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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Miranda T. v. State of Alaska DHSS, OCS (2/24/2023) sp-7643
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
MIRANDA T., )
) Supreme Court No.: S-18190
Appellant, )
) Superior Court No.: 3AN- 19-00228 CN
v. )
) O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, ) No. 7643 - February 24, 2023
OFFICE OF CHILDREN'S SERVICES )
and BISHOPE A., )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Jennifer S. Henderson, Judge.
Appearances: Amanda Harber, 49th State Law, LLC,
Soldotna, for Appellant. Ryan A. Schmidt, Assistant
Attorney General, Anchorage, and Treg R. Taylor, Attorney
General, Juneau, for Appellee Office of Children's Services.
Kelly R. Taylor, Assistant Public Defender, and Samantha
Cherot, Public Defender, Anchorage, for Appellee Bishope
A. Laura Hartz, Assistant Public Advocate, and James
Stinson, Public Advocate, Anchorage, for Guardian Ad
Litem.
Before: Winfree, Chief Justice, Maassen, Carney, and
Borghesan, Justices. Carney, Justice, dissenting.
[Henderson, Justice, not participating.]
WINFREE, Chief Justice.
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INTRODUCTION
A mother appeals the superior court's entry of a disposition order in child
in need of aid (CINA) proceedings. She contends that the court erred by moving
forward with an adjudication hearing without having considered her request for a
review hearing on a previously stipulated temporary custody and placement
arrangement. She contends that the court also erred by later refusing to enforce two
subsequent agreements she had reached with the Office of Children's Services (OCS)
about placements for her daughter. She further contends that the evidence does not
support the disposition order's predicate findings that (1) OCS had made sufficiently
active efforts to reunify the family and (2) removal of the daughter from the family
home was necessary to avoid harm to her. We reject the mother's claims of error and
affirm the superior court's disposition order.
FACTS AND PROCEEDINGS
1
During the CINA proceedings underlying this appeal, Bishope A. was a
2
nearly 17-year-old minor. Bishope is an Indian child under the Indian Child Welfare
3 4
Act (ICWA); her Tribe intervened and participated throughout the proceedings.
1 We use pseudonyms to protect the parties' privacy.
2 See 25 U.S.C. § 1903(4) (defining "Indian child" as "any unmarried
person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the biological child of a member of an
Indian tribe").
3 25 U.S.C. §§ 1901- 1963. ICWA establishes "minimum Federal standards
for the removal of Indian children from their families and [for] the placement of such
children in foster or adoptive homes which will reflect the unique values of Indian
culture." 25 U.S.C. § 1902.
4 See 25 U.S.C. § 1911(c) (authorizing child's Tribe to intervene in state
court child custody or protection proceedings).
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5
Bishope has both a guardian ad litem (GAL) to advocate for her best interests and an
6
attorney to advocate for her personal interests. Miranda T. adopted Bishope in 2015;
the current CINA proceedings began in April 2019 after OCS was contacted because
Bishope, who had been arrested and taken to a juvenile facility, refused to return home
to Miranda.
Relevant Early Stages Of A CINA Case
A brief summary of a CINA case's three early stages will provide context
for the following discussion of the proceedings in this matter. A CINA case generally
begins with OCS filing a petition to adjudicate a child as a child in need of aid under
7 OCS sometimes will take emergency custody of a child believed to be
AS 47.10.011.
in need of aid and then immediately file a petition for adjudication and temporary
8
custody pending the adjudication hearing. Other times OCS will file an adjudication
petition with a request for temporary custody or legal supervision of the child pending
9
the adjudication hearing. In either event, OCS must show that there is probable cause
5 See AS 25.24.310(c) (requiring "guardian ad litem when, in the opinion
of the court, representation of the child's best interests, to be distinguished from
preferences, would serve the welfare of the child"). At oral argument before us, the
GAL's attorney introduced the GAL and noted that he had been serving as Bishope's
GAL for over a decade. We are compelled to express our great appreciation and respect
for the GAL's efforts on Bishope's behalf over the years.
6 See AS 25.24.310(a) (providing court may appoint counsel to represent a
minor in "proceeding involving the minor's welfare").
7 AS 47.10.011 provides that a court may determine a child is in need of aid
if the child has been subjected to any of 12 enumerated situations.
8 See AS 47.10.142 (providing for emergency custody of child in certain
circumstances and setting out timelines for adjudication petition); CINA Rule 6
(implementing AS 47.10.142).
9 See CINA Rule 7 (regarding petition for adjudication) and CINA Rule 10
(regarding temporary custody hearings).
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to believe the child is in need of aid or the case will be dismissed.10 Once probable
cause is established and a temporary custody or supervision order is in place, any party
may request that the temporary order be reviewed due to a change of circumstances.11
If probable cause is established and an order for temporary custody or
supervision is issued, the case moves to the adjudication stage. An adjudication hearing
must be completed within 120 days of the probable cause determination, although
continuances may be granted for good cause while taking into account the effect of
delay on the child.12 If at the hearing the court finds by a preponderance of the evidence
that the child is in need of aid, the court will order that the child be committed to OCS's
temporary custody pending a disposition hearing.13 If, as a part of the adjudication
order, the court approves removal of an Indian child from the home, the court must
make certain removal findings.14
10 See CINA Rule 6(b) (regarding necessity of probable cause to issue order
for emergency temporary custody of child in need of aid); CINA Rule 10(c) (regarding
necessity of probable cause for temporary custody order). Probable cause "is
established where reasonably trustworthy information would justify a prudent person's
belief that the child is in need of aid." In re J.A. , 962 P.2d 173, 176 (Alaska 1998).
This essentially reflects "a fair probability or substantial chance," id., less than the
preponderance of the evidence showing required at an adjudication hearing, cf. CINA
Rule 15(c).
11 CINA Rule 10(e)(1).
12 AS 47.10.080(a); CINA Rule 10(d) (regarding subsequent hearings).
13 CINA Rule 15(f)(1).
14 See CINA Rule 15(f)(2); CINA Rule 10.1(b)(1) (requiring, at each hearing
authorizing removal of Indian child from parent or Indian custodian, findings
determining that OCS complied with ICWA's placement requirements under 25 U.S.C.
§ 1915(b) and made active efforts to provide remedial services and rehabilitative
programs to the family under 25 U.S.C. § 1912(d)). If those findings cannot be made
on the record then before the court, the child is not necessarily returned to the parent or
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The next stage of a CINA case is a disposition hearing to determine
whether OCS 's custody of the child shall continue and, if so, the appropriate placement
for the child during the ongoing CINA proceedings.15 The court is allowed, but not
required, to combine an adjudication hearing and a disposition hearing.16 Assuming
certain predicate findings are made after the disposition hearing, the court shall place
the child in OCS's custody for up to 2 years but not extending past the child reaching
age 19.17 The court may approve removal of an Indian child from the child's home only
if the court makes the same removal findings required at the adjudication stage
(regarding placement preferences and active efforts)18 and also finds "clear and
convincing evidence, including testimony of qualified expert witnesses, that the
continued custody of the child by the parent . . . is likely to result in serious emotional
or physical damage to the child."19
Opening Proceedings
OCS filed a non-emergency petition for adjudication that Bishope was a
child in need of aid and sought an order placing Bishope under OCS's temporary legal
supervision. OCS asserted that Bishope was in custody at an Anchorage juvenile
facility but was ready for release after dismissal of delinquency charges against her.
