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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska, Department of Health & Social Services, Office of Children's Services v. Dara S. (1/24/2020) sp-7426
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
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, ) Supreme Court No. S-16527
OFFICE OF CHILDREN'S SERVICES, )
) Superior Court No. 3AN-13-00386 CN
Appellant, )
) O P I N I O N
v. )
) No. 7426 - January 24, 2020
DARA S., )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Pamela Washington, Judge pro
tem.
Appearances: Mary Ann Lundquist, Senior Assistant
Attorney General, Fairbanks, and Kevin G. Clarkson,
Attorney General, Juneau, for Appellant. Rachel E. Cella,
AssistantPublicDefender, and BethGoldstein, Acting Public
Defender, Anchorage, for Appellee. Paul F. McDermott,
Assistant Public Advocate, and James Stinson, Public
Advocate, Anchorage, for Guardian Ad Litem.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
WINFREE, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
We recently confirmed that, under some circumstances, a parent whose
parental rights have been involuntarily terminated under Alaska's child in need of aid
1
(CINA) statutes may seek post-termination review and reinstatement of parental rights.
We explained that a superior court may vacate a termination order if the child has not yet
been adopted and the parent demonstrates, "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,
2
emotional, mental, and physical welfare of the child."
In that earlier case, a mother's parental rights to her son had been
3 She timely sought review and
terminated as a result of her mental health issues.
reinstatement of her parental rights, and the superior court granted review and ultimately
granted her reinstatement request.4 The Office of Children's Services (OCS) and the
child's guardian ad litem (GAL) appealed the reinstatement decision, arguing both that
post-termination reinstatement of parental rights after an involuntary termination was
barred as a matter of law and that the mother had not proved by clear and convincing
evidence that reinstatement was in the child's best interests.5 We rejected the argument
1 Dara S. v. State, Dep't of Health & Social Servs., Office of Children's
Servs., 426 P.3d 975, 991-99 (Alaska 2018).
2 Id. at 1000 (emphasis omitted) (quoting AS 47.10.089(h)).
3 Id. at 983. We affirmed that decision in the appeal. Id. at 988.
4 Id. at 983-87.
5 Id. at 987.
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that reinstatement was barred as a matter of law, but we remanded the case to the
6
superior court for further elucidation of its best interests determination.
The superior court held a post-remand evidentiary hearing and ultimately
confirmed its best interests determination. OCS - joined by the GAL - now appeals
that determination, arguing that some of the court's underlying factual findings, and
therefore its ultimate best interests finding, are clearly erroneous, and that the
reinstatement order therefore must be vacated, leaving the parental rights termination in
place. As in the prior appeal, there is no dispute about the superior court's determination
that themother met the rehabilitation standard necessary for reinstatement ofher parental
rights. Because the disputed underlying factual findings supporting the best interests
determination either are not material or not clearly erroneous, we conclude that the
superior court's reinstatement decision must be affirmed.7
II. FACTS AND PROCEEDINGS
A. Brief Background And Earlier Appeal
Dara S. is the biological mother of Paxton,8 born February 2011. Paxton
was born in Alaska but has lived with Dara's sister and brother-in-law, Scarlet and
6 Id . at 1002.
7 Shortly after we heard oral argument in this matter, we issued a summary
order affirming the superior court's reinstatement decision, with an explanatory opinion
to follow. State of Alaska, Dep't of Health & Soc. Servs., Office of Children's Servs. v.
Dara S., Office of Pub. Advocacy, GAL, Nos. S-16126/16526/16527 (Alaska Supreme
Court Order, Sept. 11, 2019). This is the explanatory opinion.
8 We use the same pseudonyms from our earlier opinion for ease of reference
and to protect the parties' privacy.
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Monty, in Oregon since being placed with them by OCS in April 2014. Dara visited
9
Paxton in July 2014 and decided to stay in Oregon.
In June 2015 the superior court issued an oral decision terminating Dara's
10 Meanwhile, in
parental rights to Paxton, followed by an October 2015 written order.
September Dara asked for a review hearing, which was held in April and May of 2016.11
In July the superior court reinstated Dara's parental rights. Following OCS's motion for
reconsideration, in October the court clarified its findings and application of the law.
