Kylie L. v. State, Dept. of Health & Social Services, Office of Children's Services

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KYLIE L., )
) Supreme Court No. S-16520
Appellant, )
) Superior Court No. 4FA-13-00120 CN
v. )
) OPINION
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, ) No. 7205 – October 13, 2017
OFFICE OF CHILDREN’S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael P. McConahy,
Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Appellant. Megyn Greider, Assistant Attorney General,
Anchorage, and Jahna Lindemuth, Attorney General, Juneau,
for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, and
Bolger, Justices. [Carney, Justice, not participating]
WINFREE, Justice.
I. INTRODUCTION
After the trial court found that the Office of Children’s Services (OCS)
failed to demonstrate it had made reasonable efforts to reunify a family, the court
nonetheless terminated the mother’s parental rights to her daughter, finding that OCS’s
failure was “excused.” The mother appealed; we earlier issued an order reversing the
court’s “excused” determination and vacating the trial court’s termination order,
indicating we would fully discuss our reasoning in a later opinion. We do so now.
II. FACTS AND PROCEEDINGS
Kylie L. and Kurt B. began a relationship in 2003 and had a daughter,
Belinda B., in 2010.1 Kurt was often abusive toward Kylie, who remained in the
relationship partly because Kurt threatened that if she left him he would kill her and
Belinda.
OCS became involved with the family in May 2013 when Kurt injured
Belinda. In the midst of an alcohol-fueled argument Kurt threw a glass beer bottle at
Kylie; he instead hit Belinda in the back of the head, knocking her off the table on which
she was seated. Kylie escaped to the bedroom with Belinda, but Kurt followed them,
punching Kylie in the head and jumping on her as she attempted to protect Belinda with
her body. Despite a “baseball sized lump” on Belinda’s head, Kurt refused to let Kylie
secure medical care, hiding Kylie’s phone and car keys to prevent her taking Belinda to
a doctor.
The next morning Kurt returned Kylie’s phone and keys so she could go
to work. When Kylie arrived at work she called the police, reported the abuse to a child
advocacy center, and brought Belinda to a hospital for medical attention. Kurt was
arrested and OCS opened an investigation. Belinda received a forensic evaluation and
follow-up care. In June Kylie obtained a domestic violence protective order to keep Kurt
away from her and Belinda.
Kylie soon entered into a relationship with Lou C. Lou was not a safe
companion; he used methamphetamine and “had a lot of involvement with the law.” Yet
1
Pseudonyms are used to protect the parties’ privacy.
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Kylie had difficulty accepting that Lou was dangerous because he “didn’t physically
harm her like her past partners had.”
OCS closed its investigation in August, substantiating findings that Kurt
had harmed Belinda. Only a week after closing its first investigation, OCS received
another report of harm to Belinda. Kylie, Belinda, Lou, and Lou’s son had gone on a
road trip. Kylie explained that during this trip she noticed Belinda was not placing
weight on one of her legs. The day after they returned from the trip, Kylie took Belinda
to the hospital; Kylie and Lou told the hospital staff they did not know how Belinda had
been injured but thought perhaps Lou had reclined his car seat onto the girl’s ankle.
They told the doctor that Belinda had not cried out when they thought the injury might
have occurred, nor had she cried during the trip. The doctor believed the injury — two
broken bones in Belinda’s leg — was not consistent with Kylie’s explanation and
reported to OCS his suspicions of non-accidental trauma.
OCS initiated an investigation and implemented a protective action plan
under which Belinda stayed with a family friend. OCS requested that Kylie and Lou
submit to urinalysis (UA) testing, but neither showed up. The OCS caseworker referred
Kylie and Belinda to a family preservation program. The caseworker, who had received
reports that Lou was involved in drug trafficking, discussed with Kylie that Lou was an
unsafe person, emphasizing the danger of exposing children to methamphetamine. By
September Kylie had begun to express that she understood the danger Lou posed and had
told OCS the relationship was over. The OCS worker felt Kylie “had begun to
demonstrate protective capacities” and moved Belinda from an out-of-home safety plan
to an in-home safety plan, requiring supervision by Kylie’s mother.
Problems with the in-home safety plan quickly developed; Kylie’s mother
was leaving Belinda alone with Kylie and failing to report to OCS as required. In
October Kylie moved to modify the protective order against Kurt, telling the court she
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wanted “[t]o re-establish [the] relationship between [Kurt] and his daughter.” During
this period the case was transferred to an OCS family services worker who spoke with
Kylie about how her pattern of engaging with dangerous men posed a threat to Belinda.
