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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Protective Proceedings of Tiffany O. (7/24/2020) sp-7471
Notice: This opinion is subject to correction before publication in the P ACIFIC 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
In the Matter of the Protective )
Proceedings of ) Supreme Court No. S-17192
)
TIFFANY O.
) Superior Court No. 3AN-07-01380 PR
)
) O P I N I O N
)
) No. 7471 - July 24, 2020
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric Aarseth, Judge.
Appearances: Rachel O., pro se, Anchorage, Appellant. Erik
A. Fossum, Assistant Attorney General, Anchorage, and
Kevin G. Clarkson, Attorney General, Juneau, for State of
Alaska, Department of Health and Social Services, Division
of Senior and Disabilities Services, and Adult Protective
Services, Appellees. Notice ofnonparticipation filed by Julie
L. Webb, Office of Public Advocacy, Adult and Juvenile
Representation Section, Anchorage, for Appellee Tiffany O.
No appearance by Appellee Martha S.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
A daughter was appointed as guardian for her mother, a woman in her 60s
who suffers from epilepsy. The daughter relied on faith-based medicine to care for her
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mother, electing to, in one instance, pray over her mother after she became
nonresponsive instead of calling emergency services. The superior court ultimately
removed the daughter as guardian, finding that her behavior and "intractable belief
system" caused her to deprive her mother of appropriate services and care.
We conclude that the superior court did not abuse its discretion when it
removed the daughter as her mother's guardian. We also conclude that removing the
daughter as guardian did not violate the Alaska Constitution's free exercise clause
because the State possessed a compelling interest in preventing harm to the mother.
II. FACTS AND PROCEEDINGS
A. Facts
1 developed epilepsy early in childhood and suffers regularly
Tiffany O.
from seizures. She was also diagnosed with intellectual disability and was described by
the court visitor as "unable to engage in a meaningful conversation." In 2007 Tiffany's
daughter Rachel petitioned for the appointment of a guardian for Tiffany. She noted
Tiffany's long-standing diagnosis of epilepsy, inability to secure long-termhousing, and
intellectual disability. Rachel did not want to be Tiffany's guardian at the time due to
ongoing family conflict and her own caretaking duties for her two children. In March
2008 the superior court appointed the Office of Public Advocacy to serve as Tiffany's
public guardian.2
After a period of working well together, the relationship between Rachel
and the public guardian soured. In September 2010, after becoming increasingly
1 We use pseudonyms to protect the parties' privacy.
2 The guardianship appointment also included conservator power. See
AS 13.26.316 (addressing general powers and duties of guardians); AS 13.26.520
(addressing appointment and general duties of conservators).
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frustrated with the public guardian, Rachel twice petitioned for review of the
guardianship. In June 2011 Rachel was appointed as Tiffany's guardian.
Rachel saw herself as Tiffany's "spiritual authority" due to her training in
ministry. Furthermore, she believed that, because she graduated from a ministry school,
she was justified in "rely[ing] entirely on prayer in lieu of hospital care" for her mother.
Rachel, in a July 2018 motion for reconsideration, provided the court with an excerpt of
the "About Us" section of her school of ministry's website which states, "As people
come before the Lord in repentance [and] forgiveness, destroying the lies of Satan, . . .
most emotional [and] physical diseases are healed [and] bodies return to peace [and]
proper function."
By 2016 Rachel was concerned about whether her mother was receiving
the right medication. In an email to the court visitor, Rachel reported that when Tiffany
had seizures, Rachel prayed for her. She stated that it was up to Tiffany to self-
administer her own medications. She also wrote that "psych meds aren't God!; nor are
they life preserving, nor are they healing!"
Rachel's behaviors and beliefs prevented Tiffany from receiving valuable
medical services. In 2016 Rachel fired Tiffany's personal care assistant. Tiffany's care
was "consumer directed," meaning Tiffany's guardian could select an approved care
provider for Tiffany, and the contract company, Easter Seals in this case, would pay for
the personal care assistant services. After the firing, Easter Seals ended its contract with
Tiffany, citing concerns that "the home environment is much too volatile, appears
unsafe[,] and is not an appropriate situation for [Easter Seals] staff" due to Rachel's
hostile behavior and communications.
Thecourtvisitor'sreport containedlettersfromtwo personal careproviders
and the State's Division of Senior and Disability Services. The two personal care
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providers explained they were ending services for Tiffany because of Rachel, and the
Division of Senior and Disability Services stated that Tiffany was in danger of losing
state funding for personal care services if Rachel did not provide proper documentation.
