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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Audrey H. v. State (07/18/2008) sp-6286

Audrey H. v. State (07/18/2008) sp-6286, 188 P3d 688

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

AUDREY H., )
) Supreme Court No. S- 12858
Appellant, )
) Superior Court Nos.
v. ) 3AN-05-00156/157 CN
)
STATE OF ALASKA, OFFICE OF )
CHILDRENS SERVICES, ) O P I N I O N
)
Appellee. ) No. 6286 - July 18, 2008
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances:  Josie Garton, Assistant  Public
          Defender   and   Quinlan   Steiner,    Public
          Defender, Anchorage, for Appellant.  Megan R.
          Webb,  Assistant Attorney General, Anchorage,
          and   Talis  J.  Colberg,  Attorney  General,
          Juneau,    for   Appellee.   Dianne    Olsen,
          Anchorage, for Guardian Ad Litem.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Carpeneti,  and Winfree, Justices. [Eastaugh,
          Justice, not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION
          A mother appeals the termination of her parental rights
to  two  of her daughters, arguing that the superior court  erred
when it found that the girls were children in need of aid due  to
neglect  and  when it authorized the state to discontinue  making
reasonable  efforts to reunite the family.  Because the  superior
court  made adequate findings to support its conclusion that  the
girls were neglected and were therefore children in need of  aid,
and  because  the superior courts findings that  the  state  made
reasonable  efforts were made in a manner sufficiently  close  to
that required by statute so as to avoid any harm or prejudice, we
affirm the superior courts order terminating the mothers parental
rights to her two daughters.
II.  FACTS AND PROCEEDINGS
          Audrey is the mother of four children, including  Abby,
who  was  born in 1992, and Kit, who was born in 1996.1   Audreys
oldest  child,  a daughter, was removed from Audreys  custody  by
Office  of  Childrens  Services (OCS)  in  March  2005.   Audreys
youngest  child,  a son, lives with his father.  Neither  Audreys
oldest child nor youngest child is a party to this case.
          In  June 2005 OCS received a report of harm from  staff
at  the girls elementary school based on a statement by the then-
nine-year-old Kit that there was not enough food in the home.  In
separate follow-up interviews with a social worker, both Kit  and
Abby  stated that they felt concerned and uncomfortable with some
of the people who came to the house and with the activities those
people  engaged  in  within  the  home.   After  conducting   the
interviews  with  Kit and Abby, the social worker  and  a  police
officer  visited  the  girls  home where  they  observed  alcohol
bottles  and dirty clothes piled throughout the home, and  broken
glass  on  the  floor.  The social worker and the police  officer
also  noted  that there was frozen and canned food  in  the  home
though  the social worker observed that a bottle of milk  in  the
refrigerator was well beyond its expiration date.
          Immediately following the home visit, the social worker
drafted a care and safety plan that required Audrey to undergo  a
urinalysis for drugs and alcohol and to clean up the house.   OCS
then  received an additional report of harm from a  school  nurse
who  had spoken with the girls at OCSs request.  The school nurse
reported  that Abby disclosed that while she was trying to  clean
the  house her mother became upset and threw books at her.   Abby
told  the  school  nurse she observed her mothers  friends  using
drugs in the house, and that she had once walked in on two people
naked on a bed.  Abby also described seeing her mother with  what
appeared  to  be  drug  paraphernalia  and  hearing  her   mother
discussing drugs over the phone.  Abby again stated that she  did
not  feel  safe or comfortable around her mothers  friends.   Kit
told the school nurse that everything was fine at home.
          OCS  removed  the  girls  on  June  8,  2005,   assumed
emergency  custody,  and placed the girls together  in  a  foster
home.   The  decision to remove the girls was based  on  concerns
arising  from Audreys violent behavior toward Abby and  on  Abbys
allegations of drug use in the home; Audreys urinalysis  had  not
yet  come back (and it was ultimately negative).  On June  9  OCS
filed an emergency petition for adjudication of children in  need
of aid and for temporary placement.  A probable cause hearing was
held in July 2005 to determine whether Abby and Kit were children
in  need  of aid.  At the conclusion of the hearing the  superior
court found that there was probable cause that Abby and Kit  were
children  in  need  of  aid and that they  had  been  exposed  to
neglect.  The  court  specifically  noted  that  theres  been   a
          degradation in [Audreys] ability to care for the physical
environment of the home and that as a result the house has become
almost  unliveable.  The court also expressed  concern  that  the
girls had been exposed to substance abuse and that the girls  may
have observed sexual activity, drug use, drug sales, and possibly
prostitution in their home.
          The  superior  court  then turned to  the  question  of
whether   OCS  had  made  reasonable  efforts  pursuant   to   AS
47.10.086(a).   The  superior court  found  that   OCS  had  made
reasonable  efforts toward the girls, but that OCS had  not  made
reasonable efforts to identify the mothers needs.  The court  was
particularly  concerned that Audrey may have been suffering  from
organic  brain damage from a stroke or from drug abuse, and  that
such  brain  damage  may  have made it difficult  for  Audrey  to
understand  or comply with her OCS case plan.2  Accordingly,  the
superior  court found that OCS acted unreasonably by  failing  to
secure  a  mental  health evaluation for  Audrey.   Finally,  the
superior  court found that it would not be appropriate to  return
the children to their home at that time.
          In  light  of  the  superior courts  instructions,  OCS
attempted  to arrange a mental health evaluation for Audrey.   On
July  28,  2005,  the day following the hearing,  an  OCS  social
worker    contacted   the   doctor   who    had    conducted    a
neuropsychological evaluation of Audrey in May  2000.3   Although
the  doctor initially indicated that her schedule was full  until
March  2006,  an appointment was eventually made  for  August  3,
2005.   The  social  worker  also  scheduled  a  substance  abuse
assessment for Audrey to take place at OCSs office on  August  2,
2005,  because Audrey was already scheduled for a visit with  her
children  at  the OCS office that day.  The social  worker  wrote
Audrey a letter indicating the time and location of the substance
abuse  assessment  and  put the letter,  along  with  release  of
information  forms  allowing  OCS to  exchange  information  with
Audreys  doctors,  into a packet with a bus  pass  and  left  the
packet  at  Audreys home.  The social worker also sent copies  of
the  letter and the forms via certified mail and informed Audreys