The OCS worker believed Kylie was not internalizing these messages: because Lou did
not physically abuse Kylie, she continued to have trouble accepting that he was unsafe,
and she was planning to visit an old friend who recently had been released after serving
time in prison for a manslaughter conviction resulting from a road rage incident.
In November, after Belinda had been returned to Kylie’s care under the in-
home safety plan, OCS received a third report of harm, this time concerning a cigarette
burn on Belinda’s lower back. Kylie told Belinda’s daycare workers that she had been
holding a cigarette while removing her daughter from a car seat and that the “cherry” fell
into Belinda’s diaper and burned the girl. OCS took emergency custody of Belinda the
day after receiving the report; OCS filed an adjudication and temporary custody petition
the following day asserting that Kylie had minimized the incident.
After assuming custody and placing Belinda in foster care, OCS continued
providing services to Kylie and Belinda. OCS arranged visitation between the two and
made service referrals for relationship classes, a parental risk assessment, a substance
abuse assessment, and dyadic therapy, which focuses on the parent-child relationship
with the goal of healing the child’s trauma within the context of an attachment
relationship. OCS also assisted Kylie in meeting basic needs by obtaining food boxes
and assisting her efforts to secure housing and heating fuel.
By all reports the dyadic therapy began very well. At some point Kylie
revealed to her therapist that she was still in a relationship with Lou and that he was
living in her home. But when the therapist attended a February 2014 OCS meeting
addressing the possibility of a trial home visit, she did not pass on to OCS information
about Lou’s continued presence in the home.
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OCS learned that Kylie was pregnant with Lou’s child the following month.
Because Kylie had previously revealed the pregnancy and continuing relationship to her
therapist, OCS was concerned that Kylie was triangulating providers — “telling one
professional one thing, another professional something else” — making it difficult to
work as a team. The therapy center did not agree with that assessment.
Kylie contended that her relationship with her daughter began to deteriorate
in March, when Belinda was transferred to new foster parents who had little experience.
Belinda began telling her new foster parents that her mother and father had hurt her; this
led to another forensic interview, but no abuse was substantiated. OCS also moved visits
from an off-site center to its own facilities. Belinda soon began exhibiting troubling
behaviors and resisting visitation.
In April OCS referred Belinda to individual therapy. This decision was
made in part by an OCS supervisor who was herself receiving therapy from the same
therapist and who was going through a contentious divorce involving significant
domestic violence allegations. The original dyadic therapist tried unsuccessfully to
coordinate efforts with this new therapist and address issues that might arise if Belinda
were to continue seeing them both.
In May OCS abruptly ended Kylie and Belinda’s dyadic therapy sessions.
Also in May Lou was arrested on suspicion of involvement in a child’s death; another
woman he was seeing apparently killed her son and Lou was later convicted of failing
to report the crime. Lou’s arrest effectively terminated his relationship with Kylie.
In July OCS cancelled visitation between Kylie and Belinda. OCS made
the decision to cancel visitation based on the advice of Belinda’s new therapist, although
that therapist had never met Kylie.
Kylie began receiving individual therapy in August. In September OCS
filed a petition for the termination of Kylie’s and Kurt’s parental rights. This situation
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generally continued — no dyadic therapy or visitation between Kylie and Belinda, each
of them receiving individual therapy — until December, when Kylie engaged Dr. Marti
Cranor, a licensed psychologist, to review the OCS file and give an opinion on OCS’s
decision-making in the case. Dr. Cranor was critical of OCS’s efforts; she did not
believe Belinda’s individual therapy was appropriate, she believed dyadic therapy should
not have been terminated, and she believed OCS had displayed a pattern of
misrepresentation and exaggeration.
In January 2015 an OCS staff manager reviewed the case and found it was
not being handled appropriately. She believed OCS was not being very helpful and that
providers were working at odds and not communicating. She directed visitation to
resume, which it did in late January after almost seven months without any contact
between Kylie and Belinda.
The OCS staff manager also replaced Belinda’s individual therapist. The
new therapist restarted dyadic therapy and diagnosed Belinda with post-traumatic stress
disorder, observing a wide range of associated symptoms. The therapist noted that
although Belinda and Kylie appeared to be making progress, things soon deteriorated
again. She believed contact with Kylie was triggering Belinda’s traumatic symptoms and
that as a consequence their bond was weakening.