B. Proceedings
In June 2017 the Office of Public Advocacy filed a petition for review of
guardianship after receiving a report that Rachel was financially exploiting Tiffany.
Tiffany's daughter Martha also filed a petition for review of guardianship in June. She
alleged that Rachel was either physically abusing their mother or failing to keep her safe.
An attorney was appointed to represent Tiffany in early July. In September Adult
Protective Services filed a motion to intervene due to additional reports accusing Rachel
of financial exploitation and physical abuse. Proceedings began before a magistrate
judge on September 12, 2017, and ended on January 2, 2018.
During the proceedings, witnesses described two instances of Tiffany
enduring physical harm. Rachel also described these instances in emails to the court
visitor. The first occurred over Memorial Day weekend in 2017, when Tiffany fell in the
garage while Rachel was sleeping. Rachel decided to spray hydrogen peroxide on
Tiffany's face to treat the injury. Rachel testified before the superior court that she did
not seek immediate medical care for Tiffany because she believed that doctors would
have just told her that Tiffany had a concussion and to watch Tiffany while she was
sleeping. Rachel stated in an email to the court visitor that she refrained from going to
the doctor because "all they would've done is document it all."
During the second incident, in October or November 2017, Rachel asked
a family friend to come over and pray over her mother. The family friend testified that
when he arrived he found Tiffany lying on the floor. He described her as "not very
responsive." Together, they moved her to the couch and prayed.
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In August 2018 the superior court adopted the magistrate's
recommendation to remove Rachel as guardian. The superior court remarked that a
"conventional approach" to decision-making for a ward and "a faith-based, holistic
view" are "not necessarily in opposition." However, in this case, "the situation [had]
come to a head." The superior court was primarily concerned with Rachel's "hostility,
bordering on paranoia, toward outside entities" that ensure that Tiffany gets the care she
needs. The superior court found that Rachel's "deeply held convictions about medical
care and state agencies" and her "intractable belief system" prevented her from pursuing
reasonable care options for her mother. The superior court was particularly alarmed by
the incident described by Rachel's witness when Rachel and family friends elected to
pray over Tiffany rather than call an ambulance. The superior court found that the
"Office of Public Advocacy should be substituted as guardian and conservator for
[Tiffany]." Rachel appeals the superior court's order.
III. STANDARD OF REVIEW
We review an order granting a request to remove a guardian under an abuse
3 "The superior court abuses its discretion if it considers improper
of discretion standard.
factors, fails to consider statutorily mandated factors, orassigns too much weight to some
factors."4 "Questions of statutory interpretation and constitutional law are . . . reviewed
de novo."5
3 H.C.S. v. Cmty. Advocacy Project of Alaska, Inc. ex rel. H.L.S. , 42 P.3d
1093, 1096 (Alaska 2002) (citing 39 A M. J UR. 2 D Guardian and Ward § 40 (1999)).
4 Id .
5
Huffman v. State, 204 P.3d 339, 343 (Alaska 2009).
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----------------------- Page 6-----------------------
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion When It Removed
Rachel As Tiffany's Guardian.
Under Alaska Statute 13.26.286, the court may remove a guardian and
6
appoint a successor. The process for removing a guardian requires that a petitioner first
demonstrate that there has been a change in circumstances since the guardian was
7
appointed. Then "the court must decide whether the existing appointment is in the
8
ward's best interests."
The record supports the superior court's determination that there was a
change in circumstances. Rachel became Tiffany's guardian in 2011. By 2016
allegations arose concerning Rachel neglecting Tiffany's needs. These concerns were
about Tiffany being physically abused and financially exploited. Rachel disagreed with
the opinions of medical doctors regarding her mother's medication. In at least one
instance, Rachel did not seek medical attention when her mother was nonresponsive. As
thesuperior courtstated, "Given [Rachel]'s strong beliefs and resistanceto other options,
the situation [had] come to a head."
Alaska Statute 13.26.311(d) dictates who has priority to serve as a guardian
of an incapacitated person. The adult child of an incapacitated person typically has
9 However, AS 13.26.311(f) provides that "in the best
priority over the public guardian.
interest of the incapacitated person" the court may decline to appoint the person who has
6 AS 13.26.286(a)(2)(B) ("On petition of the ward, the guardian, or any
person interested in the ward's welfare, or on the court's own motion, the court may
. . . remove a guardian and appoint a successor").