attorney of all of these preparations by e-mail.  On July 29  the
social  worker called Audrey to inform her of the scheduled  time
for  the  neuropsychological  evaluation.  At  that  time  Audrey
confirmed that she had received the packet containing the letter,
forms, and bus pass.
          Audrey  failed to appear at the OCS offices for  either
her  regularly scheduled visit with her daughters or for the drug
and alcohol assessment on August 2.  Audrey later explained to  a
social  worker that she had misread the letter and  had  traveled
directly  to  the offices of the center providing  the  drug  and
alcohol  assessment.  Audrey then informed OCS that she had  made
arrangements  to undergo the drug and alcohol assessment  at  the
center.   Audrey also confirmed at that time that  she  would  be
ready the next morning to be picked up by OCS and transported  to
her  neuropsychological  evaluation.   The  social  worker  again
informed   Audreys   attorney  of  all  of   these   events   and
arrangements.   The next morning, when the social worker  arrived
to  pick  Audrey  up for the appointment, she  found  a  note  on
          Audreys door that read Sorry  Not available today. [Audrey].  No
one  answered when the social worker knocked on the door.  Audrey
never  explained  why  she  missed the appointment.   The  social
worker  tried to reschedule another evaluation or at  least  some
testing, but  after initially agreeing  Audrey ultimately decided
not to go through with any testing.
          Audrey  missed  several consecutive  supervised  visits
with  her daughters in August, causing OCS to discontinue visits.
Visits  recommenced in September, but were again discontinued  in
October  after Audrey failed to appear for them.  By the time  of
an   adjudication  hearing  in  December  2005,  Audrey  was  not
following  up  on referrals from OCS, was not in compliance  with
her  case  plan,  and was not engaging in over-the-phone  or  in-
person  visitation  with  her  daughters.   At  the  end  of  the
adjudication  hearing, which Audrey did not attend, the  superior
court found that Abby and Kit were children in need of aid,  that
it  would  not  be  appropriate to return the children  to  their
mothers  custody,  and that therefore the best interests  of  the
children  would  be promoted by maintaining the children  in  OCS
custody  pending a disposition hearing.  The superior court  then
asked  for supplemental briefing on the question whether OCS  had
made reasonable efforts.
          In  January  2006  OCS  filed a motion  to  discontinue
reasonable  efforts accompanied by a brief on reasonable  efforts
where  the  parent  refuses to participate in  services.   Audrey
opposed  the  motion  to  discontinue  reasonable  efforts.    In
February  2006 the superior court issued its order  finding  that
OCS had not made reasonable efforts before July 2005, but that by
October  2005  OCS, by the slimmest of margins, finally  achieved
the  low  standard  for  reasonable  efforts.   Accordingly,  the
superior court concluded that [f]urther efforts to provide family
support  to [Audrey] are no longer in the best interests  of  the
children  and that OCS was no longer required to make  reasonable
efforts.
          The day after issuing its order the superior court held
a  disposition  hearing. At the hearing, OCS  indicated  that  it
intended  to pursue termination of parental rights with  a  long-
term  goal  of  adoption.  The superior court then  combined  the
disposition hearing with a permanency hearing, noting that it did
not  appear  to be necessary to wait another thirty  days  before
holding  the  required permanency hearing.   The  superior  court
allowed  Audreys  attorney to object to this combination  of  the
disposition  hearing  with  a  permanency  hearing  in  order  to
preserve her right to request a contested hearing in the  future,
but  there is no evidence that she ever made such a request.  The
court  then  confirmed that OCSs permanent plan was adoption  and
made  the  required  permanency finding.   The  state  filed  its
petition for termination of parental rights on March 10, 2006.
          Meanwhile,  in  January 2006 both  Abby  and  Kit  were
admitted  to  North  Star hospital for mental  health  treatment.
Both were released within a month.4  Abby was diagnosed as having
major  depression  with psychotic features,  requiring  treatment
with  psychotropic  medication.  In November  2006  OCS  filed  a
motion  for  an order authorizing OCS to consent to  psychotropic
          medication, citing the need for timely responses to Abbys doctors
recommendations  and  Audreys  continued  unavailability.  Audrey
opposed this motion but eventually consented to administration of
the  medication by North Star Hospital.  OCS renewed  its  motion
and  requested expedited consideration in February  2007  because
Abbys prescriptions were running out, Audrey had not specifically
consented  to  administration of the medication by Abbys  regular
doctor,   and  Audrey  was  again  unavailable.   Following   two
hearings,  the  superior  court  found  that  OCS  could  not  be
authorized  to  consent to the administration of medication,  but
that  Abbys foster mother could.5  The superior court denied OCSs
motion, instead  appointing Abbys foster mother to be her limited
guardian  with  authority to consent to major  medical  treatment
including the administration of medication.
          The  superior court held another permanency hearing  in
May  2007  and  again  found  that OCSs  efforts  to  finalize  a
permanent  plan for adoption of Abby and Kit by their  respective
foster  mothers   was  reasonable.  OCS  then  filed  an  amended
petition for termination of parental rights.6  The superior court
held  a  hearing on the amended petition in August 2007.  At  the
hearing  the  court indicated that it would consider evidence  in
the  existing records, and heard testimony from OCS  that  Audrey
had  not  complied with her case plan or otherwise  remedied  her
conduct.   Following the hearing, the superior  court  issued  an
order  terminating Audreys parental rights.  The  superior  court
supported  its  decision  by finding,  by  clear  and  convincing
evidence,  that (1) both Abby and Kit were subject to neglect  by
Audrey; (2) Audrey had not remedied her conduct and, as a result,
returning  either child home would put that child at  substantial
risk for both physical and emotional harm; (3) the state did  not
make reasonable efforts to reunite the family and prevent out-of-
home  placement before July 27, 2005, but that the state did make
reasonable efforts between July 28 and October 20, 2005, and  the
state  was relieved of its obligations to make reasonable efforts
as  of  February 6, 2006; and (4) termination of Audreys parental
rights  to  Abby and Kit was in the best interest of each  child.
Audrey appeals.
III. STANDARD OF REVIEW
          We will sustain a superior courts factual findings in a
CINA case unless those findings are clearly erroneous.7  Findings
of fact are clearly erroneous if a review of the entire record in
