child's best interests in context of termination
proceedings); AS 47.05.065(4)-(5) (setting out legislative findings regarding attachment
and the best interests of child who has been removed from child's home).
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and that, once parental rights have been terminated, there should be no presumption or
preference in the parent's favor. Dara maintains that the public policy and legislative
purpose we identified in Rita T. , and that are still articulated in AS 47.05.060 and
AS 47.10.005, are, subject to the child's best interests, still applicable in the
reinstatement context.
We agree with Dara that the public policy and legislative preference we
identified in Rita T. have some application in the reinstatement hearing context. We
disagree with OCS that a prior termination of parental rights means the superior court
should pretend there is no family relationship. But the 1990 amendment to AS 47.05.060
and the 2005 amendment to AS 47.10.005 also make clear that the legislative preference
for keeping a child with a parent is subject to the child's best interests. In this context
the court may be required to evaluate the family relationship and the child's best interests
on at least three different levels. Are there reasons specific to the child and family why
102
Are there reasons
it would be in the child's best interests to return to the family?
specific to the child and family why it would not be in the child's best interests to return
103 Are there specific countervailing reasons in the child's best interests not
to the family?
to return to the family despite the legislative preference? Every case will be decided on
its own facts, always based on the child's best interests.
Although here the superior court first described the legislative preference
as a presumption, after OCS moved for reconsideration the court explained it had not
102 Cf. AS 47.10.080(w) (providing courts shall recognize presumption that it
is in child's best interests to maintain sibling relationship).
103 Cf. AS 47.05.060 (providing for child's removal from home when "the
child's welfare or safety" cannot be adequately safeguarded).
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treated the legislative preference as a burden-shifting presumption, but rather as a
preference, and it had held Dara to her burden of proof. We therefore see no legal error
in the court's stated use of the legislative preference.
OCS also argues that the superior court clearly erred in its best interests
finding. OCS points to the court's few supporting findings and contends that nothing
explains why the court ultimately determined that it was in Paxton's best interests to be
uprooted from Scarlet's care and returned to Dara. Dara responds that the court's
underlying factual findings are sufficient to support the best interests finding, especially
given the court's consideration of a wide number of factors.
There was testimony about a variety of factors relevant to Paxton's best
interests, for example, Paxton's bond with Scarlet and her husband; Paxton's bond with
Dara and his half-sister; Scarlet's wrongful interference with Paxton's visitation with
Dara and Scarlet's likely refusal to allow Paxton to have a relationship with his relatives,
104
including his half-sister; Paxton's current medical needs; Paxton's permanency needs
and likely harm from removal and reunification with Dara; and the time necessary for
transition if reunification were ordered.
Yet the court's best interests findings seem limited in focus to a generalized
legislative family preference and Dara's rehabilitation, rather than more specifically to
Paxton's best interests:
1) The state favors reuniting children with biological parents.
2) Mental illness alone cannot support termination of parental
rights. 3) There was no harm caused to the child and it is
unlikely harmful conduct will happen. 4) The child's bond
with the biological parent can be restored. 5) The child can
be returned to the parent within a reasonable time based on
104 Cf. AS 47.10.080(w) (providing courts shall recognize presumption that it
is in child's best interests to maintain sibling relationship).
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[the] child's age and needs. 6) The parent has put in a great
amount of effort to remedy the conduct or conditions in the
home.
105
The court seemingly followed the factors in AS 47.10.088(b), relating to the child's
best interests in the involuntary termination context, but it did not expressly consider the
106
legislative findings enumerated in AS 47.05.065(4)-(5), relating to the best interests
105 AS 47.10.088(b) provides:
[T]he court may consider any fact relating to the best interests
of the child, including (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 the 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 parent.
106 AS 47.05.065(4) sets out the legislative finding that the following principles
serve a child's best interests after removal from the child's home:
(A) the child should be placed in a safe, secure, and stable
environment; (B) the child should not be moved
unnecessarily; (C) a planning process should be followed to
lead to permanent placement of the child; (D) every effort
should be made to encourage psychological attachment
between the adult caregiver and the child; (E) frequent,
regular, and reasonable visitation with the parent or guardian
and family members should be encouraged; and (F) parents
and guardians must actively participate in family support
services so as to facilitate the child's being able to remain in
the home; when children are removed from the home, the
parents and guardians must actively participate in family
support services to make return of their children to the home
possible.
And AS 47.05.065(5) gives credence to studies establishing "it is important . . . to ensure
(continued...)