OCS asserted that Bishope did not want to return to Miranda's care and threatened to
Indian custodian; temporary custody will be extended and the disposition hearing
postponed until the findings can be made. CINA Rule 10.1(b)(2); CINA Rule 17(c).
15 CINA Rule 17(a).
16 CINA Rule 10(d).
17 AS 47.10.080(c)(1).
18 CINA Rule 17(c). If those findings cannot be made, the disposition order
must be postponed until the findings can be made; the child remains in OCS's
temporary custody pending the disposition order. Id.
19 25 U.S.C § 1912(e); CINA Rule 17(d)(2).
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harm Miranda if she were returned. OCS said that it was seeking only legal supervision
while Bishope was in juvenile custody, that it intended to establish a case plan with
Miranda and determine appropriate services, and that it would seek a partial delegation
of authority for Miranda to allow Bishope to be released to live with a family friend in
Anchorage who had been a previous foster placement.
The court issued an order for OCS's temporary supervision based on the
court's finding of probable cause that Bishope was a child in need of aid . The order
provided for placement with Miranda with a delegation of parental authority from
Miranda to the family friend.20
In July OCS filed a supplemental petition for adjudication and temporary
custody of Bishope rather than supervision. OCS described continued difficulties with
Bishope and Miranda's relationship, Bishope's running away from the family friend's
home, Bishope's treatment with her therapist, and Bishope's departure from Anchorage
to her biological mother's home. OCS sought temporary custody, but not removal
findings, because Bishope's biological mother then had a delegation of parental rights
from Miranda. Without making additional findings, other than it was in Bishope's best
interests, the superior court granted temporary custody to OCS pending further
proceedings.
Miranda and OCS later agreed to the superior court making "provisional
findings . . . solely and for the limited purpose of facilitating . . . foster placement of the
child," preserving Miranda's right to later contest removal.21 It appears that, for
purposes of the agreement, Miranda agreed Bishope was a child in need of aid under
20 See Alaska CINA Rule 10(c)(2) ("The court shall order the child placed
in the temporary custody of [OCS] or order the child returned to the home with
supervision by [OCS] if the court finds probable cause to believe that the child is a child
in need of aid under AS 47.10.011.").
21 See CINA Rule 14(c) ("Subject to approval by the court, parties may
stipulate to any matter.").
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AS 47.10.011(5) (regarding child who has "a substantial risk of physical or mental
injury" due to habitual absence from the home or refusing available care). The court
issued an order with provisional removal findings "subject to challenge at a later
proceeding."
In October, after OCS placed Bishope in a residential treatment home
rather than in the contemplated foster care, Miranda moved for a review hearing due to
changed circumstances in Bishope's placement. Miranda specifically requested formal
removal findings. Bishope, the GAL, the Tribe, and OCS opposed Miranda's motion.
In late November the court declined to grant immediate review and ordered that removal
be addressed at the upcoming adjudication hearing, later referring to "overlapping"
factual information and noting that combining review "would be a productive use of
court time."
Although the court apparently delayed the adjudication hearing to allow
the parties an opportunity to mediate a "path forward," the hearing ultimately started
about two months later, on January 27, 2020. The court denied OCS's request for a
continuance to allow an expert psychiatrist, Dr. Aryeh Levenson, to conduct a
comprehensive evaluation of both Bishope and Miranda, but the court said it would
consider allowing the evaluations to go forward for presentation later in the hearing.
The court then heard some witness testimony. The hearing resumed on February 4. At
the end of that hearing day the parties discussed the next available hearing day, focusing
on March 11. During these discussions OCS said that Dr. Levenson had been working
on a report. The court stated that it would require a motion to determine whether the
additional expert testimony would be allowed.
The court held a status hearing on February 24 to discuss how to handle
potential testimony from Bishope. OCS advised that Dr. Levenson was working hard
on his evaluations, that he would not be available in person on March 11, but that he
could be available later in March. The court requested that the parties provide
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information from mental health professionals regarding testimony from Bishope and
file position papers on allowing Dr. Levenson's report and testimony.
The court held another status conference on March 9, primarily to discuss
procedures for Bishope's testimony. The court noted that OCS had filed a motion to
allow Dr. Levenson to testify at the trial, although it was made clear at the hearing that
Dr. Levenson's report had not yet been provided to all parties. Regarding Bishope's
testimony, the court found that pressuring Bishope "to testify in the presence of
[Miranda] is likely to cause material psychological harm to her" and would "inhibit her
ability to express her testimony." The court proposed having Bishope's testimony
conducted in judicial chambers, with an arrangement allowing Miranda to hear the
testimony and submit potential questions. Then, regarding Dr. Levenson, the court said
that its inclination - but not its final ruling - was to allow Dr. Levenson to testify at
some point. The court left its final decision until the parties had been able to review
Dr. Levenson's report and could articulate positions favoring or opposing his
testimony.
Levenson Report; Miranda And OCS's Stipulated Agreement
Dr. Levenson 's detailed report, based on record reviews and interviews
with Bishope, Miranda, and others, was made available before the March 11 hearing.
Dr. Levenson concluded that Bishope suffered "deep psychological effects of
developmental trauma and neglect" manifesting "in deficits in emotional regulation,
interpersonal trust and capacity to develop and maintain strong secure attachment
bonds." But he also described Bishope as able to be "an engaging and endearing
adolescent[,] energetic[,] hard working[, and having] a good sense of humor." He
mentioned that others described her as "athletic, musical, artistic and creative ," and he
noted her "capacity to develop peer relationships and relationships with adults."
Dr. Levenson described Miranda as having a "very rigid, at times
demanding and controlling personality style that contributed to conflicts between her
and her daughter." He acknowledged that Miranda "is dedicated[,] cares deeply about
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[Bishope, and] is seeking to better herself." Dr. Levenson reported that "the way
[Miranda] interacted with [Bishope], the manner in which [Miranda] advocated for
[Bishope], and [Miranda's] inability to understand how her behaviors/attitudes impact
others" were a problem. He noted that Miranda's parenting style and potential
personality disorder led to friction between her and some of Bishope 's treatment
professionals.
Dr. Levenson called the combination of factors "explosive." He detailed
how Miranda 's interpersonal and parenting styles caused "[Bishope] to feel
exhausted/exasperated" and respond by "resort[ing] to what she knows - violence to
escape." Dr. Levenson was somewhat hopeful about both 's abilities to improve, but he
also expressed concern that "despite [previous treatment], the situation hasn't
improved, it has deteriorated."