the light most favorable to the party prevailing below leaves  us
with a definite and firm conviction that a mistake has been made.8
Whether  a  trial courts findings satisfy the relevant  statutory
requirements is a question of law that we review de novo.9
IV.  DISCUSSION
          In   order  to  terminate  parental  rights  under   AS
47.10.088  a  superior  court must find by clear  and  convincing
evidence that (1) a child is a child in need of aid as defined by
AS  47.10.011;  (2) the parent has not remedied  the  conduct  or
conditions  in the home that place the child at substantial  risk
of  harm;  and  (3)  OCS  has made reasonable  efforts  under  AS
47.10.086 to provide services to the family to prevent  out-  of-
home  placement of the child or to enable the safe return of  the
          child. Audrey challenges the superior courts termination of her
parental rights to Abby and Kit on two grounds, arguing that  the
superior  court erred in finding by clear and convincing evidence
that  Abby  and  Kit  were  children in  need  of  aid  under  AS
47.10.011(9), and that the superior court erred in  granting  the
states motion to discontinue reasonable efforts.
     A.   The  Superior Court Did Not Err in Concluding that  the
          Girls Were Children in Need of Aid.
          Audrey  argues  that  the superior courts  finding,  by
clear and convincing evidence, that Abby and Kit were subject  to
neglect  and  therefore were children in need of aid was  clearly
erroneous.   Audrey  argues  that the evidence  produced  at  the
probable  cause,  adjudication, and termination  hearings  showed
that  the  girls  were  fed, clothed, and  attended  school,  and
therefore  could  not support a finding of  neglect.   The  state
responds  that  there  was  sufficient evidence  to  support  the
superior  courts  finding  that Abby  and  Kit  were  subject  to
neglect.  The guardian ad litem argues that there was evidence in
the  record  that  Audrey failed to ensure  that  the  girls  had
adequate food, safe shelter, education, and dental care.
          Alaska  Statute 47.10.011(9) states that  a  court  may
find  a  child  to  be a child in need of aid if  it  finds  that
conduct  by  or  conditions created by the  parent  .  .  .  have
subjected  the  child or another child in the same  household  to
neglect.  Alaska Statute 47.10.014 states that the court may find
neglect of a child if the parent fails to provide the child  with
adequate  food, clothing, shelter, education, medical  attention,
or  other care and control necessary for the childs physical  and
mental health and development, though financially able to  do  so
or offered financial or other reasonable means to do so.
          The  superior  court first determined  that  there  was
probable  cause that the girls were children in need  of  aid  in
July  2005, shortly after the girls were removed from their home.
The  court found that mom is not capable of doing the normal day-
to-day things and that there was probable cause that the children
have been exposed to alcohol abuse by mom and substance abuse  by
mom  and  by  others.   The  superior court  also  found  at  the
adjudication  hearing10 in December 2005 that  OCS  had  met  its
burden  of  showing by a preponderance of the evidence that  both
children were children in need of aid, stating that it is obvious
that  [Audrey]  is not having contact with [the  girls],  is  not
being  responsive to their emotional needs, and that as a  result
the children have emotional damage.
          Finally,  in  its  order terminating  Audreys  parental
rights,  the  superior  court  concluded  that  [b]y  clear   and
convincing  evidence  .  . . each child  has  been  subjected  to
neglect  by  [Audrey], as defined in AS 47.10.014, and  thus  are
children  in  need  of aid, pursuant to [AS 47.10.011(9)].11   To
support  this conclusion the superior court made several findings
of  fact.   First, the superior court found, based  on  its  oral
findings  from  the July 2005 probable cause hearing,  that  [i]n
June  2005  [Audrey] was incapable of caring for [Abby and  Kit].
The  family  lived  in  a trailer that was  extremely  dirty  and
contained unsafe physical conditions. [Audrey] allowed others  in
          the home to abuse alcohol and other drugs, engage in public
sexual activities, including prostitution, and was unable to care
for  her  children in any meaningful way.  Second,  the  superior
court  found,  based on its oral findings from the February  2007
hearing  on  the  states motion for an order authorizing  OCS  to
consent  to  medication, that [Abby] had  become  the  functional
parent in the household, caring both for [Audrey] and [Kit],  and
that  this  caused  [Abby]  significant emotional  problems  that
persist  to  this  day.  Third, the superior court  found,  again
based  on its oral findings from the February 2007 hearing,  that
[Audrey] remains incapable of caring for her children due to  her
own  constellation  of  cognitive and  emotional  problems.   The
superior  court also noted that those problems have  resulted  in
her  neglecting her children (not willfully) and make  it  nearly
certain  that she would neglect them again if they were  returned
to  her  home  and care.  As a result, the superior court  found,
[i]f  either  child was returned to [Audreys]  care,  that  child
would suffer profound emotional damage and possibly physical harm
 . . . from further neglect.
          Audrey  disputes  the superior courts findings,  noting
that the June 2005 home inspection by an OCS social worker and  a
police  officer  revealed  that  there  was  food  in  the  home.
However,  none  of the findings that the superior court  made  to
support  its conclusions that the girls were subject  to  neglect
and  were therefore children in need of aid relied on an  absence
of food in the home.
          Audrey  also  argues that the testimony of  the  social
worker  and  the  police officer that the  home  contained  dirty
laundry and broken glass was insufficient to establish that there
were unsafe physical conditions in the home and, even if it were,
there  was  no  evidence that Audrey did not clean  up  the  home
because  OCS never conducted a follow-up home visit.  The  unsafe
conditions  that the superior court noted included not  only  the
piles  of  dirty  clothes  and the broken  glass  on  the  floor,
however,  but  also  the dirty dishes piled in a  non-functioning
sink  and  alcohol  bottles all over the home,  as  well  as  the
evidence that the girls were exposed to illegal drug use and open
sexual activity, possibly including prostitution, in their  home.
The  superior court was less concerned with dangerous  conditions
posed  by the physical state of the home and more concerned  with
the  evidence  these  conditions provided  that  Audrey  was  not
capable  of doing the normal day-to-day things, and was incapable
of caring for her children.
          Additionally,  the  superior court  observed  that  the
greatest  risk  of harm to which the girls were exposed  was  the
risk  of  emotional harm.  This emotional harm included the  fact
