Emma D. v. State, Department of Health & Social Services, Office of Children's Services , 2014 Alas. LEXIS 57 ( 2014 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
EMMA D., )
) Supreme Court No. S-15207
Appellant, )
) Superior Court No. 3AN-12-00035 CN
v. )
) OPINION
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) No. 6893 – April 11, 2014
SOCIAL SERVICES, OFFICE OF )
CHILDREN’S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: Dianne Olsen, Law Office of Dianne Olsen,
Anchorage, for Appellant. David A. Wilkinson, Assistant
Attorney General, Fairbanks, and Michael C. Geraghty,
Attorney General, Juneau, for Appellee State of Alaska.
Lisa M. Wilson, Assistant Public Advocate, and Richard
Allen, Public Advocate, Anchorage, for Guardian Ad Litem.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Emma D.1 has a history of mental health issues, particularly bipolar
disorder, dating back to her early childhood. The Office of Children’s Services (OCS)
became involved with Emma and her newborn son, Joey, following reports from
Covenant House expressing concern about Emma’s homelessness, inability to care for
an infant, and feelings of depression and aggression toward Joey. OCS took the then-
six-month-old Joey into emergency custody during Joey’s hospitalization for respiratory
syncytial virus and dehydration, during which he was also diagnosed with
supraventricular tachycardia, a heart disorder that required regular attention and
treatment.
OCS staff subsequently made attempts to assist Emma in obtaining regular
mental health treatment in order to reunite her with Joey. OCS staff had difficulty
communicating and meeting with Emma; she failed to engage in regular treatment,
maintain consistent visitation with Joey, or attend her appointments with case workers
and service providers.
The superior court terminated Emma’s parental rights 14 months after OCS
assumed emergency custody. The superior court made the required statutory findings,
including the findings by clear and convincing evidence that OCS had made reasonable
efforts toward family reunification and that Emma had failed to remedy her conduct in
a reasonable time. Emma argues that OCS failed to consider adequately her mental
health issues and therefore its efforts were not reasonable. She also appeals the superior
court’s finding that she had failed to remedy her conduct in a reasonable time.
After reviewing the record, we conclude that OCS was aware of Emma’s
mental health issues and made reasonable efforts to engage her but was hampered by her
1
Pseudonyms are used to protect the privacy of the family.
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refusal to communicate and her lack of consistent attendance at meetings, visitations, or
treatment appointments. We also conclude that the superior court did not err in finding
that Emma had failed to remedy her conduct in a reasonable time. Therefore, we affirm
the superior court’s decision terminating Emma’s parental rights.
II. FACTS AND PROCEEDINGS
A. Emma’s Background
Emma is the 21-year-old mother of Joey. Emma suffered sexual,
emotional, and physical abuse as a child and was in foster care between ages five and
seven. She testified at her parental rights termination hearing that she was first
diagnosed with bipolar disorder when she was seven, spent time in hospitals as a child,
and between the ages of 13 and 17 was in an out-of-state residential treatment program.
She has also been diagnosed with post-traumatic stress disorder “stemming from multiple
sexual assaults as a child.”
The record indicates that even before Joey’s birth and Emma’s involvement
with OCS, Emma had difficulty finding an effective treatment regime for her bipolar
disorder. While she was in the residential treatment program, Emma was treated with
therapy and extensive mood-stabilizing and anti-depressant medication for her bipolar
disorder. When asked whether the therapy was helpful, Emma testified “[a]s far as
emotionally, yes. As far as my behaviors and my actions and my thought process, no.”
She also detailed her persistent problems finding an effective and sustainable medication
regime:
I was released at 17, but . . . over the years, trying to give me
therapy kind of got frustrating because I would get better
over six to eight months and then I would . . . slide right back
down the hill. . . . I would get to a therapeutic level [of
medication] and I’d do good, good, good, but then I’d have
a medical issue with the medication as far as Depakote made
me stop the production of my white blood cells, Seroquel
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made me gain too much weight, Lithium dried me out too
much and then I would ask to switch something, but when I
would switch it, I would just start going back downhill.