In July Kylie made what she later acknowledged was a poor choice; she
emailed Kurt after he was released from jail and arranged to meet with him in a public
parking lot so she could update him on Belinda. Kylie told the new therapist about the
incident but then denied the contact when an OCS caseworker questioned her about it,
maintaining her denial until the caseworker confronted her with a copy of the email she
had sent Kurt.
In September OCS issued a Quality Assurance Report —an internal review
of its management of the case. The review documented a number of significant
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concerns, including that: services “have not been well organized and have not served to
facilitate reunification”; OCS was not providing a warm environment for visitation; and
documentation of visits was “overly negative,” contributing to an unwarranted negative
“narrative or belief system” about Kylie.
Belinda’s behavior surrounding visitation continued to regress; by October
OCS workers and her foster parents had to physically force her to attend. Her therapist
was concerned that visitation had become re-traumatizing for Belinda and that forcing
her to attend threatened her ability to maintain safe relationships. Based on these
concerns OCS made visitation voluntary, giving Belinda the option of attending
visitation every week; Belinda consistently declined, effectively terminating visitation.
In November Kylie obtained a neuropsychological assessment at OCS’s
request. The assessment was generally quite positive, concluding that Kylie understood
the impact on her daughter of past trauma and that Kylie could safely care for her
daughter as long as she avoided abusive relationships.
Although visitation had been effectively suspended, dyadic therapy
continued. But by early 2016 the therapist, who had grown increasingly concerned about
the risk continued joint therapy sessions posed to Belinda’s mental health, discontinued
dyadic therapy and limited Belinda to individual therapy instead.
Meanwhile, Kylie secured a full-time job with the local school district,
obtained affordable permanent housing, and completed a number of relevant training
courses on her own initiative. Kylie had not been in a relationship since Lou’s arrest in
May 2014.
A termination trial was held in June 2016. The trial court issued its
decision on record in October. The court found that OCS met its burden of proof on all
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issues except for the requirement that it make reasonable efforts to reunify the family.2
Despite OCS’s failure to demonstrate that it had made reasonable efforts, the court
nonetheless terminated Kylie’s parental rights, holding that the reasonable efforts
requirement was “excused” because remedying the deficiency by providing OCS more
time would be pointless and harmful to Belinda due to the ruptured mother-child bond.
2
Under relevant Alaska Child in Need of Aid (CINA) statutes and rules,
parental rights may be terminated at trial only if OCS shows:
(1) by clear and convincing evidence that
(A) the child has been subjected to conduct or
conditions described in AS 47.10.011 and
(i) the parent has not remedied the conduct or
conditions in the home that place the child at
substantial risk of harm; or
(ii) the parent has failed, within a reasonable
time, to remedy the conduct or conditions in the
home 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; [and]
....
(2) by clear and convincing evidence that
(A) the Department has complied with the provisions
of AS 47.10.086 concerning reasonable efforts; [and]
....
(3) by a preponderance of the evidence that termination of
parental rights is in the best interests of the child.
CINA Rule 18(c); see also AS 47.10.088 (establishing requirements for termination).
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Kylie appealed, and we earlier issued an order vacating the termination of
her parental rights. This opinion explains the basis for that order.
III. STANDARD OF REVIEW
“ ‘Whether OCS made reasonable efforts to reunify the family is a mixed
question of law and fact.’ For mixed questions, ‘we review factual questions under the
clearly erroneous standard and legal questions using our independent judgment.’ ”3
“Whether the superior court’s factual findings satisfy the CINA statutes is
a question of law that we review de novo, adopting the rule of law that is most persuasive
in light of precedent, reason, and policy.”4
IV. DISCUSSION
Kylie challenges the trial court’s finding that she failed to remedy the
conduct or conditions that put Belinda at risk of harm and its holding that OCS was
excused from making reasonable efforts to reunify her family. Because we conclude the
trial court improperly excused OCS’s failure to demonstrate reasonable efforts were
made, we do not reach the question of failure to remedy.
A. Reasonable Efforts Play An Important Role In Every CINA Case.
We have stated in the Indian Child Welfare Act (ICWA)5 context that the
“scope of the State’s . . . dut[ies]” may not be varied “based on subjective, pre­
intervention criteria such as a parent’s motivation or treatment prognosis” because to do
3
Joy B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
382 P.3d 1154, 1162 (Alaska 2016) (quoting Sherry R. v. State, Dep’t of Health & Soc.
Servs., Office of Children’s Servs., 332 P.3d 1268, 1273-74 (Alaska 2014)).