that the girls, and particularly Abby, had been forced at a young
age  to  become the primary care-givers within their home.   This
concern is underscored by indications that the girls assumed this
role even in the face of opposition from Audrey, most notably the
evidence  that Audrey threw books at Abby when Abby was  cleaning
the home.
          Therefore, although it is true that OCS did not conduct
a   follow-up  inspection  of  the  home,  the  superior   courts
conclusions  were  based  less on a  single  observation  of  the
physical  conditions  of  the  home  and  more  on  its   overall
conclusion  that  Audrey  was  not  capable  of  caring  for  her
daughters.  The  superior court was particularly  concerned  that
Abby had been forced to assume a care-giving role far beyond what
would  normally be expected of someone so young,  and  that  this
responsibility  had the potential to cause significant  emotional
damage.
          Although   the   evidence  presented  may   have   been
insufficient to establish that the girls were at risk of physical
harm  from  inadequate food, clothing, and shelter, AS  47.10.014
also  specifically states that the court may find  neglect  of  a
child if the parent fails to provide the child with the care  and
control  necessary for the childs physical and mental health  and
development.   The  superior courts primary conclusion  was  that
Audreys  inability to care for her children placed them at  great
risk of suffering profound emotional damage.  Further, the record
suggests  that  both Abby and Kit have already  exhibited  strong
evidence of emotional damage.  In January 2006 both Abby and  Kit
were admitted to North Star hospital for mental health treatment.
Abby  began ongoing treatment for major depression with psychotic
features.   Abbys treatment has involved the use of psychotherapy
and psychotropic medications.
          Finally,   Audrey  argues  that  the  superior   courts
references to Audreys mental illness and to the girls exposure to
drug use were irrelevant to a finding under AS 47.10.011(9),  and
did not meet the requirements of AS 47.10.011(11) (parents mental
illness), or AS 47.10.011(10) (parents addictive or habitual  use
of   an   intoxicant).  Although  it  is  true  that  there   was
insufficient  evidence to support a finding that the  girls  were
children  in  need  of aid under subsections (10)  or  (11),  the
superior courts findings were made entirely under subsection (9).
Audrey  does  not point to any case law for the proposition  that
the  superior  court may not consider evidence probative  to  one
subsection in making a determination that a child is in  need  of
aid under another subsection.
          The  superior court therefore considered the full range
of   evidence  available  to  it,  and  made  specific   findings
sufficient  to  support its conclusion that  Abby  and  Kit  were
subjected to neglect due to their mothers failure to provide them
with  the care and control necessary for their mental health  and
development.12  Because there was clear and convincing evidence in
the  record to support the superior courts finding that the girls
had  been  subjected  to neglect, and because  this  finding  was
sufficient to establish that the girls were children in  need  of
aid,13 the superior court did not err in concluding that the girls
were children in need of aid.14
     B.   The  Superior Court Did Not Err in Authorizing  OCS  To
          Discontinue   Making  Reasonable   Efforts   Under   AS
          47.10.086.
          Alaska  Statute  47.10.086(a)  requires  OCS  to   make
timely, reasonable efforts to provide family support services  to
the child and to the parents . . . of the child that are designed
to  prevent  out-of-home placement of the child or to enable  the
          safe return of the child to the family home.  The superior court
may  excuse OCS from continuing to make reasonable efforts if the
court   makes  a  finding  at  a  hearing  conducted   under   AS
47.10.080(l)  that  a parent . . . has not sufficiently  remedied
the  parents . . . conduct or the conditions in the home  despite
reasonable efforts made by the department in accordance with this
section.15   Alaska Statute 47.10.080(l) describes the procedures
to  be  followed  in  conducting a  permanency  hearing  and  the
findings  that  a  superior court must make in  establishing  the
permanent plan for the child.
          The superior court issued an order on February 9, 2006,
finding that OCS did not make reasonable efforts before July  27,
2005,  but  had  begun making reasonable efforts by  October  20,
2005.    The   superior  court  therefore  concluded   that   the
requirements of AS 47.10.086(b) were met and granted  the  states
motion to discontinue making reasonable efforts.
          Audrey  argues  that the superior court  erred  in  two
respects by issuing its order excusing OCS from making reasonable
efforts.  First, Audrey claims that the court had no authority to
order   the  discontinuation  of  reasonable  efforts  under   AS
47.10.086(b)  because the case was not in permanency proceedings.
Second,  Audrey claims that the superior court erred  in  finding
that the states efforts constituted reasonable efforts sufficient
to permit the state to abandon its obligations.
          1.   The failure of the superior court to make findings
               during a permanency hearing that excused OCS  from
               making reasonable efforts was harmless error.
          Under  AS  47.10.086(b) a court may conclude  that  the
continuation  of reasonable efforts is not in the best  interests
of  the child if the court makes a finding at a hearing conducted
under [the permanency hearing provisions of] AS 47.10.080(l) that
a parent or guardian has not sufficiently remedied the parents or
guardians   conduct  or  the  conditions  in  the  home   despite
reasonable efforts made by the department in accordance with this
section.16     CINA Rule 17.1(b) states that [a]t the  permanency
hearing required under AS 47.10.080(l), the court may find that a
continuation  of reasonable efforts is not in the best  interests
of  the  child  under AS 47.10.086(b).  CINA  Rule  17.1(b)  also
provides  that  [a]ny  party recommending  such  a  finding  must
include the recommendation, specifying the factual basis for  it,
in  its  report  for  permanency hearing required  by  CINA  Rule
17.2(c) or in a separate motion.
          Here,   the   state  filed  a  motion  to   discontinue
reasonable efforts in January 2006.  The state briefed the effect
of  parental  refusal to participate in services, and  asked  the
court  to  make  a  finding  that reasonable  efforts  have  been
provided, and for an order that the department may stop providing
these efforts at the next permanency hearing, as provided by CINA
Rule  17.1  and AS 47.10.086(b).17  This motion provided  both  a
recommendation  to  the  court and  the  factual  basis  for  the
requested  finding  that reasonable efforts have  been  made  and
should  be  discontinued at the next hearing.  Audrey  filed  her
opposition to the states motion to discontinue reasonable efforts
on January 30, 2006.