Since returning to Alaska, Emma has not engaged in regular mental health
treatment and has been unable to find regular employment or housing, periodically
staying at Covenant House or at the Brother Francis Shelter.
B. Joey’s Birth And Subsequent Hospitalization
Emma gave birth to Joey in August 2011.2 She used Covenant House
services throughout her pregnancy. Ten days after Joey’s birth, Emma came to the
Covenant House shelter in distress. She told staff members that he wouldn’t stop crying
and hadn’t eaten since the previous night; she also described feelings of being
“overwhelmed” and suffering from “post-partum psychosis.” Emma stated that she had
felt like hurting Joey “three different times today” and that “sometimes I think about
throwing him against the wall just to get him to shut up.” She described feeling like she
couldn’t take care of him and didn’t “even want to touch him.” She had been using maxi
pads and garbage bags as diapers, and Joey had developed a persistent rash. Covenant
House staff filed a report with OCS and called the police.
An OCS specialist attempted to contact Emma and after two days was able
to meet with her. Emma denied all the allegations in the Covenant House report but
admitted having bipolar disorder for which she was not receiving any treatment or
services. The OCS specialist offered Emma mental health services, but Emma declined
the services and indicated that she did not want to be medicated. The specialist thought
2
OCS attempted to identify and make contact with men that Emma listed as
Joey’s possible father. A paternity test with the man listed on Joey’s birth certificate was
negative. Another possible father was ruled out by a paternity test. A third possible
father was notified by OCS of Emma’s termination proceedings; this possible father was
incarcerated, opposed to a paternity test, and refused to participate in any proceedings.
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that Joey appeared healthy and that Emma “was able to articulate how to care for a
child”; OCS took no further action at that time.
In September 2011 OCS received another report from Covenant House
indicating concern about Joey’s health due to Emma’s homelessness, inability to care for
an infant, and unrealistic expectations of an infant. After speaking with Joey’s primary
care physician, the OCS specialist again determined that no further action was necessary
at that time. OCS received an additional report in October 2011indicating that a medical
professional had seen Joey and that Joey had smelled of body odor and urine. Another
report in January 2012 detailed an incident at the Brother Francis Shelter where Emma
appeared at the shelter screaming, temporarily left Joey unattended, and left in an angry
and unstable state.
On January 28, 2012, Joey was admitted to Providence Hospital with
respiratory syncytial virus and dehydration. The hospital record reports that Emma “has
had very poor visitation since the date of admission” and that she provided staff with
inoperable phone numbers. On several occasions, Emma was aggressive and abusive
toward the hospital staff. Hospital staff also reported “aggressive speech towards the
infant as well as aggressive touch.” Joey was diagnosed with a heart rhythm disorder
called supraventricular tachycardia, meaning that his heart beat could accelerate up to
300 beats per minute. This condition could be life threatening if left untreated or treated
improperly. The prescribed treatment was monitoring and medication every eight hours,
as well as the application of a cold compress when necessary.
C. OCS’s Emergency Custody Of Joey In February 2012
Providence Hospital filed a report of suspected harm with OCS. The OCS
specialist was eventually able to get Emma to attend a team decision meeting with OCS
staff, nursing staff, and the social worker at Providence on February 8, 2012. They
discussed Joey’s medical condition and Emma’s ability to provide care for him as well
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as her mental health issues, homelessness, and unpredictable behavior. At the end of the
meeting, Emma agreed that Joey should go into a foster home. OCS took emergency
custody of Joey, and he was discharged to a foster family able to meet his medical needs.
When Joey was discharged on February 9, 2012, the OCS specialist
facilitated a meeting between Emma and the foster parent and asked Emma to participate
in developing a case plan. Emma indicated that she was receiving treatment through
Anchorage Community Mental Health Services (ACMHS), but she declined to sign a
release of information for ACMHS. She did sign a release of information for the Brother
Francis Shelter. Emma also declined the specialist’s offer to make a referral for mental
health assessment, treatment, or medication. The specialist arranged for Emma’s
visitation with Joey twice a week. OCS filed an emergency petition for adjudication of
Joey as a child in need of aid and for temporary custody on February 9, 2012.