Dr. Levenson suggested two treatment options for Bishope. He first
recommended "a long[-]term specialized treatment facility that does focus on
development trauma and attachment disorders and includes a very intensive and
long[-]term parental psychotherapy component." He did not recommend forced
visitation or reunification as a therapeutic goal, but he thought treatment could
contribute toward an improved relationship. He "strongly believe[d] that OCS need[ed]
to maintain custody authority" but acknowledged that Miranda's interest in "specialty
programs" was appropriate. Dr. Levenson "hesitate[d] to offer a second option,"
indicating that it would be less effective and unlikely to be available in Alaska. He
nonetheless discussed "placing [Bishope] in a long[-]term[,] highly skilled therapeutic
foster care home and utiliz[ing] the current treatment providers . . . for ongoing care in
a very intensive manner while providing more skilled wrap[-]around services." He
noted that Miranda would have to give up custody and "put her efforts in her own mental
health care." Dr. Levenson encouraged Miranda and OCS to "work together to find a
solid treatment plan" instead of litigating. He said that "[f]or real and/or imagined
intrapsychic reasons" Bishope would react poorly to "the mere knowledge that her
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mother is controlling her treatment" and he concluded that it was "very unlikely that
[OCS], in the near future[,] can reunify" the two.
After this report was released, Miranda and OCS entered into a stipulated
adjudication agreement announced in court on March 11.22 The thrust of the agreement
was that - to start Bishope in Dr. Levenson's first treatment recommendation as soon
as possible - Miranda agreed that Bishope was a child in need of aid and that removal
findings could be made under certain terms. But the parties still would proceed to a
disposition hearing at which the court would have to make additional findings,
particularly those required under ICWA. The underlying terms supporting Miranda 's
agreement related to OCS's commitments: to follow Dr. Levenson's recommendation
that Bishope be placed at a long-term specialized treatment facility; to maintain its
custody of Bishope and pay for all necessary treatment; to allow Miranda to
communicate directly with Bishope's treatment provider regarding routine treatment;
to allow Miranda to give information to and receive non-privileged information from
Bishope's therapist; and to provide case planning for Miranda to work on her own issues
identified in Dr. Levenson's report. When Miranda and OCS presented their stipulated
agreement to the court, the GAL and the Tribe urged OCS to work on both of
Dr. Levenson's treatment recommendations and opposed being "lock[ed] . . . into any
dispositional plan."
The court expressed concern about a stipulation not agreeable to all parties
and gave the parties an opportunity to confer and reach an acceptable written
stipulation. The hearing reconvened an hour or so later, and a typed stipulation with
handwritten modifications was presented to the court. After testimony from Miranda,
further modifications, and acknowledgment that Bishope, the Tribe, and the GAL did
not agree with certain aspects of the stipulation, the stipulation was signed by all but
22 See CINA Rule 14(b) (regarding requirements for adjudication or
disposition stipulations).
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Bishope and her attorney (who had been unable to consult with Bishope). The court
accepted the stipulation as presented, with the disagreements noted, and then discussed
scheduling a disposition hearing.
OCS ultimately reneged on the agreement with Miranda, citing "tricky"
administrative restrictions on out-of-state placements and pandemic pressures. OCS
placed Bishope at an in-state foster home, and shortly thereafter OCS acknowledged to
the court that it "could not follow through with what it had agreed to in March." OCS
also later acknowledged to the court that its representatives "were not fully aware of
Alaska Medicaid requirements" and that they "should have looked into these
requirements before entering into the stipulation." OCS called this an error and said
parts of the "stipulation r[a]n afoul of Alaska Medicaid requirements."
During this time Bishope struggled at her placements. She was discharged
from a residential treatment home for repeatedly running away, placed into two
emergency homes without proper safety measures, and then placed with a family friend
with whom she had previously had a positive experience but who eventually requested
additional OCS support.
Subsequent Stipulated Agreement And The Cohen Letter
Miranda and OCS negotiated an amended agreement, covering both
adjudication and disposition, and presented it to the court in June. Under this agreement
Miranda was responsible for applying to "agreeable treatment facilit[ies]," custody
would return to Miranda when Bishope was "actually physically taken into such a
program," and various obligations were set out regarding information sharing and tone
of communications. OCS represented that the agreement was made "with significant
consultation . . . up the chain, including state-wide management," but acknowledged
that "we may still end up needing a contested disposition because not all parties are
going to be in agreement with the plan."
The other parties opposed this agreement more strongly than they had the
previous one. The Tribe called the agreement "shocking" and "underhanded";
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Bishope's attorney claimed to be "very concerned" by the contents of the agreement
and the method by which it was conceived; and the GAL called OCS's actions
"completely inappropriate and mind boggling," emphasizing that he was "completely
opposed" to the agreement because it was not in Bishope's best interests. Apparently
anticipating litigation, the court declined to "sign an order . . . [with] terms that would
include essentially disposition . . . until there's fully been an opportunity to respond."
OCS later framed its actions as "an effort to remedy" the March 2020 agreement but
also "acknowledge[d] that it should have consulted with its expert and the child's
treatment providers for recommendations."
Chantal Cohen, a therapist who had treated Bishope (and, at times,
Miranda) in 2015 and for short stretches of time from 2018 to 2020, wrote a letter (with
Bishope's permission) in September expressing serious concerns about Miranda 's
involvement in Bishope's care; the letter was distributed to the parties. Cohen said that,
based on her professional experience and conversations with Bishope, she believed
Bishope would "sabotage any attempt in treatment where she is required to engage with
her mother." Cohen said she was "very concerned" about Bishope's safety and warned
that "mother-daughter interactions now place Bishope at risk of further traumatization
if contact with her mother continues." Cohen said that Bishope had threatened to kill
herself to avoid returning to Miranda's custody. OCS later gave notice that it intended
to call Cohen as an expert witness at the upcoming disposition hearing; Miranda
unsuccessfully sought to preclude Cohen's testimony, arguing that OCS's notice was
deficient.
Bishope continued running away from placements, and she twice reported
having been sexually abused while on her own. Because of Bishope's high-risk
behaviors when she ran away from less restrictive placements, and because she
threatened to commit suicide if returned to Miranda, Bishope was admitted to a secure
psychiatric hospital. Miranda participated in evaluations, programs, and case planning
in compliance with her agreement with OCS.
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Placement Hearings (June 2020 to March 2021)
The parties sought various placements for Bishope. A June 2020
opportunity at one facility fell through because, by the time OCS took the necessary
action to finalize her acceptance, her running away from placements made her
ineligible. In August the court approved her placement at another facility, but that fell
through due to a pandemic-related shutdown.