7 H.C.S., 42 P.3d at 1099.
8 Id.
9 AS 13.26.311(d).
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priority under section (d). "If the court appoints a person with a lower priority" then it
"shall make appropriate written findings related to why the best interests of the"
incapacitated person necessitate the appointment of the lower priority individual. 10
In H.C.S. v. Community Advocacy Project of Alaska, we discussed several
important factors for a court to consider when determining whether a current
11 The court should first "take into account the
appointment is in a ward's best interest.
closeness of the ward's relationships to the existing and prospective guardians."12 Next,
the court can examine "[t]he length and quality of the existing appointments."13 The
court can also consider "[o]ther circumstances [that] may . . . be relevant in particular
cases."14
In this case, while Rachel is Tiffany's daughter and cared for Tiffany as her
guardian for several years, the superior court correctly noted that Rachel's beliefs and
behavior constituted a barrier to Tiffany getting her needs met. The court pointed out
that, due to her condition, Tiffany needs a guardian to make "objective decisions" for
her. The superior court noted that a history of family tension and Rachel's "hostility,
bordering on paranoia, toward outside entities" resulted in Tiffany "losing valuable
services and resources to which she is entitled."
The superior court also noted that Rachel's belief system "foreclose[d] her
willingness to consider other options" when it comes to obtaining medical care for her
10 AS 13.26.311(f).
11 42 P.3d at 1099-1100.
12 Id. at 1099 ("This inquiry gives weight to the substantive values that
apparently underlie the statutory priorities for appointing guardians and conservators.").
13 Id. at 1100.
14 Id.
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mother. The superior court was primarily concerned with the suggestion that Rachel
may "rely entirely on prayer in lieu of hospital care."
The record supports the superior court's determination that there was a
change in circumstances and that Rachel's appointment was no longer in Tiffany's best
interest. The superior court did not abuse its discretion.
B. TheSuperiorCourt's RelianceOnTheGuardianshipStatutes DidNot
Violate Alaska's Free Exercise Clause .
Rachel argues that it is "religious discrimination to replace [her] as
guardian, because [she] care[s] for [her] mother based on the tenets of religion instead
15
of how the State wants her [mother] cared for."
We interpret this to be an argument
that Rachel's removal under the guardianship statute violated her rights to free exercise
of her religion.
16
The Alaska Constitution's free exercise clause states that "[n]o law shall
be made respecting an establishment of religion, or prohibiting the free exercise
15 Rachel also argues that "[t]he guardianship statutes cannot be used in any
matter to violate [her] mother's [First] Amendment rights." In the context of this case,
it appears that Rachel argues that replacing her as Tiffany's guardian violated Tiffany's
free exercise of religion. Generally, litigants lack "standing to assert the constitutional
rights of another." Keller v. French, 205 P.3d 299, 304 (Alaska 2009) (quoting State,
Dep'ts of Transp. & Labor v. Enserch Alaska Constr., Inc. , 787 P.2d 624, 630 n.9
(Alaska 1989)). Tiffany had appointed counsel in this case provided by the Office of
Public Advocacy. Through this representation, Tiffany has the ability to assert
constitutional claims on her own behalf. Tiffany's counsel filed a notice of
non-participation in response to this appeal.
16 While the texts of the free exercise clause of the U.S. Constitution and the
Alaska Constitution are nearly identical, we interpret the Alaska Constitution's free
OLE DURHAM &R OBERT SMITH,
exercise clause to require a strict scrutiny analysis. W.C
ELIGIOUS ORGS. AND THE LAW § 3:26 (2017). Therefore, this analysis focuses on the
1 R
Alaska Constitution rather than the U.S. Constitution because the Alaska Constitution
provides a more protective standard. Id.
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----------------------- Page 9-----------------------
17
thereof." As we have reiterated on numerous occasions, "[n]o value has a higher place
18
in our constitutional system of government than that of religious freedom."
We use our
independent judgment to review constitutional questions, "adopting the rule of law that
19
is most persuasive in light of precedent, reason and policy."
20
Alaska's free exercise clause was first interpreted in Frank v. State. In
Frank we determined that, to invoke a religious exemption from a facially neutral state
law, three requirements must be met: (1) a religion must be involved, (2) the conduct in
question must be religiously based, and (3) the claimant must be sincere in his or her
religious belief.21 "Oncethesethreerequirementsaremet,'[r]eligiously impelled actions
can be forbidden only "where they pose some substantial threat to public safety, peace
or order," or where there are competing governmental interests "of the highest order . . .