D. OCS’s Case Plan And Efforts To Engage Emma
On February 24, 2012, Emma and Joey’s case was assigned to OCS child
service specialist William James. Prior to joining OCS, James was a school teacher for
22 years with experience in special education, including work with bipolar youth. James
attempted to reach out to Emma with phone calls and offers to meet with her at “her
comfort and availability.” He found her “reticent to engage with OCS.” He scheduled
meetings with her on March 1, 9, and 15, but Emma failed to attend the meetings, despite
James’s calls to remind her and emphasis on his “interest in engaging with her and
assisting her in her reunification.” They were finally able to meet on March 20, and they
developed a case plan.
The case plan noted Emma’s “self-proclaimed mental health concerns that
prevent her from behaving responsibly, or predictably on a day to day basis. Aggressive
moo[d] swings and anger management [problems] create an unsafe environment for her
child who has specific medical needs.” The case plan listed reunification as the initial
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goal and stated OCS’s “desire . . . to assist [Emma] in obtaining the help she requires in
stabilizing her observed and self-proclaimed depression and mood swings, as well as
helping her to learn to care for her son’s medical needs.” Throughout the case plan,
reference was made to Emma’s observed and self-reported mental health issues and
strategies for addressing them. The case plan detailed OCS’s plan to refer Emma to the
service providers that she identified as acceptable: ACMHS and CHOICES for mental
health services, and Safe Harbor for housing services. The OCS caseworker was to
maintain regular contact with the service providers, to provide a bus pass, and to support
Emma by scheduling planning meetings with her. The case plan also described Emma’s
resistance to receiving services, noting that “[Emma] did not believe she needed any
support. She stated she just needed to straighten out her housing situation. [Emma]
declined assistance with obtaining an assessment at [ACMHS], and she chose not to sign
a release of information for ACMHS.” She also refused James’s help in communicating
with Safe Harbor about the possibility of obtaining housing there.
James scheduled additional meetings with Emma, but she failed to attend
most of them. James was able to speak with her by telephone on April 5, 2012, and he
asked her if she had followed her case plan; she said no. He offered to assist her with the
services, including by providing transportation, and she declined his assistance. She also
continued to decline to release any information from the mental health service providers
to OCS.
Emma received a screening survey from CHOICES on March 19, 2012,
which was not sent to OCS at the time because she had not yet signed a release. Under
the survey question “Does Client need [fetal alcohol spectrum disorder] assessment?” the
staff member wrote “Yes” but for follow-up steps indicated “inappropriate for
intervention.” On March 30, 2012, CHOICES conducted a behavior health assessment,
which recommended case management and psychopharmacology management.
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James continued to try to establish regular contact with Emma through
March and April with limited success, mostly by telephone but also once by looking for
her at the Brother Francis Shelter. Emma attended a court hearing on April 20, 2012,
and James was able to speak with her at the court. He asked her to sign the OCS case
plan as well as releases of information from her mental health service providers; she
again refused. Emma missed the next scheduled meeting but called James on April 25.
She was angry because a visit with Joey had been canceled due to his illness, and she
accused James of being a liar. James continued to try to meet with Emma through May,
but she continued to not attend the scheduled meetings. Emma also missed several
appointments at CHOICES. There were also incidents at Brother Francis Shelter that
resulted in Emma being barred from the shelter until she attended a grievance meeting;
she failed to attend a grievance meeting.
On May 14, 2012, James called Emma to inform her that due to the number
of missed visits with Joey, they needed to reevaluate the visitation schedule. OCS
visitation supervisors had removed Emma from the visitation schedule, but James had
intervened to put her back on the schedule and continued to try to get her to attend the
visits. She responded to James’s call by again calling him a liar and declaring that she
would not be coming to OCS.
Emma’s attorney eventually intervened and arranged for a meeting on
May 21. Emma did attend this meeting, and she signed releases for ACMHS and
CHOICES. James contacted those providers; CHOICES confirmed that Emma had
received their services. CHOICES told James that they were helping Emma with
managing her calender, seeing other people’s perspectives, not speaking violently,
maintaining contact, and seeking housing. ACMHS told James that they had no record
of Emma. James sent referrals for her to both agencies.