4
Casey K. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 311 P.3d 637, 643 (Alaska 2013) (citing J.S. v. State, 50 P.3d 388, 391 (Alaska
2002)).
5
25 U.S.C. §§ 1901-1963 (2012).
-9- 7205
so “might defeat the purpose of the active remedial effort requirement.”6 This
uncompromising standard holds true in every CINA case: even if the outlook is bleak
and the likelihood of success is low, the State has an obligation to provide “timely,
reasonable efforts . . . designed . . . to enable the safe return of the child to the family
home”;7 this obligation persists because “terminating parental rights is a drastic
measure,” as we must always bear in mind.8 OCS’s remedial efforts are a “critical
component” of state intervention in the family; they serve to avoid the drastic measure
of termination whenever feasible, and procedurally they form a “necessary bridge
between a need of aid finding and a failure to remedy finding.”9 Before terminating
6
A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled in part on other
grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996). Although ICWA’s “ ‘active
efforts’ requirement . . . is more demanding than the ‘reasonable efforts’ requirement of
AS 47.10.086,” Winston J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 134 P.3d 343, 347 n.18 (Alaska 2006), and imposes a “higher burden” on OCS,
Casey K. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 311 P.3d
637, 646-47 (Alaska 2013), the requirements serve the same function of attempting to
facilitate the child’s safe return to the parent, see CINA Rule 18(c)(2)(A)-(B);
AS 47.10.086(a), and the reasoning from ICWA cases on OCS’s active efforts
obligations in varying circumstances is generally applicable in non-ICWA cases as well,
Winston J., 134 P.3d at 347 & n.18; cf. Jon S. v. State, Dep’t of Health & Soc. Servs.,
Office of Children’s Servs., 212 P.3d 756, 765 n.31 (Alaska 2009) (“Our conclusion that
the superior court did not err in holding that the state met its active efforts requirement
also disposes of [appellant’s] argument that the state failed to meet the lower ‘reasonable
efforts’ requirement in AS 47.10.086.” (citing Winston J., 134 P.3d at 347 n.18)).
7
AS 47.10.086(a).
8
Christina J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 254 P.3d 1095, 1104 (Alaska 2011) (quoting Martin N. v. State, Dep’t of Health
& Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003)).
9
Josh L. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
276 P.3d 457, 468 (Alaska 2012) (Winfree, J., dissenting) (2-2 decision) (citing
(continued...)
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parental rights, courts must “identify the problem that caused the [child] to be in need of
aid”10 and then evaluate whether OCS made remedial “efforts to assist the parent in
remedying the conditions that led to finding the child in need of aid” and ensure those
efforts were “specifically designed to prevent the breakup of the . . . family.”11 To
provide anything less — although necessary and permissible in some circumstances12 —
risks infringing the “right to the care and custody of one’s own child . . . recognized by
both the federal and state constitutions.”13
B. It Was Error To Excuse Reasonable Efforts In This Case.
Alaska Statutes 47.10.086(a) and 47.10.088(a) “require a finding, by clear
and convincing evidence, that OCS has made ‘timely, reasonable efforts to provide
family support services to the child and to the parents . . . that are designed to prevent
out-of-home placement of the child or to enable the safe return of the child to the family
9
(...continued)
Christina J., 254 P.3d at 1104); see AS 47.10.086(a)(1) (requiring reasonable efforts to
include “family support services that will assist the parent or guardian in remedying the
conduct or conditions in the home that made the child in need of aid”).
10
Josh L., 276 P.3d at 468 (Winfree, J. dissenting) (2-2 decision) (alteration
in original) (quoting Barbara P. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 234 P.3d 1245, 1262 (Alaska 2010)).
11
Id. (citing CINA Rule 18(c)(2)(B); Jon S., 212 P.3d at 763).
12
See AS 47.10.086(a) (“Except as provided in (b), (c), and (g) of this section,
the department shall make timely, reasonable efforts . . . .”).
13
Seth D. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
175 P.3d 1222, 1227 (Alaska 2008) (quoting J.M.R. v. S.T.R., 15 P.3d 253, 257 (Alaska
2001)).