22
[that] [are] not otherwise served." ' "
Rachel meets the first Frank requirement because her beliefs regarding
medical care are strongly informed by her religion. She meets the second requirement
because her treatment decisions are based on her religious training and beliefs. And in
17 Alaska Const. art I, § 4.
18 Sands v. Living Word Fellowship, 34 P.3d 955, 958 n.11 (Alaska 2001)
(alteration in original) (quoting Frank v. State, 604 P.2d 1068, 1070 (Alaska 1979)).
19 Treacy v. Municipality of Anchorage , 91 P.3d 252, 260 (Alaska 2004).
20 604 P.2d 1068, 1070-71 (Alaska 1979).
21 Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 281 (Alaska
1994) (citing Frank, 604 P.2d at 1071).
22 Id. (first and fourth alterations in original) (quoting Seward Chapel, Inc. v.
City of Seward, 655 P.2d 1293, 1302 n.33 (Alaska 1982)).
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----------------------- Page 10-----------------------
the absence of any evidence to the contrary, we assume that Rachel's religious beliefs
are sincere.
With these three requirements met, the second part of the test under Frank
requires that a facially neutral statute that interferes with religious-based conduct be
23 In other words, the question becomes whether
justified by a compelling state interest.
the government's interest in protecting Tiffany outweighs Rachel's interest in following
her religious beliefs.24
The guardianship statutes reflect the government's strong interest in
protecting the health and safety of a vulnerable ward. A guardian has the duty to "assure
the care, comfort, and maintenance of the ward" and to "assure that the ward receives the
services necessary to meet the essential requirements for the ward's physical health and
25 A guardian may be dismissed if "there is an imminent danger that the physical
safety."
health or safety of the ward will be seriously impaired."26 These statutory interests are
similar to the government's interests in protecting the life, health, and safety of other
27
vulnerable groups, interests that we have previously found to be compelling.
23 Frank, 604 P.2d at 1074 (citing Sherbert v. Verner , 374 U.S. 398, 407
(1963)).
24 Swanner, 874 P.2d at 282.
25 AS 13.26.316(c)(2)-(3).
26 AS 13.26.286(e).
27 Myers v. Alaska Psychiatric Inst ., 138 P.3d 238, 249 (Alaska 2006) (noting
that the State has a compelling interest, under its parens patriae obligation, to protect the
health of civilly committed individuals in certain situations); Planned Parenthood of The
Great Northwest v. State, 375 P.3d 1122, 1139 (Alaska 2016) (noting that the State has
a compelling interest in protecting the health of minors who seek abortions); see also
(continued...)
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"[A]fter a court determines that the claimed exemption implicates a
compelling government interest," the appropriate question "is 'whether that interest
28
. . . will suffer if an exemption is granted to accommodate the religious practice.' "
Here there is evidence that, should this exemption be granted, Tiffany's health and safety
would be at risk. If Rachel cares for her mother following the tenets of her religious
beliefs, then shewill abandon theduties described by theguardianship statutes,including
the duty "to meet the essential requirements for [Tiffany's] physical health [and]
29 By depriving her mother of personal care services and emergency services in
safety."
favor of prayer, Rachel not only fails to satisfy the essential requirements under the
statute, but also puts Tiffany's health and safety at risk.
Granting this exemption would be directly counter to the State's interest in
protecting its most vulnerable citizens from harm. Rachel stated that if her mother were
to have a heart attack or stroke, she would first pray for her rather than call emergency
services. The threat to Tiffany's health, should she be returned to Rachel's care, is not
speculative. While serving as guardian, Rachel did not ensure that Tiffany received her
epilepsy medication as prescribed, putting Tiffany at significant risk.
Should Rachel be reinstated as guardian, Tiffany's health and safety will
be seriously compromised. If Tiffany required immediate medical attention, the results
27 (...continued)
Sampson v. State, 31 P.3d 88, 96 (Alaska 2001) (noting that other courts have recognized
substantial state interests in preserving life and protecting vulnerable persons).
28 Larson v. Cooper, 90 P.3d 125, 132 (Alaska 2004) (quoting Frank, 604
P.2d at 1073).
29 AS 13.26.316(a).
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could be fatal. For this reason, while religious liberty is a fundamental right under the
Alaska Constitution, the State's actions in this case are justified by a compelling interest.
V. CONCLUSION
The superior court's judgment is AFFIRMED.
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