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E. Child In Need Of Aid Adjudication
In July 2012 the superior court held an adjudication hearing to determine
if Joey was a child in need of aid. Emma failed to attend the hearing. She also failed to
attend her scheduled visits with Joey; out of the 29 visits that were scheduled as of
July 11, three were canceled due to weather; one due to illness; and 17 were missed by
Emma. At the hearing, James reported that at the end of June and beginning of July he
had seen some progress with Emma in her willingness to work with him and in her visits
with Joey. He indicated, however, that he wanted to see her maintain that level of
positive engagement for several more months before considering a return of custody. At
the hearing, Emma’s lawyer commented briefly on OCS’s efforts, including the lack of
a parenting class, and argued that OCS’s case plan “needs to be sort of blunt and
concrete so that my client clearly understands what needs to be done and what happens
if it doesn’t need to be done.” The court acknowledged that Emma’s “mental health
issues are the crux of the matter” but found that OCS had made reasonable efforts toward
family reunification “because everybody here has offered and she has rejected. We can’t
make her do things, but they have to be offered to her.” The superior court adjudicated
Joey to be a child in need of aid, particularly due to Joey’s medical need for careful and
consistent attention.
F. OCS’s Efforts Between The Adjudication Hearing And The
Termination Of Parental Rights
In August 2012 Emma underwent a behavioral health assessment at
ACMHS, and James received the results. The assessment indicated that she had a serious
and persistent mental illness but that she was able to express her feelings and make
decisions. ACMHS’s case management plan included a psychiatric evaluation,
individual therapy, medication management, communication with OCS, and help with
establishing safe housing. James attempted to maintain monthly contact with both
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ACMHS and CHOICES. However, sometimes his messages with ACMHS went
unreturned. He also attempted to maintain “near weekly” contact with Emma although
she responded only once a month on average. When James had an opportunity to speak
with Emma, he would ask her if “she was getting the services she felt she needed, if
ACMHS was following through on . . . their promises to her and if she needed other
services and she typically would respond that she was following her case plan.” In
September and October 2012, James spoke with Emma’s case manager at ACMHS who
reported difficulty in contacting or meeting with Emma. When James contacted
CHOICES in November 2012, he was informed that Emma had not been in contact with
CHOICES since early June and that she had been discharged due to a lack of
participation. James attempted to communicate with Emma about her case plan and her
need to engage in services through multiple phone calls and letters mailed to Covenant
House and to her mother’s address.
In November 2012 James was able to meet with Emma, and she responded
to his concerns by saying that she was following her case plan and actively engaged with
ACMHS. She also told him that she did not need to participate in a case plan, would not
work with CHOICES, had no contact with her attorney, and did not want to visit her son
or respond to her case worker because she was afraid of being arrested. Because Emma
reported greater engagement with ACMHS than the ACMHS case worker reported,
James attempted to communicate with ACMHS while Emma was in his office, but they
were unable to speak with her ACMHS case worker. When James was able to contact
ACMHS in December, the case worker informed him that Emma had missed her recent
appointments, including an appointment with a psychiatrist, and had not followed their
plan since August. In January 2013 James was informed that Emma was making
“sporadic contact” with ACMHS though she appeared to be “disengaged and had been
missing recent appointments.”
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On January 28, 2013, James filed a petition for the termination of Emma’s
parental rights. The petition detailed Emma’s failure to engage with mental health
services, work her case plan, establish safe housing, and consistently attend her
scheduled visits with Joey. On February 4, 2013, James met with Emma and her
attorney. Prior to this meeting, Emma had told James that she was taking the medication
prescribed to her by ACMHS. At this meeting, Emma denied taking medication and said
that she had not taken medication for several years. Emma told James that she had been
assigned a new psychiatrist at ACMHS who refused to prescribe her medication; when
James contacted ACMHS, he was informed that she had missed her appointment with
her psychiatrist.
