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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Doug Y. v. State, Dept. of Health & Social Services, Office of Children't Services (12/3/2010) sp-6527

Doug Y. v. State, Dept. of Health & Social Services, Office of Children't Services (12/3/2010) sp-6527

        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 

DOUG Y.,                                           ) 
                                                   )   Supreme Court No. S-13701 
                        Appellant,                 ) 
                                                   )   Superior Court No. 3AN-07-00279 CN 
        v.                                         ) 
                                                   )   O P I N I O N 
STATE OF ALASKA,                                   ) 
DEPARTMENT OF HEALTH &                             )   No. 6527 - December 3, 2010 
SOCIAL SERVICES, OFFICE                            ) 
OF CHILDREN'S SERVICES,                            ) 
                                                   ) 
                        Appellee.                  ) 
                                                   ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Peter A. Michalski, Judge. 

                Appearances:       Dianne Olsen, Law Office of Dianne Olsen, 
                Anchorage,      for  Appellant.     Laura    C.   Bottger,   Assistant 
                Attorney     General,    Anchorage,      and   Daniel    S.  Sullivan, 
                Attorney   General,   Juneau,   for   Appellee.     Anita   L.   Alves, 
                Assistant Public Advocate, Anchorage, and Rachel Levitt, 
                Public Advocate, Anchorage, for Guardian Ad Litem. 

                Before:   Fabe, Winfree, and Christen, Justices.          [Carpeneti, 
                Chief Justice, and Stowers, Justice, not participating.] 

                CHRISTEN, Justice. 

----------------------- Page 2-----------------------

I.      INTRODUCTION 

               This is a case involving the termination of parental rights of Damien's 
father,   Doug.1   Doug   does   not   contest   that   Damien   is   a   child   in   need   of   aid   under 

AS 47.10.011(6) and (8) resulting from his excessive punishment; he does contest that 

Damien is a child in need of aid under AS 47.10.011(10).              Doug also argues that the 

Office of Children's Services did not sufficiently assist him in complying with his case 

plan.   Having reviewed the record, we affirm the superior court's judgment terminating 

Doug's parental rights. 

II.     FACTS AND PROCEEDINGS 

               Damien was born on November 8, 2000.  He is the only child of Abigail and 
Doug.     Damien is not an "Indian child" under the Indian Child Welfare Act.2   Abigail 

relinquished parental rights on August 18, 2009 and is not a party to this case. 

               Abigail and Doug never married.           During their relationship, Doug was 

arrested and jailed for domestic violence, including one incident of domestic violence 

when Damien was present in the room.           In August 2004 Abigail filed for a protective 

order against Doug alleging that he assaulted her physically and mentally.  At that time 
the court ordered OCS to investigate allegations of child abuse.3 

        A.     Doug's First Interaction With OCS 

               Damien was first placed under the protection of OCS after a Head Start 

report   in   September   2005;   he   was   four   years   old. Head   Start   contacted   OCS   after 

Damien complained that his bottom hurt.  The OCS investigator examined Damien and 

        1      Pseudonyms are used to protect the privacy of family members. 

        2      25 U.S.C.  1903(4) (2006). 

        3      The record does not reflect any results of the investigation. 

                                                -2-                                             6527 

----------------------- Page 3-----------------------

found raised red and purple bruises on his bottom.   Damien reported that Doug used a 

wooden spoon to beat him as a form of discipline.  OCS immediately took Damien into 

emergency custody.  After contacting his family, OCS placed Damien with his paternal 

step-grandmother, Joan. 

              OCS developed a case plan for Doug directing him to services including 

anger management and parenting classes.    OCS also recommended that Damien begin 

counseling, making a referral for Damien and attempting to enroll him with a counselor. 

Doug refused to agree to counseling for Damien. He told the social worker that he would 

not agree for Damien to go to counseling unless Abigail went to counseling.     Family 

counseling was presented as an option and Abigail agreed to engage in the sessions, but 

Doug never followed through.     However, Doug completed his parenting classes and 

anger management classes and in July 2006 Damien was released to Doug's custody. 

       B.    Doug's Second Interaction With OCS 

             Just over a year later, on August 30, 2007, OCS again became involved with 

Doug    when   Chester  Valley  Elementary   School   contacted  the  Anchorage   Police 

Department (APD) and reported that Damien had suffered injuries. The responding APD 

officer took photographs of Damien showing extensive welts and bruises on his back, 

torso, bottom, and arms.   Doug admitted that he used a leather belt to repeatedly hit 

Damien as punishment for receiving a disciplinary note at school.  Damien told the OCS 

social worker "he wanted his dad to go to jail so his dad would quit beating him." 

             Doug was arrested and charged with domestic violence assault and child 

abuse.   He pled no contest to the domestic violence assault charge and stipulated that 

Damien was a child in need of aid under AS 47.10.011(6).  The stipulation was adopted 

by the superior court in April 2008. 