Dara appealed the termination decision; OCS and the GAL challenged the
reinstatement decision.12 We affirmed the superior court's original termination ofDara's
parental rights.13 But the reinstatement decision appeal raised a number of legal issues.14
We confirmed that reinstatement remains available under Alaska's CINA framework,
and we addressed the appropriate substantive and evidentiary standards of proof to apply
at a reinstatement hearing.15 We explained that a superior court shall vacate a
termination order if a parent demonstrates, "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,
9 Dara S., 426 P.3d 975 at 980.
10 Id . at 982-83. Other than noting that the underlying reason for the parental
rights termination was Dara's mental health issues, id. at 988, we will not discuss the
termination trial evidence here.
11 Id . at 983, 985.
12 Id . at 983, 987.
13 Id . at 991.
14 Id . at 991-1003.
15 Id . at 991-1000.
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16
emotional, mental, and physical welfare of the child." We also provided guidance to
superior courts regarding factors that should be considered when determining whether
17 We ultimately concluded that the factual
reinstatement is in a child's best interests.
findings underlying the superior court's best interests determination were inadequate for
our review, and we remanded the case for further proceedings.18
B. December 2018 Superior Court Proceedings On Remand
The superior court held an evidentiary hearing over two days in December
2018 to gather more evidence about Paxton's best interests. Dara testified on her own
behalf and had three other witnesses testify: her mother, Kate; an Oregon social service
assistant who had supervised Dara's visits with Paxton; and a licensed clinical social
worker. OCS called four witnesses: Dara's father, Butch; a clinical psychologist;
Paxton's uncle and foster father, Monty; and Dara's OCS caseworker. The relevant
testimony is summarized below.
1. Dara's witnesses
Kate characterized Dara as the "epitome of a good parent." Kate testified
that Dara has maintained steady employment and a safe, clean home in a good
neighborhood. Kate testified that she frequently sees Dara with Georgia and that Kate
had attended some of Dara's visits with Paxton; on one occasion Kate heard Georgia
discussing a toy she had at home, and Paxton asked when he would get to go there. Kate
also testified that she thought it was in Paxton's best interests to live with Dara, rather
16 Id . at 1000 (emphasis omitted) (quoting AS 47.10.089(h)).
17 Id . at 1001.
18 Id . at 1002-03. In that opinion we carefully outlined the evidence presented
to the superior court, id. at 983-88, relevant to the court's post-remand decision. We do
not repeat it here.
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than Scarlet, because of Dara's "maternal bond" with him and because she was a more
"hands-on" parent.
An Oregon social service assistant who supervised some of Dara's visits
with Paxton testified about a typical visit between Dara, Georgia, and Paxton. The social
service assistant stated that Paxton often lingered at the end of these visits, saying
goodbye to Dara repeatedly and seeming reluctant to leave. The social service assistant
also testified that on one occasion she heard Paxton tell Dara that he wanted to go home
and live with Dara; the social service assistant emphasized that Paxton said this "out of
nowhere," with "no prompt," when he and Dara had been "talking about school and life"
during a visit.
Alicensed clinical social worker who had observedvisitsbetween Daraand
Paxton testified in support of reunification. The social worker stated that she had
observed the family for over 60 hours in the three-and-a-half years she had worked with
them; based on those observations, she thought that Dara "is a very attachment-based
loving, caring mother." The social worker also testified that she was impressed with how
connected Dara, Paxton, and Georgia were, even though they did not get to see each
other very often. The social worker described Dara's visits with Paxton as "textbook
beautiful visit[s]" and discussed how Dara made sure to tend to her children's needs.
The social worker testified that she disagreed with OCS's expert, clinical
psychologist Dr. Erik Sorensen, about whether it would be in Paxton's best interests to
be reunited with Dara; the social worker stated that Dr. Sorensen does not understand the
deep attachment Paxton already has with Dara. The social worker noted that if Paxton
is not reunified with Dara, he may feel a loss from missing out on a childhood with his
biological family. The social worker testified that Paxton also may feel resentment and
grief as a result and rebel against his foster family. The social worker acknowledged on
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cross-examination that she had never observed Paxton with Scarlet and Monty or even
spoken to them.
Dara first testified about her job, her college attendance, and her efforts to
manage her mental health. She testified that she still attends counseling and that her
counselor "helps [her] to build and maintain healthy relationships." She then testified
about her efforts to mend relationships with Butch and Scarlet. Dara said she had
reached out to Butch and her step-mother and had gone on several small day trips with
them and Georgia. Dara also stated that Butch recently had sent her several messages
saying that he was proud of her for maturing and that she was doing a good job parenting
Georgia.