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home.’ ”14 “In the alternative,” the trial court can find that OCS “was excused from the
requirement to make reasonable efforts”15 if it finds by clear and convincing evidence
that one of the bases listed in AS 47.10.086(c) applies.16 Two subsections arguably are
relevant here. Reasonable efforts may be excused under subsection (c)(1) if “the parent
. . . has subjected the child to circumstances that pose a substantial risk to the child’s
health or safety,” including “abandonment, sexual abuse, torture, chronic mental injury,
or chronic physical harm.” They also may be excused under subsection (c)(7) if the
“child has suffered substantial physical harm as the result of abusive or neglectful
conduct by the parent . . . or by a person known by the parent . . . and the parent
. . . knew or reasonably should have known that the person was abusing the child.”17
Alaska Statute 47.10.086(c)(1) was “designed to eliminate remedial
requirements in extreme circumstances.”18 “[T]he statutory framework prevents [OCS]
from deciding on its own, prior to a hearing or order by the court, that reasonable efforts
14
Joy B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
382 P.3d 1154, 1164 (Alaska 2016) (alteration in original) (quoting AS 47.10.086(a))
(citing CINA Rule 18(c)(2)).
15
Vivian P. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 78 P.3d 703, 708 (Alaska 2003).
16
AS 47.10.086(c) lists these bases in 11 subsections. Qualifying reasons for
excusing reasonable efforts under these subsections range from extreme criminal
behavior — e.g., sexual abuse, torture of the child, or homicide of the other parent — to
the objectively demonstrated futility of further efforts — e.g., a parent’s incarceration or
failure to comply with court orders, OCS’s inability to identify or locate a parent after
diligent search, or a recurring pattern of removal from the home.
17
AS 47.10.086(c).
18
Vivian P., 78 P.3d at 708 (citing J.S. v. State, 50 P.3d 388, 392 & n.13
(Alaska 2002)).
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are unnecessary . . . . The statutory language instructs the court, and not [OCS], to make
the determination regarding the need for reasonable efforts . . . .”19 “But the fact that
[OCS] is precluded from determining on its own that reasonable efforts are unnecessary
. . . does not preclude the court from determining after commencement of a termination
trial that the reasonable efforts requirement is excused.”20
Here the trial court found “OCS did not meet its burden of proof on the
issue of providing reasonable efforts to reunify this family.” But the court later
continued: “That is not the end of the question though. . . . [O]nce I find that [OCS] has
not met its reasonable efforts requirements, then the issue is what does the court do with
that.” The court felt that doing what “traditionally . . . happens” and setting the case out
for 6 to 12 months to permit continued efforts was “a non-starter.” The court instead
chose to excuse the reasonable efforts requirement, stating that its decision was based on
its understanding of testimony by Kylie’s expert witness, Dr. Cranor, that the “parent­
child bond has been irrevocably breached” so that it would be “harmful to [Belinda]” and
pointless to continue attempting to reunify the family.
Kylie argues the trial court erred by excusing the reasonable efforts
requirement. OCS argues that we can affirm: first, on the alternative ground that OCS
made reasonable efforts, notwithstanding the trial court’s finding to the contrary; second,
on the basis that the decision to excuse reasonable efforts was valid under
AS 47.10.086(c)(1) or (c)(7), even if the trial court did not expressly rely on either.
19
Id. at 709 (citing AS 47.10.086(c)).
20
Id.
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 1. The trial court did not clearly err in finding OCS failed to
demonstrate it had made reasonable efforts.
OCS first argues that we should “affirm the superior court’s decision on the
alternative ground[] that OCS’s efforts, viewed in totality, were reasonable,” in effect
asking us to rule that the trial court clearly erred in finding OCS failed to demonstrate
it had made reasonable efforts. But the trial court’s determination was supported by
evidence in the record. The court noted that OCS’s own internal review found the
department had unreasonably stopped visitation and made poor decisions, and that those
bad decisions had “really influenced the outcome of the case thereafter.” OCS’s internal
review also found that: services “ha[d] not been well organized and ha[d] not served to
facilitate reunification”; case managers had changed providers “because [they did] not
like [the initial providers’] findings”; Kylie “appeared to be spot lighted [sic] in the
visits” and the supervising OCS worker excessively regulated her interactions with
Belinda; the OCS worker refused to refer to Kylie as “mom” during visits and did not
provide a “warm environment”; Kylie “appear[ed] to be a lonely figure, not receiving
much support”; “documentation of the visits [wa]s overly negative, appearing to inflate
incidents”; and that this negative documentation “appear[ed] to migrate to other parts of
the case record, contributing to a ‘narrative or belief system’ about the mother which
may not [have been] based in fact.”