                                          -3-                                     6527
 

----------------------- Page 4-----------------------

                Damien was taken into OCS custody on September 5, 2007 for the second 

time in less than two years, and he was again placed in the custody of his grandmother 

Joan.   Upon returning to his grandmother's care, Damien expressed excitement that his 

father would no longer be able to beat him.  He said he was happy his father was in jail. 

                In   the   months   that   followed,   Damien   remained   in   fear   and   exhibited 

separation anxiety.   Joan noticed that she "literally could not go to the restroom without 

him sitting outside the door crying and saying someone is going to get him."                  Damien 

had nightmares about his father coming to beat him again.  The nightmares were severe 

enough that he would wake his grandmother to have her check that the burglar alarm was 

on.   At other times, Damien approached his grandmother and asked her to beat him like 

his   father   would,   once   looking   for   a   belt   to  bring   to   her. Damien   had   behavioral 

problems at school and at home during this period. 

                In September 2007 Damien was given a mental health examination by Staci 

Miller, LPC. Miller did not diagnose Damien with post-traumatic stress disorder (PTSD) 

but she opined that Damien might receive this diagnosis if more information became 

available. Miller referred Damien to the Anchorage Community Mental Health Services 

Trauma      Center    (Trauma     Center)    for  individual    and   family    therapy.    She     also 

recommended continued therapeutic support through On Target, a cooperative program 

between his school and a local mental health center. 

                Miller recommended against Doug visiting Damien.                 She noted Doug's 

"disregard for appropriate parenting help and not taking responsibility for               removals." 

She also highlighted Damien's "fear of his father."  Miller was concerned that visitation 

would be detrimental to any progress that Damien would hopefully make in "a stable, 

non-abusive environment and therapy." 

                                                  -4-                                            6527
 

----------------------- Page 5-----------------------

                Based on Miller's recommendation, Damien began therapy with Kristin 

Howard, LPC at the Trauma Center.  Howard, like Miller, recommended that Doug not 

have visitation with Damien because it was against Damien's best interest.                    During 

therapy sessions, Damien repeatedly expressed fear of his father, fear of being sent back 
to live with his father, and fear that he would be subjected to beatings.4   Damien was 

plagued by "nightmares of his father  drowning him, killing him, hurting him, [and] 

beating   him."    During   therapy   sessions   he   often   manifested   classic   signs   of   PTSD 

including physiological arousal (rapid heartbeat and shaking) and avoidant behavior 

(lowering his head in shame and refusing to talk).             Howard diagnosed Damien with 
PTSD and attention deficit hyperactivity disorder (ADHD).5 

                Howard noted that Damien showed progress and improvement during her 

sessions   but   was   prone   to   return   to   problem behavior   when   confronted   with   abuse 

triggers.   Damien's triggers included Doug's facial expressions or seeing Doug's belt. 

Damien told Howard that "every time he closed his eyes he would see his father beating 

him."  By April 30, 2009, Howard assessed that Damien still did not feel safe around his 

father. 

                Howard focused on developing a sense of security and stability in Damien. 

She worked on family therapy with Joan and Damien to increase his sense of security and 

attachment.  Focus was also placed on developing "routines and rituals in his life to help 

him feel safe."     Work was done to "help create physical and emotional safety in the 

home,   and   school,   and   in   the   clinic   and   the   community." Howard   helped   Damien 

        4       He continued to express these fears as late as May 2009. 

        5       North Star Behavioral Health later adjusted his diagnosis to include bipolar 

disorder not otherwise specified on June 22, 2009.             Howard seemed skeptical of the 
addition of bipolar disorder to Damien's diagnosis. 

                                                 -5-                                              6527 

----------------------- Page 6-----------------------

develop coping strategies for moments when his PTSD was triggered.  The overarching 

goal was to help Damien attain a sense of safety and stability. 

                In addition to individualized therapy, Damien received school and social 

services.    He participated in On Target to help reduce anxiety at school, and received 

psychiatric services to help with his PTSD and ADHD.                  Alaska Children's Services 

provided      intensive   rehabilitation,    including    case   management       and   family    skill 

development.  All of these services were aimed at dealing with Damien's mental health 

issues and sense of security and stability. 

        C.      Doug's Case Plan 

                Following the September 2007 removal, Doug received a psychological 

evaluation as part of his OCS case plan.         The stated permanency goal of the case plan 

was "reunification."      In November 2007 Dr. Michael Rose conducted a psychological 

evaluation   of   Doug   as   part   of   the   case  plan. His   report   was   provided   to   OCS   in 

February 2008. 

                Dr. Rose reviewed mental health records, interviewed Doug twice, and 

administered a battery of diagnostic testing.  He ultimately diagnosed Doug as meeting 

the diagnostic criteria for child abuse and personality disorder not otherwise specified 

with antisocial features.  His assessment indicated that Doug did "not appear to be in a 

position to independently care for [Damien] . . .         and it is difficult to know if he will be 

able to make changes that will allow him to appropriately parent his son in the future." 