In October Bishope was moved to a short-term wilderness program in
California. The parties disagreed about her next placement. In November, after OCS
decided not to pursue one placement because of the program's disenrollment from
Alaska Medicaid, Miranda filed a motion seeking specific performance of the earlier
stipulated agreements. OCS instead proposed sending Bishope to a treatment facility
in Utah. Miranda responded with information about abuse at that facility. Emails
between OCS representatives and facility representatives later were characterized by
the superior court as "shocking" and "simply unacceptable" evidence that OCS "tried
to shoehorn" the facility to fit Dr. Levenson 's recommendations.
In December the superior court determined that OCS had not abused its
discretion by declining to place Bishope at the facility that was not Medicaid enrolled,
but also determined that OCS had abused its discretion by pursuing her placement at
the Utah facility. Bishope then again was placed at an emergency foster home from
which she previously had run away. Miranda warned that Bishope would run away
again, and the court ordered safety measures put in place. Despite the installation of
alarms, Bishope ran away, took a dangerous number of pills, was hospitalized, and then
was admitted to a crisis recovery center. Miranda identified another short-term
wilderness program in Georgia; because the foster home placement was inadequate and
this was the only other option open to Bishope, the court ordered OCS to make the
placement. Bishope arrived there at the end of December.
In February 2021 a spot became available for Bishope at the facility where
she previously had been ineligible. Miranda made an expedited motion to delay that
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placement and to regain custody; she characterized her intent as preventing disruption,
but the GAL and Bishope opposed it as a last-minute attempt to disrupt proceedings.
The motion was denied, but due to delay in meeting enrollment requirements, Bishope
was not placed at the facility until late March. She remained at that facility through the
conclusion of the disposition hearing, making significant strides the court later called
"quite promising."
Disposition Hearing And Order
The superior court began the disposition hearing in October 2020. The
hearing was interrupted by the various above-described placement hearings. The
disposition hearing continued at later dates, with the court hearing testimony from
witnesses including Dr. Levenson (in October 2020); Bishope's therapist, Cohen (in
March 2021); another of Bishope's therapists, Emily Smith from the Georgia-based
program (in March 2021); and Miranda (in June-July 2021). In August 2021 the
superior court made its oral disposition order.
The court began by noting it was required to keep Bishope's health and
safety as its primary concern while considering Bishope's best interests, OCS's ability
to take custody of and care for Bishope, and the potential harm to Bishope that might
be caused by removing her from Miranda's home and custody.23 The court then pointed
out various parties' unproductive conduct, observing that "some of the parties have
treated each other or treated the problems in this case as standard, simple, or one-
dimensional" when "nothing could be further from the truth." The court noted that
parties had "vilified" Miranda and "treat[ed] [her] as the only or the main source of
difficulties for Bishope," emphasizing that was "just not true." The court also noted
that parties had inappropriately criticized Miranda's attorney, whom the court called "a
strong advocate." The court acknowledged positive actions by Miranda and her
23 See AS 47.10.082 (outlining required paramount concern and necessary
considerations applicable to disposition hearing).
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attorney, including advocating for better security at Bishope's placements, bringing to
light problems with the proposed Utah placement, and notifying "the parties and the
[c]ourt of failures in OCS's past handling of this case." The court said it nonetheless
would make disposition findings consistent with what OCS and other parties had
requested.
The court first found that Bishope continued to be a child in need of aid
under AS 47.10.011(5) because of the risk of harm caused by her repeated running away
and refusing care.24 The court cited evidence and testimony from Cohen and the "quite
thoroughly informed" opinion of Dr. Levenson demonstrating "that not just previously
but even currently . . . if [Bishope] perceives [Miranda] as being in control of her care,
she will reject that care and as a result, subject herself to grave - not just serious -
grave physical and mental injury." Acknowledging concerns raised about how current
Dr. Levenson's information was, the court found that this did not "tak[e] any great
weight away from his opinion" and that his opinion and recommendations remained
applicable. The court acknowledged Miranda's progress, pointing to her participation
in agreed-upon treatments, but found she had not "conquered all of the difficulties or
done all of the work . . . needed to address difficulties in herself." The court said that
Miranda's testimony reflected a lack of acceptance or internalization of Bishope's
viewpoint.
The court next found that it was contrary to Bishope's welfare to be
returned to Miranda's home or care and that there was clear and convincing evidence,
including expert witness testimony from Cohen and Dr. Levenson, that returning
24 The court noted that there had been a previous stipulation that Bishope
was a child in need of aid under this statutory provision, but the court made the finding
"to the extent" it was required again at the disposition hearing. Cf. CINA Rule 15
(regarding hearing to adjudicate whether child is in need of aid).
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Bishope to Miranda's custody was "highly likely to cause serious emotional or physical
damage to [Bishope]."25 The court said that there was relevant testimony from multiple
witnesses but that it found Dr. Levenson's opinion most compelling. The court
expressly referenced the evidence it had relied upon to find that returning Bishope to
Miranda's custody was contrary to Bishope's welfare.
The court then found that OCS had made sufficiently active reunification
efforts to support a disposition order.26 The court candidly listed OCS's prior failures,
calling its efforts at times "complete chaos." The court noted that OCS had entered into
agreements it "either could not keep and should have known that ahead of time or just
did not keep." The court also pointed to OCS 's miscommunicating information
internally and externally, again expressing shock and dismay at OCS's attempts to
manipulate the conversation about the Utah facility. The court more generally
expressed concern that OCS had been treating Bishope "almost generically . . . without
really internalizing" her specific needs. The court noted OCS's failures to protect
Bishope "even when the risk of [running away] and harm that could result became quite
clear over time."
Although unable "to pinpoint an exact date," the court nonetheless
indicated active efforts began "fairly recently," noting that Dr. Levenson's work leading
to Bishope's most recent residential in-patient placement was the turning point. The
court made clear that reunification of the family would require specific, effective
25 See CINA Rule 17(d)(2) (requiring, as predicate to disposition order
including removal of Indian child from home, that court find "that continued placement
in the home is contrary to the welfare of the child" and "that there is clear and
convincing evidence, including the testimony of qualified expert witnesses, that custody
of the Indian child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child").
26 See CINA Rule 17(c)(2) (requiring, as predicate to disposition order
regarding Indian child, that court find that OCS has made active family reunification
efforts under 25 U.S.C. § 1912(d)).
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treatment for Bishope and that treatment for Miranda's difficulties also was important.
The court concluded that there had been a "shift" and that OCS had reached "the point
of making active if not perfect efforts" to reunify Bishope and Miranda by securing
Bishope's placement in the long-term residential treatment facility. The court noted the
treatment facility's "strong parental component" might help Miranda progress as well
and instructed OCS that more efforts should be directed to Miranda.
The court briefly addressed Bishope's placement.27 The court noted that
all parties agreed Bishope was "in the appropriate placement in the treatment setting"
and that her continued placement would be evaluated at subsequent review hearings.28
The court, after making the required findings for a disposition order,
maintained OCS's custody of Bishope for a two-year period.29 A written disposition
order - effective the day of the oral ruling - was entered the next month.