          Rather  than making its findings at the next permanency
hearing   as  required by AS 47.10.086(b) and CINA Rule  17.1(b),
and  as requested by the state in its motion  the superior  court
issued  a  written order on February 9, 2006 granting the  states
motion to discontinue reasonable efforts.  On February 10,  2006,
the  day  after  issuing  its order, the superior  court  held  a
disposition  hearing at which it also made permanency findings.18
At  the  disposition hearing the state acknowledged that  it  had
received  the  courts  order  regarding  the  discontinuation  of
reasonable efforts the day before, and indicated its belief  that
the court was required to hold a permanency hearing within thirty
days  of  issuing its order permitting the state  to  discontinue
reasonable  efforts.  The court, accepting the states  assertion,
indicated its intention to combine the disposition hearing with a
permanency hearing.19  Although the superior court allowed Audreys
attorney  to  object to the courts making permanency findings  at
the  disposition hearing in order to preserve her right to reopen
the  issue  in the future, there is no evidence that Audrey  ever
challenged the findings or requested that the issue be  reopened.
At  the  February 10 disposition/permanency hearing the  superior
court approved the states permanent plan of adoption and required
the  state to file a petition for termination of parental  rights
by March 15, 2006.
          Audrey  argues  that the superior courts written  order
excusing OCS from continuing to make reasonable efforts  was  not
valid  because its findings were not made at a permanency hearing
as  required  by  AS 47.10.086(b).  Audrey is  correct  that  the
superior  court  issued its order granting the states  motion  to
discontinue  reasonable  efforts to reunite  the  family  without
first  holding  a permanency hearing.  However, Audrey  misstates
the facts when she claims that the superior court did not hold  a
permanency  hearing  until  May  2007.   Audrey  also  fails   to
establish that she suffered any prejudice or injury as  a  result
of the courts actions.
          The  superior court should have responded to the states
motion  to discontinue reasonable efforts by holding a permanency
hearing at which it could make the required findings that  Audrey
had  not  sufficiently remedied her conduct or the conditions  in
the home despite reasonable efforts made by the department,20 and
that  discontinuing  reasonable efforts was in Abby and Kits best
interests.21  Instead, the superior court made these findings  in
its  written  order  granting the states  motion  to  discontinue
reasonable  efforts,  and  then  made  permanency  findings   the
following  day  at  the scheduled disposition  hearing.   In  its
written   order   granting  the  states  motion  to   discontinue
reasonable  efforts the superior court found that the  state  had
made  reasonable  efforts by October 2005, that there  is  little
reason  to  believe that further efforts by the State to  provide
family support services to [Audrey] will enable her to modify her
conduct or alleviate the conditions in her home that the children
would be exposed to if returned there, and that [f]urther efforts
to  provide family support to [Audrey] are no longer in the  best
interests of the children.  The superior court therefore made the
          findings required by AS 47.10.086(b) and CINA Rule 17.1(b),
albeit  in a written order and not at a permanency hearing.   The
superior  court  again  made findings on  the  states  reasonable
efforts  in its findings and orders following permanency hearings
held in May 2006 and May 2007.
          Therefore,  although the superior court initially  made
its  findings  in a written order and not during  the  permanency
hearing,  it  did conduct a permanency hearing on  the  following
day,  at  which  it  extended to Audrey the chance  to  be  heard
further  on the matter if she desired.  In addition, the superior
courts February 8 written order contained extensive findings, the
accuracy  and sufficiency of which we discuss below.   While  the
superior  court  should have made its findings at the  permanency
hearing, this error appears to have been harmless because  Audrey
has  not  established that she suffered any  prejudice  from  the
courts decision to make the findings in a written order prior  to
holding a permanency hearing.22  Nor can we imagine any prejudice:
Audrey  was heard on the issue through the opposition brief  that
she  filed,  she  did not seek an evidentiary  hearing  when  the
states motion was before the superior court, and she did not  ask
for  a hearing after the chance to do so was explicitly discussed
with counsel at the disposition/permanency hearing.
          2.   The superior court did not err in finding that the
               state  had made reasonable efforts as required  by
               Alaska Statute 47.10.086(b).
          In  order  to  permit  the state to discontinue  making
reasonable efforts under AS 47.10.086(b), the superior court must
find that the parent has not sufficiently remedied her conduct or
the conditions of the home despite reasonable efforts made by OCS
under  AS  47.10.086(a), and that the continuation of  reasonable
efforts is not in the best interests of the child.23  The timely,
reasonable efforts required of OCS by AS 47.10.086(a) include the
duty  to:  (1) identify family support services that will  assist
the  parent . . . 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; . .  .
and (3) document the departments actions that are taken under (1)
and (2) of this subsection.  When making determinations under  AS
47.10.086,   the  primary  consideration  is  the   childs   best
interests.24
          The  efforts that OCS makes must be reasonable but need
not  be perfect.25 OCSs efforts must be evaluated in light of the
circumstances  of  each  particular case, including  the  parents
actions  or inaction.26  The reasonableness of the states efforts
must  be  viewed in light of the entire history of services  that
the   state  had  already  provided.27   A  parents  demonstrated
unwillingness  to participate in treatment may be  considered  in
determining the reasonableness of state efforts.28
          Here,  the  superior court considered the  entirety  of
OCSs  interactions  with Audrey, beginning in  March  2000.   The
superior  court also considered OCSs efforts to work with  Audrey
following  the removal of Abby and Kit from their  home  in  June
2005.  The superior court concluded that the state did  not  make
          reasonable efforts before July 2005, noting that it was not
reasonable  to  direct  a person with [Audreys]  apparent  mental
health  problems  to  evaluators  but  then  do  little  more  to
determine her status when she failed or was unable to obtain  the
assessments  she  so obviously needed.  The superior  court  then
concluded  that the state had made reasonable efforts by  October
2005,  noting  that the state had arranged for a substance  abuse
assessment  and a neuropsychological evaluation for  Audrey  (and
had gone to great lengths to assure that Audrey would attend) but
that  Audrey had failed to arrive for her appointments  and  that
Audrey  had  continually missed visits with Abby  and  Kit.   The
superior  court  also  found that [f]urther  efforts  to  provide
family support to [Audrey] are no longer in the best interests of
the children.
          In  concluding  that  the  state  had  made  reasonable
efforts  the  superior  court relied  on  the  low  standard  for
reasonable  efforts described in Frank E. v. State[29]  and  Jeff
A.C. v. State.[30]  In Frank E. we held that the state had met the
reasonable efforts requirement even though it had failed to  make
reasonable  efforts during a portion of the time that  it  worked
with the parent.31  We also held in Frank E. that the requirement
that  the  state  offer reunification services  is  fulfilled  by
setting  out  the  types of services that a parent  should  avail
himself  or  herself  of in a manner that allows  the  parent  to
utilize  the  services.32  In Jeff A.C.  we  concluded  that  the
reasonableness of the states efforts may depend on  the  interest
in   parenting   expressed  by  the  parent,  with   the   states
responsibility decreasing as the parents interest decreases.33
          Audrey  argues  that  OCS  failed  to  make  reasonable
efforts, asserting that [b]etween June 8, 2005 and February 2006,
the  states efforts consisted of no more than several hours work,
one  attempt  to pick [Audrey] up for a mental health evaluation,
arranging  two  evaluations, drafting a handful of  letters,  and
dropping them off at [Audreys] trailer.  Audrey claims that these
efforts  were  particularly  unreasonable  in  light  of  Audreys
cognitive and mental disabilities.
          The  state  and  the  guardian ad  litem  dispute  both
Audreys description of the facts and her characterization of  the