In March 2013 the ACMHS case worker told James that Emma had moved
into Safe Harbor, which provides housing for “individuals with mental health
assessments and recommendations.” The case worker told James that the case worker
had taken Emma shopping for food and clothes but that Emma remained inconsistent in
her interactions and was in danger of losing her housing at Safe Harbor due to her lack
of attendance at meetings. The case worker told James that when she was able to meet
with Emma, the case worker found that Emma was “belligerent and demanding” and not
making progress.
G. Termination Of Emma’s Parental Rights
The trial on OCS’s petition to terminate Emma’s parental rights was held
on April 29, 2013. Between the time of Joey’s removal in February 2012 until the
termination trial in April 2013, Emma was scheduled for 64 visits with Joey; she
attended 17. She had 33 scheduled meetings with James; she attended 13. In response
to Emma’s expressed sleep problems, James asked her to choose a time and location
comfortable for her for scheduling meetings and visits. When he scheduled afternoon
visits with Joey, she failed to attend. Emma agreed with James’s testimony that she had
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missed two-thirds of her scheduled visits with Joey. She testified that she missed visits
because of family issues and “legal issues with an assault charge and a [domestic
violence] order against me.”
The superior court found that Joey continued to be a child in need of aid
due to Emma’s neglect and mental illness and that termination of the parental rights of
Emma and any possible father was in Joey’s best interests. The superior court also found
that OCS’s reunification efforts were reasonable, noting James’s difficulty in
communicating with Emma as well as her misleading statements to James. The superior
court terminated Emma’s parental rights. She now appeals the superior court’s finding
that OCS’s reunification efforts were reasonable and that she failed to remedy her
conduct in a reasonable time.
III. STANDARD OF REVIEW
In child in need of aid cases, “we review the trial court’s factual findings
for clear error and its legal determinations de novo.”3 “Factual findings are clearly
erroneous if, after reviewing the record in the light most favorable to the prevailing party,
we are left with a definite and firm conviction that the trial court’s decision was
mistaken.”4 “Conflicting evidence is generally not sufficient to overturn a trial court’s
factual findings, and we will not reweigh evidence when the record provides clear
support for a trial court’s ruling.”5
3
Chloe O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 309 P.3d 850, 855 (Alaska 2013) (citing Sherman B. v. State, Dep’t of Health &
Soc. Servs., Office of Children’s Servs., 290 P.3d 421, 427-28 (Alaska 2012)).
4
Id. at 855-56 (citation omitted).
5
Id. at 856 (citation omitted).
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Whether the parent failed to remedy the conduct or the conditions that
placed the child at substantial risk of harm is a factual finding that we review for clear
error.6 “Whether OCS made reasonable efforts to reunify the family is a mixed question
of law and fact,” and “[w]e review questions of law de novo.”7
IV. DISCUSSION
To terminate parental rights under AS 47.10.088, the superior court must
make three findings by clear and convincing evidence.8 “First, the court must find that
the child has been subjected to conduct or conditions that have caused the child to be in
need of aid.”9 “Second, there must be a finding that the parent has failed, within a
reasonable time, to remedy the conduct or conditions that placed the child at substantial
risk of harm.”10 “Third, the court must find that OCS made reasonable efforts to promote
reunification.” 11 “The court must also find by a preponderance of the evidence that
termination is in the child’s best interests.”12 Emma does not challenge the superior
court’s findings under AS 47.10.011 that Joey was a child in need of aid. She challenges
only the superior court’s findings that OCS made reasonable efforts and that Emma
failed to remedy her conduct in a reasonable time.
6
Sherman B., 290 P.3d at 428 (citation omitted).
7
Id. (citations omitted).
8
Id.
9
Id. (citing AS 47.10.088(a)(1); AS 47.10.011).
10
Id. (citing AS 47.10.088(a)(2)(A)-(B)).
11
Id. (citing AS 47.10.088(a)(3); AS 47.10.086 (describing department’s duty
to make reasonable efforts)).
12
Id. (citing CINA Rule 18(c)(3) (comporting with AS 47.10.088(c))).
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A. The Superior Court Did Not Err In Finding That OCS Made
Reasonable Efforts To Reunify Emma With Joey.