Appeal
Miranda appeals the superior court's disposition order. She contends that
the superior court erred by not reviewing and vacating the initial provisional removal
findings when they were violated; by not ordering specific performance for either
stipulated agreement; by allowing OCS to call Cohen as an expert witness and relying
on her testimony to reach its findings; by finding that OCS had made active efforts and
that removal from the home was justified; and by making its final disposition decision
with those stated deficiencies. OCS, the GAL, and Bishope filed responsive briefs
supporting the superior court's decision.
27 See 25 U.S.C. § 1915 (setting out placement preferences for Indian
children in CINA proceedings).
28 See AS 47.10.087(b) (requiring placement review every 90 days for child
placed in secure residential psychiatric treatment facility).
29 See AS 47.10.080(c)(1) (authorizing OCS's custody of child in need of
aid for up to 2 years not extending past the child reaching age 19).
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DISCUSSION
We Decline To Address Miranda's Claim Of Error About Delaying
Her Requested Review Hearing; Miranda's Claim Of Error About
Enforcing Pre-Disposition Hearing Stipulations Has No Merit.
1. Delayed review hearing
Miranda contends that the superior court erred in its November 2019 order
delaying review of the "provisional removal findings" - that she and OCS initially had
agreed to and that had been approved by the court - until the upcoming adjudication
hearing. The parties disagree about how to frame the issue. Miranda emphasizes her
parental rights, pointing out that a court's discretion to control its calendar is "subject
to the constitutional rights of the litigants."30 OCS, the GAL, and Bishope contend that
the court may consolidate or combine phases of the CINA proceeding to promote
judicial economy. They point out that courts generally control their calendars by
consolidating issues31 or combining various phases of CINA cases,32 and they support
30 Judd v. Burns , 397 P.3d 331, 339 (Alaska 2017) (quoting 75 AM . JUR . 2D
Trial § 21 (2017)). We have recognized that parental rights are "one of the most basic
of all civil liberties" and compared them to liberty interests at stake in civil
commitments. Jennifer L. v. State, Dep't of Health & Soc. Servs., Off. of Child . 's Servs.,
357 P.3d 110, 116-17 (Alaska 2015) (quoting Seth D. v. State, Dep't of Health & Soc.
Servs., Off. of Child.'s Servs., 175 P.3d 1222, 1227-28 (Alaska 2008)).
31 See, e.g., Alaska R. Civ. P. 42(a) (permitting court to "order a joint hearing
or trial of any or all the matters in issue in the actions" if they "involv[e] a common
question of law or fact"). Rule 42(a) most obviously applies to consolidating separate
cases, but we occasionally have referred to it when discussing a court's authority to
consolidate stages of a CINA proceeding. See, e.g., Denise L. v. State, Dep't of Health
& Soc. Servs., Off. of Child.'s Servs., No. S-15879, 2016 WL 11570753, at *11 (Alaska
May 25, 2016); see also Jeff A.C. v. State, 117 P.3d 697, 709 n.5 (Alaska 2005) (Bryner,
J., concurring).
32 See Philip J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
264 P.3d 842, 847-48 (Alaska 2011) (holding court can make adjudication findings at
end of probable cause hearing); Alaska CINA Rule 18(b) ("Upon a showing of good
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the court's decision to combine review as promoting judicial economy. They also assert
that the issue is moot because a hearing ultimately was held. Miranda in turn asserts
that the public interest exception to mootness applies because the decision to delay
review infringed on her constitutional right to parent Bishope.33
No realistic remedy is available were we to conclude that the hearing delay
violated Miranda's due process rights; she did not ask for a remedy in her opening brief,
but she posited at oral argument to us that, were we to find a due process violation, we
should set aside everything that happened in the superior court after November 2019
and go back in time to her requested placement review. This is untenable in light of the
superior court's efforts to move this case to a disposition hearing and its thoroughly
detailed findings of fact and conclusions of law supplementing its disposition order.
The issue clearly is moot.
Miranda's reliance on the public interest exception to mootness is
unpersuasive. First, her alleged due process violation, arising from the two-month delay
between the late November 2019 order and beginning of the late January 2020
adjudication hearing, is de minimis on the facts of this case, especially when her due
process rights were protected throughout a variety of placement hearings and the
ultimate disposition hearing. Second, the alleged due process violation arises from a
cause and with adequate notice to the parties, an adjudication hearing and a termination
hearing may be consolidated.").
33 "A claim is moot if it has lost its character as a present, live controversy."
Jennifer L. , 357 P.3d at 114 (quoting Peter A. v. State, Dep't of Health & Soc. Servs.,
Off. of Child.'s Servs., 146 P.3d 991, 994 (2006)). We may exercise discretion to hear
a moot appeal under the public interest exception to the mootness doctrine after
considering: "(1) whether the disputed issues are capable of repetition; (2) whether the
mootness doctrine, if applied, may cause review of the issues to be repeatedly
circumvented; and (3) whether the issues presented are so important to the public
interest as to justify overriding the mootness doctrine." Id.
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superior court's discretionary decision to combine stages of this particular CINA
proceeding, which necessarily is based on the specific facts of this case and Bishope's
best interests;34 ruling on the facts of this case would lend little guidance to future cases.
We thus decline to reach this issue.
2. Stipulations
Miranda contends the superior court erred by failing to enforce the two
stipulated agreements that she and OCS had reached but were not effectuated. She
argues that the stipulations were binding and that the court should have ordered specific
performance when OCS ceased honoring them. (We note that the first stipulation was
approved by the court, but the second stipulation was not.35) Bishope contends that the
issue is moot because OCS subsequently placed her at a facility as contemplated by the
agreements, and no party asserted that Bishope should be moved to a different facility.
The GAL and Bishope emphasize that parties cannot be bound by a contract for a
placement that ultimately is subject to judicial review.
We reiterate that the fundamental basis for CINA proceedings is the
child's best interests.36 CINA proceedings are not static; there always are ebbs and
flows of actions, inactions, status changes, superseding events, and other matters
affecting the child's best interests. A stipulation entered one day may not be in the
child's best interests six months later. In this case the parties had numerous hearings
on a variety of matters involving Bishope's best interests; agreements by some, but not
all, of the parties attempted to control her placement for some periods of time; and, in
the face of ultimate disagreements about her placement and best interests, the court
34 See AS 47.10.005(1) (providing statutory requirements are to be liberally
construed to ensure child in need of aid shall "receive the care, guidance, treatment, and
control that will promote the child's welfare and the parents' participation . . . to the
fullest extent consistent with the child's best interests").
35 Cf. CINA Rule 14(a)-(b) (regarding court approval of stipulations).
36 See AS 47.10.005(1).
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conducted the disposition hearing and rendered its decision. The disposition decision
superseded any inconsistent agreements; we will not vacate a disposition decision and
enforce stale agreements inconsistent with the child's best interests. We therefore reject
Miranda's claim of error and her request that, based on this point alone, we vacate the
disposition order.