The trial court found the internal review’s conclusions were buttressed by
Dr. Cranor’s testimony, which the court gave “value and weight.” Dr. Cranor testifed
that: stopping visitation and changing therapy had been unwarranted; the decision to do
so was based on “inaccurate or misleading information that had . . . been perpetuated in
the file”; OCS had “tried to justify [the decision] after the fact by saying . . . the therapist
told [them] to do” so when that was not the case; and OCS minimized positive
information about Kylie while exaggerating harm to Belinda.
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OCS points to extensive other services it provided to the family, including
visitation during other periods, regular therapy for both mother and daughter, efforts to
remedy the problems identified in the internal review, various action and safety plans,
referrals for UAs and a substance abuse assessment, and assistance with stress
management and housing. It argues that “the court’s decision to narrowly focus on the
months in which there was no visitation fails to appreciate or acknowledge” those
“broader services” and notes that we have frequently held reasonable efforts
determinations must be made by looking at OCS’s efforts in their entirety and not at a
particular segment in time.21
These are valid arguments. But “we will not reweigh evidence when the
record provides clear support for a trial court’s ruling” and “[c]onflicting evidence is
generally not sufficient to overturn a trial court’s factual findings.”22 The trial court had
clear support — from OCS’s own witnesses and internal review, as well as credible
expert testimony — for its finding that OCS failed to carry its burden of demonstrating
it had provided reasonable efforts. That finding was not clearly erroneous.
2. Excusing reasonable efforts on the grounds provided was error.
Alaska Statute 47.10.086 permits a trial court to excuse reasonable efforts
when it finds by clear and convincing evidence that one of the bases enumerated in
AS 47.10.086(c) applies. But Kylie correctly argues that AS 47.10.086(c) “clearly [wa]s
not [the] reason for the court’s ruling.” At the trial’s conclusion the court noted its view
21
See Frank E. v. State, Dep’t of Health & Soc. Servs., Div. of Family &
Youth Servs., 77 P.3d 715, 720 (Alaska 2003) (“[W]e examine whether the state’s
reunification efforts, when looked at in their entirety, satisfy the requirements of
AS 47.10.086(a).”).
22
Emma D. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 322 P.3d 842, 849 (Alaska 2014) (quoting Chloe O. v. State, Dep’t of Health &
Soc. Servs., Office of Children’s Servs., 309 P.3d 850, 856 (Alaska 2013)).
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of Dr. Cranor’s testimony that the mother-daughter bond had been “irrevocably
damaged” and asked for closing briefing on what to do with that information if it
concluded sufficient services had not been offered by OCS. It acknowledged that
“[s]ometimes judges will see cases” without sufficient services and will order additional
time for further efforts, but stated “this case doesn’t resonate with me as something that
if [there were not sufficient services]” more time would be an appropriate remedy. In its
decision on record the court repeatedly pointed to its view of Dr. Cranor’s testimony that
the parent-child bond had been damaged or destroyed; the court based its decision to
excuse the failure in services on its finding that the bond was destroyed and that further
efforts would be harmful and pointless.23 The court relied exclusively on its
23
We note our concern that Dr. Cranor’s testimony was too conditional and
ambiguous to stand as the primary support for the trial court’s determination. There were
two relevant exchanges at trial. On direct examination by Kylie’s attorney, Dr. Cranor
testified:
Q: Based on your two reports and what you viewed of the
file through March of 2016, did you come to any conclusions
as to whether OCS has acted fairly with [Kylie]?
A: In my opinion, I do not believe she was given a fair
opportunity to demonstrate that she was able to safely parent
her child and, . . . I believe that she was deprived visitation
for questionable reasons and that, as a result of that, more
than likely . . . her relationship with her daughter has been
irrevocably altered, if not destroyed.
On cross-examination by OCS shortly after this, Dr. Cranor testified:
Q: So based on your experience and the information you
reviewed, what services should be and are available in
Fairbanks, and how long — well, what services would be
available if the dyadic therapy isn’t working to repair what
(continued...)
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23
(...continued)
you perceive to be an irreparable rift in the parent-child
bond?
A: Well, I think you just answered the question there. If
it’s irreparable, I don’t think there are services that can repair
it.