states efforts as unreasonable.  We agree with the state and  the
guardian  ad litem.  When considered in the context of  the  full
history  of its involvement with Audrey,34 the states efforts  to
provide family support services to Audrey were reasonable.
          OCS   has  a  long  history  of  working  with  Audrey,
beginning in 1998 when it first received reports of harm that she
was  neglecting her children.  In 2000 OCS arranged and  provided
funding  for  Audrey to undergo a neuropsychological  evaluation.
The  doctor  who conducted the evaluation concluded that  Audreys
most  dramatic symptoms appeared to be psychiatric in origin  and
recommended  medication  management of  depressive  and  paranoid
symptoms  and  goal-focused therapeutic  intervention.   Although
Audrey  did  attend  counseling, she did not  follow  through  on
medication  management.   OCS then  closed  the  case  plan.   In
January  2005  OCS received a report of harm involving  substance
abuse  and  domestic violence between Audrey and  her  boyfriend.
          OCS prepared a care and safety plan for Audrey involving a
substance   abuse   evaluation,  a  mental   health   evaluation,
urinalysis  testing, and counseling, but Audrey  did  not  comply
with the plan.  In March 2005 Bailey, Abby and Kits older sister,
required in-patient psychiatric treatment.  Upon her release from
the  hospital  Bailey was placed into OCS custody because  Audrey
failed  to  work  with  OCS to provide appropriate  services  for
Bailey.  In May 2005 Audrey refused to meet with a social  worker
who  came to the house to discuss Baileys case plan, and then was
absent  when  the  social worker arrived for a subsequent  agreed
upon meeting.35
          In  June 2005 OCS received the report of harm from Abby
and  Kits  school that gave rise to the proceedings at  issue  in
this  case.  Following the initial home visit, OCS created a care
and  safety plan that called on Audrey to clean the house and  to
participate  in  a urinalysis test.  Audrey participated  in  the
urinalysis, which later came back negative for drugs and alcohol.
But  then OCS received additional reports of harm from the  girls
school.   In June 2005 Audrey also discussed with OCS  staff  the
possibility   of  undergoing  a  mental  health  assessment   and
indicated her intention of taking a parenting class.  OCS did not
immediately  make  efforts  to  arrange  for  the  mental  health
evaluation,  and  did  not  arrange the parenting  class  because
Audrey   indicated   that  she  was  already   making   her   own
arrangements.
          At the probable cause hearing in July 2005 the superior
court  found  that the state had not made reasonable  efforts  to
identify  Audreys  needs.   The superior  court  recognized  that
Audrey  has  been  difficult  to  deal  with  recently  and   has
articulated  an unwillingness at times to accept services  or  to
participate  in  a case plan.  Nevertheless, the  superior  court
stated  that because there was evidence that Audrey had  suffered
organic  brain  damage the state had a heightened  duty  to  more
assertively gain Audreys confidence and get her to participate in
an evaluation to gauge the extent of the injury and its potential
impact on Audreys ability to comply with a case plan.
          Immediately  following the probable cause  hearing,  an
OCS  social  worker  arranged for the doctor  who  had  performed
Audreys May 2000 neuropsychological evaluation to conduct another
evaluation and arranged for Audrey to undergo a drug and  alcohol
assessment.   Despite the fact that OCS scheduled  the  drug  and
alcohol  assessment to take place at the OCS offices following  a
regularly scheduled visit between Audrey and the girls;  notified
Audrey  of  the time and location of the appointments orally  and
via  a  letter at her residence, a letter sent by certified mail,
and an e-mail to her attorney; provided Audrey with a bus pass to
get  to  the  OCS  offices  and arranged  to  drive  her  to  the
neuropsychological  evaluation, Audrey missed both  appointments.
Eventually  Audrey made clear that she did not intend to  undergo
any  evaluation.  In January 2006 an OCS social worker  met  with
Audrey in her home to discuss her case plan and provided her with
a packet that contained information on alcohol and drug treatment
and  assessment  resources,  mental health  resources,  food  and
shelter  resources, and also contained bus tokens and  directions
          to a urinalysis facility.
          In  addition  to  providing  services  for  Audrey  and
arranging evaluations, OCS also made repeated efforts to  arrange
visitation  between Audrey and the girls.  After OCS removed  the
girls  from  their home in June 2005, OCS arranged for  in-person
supervised  visitation and allowed daily phone  visitation.   OCS
then  arranged  for  a two-hour visit once  a  week  at  the  OCS
offices.   Audrey  was  late  to  or  completely  missed   visits
throughout June and July, even though OCS had provided her with a
bus pass so that she could attend the visits.  In August 2005 OCS
temporarily  cancelled  Audreys  supervised  visitations  due  to
Audreys  lack  of attendance.  In September 2005 OCS  recommenced
visitation after providing Audrey with a letter that outlined the
conditions  of  visitation.  The letter also made  clear  that  a
visit  would be canceled if Audrey was more than fifteen  minutes
late,  and  that visitation would be suspended again after  three
missed  visits.  OCS suspended visitation again in  October  2005
due  to Audreys lack of contact with and continual disregard  for
the  outlined  visitation guidelines.  Audreys  participation  in
phone  visitation with her daughters was also sporadic,  and  she
stopped accepting their calls in November 2005.
          As  stated above, the superior courts finding  in  July
2005  that  OCS  had  not made reasonable  efforts  was  premised
largely  on  the courts concern that Audreys potential  cognitive
and  mental limitations could be making it difficult for  her  to
work with OCS and to comply with her case plan.  The evidence  is
not  clear  on the degree to which Audreys cognitive  and  mental
conditions  contributed  to  her  demonstrated  unwillingness  to
attend  appointments or to work with OCS on her case  plan.   The
doctor  who  conducted Audreys 2000 neuropsychological evaluation
concluded that Audreys more dramatic symptoms were not consistent
with  the effects of brain lesions and appeared to be psychiatric
in  origin.   The  doctor  further noted that  Audreys  cognitive
functioning  does  not limit her ability to benefit  from  parent
training and other interventions typically provided by [OCS].
          The   record   therefore  shows  that  OCS   repeatedly
attempted   to  arrange  evaluations  and  services  for   Audrey
including neuropsychological evaluations, alcohol and drug  abuse
assessments,  and  urinalysis.  In addition to identifying  these
services,   OCS   took  affirmative  steps  to   ensure   Audreys
participation,   including  paying  for  the   neuropsychological
evaluation,  arranging to drive Audrey to the  neuropsychological
evaluation, arranging for the drug and alcohol assessment  to  be
conducted  at  the OCS office immediately following a  previously
scheduled  visitation, and providing Audrey with bus  passes  and
tokens so that she could attend court hearings, assessments,  and
visitations.   OCS also arranged and facilitated  visits  between
Audrey and the girls.
          OCS  identified  family  support  services  that  would
assist Audrey in remedying the conduct or conditions in the  home
that made Abby and Kit children in need of aid by identifying the
neuropsychological evaluation, drug and alcohol  assessment,  and
urinalysis   testing.36    Had  Audrey  participated   in   these
evaluations,  OCS  would  have been able to  identify  additional
          services catered to her specific needs. OCS actively offered
Audrey,  and  referred  her  to,  those  evaluations  by   making
appointments,    arranging    payment,    and    providing    for
transportation.37  It has not been contested that OCS  documented
these  efforts.38  Although OCSs efforts were not  perfect,  they
were  reasonable,39 particularly in light of Audreys demonstrated
unwillingness  to  participate in treatment.40  Accordingly,  the
superior  court  did not err in finding that the state  had  made
reasonable efforts.
          Because  the superior court did not err in  finding  by
clear and convincing evidence that Abby and Kit were children  in
need of aid and that OCS had made reasonable efforts, and because
the  superior  court found that despite these reasonable  efforts
Audrey  was unable to accept the states offers of assistance  and
was  incapable of caring for the children, the superior court did
not  err  in  concluding that further efforts to  provide  family
support to Audrey would no longer be in the best interests of the
children.41