Perhaps recognizing that we would not grant substantive relief even if we
determined Miranda's due process rights had been violated, Miranda focuses on
imposing sanctions against OCS. She points out that she asked the superior court to
consider sanctions but that the court did not address sanctions in its disposition order.
She requests that we therefore remand to the superior court to consider imposing
sanctions on OCS.
Miranda's closing comments about sanctions against OCS were as
follows:
The court may wish to consider sanctioning [OCS].
Appropriate sanctions could include an order that [OCS]
correct the false statements that it has made to any external
agency about [Miranda, Bishope], or this court, in writing,
subject to the approval of the court. The court could also
consider monetary sanctions and invite further briefing
about the appropriateness of monetary sanctions.
We assume the superior court read Miranda's closing arguments and that the omission
of this issue from the oral and written orders was a decision to forego sanctions.
Sanctions are a discretionary decision subject to deferential appellate review.37 In light
of the superior court's dedicated efforts to get consensus among the parties with respect
to Bishope's treatment and improved collaboration for her benefit - or at least less
divisiveness on either personal or professional levels - we see no abuse of discretion
37 See Enders v. Parker, 125 P.3d 1027, 1037 (Alaska 2005) (emphasizing
that a trial court's decision to impose or not impose sanctions is "subject to review only
for abuse of discretion").
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by declining to impose sanctions on OCS, and we see no reason for a remand for the
superior court to explain its decision.
The Superior Court Did Not Err By Admitting And Considering
Therapist Cohen's Testimony.38
Miranda asserts that the superior court erred by allowing OCS to call
Bishope's former therapist, Cohen, as an expert witness.39 Miranda does not challenge
Cohen's qualifications as an expert; Miranda primarily argues that the court failed to
make the necessary predicate determination regarding the admissibility of Cohen's
testimony under Alaska Evidence Rules 70340 and 705(b).41 Just before Cohen's trial
testimony, Miranda objected to allowing Cohen to testify without a determination that
the information she relied upon was commonly used by experts in her field. Miranda
argued that because Cohen recently had seen reports from Dr. Levenson and another
expert and because notice had been given that neither report changed Cohen's opinions,
38 See Cora G. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
461 P.3d 1265, 1277 (Alaska 2020) (noting that it is generally "left to the trial court's
discretion whether expert testimony is appropriate in a given case, and if so, whether a
proposed expert witness is qualified to testify on a particular issue").
39 See Alaska R. Evid. 702(a) ("If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.").
40 See Alaska R. Evid. 703 ("The facts or data in the particular case upon
which an expert bases an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. Facts or data need not be admissible in
evidence, but must be of a type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject.").
41 See Alaska R. Evid. 705(b) ("An adverse party may request a
determination of whether the requirements of Rule 703 are satisfied before an expert
offers an opinion or discloses facts or data."). Failure to make a Rule 705(b)
determination is harmless error if the "reasonable reliance" test is met. See Norris v.
Gatts, 738 P.2d 344, 350 (Alaska 1987).
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a foundation would have to be laid to demonstrate that an expert in Cohen's position
would not have considered and relied on those reports when providing expert testimony.
The superior court overruled the objection.
Cohen was qualified to testify generally on matters of clinical psychology,
complex trauma, and parent/child attachment. Cohen clearly was both a fact and expert
witness in light of her prior treatment of Bishope;42 her testimony thus was mostly fact-
based and drawn from her prior personal experiences with Bishope and Miranda. But
because Cohen had not recently treated Bishope, Cohen could not testify to Bishope's
current state of mind regarding Miranda's custody and care, and Cohen seems to have
carefully avoided doing so. For example, after Cohen's testimony about her work with
Bishope and why Cohen had written her September 2020 letter expressing her concerns
about Miranda and Bishope's relationship, Cohen specifically stated that although she
could not "speak to today, back then [the relationship] had gotten pretty hot, particularly
[Bishope's] feelings toward her mother."
Miranda now contends that Cohen's testimony failed to meet the
"reasonable reliance" test because it failed to account for the six-month period in which
Cohen was not updated about Bishope's status, given updated reports, or informed
about Miranda's progress. But Cohen did not need to consider that information to
testify about her past treatment of Bishope and the opinions she had reached based on
that treatment. Had Cohen expressed opinions about Bishope's current state of mind
or the current relationship between Bishope and Miranda based on past work with
Bishope, Cohen's lack of current knowledge might well have fueled cross-examination
about her lack of current knowledge. But Miranda makes no argument that Cohen's
42 We have recognized that "the distinction between an expert witness and a
fact witness inevitably becomes blurred" and that treating physicians may testify both
to "expert observations" and to "opinions regarding their patients' injuries, treatment,
and prognoses." Miller ex rel. Miller v. Phillips , 959 P.2d 1247, 1250 (Alaska 1998).
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actual opinions about Bishope's past state of mind and past relationship with Miranda
- based on Cohen's professional experience and work with both Bishope and Miranda
- were not based on information a treating therapist usually would rely on for those
opinions.
Dr. Levenson, whom Miranda calls "far more qualified" and whose
opinion the superior court relied on "in particular," reached the same conclusions as
Cohen based on more current information. The court thus heard more than adequate
testimony to support its finding "that not just previously but even currently . . . if
[Bishope] perceives [Miranda] as being in control of her care, she will reject that care
and as a result, subject herself to grave - not just serious - grave physical and mental
injury." (Emphasis added.) The court's specific reference to Bishope's previous state
of mind reflects that it considered and relied on Cohen's testimony for that purpose and
relied on Dr. Levenson 's testimony for a more current view of Bishope's state of mind.
We see no abuse of discretion in the superior court's decision allowing Cohen to testify.
We Affirm The Superior Court's Disposition Order.
1. Active efforts
ICWA defines active reunification efforts as "affirmative, active,
thorough, and timely."43 We have emphasized that there is "no pat formula" for
determining active efforts,44 and we repeatedly have held that the determination is made
43 25 C.F.R. § 23.2 (20 16). One hallmark of active efforts has been whether
OCS "takes the client through the steps of the plan rather than requiring that the plan
be performed on its own." Bill S. v. State, Dep't of Health & Human Servs., Off. of
Child.'s Servs., 436 P.3d 976, 982 (Alaska 2019) (quoting N.A. v. State , Div. of Fam.
& Youth Servs., 19 P.3d 597, 602-03 (Alaska 2001)).
44 Mona J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. ,
511 P.3d 553, 561 (Alaska 2022) (quoting Philip J. v. State, Dep't of Health & Soc.
Servs., Off. of Child.'s Servs., 314 P.3d 518, 527 (Alaska 2013)).