Alaska Statute 47.10.088 requires the superior court to find by clear and
convincing evidence that the State has made timely and reasonable efforts to provide
services to the family for the purpose of reunification before terminating parental rights.
Alaska Statute 47.10.086(a) elaborates on the reasonable efforts requirement by requiring
the State to
(1) identify family support services that will assist the
parent or guardian in remedying the conduct or conditions in
the home that made the child a child in need of aid;
(2) actively offer the parent or guardian, and refer the
parent or guardian to, the services identified under (1) of this
subsection; the department shall refer the parent or guardian
to community-based family support services whenever
community-based services are available and desired by the
parent or guardian; and
(3) document the department’s actions . . . .
In considering the reasonableness of the State’s efforts, “[w]e have acknowledged that
the State has some discretion both in determining what efforts to pursue and when to
pursue them.”13 “A parent’s willingness to participate in services is relevant to the scope
of the efforts OCS must provide. The efforts that OCS makes must be reasonable but
need not be perfect.”14
Emma’s primary argument on appeal is that OCS’s efforts were not
reasonable because they failed to adequately take into account her disability, which her
brief identifies as her diagnosed bipolar disorder and the potential of undiagnosed fetal
alcohol spectrum disorder (FASD). She relies heavily on our decision in Lucy J. v. State,
13
Id. at 432 (citations omitted).
14
Id. (internal quotation marks omitted) (citations omitted).
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Department of Health & Social Services, Office of Children’s Services15 for her argument
that her disability mandated additional or different efforts from OCS. She also makes
passing reference to the Americans with Disabilities Act (ADA).16
In Lucy J., we addressed a mother’s arguments that OCS failed to
reasonably accommodate her disability under the ADA because her case plan did not
incorporate her disability diagnosis and because OCS had difficulty communicating with
her disability services provider.17 In response to the mother’s arguments, we noted that
“[o]ur case law and the internal policies of OCS suggest that family reunification services
should be provided in a manner that takes a parent’s disability into account.”18 We
concluded that “the ‘requirement that [OCS] make reasonable efforts to provide [a
parent] with family support services appears to be essentially identical to the ADA’s
reasonable accommodation requirement.’ ”19 We determined that an independent
analysis under the ADA was unnecessary because “the question whether reunification
services reasonably accommodated a parent’s disability is already included within the
question whether active or reasonable efforts were made to reunite the family. . . . OCS
must reasonably tailor those [reunification plan] steps to the client’s individual
capabilities.”20 We also noted that in determining whether OCS met its burden, “a court
15
244 P.3d 1099 (Alaska 2010).
16
42 U.S.C. §§ 12101-12213 (2012).
17
244 P.3d at 1115.
18
Id.
19
Id. at 1116 (alterations in the original) (quoting J.H. v. State, Dep’t of
Health & Soc. Servs., 30 P.3d 79, 86 n.11 (Alaska 2001)).
20
Id. (footnote omitted).
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may consider ‘a parent’s demonstrated lack of willingness to participate in treatment.’ ”21
The mother argued in Lucy J. that OCS should have referred her to a
different treatment program and that “with proper supports, explanation, and lead time
[she] would have been better able to process the plan.”22 We concluded that OCS had
made “remarkable and exemplary efforts” at reunification based on a record that showed
that OCS made disability services referrals, assisted with housing, and made numerous
phone calls and other attempts to remind the mother of meetings and appointments.23 In
upholding the superior court’s termination of parental rights, we concluded that “Lucy’s
repeated failures to complete the elements of her case plan, engage in meaningful . . .
treatment, and show up for meetings that OCS had arranged for her provided the trial
court with evidence that she was more hindered by her unwillingness to participate in the
plan than she was by a lack of capacity to do so.”24 Based on OCS’s repeated referrals
to treatment programs and the mother’s refusal to participate in treatment or engage with
OCS, we concluded that “[a]ny argument that OCS failed to refer Lucy to a particular
plan or to offer her more explanation or lead time is simply not persuasive.”25
We have held that “ ‘the requirement that the state offer reunification
services is fulfilled by setting out the types of services that a parent should avail himself
21
Id. at 1114 (quoting Maisy W. v. State, Dep’t of Health & Soc. Servs., Office
of Children’s Servs., 175 P.3d 1263, 1268 (Alaska 2008)).