Q: So at this point, your testimony would be that perhaps
no length of time of further waiting is going to fix our current
situation?
A: That’s correct.
The trial court interpreted this testimony as conclusive evidence that the
parent-child bond had been ruptured beyond repair.
Kylie challenges the court’s interpretation of Dr. Cranor’s testimony with
justification. Kylie is correct that Dr. Cranor on direct examination did not take as strong
a stand as the court later credited. Dr. Cranor testified that the relationship had “more
than likely” been “irrevocably altered, if not destroyed.” If the relationship had merely
been altered, then that would undermine the reasoning behind the trial court’s decision
to terminate parental rights. And if the damage were not “irrevocabl[e]” — a possibility
Dr. Cranor’s testimony allowed for, although she believed it more likely that the damage
was permanent — that would also undermine the basis for the decision. It also is
noteworthy that in this first exchange, Dr. Cranor was responding to a question not about
the extent or manner of the damage to the mother-child relationship but about OCS’s
failings in the case; she referenced the damage only in passing to illustrate the problems
caused by what she considered OCS’s unfair treatment of Kylie.
Kylie’s challenge to the trial court’s interpretation of Dr. Cranor’s
testimony on cross-examination likewise has merit. As Kylie notes, “Dr. Cranor
answered a conditional and tautological question with a conditionally affirmative
answer.” This is an accurate characterization. The question was conditional: “[W]hat
services would be available if the dyadic therapy isn’t working . . . ?” The question was
tautological: What could be done to “repair . . . an irreparable rift . . . ?” And the
answer was only conditionally affirmative: “If it’s irreparable, I don’t think there are
services that can repair it.”
(continued...)
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conviction that further efforts would be pointless, and it did not find by clear and
convincing evidence that an AS 47.10.086(c) basis applied.24
That decision was legal error. Alaska Statute 47.10.088(a)(3) requires the
trial court to determine by clear and convincing evidence that OCS has complied with
AS 47.10.086’s provisions; AS 47.10.086(a) provides that OCS “shall make timely,
reasonable efforts” except, in relevant part, as provided in subsection (c).25 If the trial
court does not find by clear and convincing evidence that one of those enumerated bases
applies, there is no room in the statutory framework to excuse reasonable efforts on
23
(...continued)
OCS responds with two arguments. It first notes that Dr. Cranor was asked
what could be done to repair “what you perceive to be an irreparable rift,” and that rather
than denying she viewed the rift as irreparable or otherwise equivocating about the
question’s assumptions, she simply stated that in such a situation nothing could be done.
OCS then points to the exchange’s conclusion as confirmation that the doctor did not
question the premise of an irreparable rift that further efforts could not repair. In that
exchange Dr. Cranor answered affirmatively when asked whether “your testimony would
be that perhaps no length of time of further waiting is going to fix our current situation.”
That is questionable: “perhaps” means just that — perhaps.
24
The court made a passing reference to AS 47.10.086(c)(7) in its decision
on record when acknowledging OCS’s argument — made for the first time in its closing
brief after trial had concluded — that the subsection should apply, remarking that it
“[did]n’t disagree with that.” Briefly acknowledging OCS’s closing argument does not
constitute a finding by clear and convincing evidence that the subsection applies under
the facts of this case.
The only other legal authority the trial court provided for excusing
reasonable efforts was our decision in Vivian P. v. State, Department of Health & Social
Services, Division of Family & Youth Services, 78 P.3d 703 (Alaska 2003). But in that
case the trial court found OCS was excused from the reasonable efforts requirement on
the basis of AS 47.10.086(c)(1) because the parent had subjected the child to “chronic
mental injury or chronic physical harm.” Id. at 708.
25
AS 47.10.086(a) (emphasis added).
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alternative bases. Nor would a decision to forego required reasonable efforts in
expectation of their futility comport with our parallel ICWA holdings; in that context we
have stated that courts may not “vary the scope of the State’s ICWA duty based on
subjective, pre-intervention criteria such as a parent’s motivation or treatment prognosis”
because doing so “might defeat the purpose of the active remedial effort requirement, for
it would enable the State to argue, in all doubtful and difficult cases, that it had no duty
to make active remedial efforts.”26
3. We decline to affirm on the basis of AS 47.10.086(c)(1) or (c)(7).
Citing Torrey v. Hamilton,27 OCS next argues that we “may affirm the
superior court’s decision on any appropriate ground, even if it is a ground that was
rejected by the trial court,” and that AS 47.10.086(c)(1) and (c)(7) both provide bases
to do so. OCS contends that subsection (c)(7) should apply because the trial court
“found Kylie subjected Belinda to circumstances that posed a substantial risk to her
health or safety,” noting she had “endured three physical injuries while in Kylie’s care.”