-56- 7288
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of a child who has already been removed from the child's own home, as Paxton has been
here. These guiding principles place greater emphasis on permanency, the child's age,
107
Such factors go
attachment to caregivers, and regular visitation, among other factors.
beyond the harm that caused a child to be in need of aid and are highly relevant to
determining a child's best interests in the context of reinstating parental rights.
In its reconsideration order the court indicated that it had considered a
variety of best interests factors, including "[Paxton's] young age, the length of time he
had been out of the home, . . . his attachment to his current placement, [his] bond with
[Dara] prior to his removal and his ongoing bond with her exhibited during visitations."
This would seem to align with AS 47.05.065(4)-(5). However, despite stating that it had
considered these factors, the court did not actually make any additional underlying
findings about Paxton's best interests. It may be that the court's decision to limit its best
interests findings at this juncture derived from its misunderstanding that a best interests
analysis was not necessary.
We are unable to review the superior court's best interests finding absent
a more robust set of underlying factual findings. We therefore remand for the court to
108
clarify its findings consistent with this opinion.
106 (...continued)
that all children, especially those under the age of six years, who have been removed
from their homes are placed in permanent homes expeditiously."
107 See id.
108
See, e.g., State, Dep't of Health & Soc. Servs., Office of Children's Servs.
v. Michelle P. , 411 P.3d 576, 584 (Alaska 2018) (remanding because court failed to
make best interests findings before releasing child back to parents); A.B. v. State, Dep't
of Health & Soc. Servs., 7 P.3d 946, 954-55 (Alaska 2000) (remanding for additional
best interests findings).
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IV. CONCLUSION
We AFFIRM the superior court's original decision terminating Dara's
parental rights to Paxton. We REMAND for clarifying findings of fact to support the
best interests finding underlying the superior court's subsequent decision reinstating
Dara's parental rights to Paxton. The superior court may in its discretion take additional
evidence in light of the passage of time and the case's unique circumstances, including
the various issues about Paxton's attachments, bondings, and visitation. We retain
jurisdiction.
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----------------------- Page 59-----------------------
BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting.
I disagree with both the outcome of the court's opinion and the route it
takes to get there. In my opinion, the text of AS 47.10.080(f), as amended, can no longer
support a procedure for reunification after termination of parental rights. Describing this
procedure as a "permanency hearing" is inconsistent with the other statutes that define
such a hearing. And the record in this case is simply inadequate to support this
extraordinary remedy.
I. AS 47.10.080(f) No Longer Supports A Procedure For Reinstatement Of
Parental Rights Following Termination.
We first inferred that AS 47.10.080(f) permitted review of termination
1
But this decision was based on a prior
orders in the 1981 case of Rita T. v. State .
version of AS 47.10.080(f). And it relied on a strained reading of this subsection, even
as it was worded at that time. When we decided Rita T., AS 47.10.080(f) provided for
automatic annual review of disposition orders that placed children under state custody
or supervision under AS 47.10.080(c)(1) or (c)(2) and also allowed interested parties to
2
seek such review for good cause. This subsection did not refer to AS 47.10.080(c)(3),
1 623 P.2d 344, 346-47 (Alaska 1981).
2 Former AS 47.10.080(f) provided:
A minor found to be delinquent or a child in need of aid is a
ward of the state as long as he is committed to the department
(of health and social services) or the department has the
power to supervise his actions. The court shall review an
order made under (b) [a delinquency disposition] or
(c)(1) [CINA custody] or (2) [CINA supervision] of this
section annually, and may review the order more frequently
to determine if continued placement, probation, or
supervision, as it is being provided, is in the best interest of
the minor and the public. The department, the minor, the
(continued...)
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----------------------- Page 60-----------------------
the subsection that allowed the superior court to order termination of parental rights.3
To overcome this legislative omission, the Rita T. court had to read in isolation
subsection (f)'s third sentence, which permitted interested parties to seek review of a
disposition order for good cause. Rita T. thus interpreted this sentence to include review
of termination orders under subsection (c)(3) even though subsection (f) did not mention
the termination provision. For this interpretation the court relied in part on the purpose
of the child in need of aid statute: "to preserve and strengthen the child's family ties
4
whenever possible."
In the years since Rita T. , the child in need of aid statute has been
substantially revised in ways that further undermine an interpretation of AS 47.10.080(f)
5
that permits review of termination orders. First the purpose of the child in need of aid
6
statute, crucial to Rita T. 's holding, was revised in 1990. The statute now aims "to
preserve and strengthen the child's family ties unless efforts to preserve and strengthen
2 (...continued)
minor's parents, guardian, or custodian are entitled, when
good cause is shown, to a review on application. If the
application is granted, the court shall afford these parties and
their counsel reasonable notice in advance of the review and
hold a hearing where these parties and their counsel shall be
afforded an opportunity to be heard. The minor shall be
afforded the opportunity to be present at the review.