V.   CONCLUSION
          Because adequate findings supported the superior courts
conclusion  that Abby and Kit were children in need of  aid,  and
because  the  superior court did not err in  authorizing  OCS  to
discontinue making reasonable efforts to reunify the  family,  we
AFFIRM  the  superior courts order terminating  Audreys  parental
rights to Abby and Kit.
_______________________________
     1     We adopt the pseudonyms employed by the state and  the
guardian ad litem for family members involved in this case.

     2    In May 2000 Audrey reported to a neuropsychologist that
she had suffered strokes in 1994 and 1997.

     3     The neuropsychologists May 2000 report indicates  some
skepticism  regarding the nature and severity  of  the  incidents
that  Audrey  describes as strokes, noting,  for  instance,  that
Audreys  records reveal the majority of [Audreys]  complaint  did
not  correlate with area of brain involvement indicated  by  MRI.
The  neuropsychologist concluded that [a]lthough [Audreys] subtle
neuropsychological  impairments  are  consistent  with  site   of
lesion,  her  more  dramatic symptoms  are  not  consistent  with
observed brain lesions, and appear to be primarily psychiatric in
origin.

     4     During  this same month, Audrey was evicted  from  her
home  for  failure  to  pay rent, and also  lost  her  disability
payments, leaving her without financial resources.

     5     By  this  time Abby had been placed with a new  foster
family.  Kit remained with the original foster family.

     6     OCS had originally filed a petition for termination of
parental  rights  in March 2006, but at the May  2007  permanency
hearing  the superior court instructed OCS to submit  an  amended
petition for termination of parental rights.

     7     Brynna B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004).

     8     Id.  (quoting  A.B. v. State, Dept of  Health  &  Soc.
Servs., 7 P.3d 946, 950 (Alaska 2000)).

     9    Id.

     10    Alaska Child in Need of Aid Rule 15(a) provides that an
adjudication hearing is a trial to the court on the merits of the
petition for adjudication that must be completed within 120  days
after  a finding of probable cause is entered.  At the conclusion
of the adjudication hearing the court is to make findings of fact
and  enter a judgment that the child is or is not a child in need
of aid.  CINA Rule 15(d).