Dara said her efforts to improve her relationship with Scarlet were
unsuccessful. Dara said she had asked Butch to ask Scarlet to go to family counseling,
but Scarlet was not interested. Dara stated that when she and Paxton have visits, Scarlet
has no contact with Dara and that Scarlet refused to keep a drawing and t-shirt Dara and
Georgia gave Paxton. Dara then spoke about her visits with Paxton. She stated that she
and Paxton have a "loving and trusting" relationship, that he confides in her during their
visits, and that he is attached to Georgia. Dara expressed that she felt ready to raise
19 she had no concerns about her ability to
Paxton and that, despite his health problems,
get him proper medical attention.
2. OCS's witnesses
Butch testified that Dara had made progress since the termination trial, but
he disputed her characterization of their relationship. Although Butch acknowledged
19 Paxton was born with serious kidney problems requiring nine surgeries
before the age of two. Although his health has since generally improved, he requires a
strict diet and frequent medical checkups; he likely will require a kidney transplant by
his teenage years. Id. at 978.
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going on a few outings with Dara and Georgia, he indicated he had not seen Georgia in
the past year despite his multiple requests. And Butch testified that despite Dara's
progress, overall he thought Paxton was better off with Scarlet and Monty because their
home was more stable and because of the possibility of having to seek urgent medical
care for Paxton at a hospital a hundred miles away. Butch placed the blame for the
breakdown in Dara and Scarlet's relationship on Dara: "[Dara] is the one who burned
the bridge . . . if she would show some appreciation that [Scarlet] and [Monty] are raising
her child and try to rebuild the bridge that she burned, . . . perhaps she could have a
relationship, but she has chosen not to even make any attempt."
Dr. Sorensen testified about his November 2018 evaluation of Paxton.
Dr. Sorensen stated that his opinion that it was in Paxton's best interests to remain with
Scarlet and Monty had not changed since the earlier reinstatement hearing. Dr. Sorensen
testifiedthatreunifyingDaraand Paxtonwould "requireseveringtheprimary attachment
that he has with his aunt and uncle" and could "result in unnecessary emotional harmand
distress." Dr. Sorensen characterized reunification as a "destabilizing influence" and an
"adverse event" that could have long-term impacts on Paxton's emotional functioning
and anxiety levels. Dr. Sorensen noted that from his observations, Paxton's relationship
with Scarlet and Monty looks like a typical parent-child relationship; Paxton calls them
"Mom and Dad," and calls Dara by her first name. Dr. Sorensen testified that Paxton had
made progress in a number of areas while living with Scarlet and Monty, including
overcoming a fear of water and doing better in school.
Dr. Sorensen testified that when he broached the possibility of living with
Dara, Paxton expressed confusion and said he could not imagine what that would be like.
Dr. Sorensen testified that he tried to attend a visit between Dara and Paxton, but Dara
did not want Dr. Sorensen to observe them without first speaking to her attorney;
Dr. Sorensen could not reach Dara's attorney, and he left. Dr. Sorensen disagreed with
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the social worker's analysis, stating that she appeared to have ignored the "guaranteed
harm" that would come from severing Paxton's connection to Scarlet and Monty.
Monty testified about Paxton's life with Monty and Scarlet. Monty said
that Paxton shares a room with his four-year-old cousin, whom Paxton views as a
brother. Monty described Paxton's progress in school and his activities. Monty was
asked about a March 2017 autism evaluation Paxton had. Scarlet and Monty had wanted
Paxton evaluated because they felt he had no "empathy"; the evaluators concluded that
Paxton was not on the autism spectrum, but they recommended he get treatment for
anxiety. Scarlet and Monty did not follow that recommendation.
Monty testified that he currently does not have a relationship with Dara.
He was reluctant to agree to having a future relationship with her, stating: "[I]n terms
of our relationship with [Dara] and how that looks . . . that would be a very difficult thing
to . . . overcome. It's hard to get burned over and over." Monty stated that he and
Scarlet had not given consideration to personally arranging visitation between Paxton,
Dara, Georgia, and themselves, and he was not sure they were prepared to do that. But
Monty testified that he and Scarlet would be willing to continue allowing Dara to have
supervised visitation with Paxton. Monty predicted that, if Paxton were reunified with
Dara, she would not let Monty and Scarlet see Paxton because they had not been able to
see Georgia for some time.