3 AS 47.10.080(c)(3).
4 Rita T. , 623 P.2d at 346 (citing former AS 47.05.060 (1980)).
5 See ch. 99, SLA 1998.
6 Rita T. , 623 P.2d at 346.
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----------------------- Page 61-----------------------
7
the ties are likely to result in physical or emotional damage to the child ." Additionally,
in 1998 the entire chapter on child in need of aid proceedings was substantially revised. 8
The intent of this revision was "to protect children from abuse and neglect" and to
"override" several decisions from this court that had erected barriers to termination
9
proceedings. This revision included a new set of legislative findings, including a
determination that "it is important to provide for an expeditious placement procedure to
ensure that all children, especially those under the age of six years, who have been
10 The
removed from their homes are placed in permanent homes expeditiously."
legislature also added a section requiring the child in need of aid statute to "be liberally
construed to the end that a child coming within the jurisdiction of the court under this
[statute] may receive the care, guidance, treatment, and control that will promote the
11
child's welfare." Another new section redefined all the standards and factors for
termination of parental rights.12
7 AS 47.05.060, as amended by ch. 29, § 2, SLA 1990 (emphasis added).
8 Ch. 99, SLA 1998.
9
Id . § 1.
10 Id . § 14.
11 Id . § 16.
12 Id . § 33.
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In addition to these general revisions, the 1998 revision also substantially
amended AS 47.10.080(f) in a manner that further undermined Rita T. 's interpretation.13
The first portion of this subsection now provides that following a custody disposition
under subsection (c)(1) there will be an annual permanency hearing, rather than a review
14
hearing, and allows interested parties to request a permanency hearing for good cause.
The second portion provides for a review hearing following only a supervision
13 Id. § 26.
14 The first seven sentences of this subsection provide:
A child found to be a child in need of aid is a ward of the
state while committed to the department or the department
has the power to supervise the child's actions. For an order
made under (c)(1) of this section [regarding CINA custody],
the court shall hold a permanency hearing as required by (l)
of this section and at least annually thereafter during the
continuation of foster care to determine if continued
placement, as it is being provided, is in the best interest of the
child. The department, the child, and the child's parents,
guardian, and guardian ad litem are entitled, when good cause
is shown, to a permanency hearing on application. If the
application is granted, the court shall afford these persons and
their counsel reasonable advance notice and hold a
permanency hearing where these persons and their counsel
shall be afforded an opportunity to be heard. The persons
entitled to notice under AS 47.10.030(b) and the
grandparents entitled to notice under AS 47.10.030(d) are
entitled to notice of a permanency hearing under this
subsection and are also entitled to be heard at the hearing.
The child shall be afforded the opportunity to be present and
to be heard at the permanency hearing. After the permanency
hearing, the court shall make the written findings that are
required under (l) of this section.
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----------------------- Page 63-----------------------
15
disposition under subsection (c)(2). In my opinion, this subsection can no longer be
read to also permit review of a termination order under subsection (c)(3).
In order to infer a reunification procedure in AS 47.10.080(f), the court's
opinion depends on construing a natural parent's reinstatement request as a request for
a permanency hearing. But this construction conflicts with the rules and statutes defining
the permanency hearing and outlining the required permanency findings. For example,
AS 47.10.080(l)(4) requires the court at the permanency hearing to make findings on
"whether the department has made reasonable efforts . . . to offer appropriate support
services" to the parents and whether the parents have "made substantial progress to
16
But it would make
remedy . . . the . . . conditions . . . that made the child in need of aid.
no sense to continue to require reasonable efforts, support services, and progress on the
parent's part after the court has issued an order terminating parental rights.
CINA Rule 17.2 governs permanency hearings and specifically limits the
purpose of the permanency hearing to the purpose implied by AS 47.10.080(f): "to
establish a permanency plan for each child committed to state custody under
17
AS 47.10.080(c)(1)." In other words, consistent with the statutory provision on
permanency hearings, the CINA permanency hearing rule does not apply to disposition
15 The last two sentences of this subsection provide:
The court shall review an order made under (c)(2) of this
section at least annually to determine if continued
supervision, as it is being provided, is in the best interest of
the child; this review is not considered to be a permanency
hearing and is not governed by the provisions of this
subsection that relate to permanency hearings.