     11    CINA Rule 18(b) provides that a termination hearing is
a disposition hearing to the court on the question of whether the
parental rights to an adjudicated child in need of aid should  be
terminated.

     12    See AS 47.10.014.

     13    See AS 47.10.011(9).

     14    See AS 47.10.088.

     15    AS 47.10.086(b).

     16     This provision, under which a court may authorize the
state  to  discontinue making reasonable efforts, should  not  be
confused  with AS 47.10.086(c), under which a court may determine
that reasonable efforts to reunite the family are not required in
the  first  place if the court has found by clear and  convincing
evidence  that one of several enumerated conditions  is  present.
Such conditions include that the parent or guardian has subjected
the  child to circumstances that pose a substantial risk  to  the
childs  health  or  safety including abandonment,  sexual  abuse,
torture,  chronic  mental injury, or chronic physical  harm;  has
committed  felony  homicide  of a parent  of  the  child  or  has
committed   felony  assault  that resulted  in  serious  physical
injury  to  the  child;  or  is not  locatable  by  OCS  after  a
reasonably diligent search of at least three months.   CINA  Rule
17.1(a)  provides that a determination under AS 47.10.086(c)  may
be  made  at any stage of a proceeding upon a motion by a  party.
If  the  court  makes such a determination in a proceeding  other
than  a  permanency hearing, CINA Rule 17.1(c)  states  that  the
court  shall  hold  a  permanency hearing under  AS  47.10.080(l)
within 30 days after the determination.

     17    The state specifically stated that it was not seeking a
finding that reasonable efforts are not necessary, because  these
children did not suffer any of the circumstances described  under
AS 47.10.086(c).

     18     According  to  CINA  Rule  17,  [t]he  purpose  of  a
disposition  hearing is to determine the appropriate  disposition
of  a  child  who  has been adjudicated a child in  need  of  aid
including  whether  the child should be removed  from  her  home,
(CINA  Rule  17(a),(d)(2)) while [t]he purpose of the  permanency
hearing  is  to  establish  a  permanency  plan  for  each  child
committed to state custody including whether the child should  be
returned to the parent, placed for adoption, or placed in another
planned,  permanent living arrangement. CINA Rule 17.2(a),(e)(2)-
(4).

     19    In making its decision to combine a disposition hearing
with  a permanency hearing, the superior court stated that I know
the  rule  says  I  have  to do that in  30  days,   an  apparent
reference to CINA Rule 17.1(c) which provides that [i]f the court
determines  that  reasonable efforts are not  required  under  AS
47.10.086(c) in a proceeding other than a permanency hearing, the
court  shall  hold  a  permanency hearing under  AS  47.10.080(l)
within  thirty  days after the determination.   Accordingly,  the
superior  court  appears to have combined the permanency  hearing
with  the  disposition hearing in an attempt to avoid  holding  a
separate  permanency  hearing within the next  thirty  days.   In
reaching  this decision, however, the court misapplied  the  CINA
rules.   Because  the  states  motion to  discontinue  reasonable
efforts  was  brought under AS 47.10.086(b)  requiring  that  the
findings regarding discontinuation of reasonable efforts be  made
during  the  permanency  hearing  and not  AS  47.10.086(c),  the
thirty day deadline from CINA Rule 17.1(c) did not apply and  the
superior  court had already erred by failing to make the findings
during a permanency hearing before issuing its order granting the
motion to discontinue reasonable efforts.

     20    See AS 47.10.086(b).

     21    See CINA Rule 17.1(b).

     22    See Bennett v. Hedglin, 995 P.2d 668, 674 (Alaska 2000)
(noting this error is harmless because [appellant] has failed  to
demonstrate that the [courts action] caused him prejudice).

     23    See also AS 47.10.080(l)(4)(A).

     24    AS 47.10.086(f).

     25     Jeff  A.C., Jr. v. State, 117 P.3d 697,  706  (Alaska
2005)  (noting that while the states efforts were not  exemplary,
neither were they unreasonable).

     26     Id. at 707 (concluding that the state, in determining
what  efforts  to  reunite parent and child are  reasonable,  may
consider the parents actions).

     27     Erica A. v. State, Dept of Health & Soc. Servs., Div.
of  Family  & Youth Servs., 66 P.3d 1, 7-8 (Alaska 2003)  (noting
that   determination  of  reasonable  efforts   in   context   of
termination  of  parental  rights may  include  consideration  of
efforts  made  by  the state even before affected  children  were
born).

     28     E.A. v. State Div. of Family & Youth Servs., 46  P.3d
986,  991  (Alaska 2002) (applying this principle to  the  higher
standard  of active efforts required in Indian Child Welfare  Act
cases).

     29    77 P.3d 715, 718-21 (Alaska 2003).

     30    117 P.3d at 705-07.

     31    77 P.3d at 720-21 (stating that we examine whether the
states  reunification efforts, when looked at in their  entirety,
satisfy the requirements of AS 47.10.086(a)).

     32    Id. at 720.

     33    117 P.3d at 707 (noting that the states efforts in this
case  to reunite Jeff with Jasmine were reasonably calibrated  to
the interest in parenting demonstrated by Jeff).

     34     See  Erica A. v. State, Dept of Health & Soc. Servs.,
Div. of Family & Youth Servs., 66 P.3d 1, 7-8 (Alaska 2003).

     35     Although  these interactions between OCS  and  Audrey
regarding  Bailey  did  not directly involve  Abby  or  Kit,  the
determination of whether OCS made reasonable efforts may  involve
consideration of all interactions between the parent and OCS. See
id.

     36    See AS 47.10.086(a)(1).

     37    See AS 47.10.086(a)(2).

     38    See AS 47.10.086(a)(3).

     39    See Jeff A.C., Jr. v. State, 117 P.3d 697, 706 (Alaska
2005).

     40     See  E.A. v. State Div. of Family & Youth Servs.,  46
P.3d 986, 991 (Alaska 2002).

     41    See AS 47.10.086(b).

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