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in light of OCS's involvement "in its entirety."45 OCS's efforts do not need to be
perfect.46 If OCS's involvement is inconsistent, courts may consider "whether . . . the
period when active efforts were made compensated for the time during which they were
not."47 We have rejected an active-efforts finding after OCS's "extreme" failure to
make adequate efforts for "fully half" of its involvement with a case,48 although we also
have cautioned against any suggestion that this is a bright-line rule.49
We note that the cases referred to above focused on whether there was
clear and convincing evidence of OCS's active efforts to support a termination of
parental rights after a trial, not on whether an active efforts finding can be made to
support an early stage disposition order.50 And it is important that if active efforts
45 See, e.g., Maisy W. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., 175 P.3d 1263, 1269 (Alaska 2008); Jon S. v. State, Dep't of Health & Soc.
Servs., Off. of Child.'s Servs., 212 P.3d 756, 766 (Alaska 2009).
46 Christopher C. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., 303 P.3d 465, 478 (Alaska 2013).
47 See, e.g., Jacoby C. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s
Servs., No. S-18147, 2022 WL 1162514, at *5 (Alaska Apr. 20, 2022) (summarizing
cases).
48 Clark J. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
483 P.3d 896, 904 (Alaska 2021).
49 See Jacoby C., 2022 WL 1162514, at *5.
50 Compare CINA Rule 18(c) (requiring, for parental rights termination,
clear and convincing evidence that OCS complied with AS 47.10.086(a)'s reasonable
efforts standard and, in case involving Indian child, with ICWA's active efforts standard
(in 25 U.S.C. § 1912(d))), with CINA Rule 17(c) (requiring, for disposition order when
child has been placed outside child's home, finding (without stated burden of proof on
factual determinations) that OCS complied with AS 47.10.086(a)'s reasonable efforts
standard and, in case involving Indian child, with ICWA's active efforts standard (in
25 U.S.C. § 1912(d))). The superior court did not mention "clear and convincing
evidence" in either its oral or written active efforts finding, the parties did not address
this distinction in their briefing, and we assume without deciding that the predicate
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cannot be found at the disposition stage, the existing temporary custody arrangement
should continue until OCS's further reunification efforts are sufficient to be "active."51
In its oral ruling the superior court discussed OCS's efforts at some length,
stating the court's view that OCS's efforts had evolved as a result of the various
placement review hearings over the course of the proceedings. The court found that
OCS was making (unsuccessful) active efforts "at this time" but acknowledged that it
had started only "fairly recently." The court would not pinpoint a specific date. Clearly
recognizing the distinction between active efforts to be proved at a disposition hearing
and at a termination hearing, the court stated that specifically pinpointing the inception
of active efforts might "need to be litigated further in the future." The court's oral ruling
and later written order approximated the start of active efforts with Bishope's March
2021 placement in a residential treatment facility.
Bishope supports the court's disposition order, emphasizing the "unique"
context of a relatively older minor who "has been clear and consistent" about not
wanting to engage with a parent. Bishope contends that OCS correctly focused on
finding an appropriate placement as a means to promote later reunification. We agree
with Bishope. It seems evident from the expert witnesses' reports and testimony that
perhaps the most critical element preventing reunification of the family is the toxic
relationship between Bishope and Miranda. Dr. Levenson may have expressed it best
in his report, stating that it was unlikely OCS could reunify the family in the near future.
active efforts finding for a disposition order must be proved by a preponderance of the
evidence and is reviewed for clear error and consistency with the law. See, e.g., Maisy
W., 175 P.3d at 1267 ("Whether [OCS] complied with the "active efforts" requirement
. . . is a mixed question of law and fact.").
51 See CINA Rue 17(c) (providing that, if court cannot make active efforts
finding at disposition hearing, disposition order must be postponed and child should
remain in temporary custody).
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And no party seems to dispute that Bishope's primary avenue to recovery and possible
eventual reunification with Miranda is long-term specialty residential treatment.
We therefore conclude that the superior court did not err by finding, on
the record before it and based on a preponderance of the evidence standard, that OCS
had made active, albeit unsuccessful, efforts sufficient to support the disposition order.
2. Removal findings
CINA Rule 17(d)(2) sets out the required removal findings for a
disposition order:
The court may approve the removal of the child from the
child's home only if the court finds that continued placement
in the home is contrary to the welfare of the child; and, in
cases involving an Indian child, that there is clear and
convincing evidence, including the testimony of qualified
expert witnesses, that custody of the Indian child by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.
Miranda asserts that the superior court erred by making the required
removal findings and "by not ordering Bishope released to Miranda . . . and dispensing
with [OCS's] supervision." Miranda points to positive testimony about her and
emphasizes that she would not disrupt Bishope's current treatment plan. Miranda
argues that "home" really means only "custody" and that the court did not need to find
Bishope could return safely to Miranda's literal home rather than to her custody;
Miranda concludes that custody of and decision-making authority for Bishope should
have been returned to her. Miranda's arguments are unpersuasive and seem to support
the superior court's finding that Miranda has not internalized or accepted Bishope's
absolute rejection of Miranda's custody or control.
Not only is it evident from the expert witnesses' reports and testimony that
at the time of the hearing an insurmountably toxic relationship between Bishope and
Miranda precluded Bishope's return to Miranda's actual home, it is equally evident that
even knowing Miranda was controlling Bishope's treatment would negatively impact
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Bishope. And the superior court made that express finding: Based largely on
Dr. Levenson's testimony, the court concluded that Bishope would react negatively to
any treatment plan - and thus endanger herself - if she perceived it originating from
Miranda.52
We conclude that the superior court did not clearly err by finding, on the
record before it and on a clear and convincing evidence standard, that granting custody
to Miranda would likely cause Bishope serious emotional damage.
3. Disposition
Having determined that the superior court's predicate findings for the
disposition were not clearly erroneous, we conclude that the superior court did not abuse
its discretion by entering the disposition order.
CONCLUSION
We AFFIRM the superior court's disposition order.
52 Miranda contends that Cohen's testimony was not admissible to support
the removal findings because Cohen could not state whether there currently was "a
'causal connection' between 'conditions in the home' and a 'specific threat to the
child's well-being.' " Although that certainly is the relevant issue, the required expert
opinion need only support the final determination. See Chloe W. v. State, Dep't of
Health & Soc. Servs., Office of Child.'s Servs. , 336 P.3d 1258, 1270 (Alaska 2014)
(stating that whether expert testimony satisfies ICWA requirements is question of law
and that specified harm to child can be established through testimony of single witness,
by aggregating multiple expert witnesses' testimony, or by aggregating expert witness
testimony with lay testimony). We reject Miranda's challenge to the court's reliance
on Cohen's testimony.
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CARNEY, Justice, dissenting in part.
I agree with most of the court's decision today. But I do not agree that
OCS's eleventh-hour capitulation to the superior court's finding that it failed to make
active efforts when it refused to comply with its own expert's treatment
recommendation merits a finding that it did, in fact, make active efforts. I recognize
that after it was forced to place Bishope in appropriate treatment OCS improved its
efforts to meet ICWA's exacting requirement. But I would reverse the superior court's
determination that it made active efforts.