22
Id. at 1115.
23
Id. at 1117.
24
Id.
25
Id. at 1115.
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or herself of in a manner that allows the parent to utilize the services.’ ”26 Another recent
decision from this court reviewing the termination of parental rights involved the
adequacy of OCS’s reunification efforts with a parent unwilling to engage with services
or follow a case plan.27 The mother in that case argued that OCS cannot “passively
accept a parent’s reluctance to participate in a mental health evaluation,” but we
concluded that “her argument is contradicted by the social worker’s testimony that it is
not possible to force an unwilling client to participate in mental health treatment.”28 We
acknowledged the difficulty of dealing with uncooperative parents and reiterated our
conclusion that “requiring OCS to seek court orders for every uncooperative parent
would put a huge and pointless burden on the department and the court system.”29 We
concluded that OCS had made sufficient efforts to provide mental health services when
OCS referred the mother to a mental health assessment and offered to help her reengage
with mental health services after she had stopped participating.30 In upholding the
superior court’s finding, we noted the mother’s refusal of OCS’s help in reengaging in
26
Audrey H. v. State, Office of Children’s Servs., 188 P.3d 668, 679 (Alaska
2008) (quoting Frank E. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 77 P.3d 715, 720 (Alaska 2003)).
27
Chloe O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 309 P.3d 850 (Alaska 2013).
28
Id. at 857.
29
Id. (quoting Wilson W. v. State, Office of Children’s Servs., 185 P.3d 94,
102 (Alaska 2008)).
30
Id.
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services and her discharge from a treatment program due to her “inappropriate
behaviors.”31
The State does not dispute that OCS must take a parent’s disability into
account in its case plan but argues that the record shows that OCS took Emma’s
disability into account and its efforts were reasonable. In support of this argument, the
State cites to numerous places in the record to show OCS’s awareness of Emma’s mental
health issues and James’s testimony that he attempted to “wrap services around her with
people she could communicate with [and] interact with.” James testified that he
“coordinated with those services providers, encouraged [Emma] to engage with them,
sought out her input as to how [he] could assist her with that engagement.”
The case plan prepared by James included numerous references to Emma’s
mental health issues and her need for mental health treatment. The case plan also set out
a plan for Emma to receive mental health treatment at ACMHS and CHOICES and
housing assistance from Safe Harbor with OCS maintaining contact with her and her
service providers and providing her with transportation assistance.
Emma does not dispute James’s testimony about his numerous attempts to
contact her and meet with her and maintain contact with the service providers. Nor does
she dispute the fact that she missed the majority of her meetings with James as well as
the majority of her visits with Joey. Instead Emma offers extended argument about
additional steps that she feels OCS should have taken, including a FASD evaluation and
individual counseling. While there is some evidence in the record of initial concern by
both OCS and CHOICES over the possibility of FASD, CHOICES’s subsequent
behavior health assessment did not identify FASD as a concern. Emma did not present
31
Id.
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evidence or claim to the superior court that she in fact suffers from FASD or that she was
unable to understand her case plan.
Emma also argues that OCS should have ensured that she received
medication and individual counseling; arranged for a more proactive agency than
CHOICES; and made her case plan “more concrete.” Emma does not explain how OCS
could have ensured treatment given the fact that she failed to consistently respond to
attempts at communication or attend scheduled meetings and appointments with OCS or
with her service providers.
Contrary to Emma’s arguments, we conclude that not only were OCS’s
efforts reasonable, but that James made commendable efforts to reunify Emma with Joey.
He consistently made efforts to communicate with Emma, despite her unresponsiveness,
even going so far as to personally seek her out at Brother Francis Shelter. He also
intervened to keep Emma on the visitation schedule after she missed the majority of her
scheduled visits with Joey, and he attempted to maintain contact with Emma’s mental
health service providers despite receiving contradictory and misleading information from
Emma.