Dara's OCS caseworker testified in favor of Paxton continuing to live with
Scarlet and Monty. The caseworker had conducted a home visit with them and observed
Paxton interacting with the family. She testified that Paxton appeared to be well-
integrated into the family and noted that an outside observer "wouldn't have known that
he was not [Scarlet and Monty's] biological child." The caseworker stated that Scarlet
and Monty were "doing an amazing job" caring for Paxton's medical needs and that she
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was not concerned they had not sought therapy for Paxton following the autism
evaluation.
The caseworker also interviewed Paxton during her visit. She reported that
Paxton said he enjoyed his visits with Dara, that Dara was his biological mother, and that
he had two moms, Dara and Scarlet. When the caseworker asked Paxton where he
wanted to live, he seemed confused and stated that he wanted to live with his mom and
dad, Scarlet and Monty. The caseworker testified that in her opinion Paxton's bond with
Scarlet and Monty was stronger than Paxton's bond with Dara. But the caseworker also
acknowledged that she had not observed a visit between Dara and Paxton because Dara
had discovered in advance that the caseworker was going to be there, and the caseworker
canceled the observation because she thought she would not be able to get an accurate
picture. The caseworker testified that - even if Scarlet and Monty were to adopt Paxton
- OCS still wanted to ensure Dara could maintain ongoing visitation with Paxton
through an intermediary.
The caseworker was cross-examined about OCS's supervision of what was
occurring in Oregon. The superior court also questioned her about OCS's approach in
this case. The court's questioning reflected concerns with OCS placing restrictions on
Dara's and Scarlet's ability to work out problems themselves and with OCS's reliance
on quarterly reports about Paxton from Oregon's social services department.
3. January 2019 supplemental findings
The superior court issued clarifying findings in January 2019. The court
divided its order into two sections. In the first section, the court made supplemental
findings based on the evidence from its original reinstatement hearing. These initial
findings focus on the length of time Paxton had been removed from Dara; his bonds with
Dara,Georgia, Scarlet, and Monty; and Paxton'sphysical, medical, and emotional needs.
The court noted that, at the time of the initial reinstatement order, Paxton had been in
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out-of-home placement for three years; up to that point, he had resided with Dara for a
little over two-and-a-half years and with Scarlet and Monty for a little over two years.
The court then found that, at the time of the initial reinstatement order, Paxton was still
at an age where critical attachments are formed and that the previous "traditional
mother[-]child relationship" he had with Dara could be restored. The court found that
Paxton had maternal bonds with both Dara and Scarlet and a bond with his biological
sister, Georgia. It discounted Dr. Sorensen's contrary testimony regarding Paxton's
attachment to Dara, noting that he did not have the opportunity to observe them together.
The court then found that Dara was equally capable as Scarlet and Monty of providing
for Paxton's physical and medical needs, but the court also found that Scarlet and
Monty's hostility toward Dara had caused a rift in the family that could harm Paxton's
emotional well-being. The court noted that, in contrast, Dara was open to Paxton
continuing a relationship with Scarlet and Monty.
Given that the superior court believed the parties were similarly situated
with respect to their bonds with Paxton and their ability to care for him and meet his
physical needs, the court concluded that Paxton's emotional well-being was the
determinative factor in evaluating his best interests. The court found:
[Scarlet and Monty] have demonstrated a troubling lack of
concern for Paxton's attachments. . . . While the court was
watching, while the child was still in state's custody, while
their adoption was pending, [Scarlet] exhibited a clear
unwillingness to support [Paxton's] emotional well[-]being
if it had anything to do with Dara.
In large part because Dara was supportive of Paxton maintaining his bond with Scarlet
and Monty, while they were not supportive of Paxton maintaining his bond with Dara,
the court concluded that reinstating Dara's parental rights was in Paxton's best interests.
The court ended the first section of its findings by stating that the supplemental findings
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"make clear that the court's [initial] determination was supported by clear and
convincing evidence of the importance of Paxton's . . . emotional well[-]being compared
to the other factors."
In the order's second section, the superior court made updated findings
based on evidence presented during the December 2018 evidentiary hearing. The court
first found that, despite the doctors' recommendations after Scarlet and Monty had
Paxton evaluated because they felt he showed no "sympathy, empathy, or remorse," they
had failed to seek counseling for his anxiety. In part because of this incident, the court
concluded that Scarlet and Monty were "not credible witnesses regarding Paxton's
emotional and mental health needs." The court also found that Scarlet and Monty still
were unwilling to personally facilitate visitation between Paxton and Dara and had given
it "no meaningful consideration"; the court found that this attitude "compromise[d]
Paxton's emotional and mental well[-]being." The court found that Dara continued to
be open to fostering a better relationship with Scarlet and Monty and engaging in family
counseling.