OCS argues that although “the court’s finding did not rest” on subsection (c)(7), its
passing remark in its decision on record — the court stated it “[did]n’t disagree” that
subsection (c)(7) should apply — shows the court “clearly understood that it could
have.” OCS concludes that “given the breadth of evidence supporting the court’s
substantial physical harm finding — and Kylie’s acknowledgement [sic] that the
provision has ‘some relation to this case,’ ” we “should affirm the court’s finding that
26
A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled in part on other
grounds by In re S.A., 912 P.2d 1235 (Alaska 1996).
27
872 P.2d 186, 188 (Alaska 1994) (“Although the trial judge explicitly
declined to base the award on Civil Rule 79, this court may affirm the judgment on any
appropriate ground, even if it is a ground which was rejected by the trial court.” (citing
State v. Alaska Land Title Ass’n, 667 P.2d 714, 725 (Alaska 1983); Ransom v. Haner,
362 P.2d 282, 285 (Alaska 1961))).
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efforts were excused” under the statute. Kylie argues that if subsection (c)(7) “applies
in this case — not a case at the margins of parent conduct . . . — then [the statute] will
apply in every CINA case involving domestic violence (whether the parent is the
perpetrator or, like Kylie, the victim).”
We first note that AS 47.10.086(c) does not exist to absolve OCS’s failure
to execute its responsibilities in routine interventions; it is intended to operate as a safety
valve, permitting courts to excuse — in the best interests of the child28 — remedial
efforts if extraordinary circumstances or the parent’s egregious conduct would render
those efforts pro forma or, more importantly, endanger the child’s welfare.29 And
second, although OCS is correct that we “may affirm . . . on any appropriate ground,”30
it is prudent to avoid doing so when alternative grounds would require us to enter
discretionary rulings best committed to the sound judgment of the trial court, which will
generally be much more intimately familiar with the parties and the case.31 A finding that
28
See AS 47.10.086(f) (“In making determinations and reasonable efforts
under this section, the primary consideration is the child’s best interests.”).
29
See Vivian P., 78 P.3d at 708 (noting AS 47.10.086(c)(1) was “designed to
eliminate remedial requirements in extreme circumstances” (citing J.S. v. State, 50 P.3d
388, 392 & n.13 (Alaska 2002))).
30
Torrey, 872 P.2d at 188 (citing Alaska Land Title Ass’n, 667 P.2d at 725;
Ransom, 362 P.2d at 285).
31
See Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1001 (Alaska
2005) (“The rule that an appellate court may affirm a judgment on any ground supported
by the record regardless of whether the ground was relied on by the trial court should not
ordinarily extend to discretionary rulings that the court might properly have declined to
make. But where it is clear that the court would have exercised its discretion in a manner
that upholds the judgment, we believe that an appellate court can properly apply the
rule.”); see also Moira M. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 370 P.3d 595, 602 (Alaska 2016) (“[T]he statutory scheme recognizes the
(continued...)
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reasonable efforts are not required under AS 47.10.086(c) is just such a discretionary
ruling. The statute permits trial courts to excuse reasonable efforts when one of the
enumerated bases applies, but it does not require them to do so.32 We leave it for the trial
court to first consider statutory exceptions to OCS’s reasonable efforts requirement, if
requested.
V. CONCLUSION
We REVERSE and VACATE the trial court’s order terminating Kylie’s
parental rights. We REMAND for reconsideration of the trial court’s order denying
Kylie further visitation and for further proceedings consistent with this order.
31
(...continued)
superior court’s role in determining whether OCS may cease making reasonable efforts.”
(citing AS 47.10.086(b)-(c))); cf. Parson v. State, Dep’t of Revenue, Alaska Hous. Fin.
Corp., 189 P.3d 1032, 1039 (Alaska 2008) (“Although an appellate court may affirm a
grant of summary judgment based on any grounds appearing in the record, this power
is discretionary.” (citing Snyder, 119 P.3d at 1001)).
32
See AS 47.10.086(c) (“The court may determine that reasonable efforts . . .
are not required” (emphasis added)).
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