16 AS 47.10.080(l)(4)(A), (B).
17 CINA Rule 17.2(a) (emphasis added).
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orders involving termination under AS 47.10.080(c)(3). CINA Rule 17.2(e) requires
permanency hearing findings on "whether the child continues to be a child in need of
aid" and "whether the child should be returned to the parent[s]," findings that are
18
unnecessary after a termination order. And CINA Rule 17.2(f) requires findings on
whether the department "has made reasonable efforts" (or active efforts in the case of an
Indian child) and "whether the parent . . . has made substantial progress to remedy . . .
19 Again these required
the . . . conditions . . . that made the child in need of aid."
findings are unnecessary after a termination order.
The court's opinion also conflicts with the rules that cut off a natural
parent's participation after an order terminating parental rights. CINA Rule 2(k) defines
the term "parent" to mean "a biological or adoptive parent whose parental rights have not
been terminated." Thus the references to "parent" throughout the CINA rules do not
apply to a natural parent whose rights have been terminated under AS 47.10.080(c)(3).
And CINA Rule 18(h) establishes a different system (instead of permanency hearings)
following a termination order; this rule requires quarterly reports regarding the
department's efforts to recruit a permanent placement. But even this rule does not
contemplate participation of the natural parent following termination: "Copies of the
Department's reports shall not be served on a parent whose rights have been terminated."
The cumulative effect of these rules is to change the focus of the proceeding
after an AS 47.10.080(c)(3) termination order. The focus is no longer on reunification;
the focus is on finding another permanent placement. Permitting post-termination
permanency hearings and allowing natural parents to participate will frustrate this goal.
18 CINA Rule 17.2(e)(1), (2).
19 CINA Rule 17.2(f)(1), (2).
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Parental participation will increase the potential for conflict and litigation and increase
the potential for delay in achieving permanency.
II. Dara Did Not Submit Sufficient Evidence To Support Reunification.
Despite my disagreement with the court's opinion, I have no doubt that the
superior court has the inherent power to modify an order terminating parental rights.
Alaska Civil Rule 60(b)(5) explicitly allows a court to grant relief from a judgment when
20
But
"it is no longer equitable that the judgement should have prospective application."
this power should be sparingly exercised. We have quoted with approval from then-
Judge Blackmun:
[M]odification is only cautiously to be granted; . . . some
change is not enough; . . . the dangers which the decree was
meant to foreclose must almost have disappeared;
. . . hardship and oppression, extreme and unexpected, are
significant; and . . . the movant's task is to provide close to an
unanswerable case. To repeat: caution, substantial change,
unforeseenness, oppressive hardship, and a clear showing are
[21]
the requirements.
Consistent with this caution, at the very least, a parent seeking reunification following
a termination order must show, "by clear and convincing evidence . . . that reinstatement
of parental rights is in the best interest of the child."22
20 See, e.g., Cox v. Floreske, 288 P.3d 1289, 1293 (Alaska 2012).
21
Dewey v. Dewey , 886 P.2d 623, 627 (Alaska 1994) (alteration and
omissions in original) (quoting Humble Oil & Ref. Co. v. Am. Oil Co. , 405 F.2d 803, 813
(8th Cir.1969)).
22 AS 47.10.089(h) (allowing vacation of a termination order based on a
relinquishment of parental rights); see also AS 47.10.005, as amended by ch. 99, § 16,
SLA 1998 (requiring the chapter on child in need of aid proceedings to "be liberally
construed to the end that a child coming within the jurisdiction of the court under this
(continued...)
-65- 7288
----------------------- Page 66-----------------------
As noted in the court's opinion, the superior court did not make any
findings that reinstatement was in Paxton's best interest. The findings directly
addressing this issue were inconsistent with reinstatement. For example, the superior
court found that "Dr. Sorensen reported that [Paxton] . . . is 'likely' to experience distress
if moved"; and that "Dr. Sorensen concludes that the safest result with the least amount
of risk to Paxton's emotional well[-]being would be to keep Paxton with [Scarlet]."
These findings are well-supported by the record. Scarlet testified that it
would be "extremely difficult" for Paxton to be removed from her home "to be placed
with a family that he doesn't really know anymore." Dr. Sorensen thought a change in
Paxton's life from living with Scarlet to Dara would be "a highly confusing event for him
and one that could very well have a lasting effect" because he would have no memory
of living with his mother. Dr. Sorensen believed that Paxton would "have a really hard
time for quite some time" before being able to verbalize his concerns, and he
"recommended that [Paxton] remain in his current placement . . . indefinitely as a means
of maintaining his emotional stability and general safety."
Dara thus failed to submit clear and convincing evidence that reinstatement
was in Paxton's best interest. I would reverse and vacate the superior court's decision
reinstating Dara's parental rights.
22 (...continued)
chapter may receive the care, guidance, treatment, and control that will promote the
child's welfare").
-66- 7288
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