Thesuperior court also summarized Dara's interactionswith Paxton at their
biweekly visits. The court noted that Dara, Paxton, and Georgia have a "very close and
affectionate bond," that Dara was very attentive and affirming at visits, and that Dara set
appropriate boundaries and parented Paxton very well under the circumstances. The
court concluded that Paxton's connection with Dara "was never broken" and that Dara
and Georgia are not strangers to him despite periods of disruption.
The superior court also made findings based on the third-party testimony
at the hearing. The court concluded that Dara's OCS caseworker "was unable to offer
the court any credible testimony about Paxton's attachment to either [Scarlet and Monty]
or Dara," due to the caseworker's negligent supervision of Paxton. The court appeared
to discount Dr. Sorensen's testimony because he did not observe Dara and Paxton
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together or review Oregon visitation records, and the court believed Dr. Sorensen
unquestioningly relied on Scarlet and Monty's "compromised" reporting. The court
credited the social worker's opinion that it was in Paxton's best interests to be reunited
with Dara, because the social worker was "the only professional that has spoken about
the elephant in the room of this case: the open hostility from Paxton's uncle and aunt
towards Dara."
The court then focused its findings on Paxton:
Paxton wants to be home with his mother and sister. He
knows them and is attached to them. Paxton's return home
will give him the sense of identity that can only come from
honoring his attachment to his mother. . . . Paxton will not be
moved unnecessarily; his moveis necessary for his emotional
well[-]being, which is of paramount importance in an
analysis of his best interest.
The superior court ended its order by determining that Paxton's emotional well-being
was still the decisive factor in its analysis. The court stated that its "updated findings
further support placement with Dara" because "[p]lacing Paxton with [Scarlet and
Monty] will lead to a loss of Paxton's bond with Dara and Georgia" while "[r]einstating
Dara's parental rights will allow Paxton to maintain connections with everyone."
III. STANDARD OF REVIEW
Whether reinstatement is in a child's best interests is a factual finding that
20 "When reviewing factual findings we 'ordinarily will not
we review for clear error.
overturn a trial court's finding based on conflicting evidence,' and will not re-weigh
evidence 'when the record provides clear support for the trial court's ruling.' "21
20 See id. at 1001.
21
Id. at 989 (first quoting Martin N. v. State, Dep't of Health & Soc. Servs.,
Div. of Family &Youth Servs., 79 P.3d 50, 53 (Alaska 2003); then quoting D.M. v. State,
(continued...)
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"[A]ppellate review of trial court rulings based on testimonial credibility must give 'due
22
regard to the opportunity of the trial court to judge the credibility of the witnesses.' "
A finding is clearly erroneous if we are "left with a definite and firm conviction that a
mistake has been made after review of the entire record."23
IV. DISCUSSION
A. Compliance With Dara S.
We first address whether - contrary to OCS's argument - the superior
court complied with our remand directions. We remanded because we concluded that
the court had not made sufficient factual findings to support its ultimate finding that
24
reinstatement of Dara's parental rights was in Paxton's best interests. We explained
that in the reinstatement context, the court should consider the legislative findings
25 The court had
enumerated in AS 47.05.065(4)-(5) for its best interests determination.
not done so in its initial reinstatement order or its reconsideration order.26
We also
clarified that Alaska's legislative preference for keeping biological families together has
27
"some application" in the reinstatement context. We noted that courts considering
21 (...continued)
Div. of Family & Youth Servs., 995 P.2d 205, 214 (Alaska 2000)).
22 Harrower v. Harrower, 71 P.3d 854, 861 (Alaska 2003) (quoting Alaska
R. Civ. P. 52(a)).
23 Martin N., 79 P.3d at 53.
24 Dara S., 426 P.3d at 1002.
25 Id . and n.106 (setting out legislative findings).
26 Id .
27 Id . at 1001-02.
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reinstatement should try to evaluate a child's best interests "on at least three different
levels" by asking:
Are there reasons specific to the child and family why it
would be in the child's best interests to return to the family?