I acknowledge that this is an unusual and difficult case. I recognize both
Bishope's extraordinary needs and the superior court's careful analysis of the facts and
applicable law. But the superior court's own findings belie its ultimate conclusion. As
a result, I fail to understand either its finding of active efforts or today's affirmation of
it. In light of this court's observation "that if active efforts cannot be found at the
disposition stage, the existing temporary custody should continue until OCS's further
reunification efforts are sufficient to be 'active',"53 I also fail to understand this court's
reluctance to hold OCS to the "gold standard" required by federal law.54
Bishope first came into OCS custody after the agency filed a petition for
custody in July 2019. Her extraordinary needs were apparent at the time although they
worsened while she was in custody - due in part to OCS's actions. The court found
that "during the great expanse of this case, [Bishope] was not making progress. To the
contrary, [Bishope], until recently, has been harmed. She has suffered harm and further
53 Opinion at 25-26.
54 See Brief of Casey Family Programs, et al. as Amici Curiae Supporting
Respondent, at 4, Adoptive Couple v. Baby Girl, et al., 570 U.S. 637 (2013) (No. 12-
399) ("ICWA's statutory requirement that active efforts be made . . . reflects the gold
standard for child welfare practices that should be aspired to for all children.").
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----------------------- Page 30-----------------------
trauma during the course of this case. . . . That is one failure that has taken place during
this case."
The court made detailed findings exploring all of OCS's actions toward
Bishope and Miranda. At disposition the court first found that "at this time, OCS is
making reasonable efforts" and then that "at this time, OCS is making active efforts" to
reunify the family. The court admitted it was "not able to pinpoint an exact date" when
OCS began to make the required efforts. And it announced that it did "find that OCS
was not making active efforts until fairly recently," when Bishope was finally moved
to the "effective" treatment program where she remained during the hearing. The court
observed that OCS's efforts to get Bishope into appropriate treatment "have come to be
active."
The court emphasized that reunification and Bishope's wellness
"absolutely rely on effective treatment for [Bishope's] mental health, addressing
specifically the difficulties that [she] is experiencing . . . not generic . . . but very
specific, specifically recommended treatment." The court pointed out that OCS had
"specifically agreed to" such treatment for Bishope, and lamented that "there has been,
despite those agreements, great difficulty and litigation over reaching" this result. But
the court identified the "point in time where [OCS] . . . was forced to shift focus in terms
of securing appropriate treatment" as the point at which active efforts began to be made.
It emphasized that "[t]hey are not perfect efforts still, and I'll talk about that, but that's
the point at which the Court finds that active efforts have been and/or are being made."
As it proceeded to "talk about that" the court "want[ed] to be very
clear . . . that the amount of hours or doing lots of things in itself does not amount to
active efforts, particularly when things are being done at cross purposes with the goal
that's been stated." The court decried that "[f]rankly . . . at times it has felt like those
efforts are in complete chaos . . . . And so, the amount of time and the amount of things
done do not equate to active efforts." The court also itemized some of the efforts that
did not count as active. It first referred to OCS's reneging on both of the agreements it
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----------------------- Page 31-----------------------
had signed with Miranda. It pointed to OCS 's "communicating . . . important incorrect
information . . . either internally or to others, including to potential mental health
treatment providers for [Bishope]." The court found that "[t]he evidence does
demonstrate that . . . in spite of receiving a very important opinion and recommendation
[from Dr. Levenson] . . . [OCS] has at times treated [Bishope] almost
generically . . . without any eye for what specifically [Bishope] needs in treatment."
The court laid out "shocking" evidence of OCS's attempt to manipulate
information about proposed treatment. It noted "evidence that demonstrates pretty
clearly that [OCS] tried to shoehorn their chosen treatment program at one point to
somehow fit the recommendations of Dr. Levenson," and in particular, "emails from
folks at pretty high levels in OCS asking [the Utah facility] if they're able to say that
they are specialized or specialize in reactive attachment disorder [when they are not and
do not]." The court concluded that OCS had worked to "shoehorn particular programs
that were . . . more affordable or . . . easier to get [Bishope] into" instead of working to
get her the treatment Dr. Levenson recommended - and to which they had already
agreed.
The court continued to identify OCS's specific failures. OCS failed to
"look toward protecting [Bishope]" even when it became clear that she would continue
to run away from foster homes and after she repeatedly endangered herself while on the
run. The court found that "[t]here has been a failure previously by [OCS] to think
prospectively ahead of time . . . about transitioning [Bishope] to appropriate
care . . . and fail[ure] to provide for transition to appropriate long-term care." The court
underlined that "even after this issue had become . . . quite clear to the parties . . . and
then even fairly recently, in terms of looking toward transition from [a short-term
program to a more effective program] there is evidence of communication from [OCS
to the short-term program] that suggests that perhaps [Bishope] could just be there for
another full round [of short-term treatment]." That "suggestion or inquiry . . . seems to
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----------------------- Page 32-----------------------
treat that as an appropriate alternative or an acceptable alternative, which it is not
obviously."
"All of that said," the court "believe[d] that the placement hearings that
we have had . . . have brought [OCS] to the point of making active if not perfect efforts.
And, again, that shift, I find, is really where [OCS] finally secured and worked to have
[Bishope] placed with an effective mental health provider that could treat the complex
issues that [she] is currently struggling with."
Turning to OCS's efforts toward Miranda, the court warned OCS that it
"would expect very much a change in tone and approach toward [her]." It stated that
"there needs to be a recognition of the validity of many of [Miranda's] grievances and
difficulties with [OCS]." But as it had with respect to OCS's belated efforts toward
Bishope, the court found that OCS's efforts, while "not perfect" were "currently active."
In other words, after specifically finding not only that OCS had not made
active efforts through much of the case, the court made multiple findings that OCS's
efforts not only were not active, but were actually counterproductive. The court found
that OCS had caused harm to Bishope; worked at "cross purposes" to her needs; tried
to convince treatment facilities to misrepresent their services to the court; attempted to
place her in "generic" treatment despite her extraordinary and documented needs; and
failed to work with Miranda. The court found that OCS eventually began to make
efforts that could be considered "active," but it also found that this only occurred after
OCS was "forced" to take appropriate action by repeated placement review hearings
that Miranda requested - hearings at which the court explicitly warned OCS that its
efforts were not yet active.
Even recognizing OCS's lesser burden at the disposition stage to
demonstrate active efforts, I cannot agree to affirm the superior court's finding. OCS's
coerced and belated attempt to satisfy the active efforts requirement it has been under
since its decision to seek custody of Bishope fails to meet the statutory standard when
-32- 7643
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I consider the superior court's detailed findings. I would reverse the superior court's
finding that it does. I respectfully dissent.
-33- 7643
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