Based on Emma’s unwillingness to engage in treatment or services, we
conclude that the superior court did not err in its finding of reasonable efforts.
B. The Superior Court Did Not Err In Finding That Emma Failed To
Resolve Her Conduct In A Reasonable Time.
To terminate parental rights, the superior court must find by clear and
convincing evidence that the parent has “failed, within a reasonable time, to remedy the
conduct or conditions . . . that place the child in substantial risk so that returning the child
to the parent would place the child at substantial risk of physical or mental injury.”32 A
32
AS 47.10.088(a)(2).
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reasonable time is statutorily defined as “a period of time that serves the best interests of
the child, taking in[to] account the affected child’s age, emotional and developmental
needs, and ability to form and maintain lasting attachments.”33 In determining whether
a parent has remedied his or her conduct in a reasonable time, the superior court “may
consider any fact relating to the best interests of the child.” 34 “[W]hether the parent
failed to remedy the ‘conduct or the conditions that placed the child at substantial risk’
of harm [is a] factual finding[] reviewed for clear error.”35
The superior court found by clear and convincing evidence that Emma had
failed to remedy the conduct and conditions that placed Joey at substantial risk of harm
and that “it’s clear that the best interest of [Joey] would be to terminate.”
Joey was placed into foster custody in February 2012, and OCS filed a
petition for termination of parental rights in January 2013. Emma points to
AS 47.10.088(d), which requires OCS to file a termination petition if the child has been
out of the parent’s custody for 15 of the most recent 22 months, and argues that OCS
pursued termination “much faster than the law mandates.” In Christina J. v. State,
Department of Health & Social Services, Office of Children’s Services,36 we upheld
termination when the petition was filed nine months after OCS took custody. In rejecting
an argument similar to Emma’s, we explained our reasoning:
AS 47.10.088(g) explicitly allows OCS to file a petition for
termination before the expiration of the mandatory foster care
period (i.e., 15 out of 22 months) if it “determines that filing
33
AS 47.10.990(28).
34
AS 47.10.088(b).
35
Sherman B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 290 P.3d 421, 428 (Alaska 2012) (citation omitted).
36
254 P.3d 1095 (Alaska 2011).
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a petition is in the best interests of the child.” This provision
suggests that the 22-month period is not intended as a
minimum time OCS must wait before filing. Rather, OCS
determines when to file a petition based exclusively on the
best interests of the child; the statute defines “reasonable
time” not as a specific number of months or by reference to
parents’ needs, but as “a period of time that serves the best
interests of the child, taking in[to] account the affected
child’s age, emotional and developmental needs, and ability
to form and maintain lasting attachments.” As the superior
court noted, this period is likely to be shorter for young
children; the legislature has recognized, and expert witnesses
confirmed in this case, that children “undergo a critical
attachment process before . . . they reach six years of age,”
and a failure to bond with adult caregivers during this time
can result in lasting emotional damage.[37]
We cautioned that the determination “must be made on a case-by-case basis and the
amount of time considered ‘reasonable’ will vary,” but we “emphasize[d] that the statute
clearly puts the criteria for ‘reasonable time’ in terms of the child’s needs.”38 We upheld
the superior court’s finding based on the child’s age and the parent’s lack of progress.39
The guardian ad litem submitted a brief in this appeal to emphasize that the
superior court considered evidence that “[w]hile [Joey] thrived in foster care, [Emma]
failed to complete her case plan and failed to comply with service providers.” In addition
to the evidence discussed above regarding Emma’s failure to attend visitations with Joey
and lack of cooperation with OCS and mental health service providers, the superior court
heard testimony about Emma’s long history of mental health issues and her life-long
difficulties in establishing an effective and sustainable treatment regime. The superior
37
Id. at 1106-07 (internal footnotes and citations omitted).
38
Id. at 1108.
39
Id.
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court also heard testimony about Joey’s health improvement while in foster care and his
bonding with his foster family. Based on the record, we conclude that the superior court
did not err in finding that Emma failed to remedy her conduct in a reasonable time as
defined by statute and in light of Joey’s best interests.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court’s termination of
Emma’s parental rights.
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