Are there reasons specific to the child and family why it
would not be in the child's best interests to return to the
family? Are there specific countervailing reasons in the
child's best interests not to return to the family despite the
[28]
legislative preference?
A review of the superior court's supplemental order indicates that it
complied with our directions on remand.29 The supplemental findings referenced the
three questions posed in Dara S. and the legislative findings in AS 47.05.065(4)-(5).
Considering AS 47.05.065(4)-(5), the court made findings about: (1) Paxton's age;
(2) his attachment to caregivers; (3) his potential opportunities tomaintain visitation with
those to whom he is bonded; (4) the safety, security, and stability of Scarlet and Monty's
home and Dara's home; and (5) the necessity of moving Paxton from his current
placement.
OCS argues that the superior court erred by focusing on Dara's best
interests, not Paxton's. OCS contends that the court was over-reliant on the social
worker's testimony and report. OCS argues that the social worker's report focuses on
Dara's progress, rather than Paxton and his potential response to a transition away from
Scarlet and Monty. We reject OCS's characterization. The social worker's report does
include information about Dara's progress and the safety and stability of her home, but
it also discusses Dara and Paxton's connection and his "healthy" attachment to and love
for her. The social worker elaborated on their connection during her testimony.
28 Id . at 1001 (footnotes omitted).
29 See id. at 1002.
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Contrary to OCS's argument, the superior court focused on Paxton's best interests, and
not on Dara's best interests, in its remand decision.
B. Factual Findings Underlying The Best Interests Determination
OCS argues that some factual findings underlying the superior court's best
interests finding are clearly erroneous, and OCS implicitly concludes that these errors
mean the best interests finding is clearly erroneous as well.
1. Prior family relationship
OCS contends the superior court clearly erred when it originally found that
Paxton lived the first three years of his life in a "traditional mother-child relationship"
with Dara. OCS argues that the record shows Dara had a "chaotic life" when Paxton was
in her custody for only two-and-a-half years, including her several hospitalizations due
to mental health crises and a suicide attempt. OCS challenges "the court's assessment
that Paxton would be returning to a home that he knew and loved." In doing so OCS
seems to challenge the court's original determination that Paxton's bonds with Dara and
Scarlet were equivalent. OCS notes that Paxton "does not include Dara in his description
of his family, and his time with Dara was before 'the period of his awareness.' "
It was not clearly erroneous to find that Dara and Scarlet were similarly
situated with respect to their bonds with Paxton at the time of the initial reinstatement
order. Paxton then had spent approximately the same amount of his life with Dara as he
had with Scarlet and was still in what the legislature deemed a "critical attachment"
30
period.
Because over two years passed between the initial reinstatement order and the
superior court's supplemental findings, Dara and Scarlet may no longer have been
similarly situated with respect to their bonds with Paxton. The court made no updated
finding about Paxton's relative bonds with Dara and Scarlet. The court instead merely
30
See AS 47.05.065(5)(A).
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concluded that Paxton's "bond with his mother and sister remains intact" and "was never
broken."
But Paxton did not need to be equally bonded with Dara and Scarlet for the
superior court to find that reinstating Dara's parental rights was in his best interests. The
court could have found that, despite Scarlet's alleged comparatively stronger bond with
Paxton, reuniting him and Dara was in his best interests because of Dara's superior
ability to care for his emotional well-being and to help him maintain bonds with all of
31 Any error is thus harmless because the court most heavily weighed
his family members.
Paxton's emotional well-being in its best interests determination, namely his ability to
maintain all familial bonds.
2. Accounting for the passage of time
OCS also argues that the superior court erred by making findings based on
the status quo at the time of the reinstatement trial. OCS argues that the first section of
the court's order "minimized the extent of Paxton's relationship with Scarlet and Monty
by stating Paxton's age at the time of events long past." OCS points to several examples
in the order's first section where the court determined Paxton's age and measured the
passage of time as of the reinstatement trial. But the court complied with our Dara S.
opinion by making findings based in part on its original reinstatement order. It might
have been problematic had the court ended its supplemental findings there because of the
passage of time since the court's first evaluation of Paxton's best interests. But, in
31 See Thea G. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 291 P.3d 957, 967 (Alaska 2013) ("We have held that 'a superior court may
consider "any fact relating to the best interests of the child" in its best-interests analysis,'
and that the superior court need not accord a particular weight to any given factor."
(footnotes omitted) (quoting Hannah B. v. State, Dep't of Health & Soc. Servs., Office
of Children's Servs. , 289 P.3d 924, 932 (Alaska 2012))).
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addition to clarifying its earlier findings, the court held an additional evidentiary hearing
and made additional findings based on new developments. We see no error.
3. Paxton's emotional well-being
OCS asserts that it was clearly erroneous to find Scarlet and Monty were
not able to provide for Paxton's emotional well-being because they refused to facilitate
visitation with Dara. OCS contends that Dara had no right to post-termination visitation
and that Scarlet and Monty were under no obligation to facilitate it. But the lack of legal
obligation to maintain a relationship with Dara did not preclude the superior court from
finding that Scarlet and Monty's past - and present - unwillingness to personally
facilitate Paxton's relationship with Dara was contrary to Paxton's best interests. The
court was concerned about Scarlet and Monty's future unwillingness to personally
facilitate Paxton's relationship with Dara; its concern was about Scarlet and Monty's
judgment and ability to support Paxton's emotional needs, not legal requirements for
visitation. The court did not clearly err when it found that maintaining familial bonds
was in Paxton's best interests and that Scarlet and Monty's apparent reluctance to help
do that was not.
OCSalso argues that thesuperior court erred by discounting Dr. Sorensen's
testimony because he had not recently observed Paxton and Dara together, but failing to
do the same with the social worker's testimony because she had not observed Paxton
with Scarlet and Monty. OCS points out that Dr. Sorensen had observed a visit between
Dara and Paxton in March 2016, and it asserts that Dara and her attorney denied
Dr. Sorensen access when he tried to observe her with Paxton prior to the December
2018 evidentiary hearing.
OCS's argument ignores differences in the duration and types of
observations made by Dr. Sorensen and the social worker. Dr. Sorensen evaluated
Paxton twice. During the first evaluation, Dr. Sorensen observed Paxton with Dara and
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interviewed Paxton, Scarlet, and Monty. During the second evaluation, Dr. Sorensen
interviewed only Paxton, Scarlet, and Monty. In contrast to Dr. Sorensen's more limited
contact, the social worker testified that she had spent at least 60 hours with Dara, Paxton,
and Georgia in the 3.5 years the social worker had been involved in the case, and she had
spent at least 8 hours observing visits between Dara and Paxton in the 6 weeks prior to
the December 2018 evidentiary hearing. The court's findings reflect its legitimate
concern about Dr. Sorensen's comparative lack of familiarity with the parties.
We further reject OCS's argument because the superior court also
discounted Dr. Sorensen's opinion for failing to take into account "the ongoing
animosity [Scarlet and Monty] have with Dara." As previously noted, the court
considered Paxton's emotional well-being "the predominant and decisive factor" in its
best interests analysis, and it determined that Scarlet and Monty's animosity towards
Dara was contrary to Paxton's best interests.
We see no legal error, and the superior court's findings are not clearly
erroneous.
4. Paxton's choice
OCS argues that the record does not support the superior court's finding
that Paxton wants to live with Dara. But there is support in the record. The Oregon
social service assistant who supervised some of Dara's visits with Paxton testified that
she heard him say he wanted to live with Dara. OCS points out that the only two times
Paxton was asked directly if he wanted to live with Dara, by Dr. Sorensen and the OCS
caseworker, Paxton expressed a desire to continue living with Scarlet and Monty. But
the superior court was entitled to, and did, discount the credibility of both Dr. Sorensen
and the caseworker. It is not our role to reweigh the evidence or make new credibility
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32
determinations. Because there is some support in the record for the court's finding, we
conclude there was no clear error.
5. Negligent supervision
OCS contends that the superior court clearly erred by finding OCS
negligently supervised Paxton while he was in Scarlet and Monty's care. OCS's possible
negligence is relevant to the best interests determination only to the extent it explains
why the court discounted the caseworker's opinion. Regardless whether OCS was
negligent, the court was entitled to find that the caseworker's contact with Paxton, Dara,
Scarlet, and Monty was insufficient to allow the caseworker to offer an informed opinion
on the situation. We cannot say the court's credibility determination was clearly
erroneous.
6. Summary
Based on the foregoing discussion, we conclude that none of OCS's
challenges to the superior court's underlying findings have sufficient merit to undercut
the court's ultimate best interests finding.
V. CONCLUSION
We AFFIRM the superior court's decision.
32 See supra notes 21 and 22 and accompanying text.
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