He observed that Doug "has had multiple opportunities to make changes in his parenting 

practices and to enter family therapy to address problems between [Damien] and himself 

but has apparently made few if any [changes]."             Dr. Rose linked Damien's PTSD to 

Doug's abusive practices, concluding that "exposing [Damien] again to the possibility 

of further physical or psychological abuse by [Doug] may be entirely too risky." 

                                                  -6-                                           6527
 

----------------------- Page 7-----------------------

                Based on his evaluation Dr. Rose concluded that it was "doubtful [Doug] 

will be able to make the changes necessary to effectively parent [Damien] in the future." 

He nonetheless provided five recommendations to help Doug "get into a position to care 

for [Damien]."      Dr. Rose's first recommendation was that Doug address financial and 

housing issues. Doug was unemployed and living with his father at the time. The second 

recommendation         was   that   Doug    "enter   individual    psychotherapy       to  address    his 

Personality Disorder with antisocial features, anger management difficulties, and low 

frustration tolerance."  He cautioned that Doug would "require a considerable treatment 

period   to   properly   address   [these   issues]."   He   also   warned   that   "individuals   with 

[Doug's] diagnoses are difficult to successfully treat, and they are typically resistant to 

virtually any form of psychological intervention."  He concluded that "[u]nless [Doug] 

can make significant progress toward addressing his psychological and life adjustment 

problems, it is unlikely he will be able to satisfactorily meet [Damien's] needs."                  The 

third   recommendation   was   that   Doug   needs   to   appreciate   "the   nature   and   extent   of 

[Damien's] psychological problems" and therole he played in contributing to them.  The 

fourth was that Doug "abstain from the use of all substances since he may be addiction- 

prone."     Finally,   Dr.   Rose   recommended  that   once   Doug   made   "demonstrable   and 

consistent progress" with the first four objectives that he be allowed supervised visitation 

with Damien. 

                Dr. Rose's recommendations were incorporated into a revised case plan 

dated February 2008.   The revised case plan continued to set a goal of reunification, and 

made   clear   that   Doug   needed   to   make   "substantial   progress   with   his   mental   health 

therapy"   before   he   could   progress   to   reunification.   A   revised   May   2008   case   plan 

continued with the goal of reunification.  By August 2008 OCS's recommendation for 

Damien's permanency plan shifted to the concurrent goals of adoption and reunification, 

                                                  -7-                                             6527
 

----------------------- Page 8-----------------------

with an observation that given "the parents' lack of engagement in case plans, the goal 

of adoption is recommended over reunification." 

        D.      Doug's Visitation With Damien 

                Doug was not allowed any visitation with Damien until late January 2008. 

Visitation was permitted only after Damien stabilized to some extent and options for 

therapeutic supervised visits had been explored and rejected as unfeasible.              OCS made 

the decision to allow supervised visitation after consulting with Howard.                Doug was 

asked to write letters to his son before visitation began, but the first letter Doug wrote 

was deemed inappropriate and was not shared with Damien.                   The second letter was 

appropriately   nurturing   and   supportive,   and   Howard   shared   it   with   Damien.      The 

expectation was that Doug would continue to write letters, but he never did. 

                Doug missed several visits.  As a result, OCS imposed a rule requiring that 

Doug arrive 30 minutes early to each visit to avoid upsetting and disappointing Damien 

if Doug did not arrive.       Eventually Doug was able to establish consistency and was 

permitted to simply call and confirm that he was coming to a visit.            Doug's supervised 

visits generally went well.   But during one visit David Pieper, a supervising OCS social 

worker,   found   Doug   to   be   overly   rigid   and   controlling. Gail   Davis,   another   OCS 

supervisor, expressed concern that Doug was sometimes rigid and overly focused on the 

same issues, which upset Damien. 

                The visits influenced Damien's behavior.         After visits he would often cry 

at school and need to talk about his feelings.  Howard felt the visits made Damien miss 

his father while also functioning as trauma triggers; after visits were established, Damien 

continued to report PTSD symptoms, had nightmares about his father killing him, drew 

pictures of his father hurting him, and feared someone was coming to get him. 

                                                 -8-                                            6527
 

----------------------- Page 9-----------------------

               Damien's teacher reported the visits were more disruptive and upsetting to 

Damien than to other children who had supervised OCS visitations.  In his view, while 

other children were upset because they wanted to visit with their parents, Damien's 

anxiety did not arise from the same feelings. He described that before visits, Damien was 

nervous and withdrawn, cried easily, and said he did not want to go.  When he returned 

from visits, Damien was withdrawn, very sensitive to space, easily agitated, and cried. 

Damien told his teacher that the visits were stressful because he was afraid of his father. 

               Joan    functioned    as  a  visitation  supervisor    during   a  November      2008 

basketball game that Doug wanted to attend.             Before attending the game Doug was 

instructed not to discipline Damien in any way.  But during the game Doug felt Damien 

was being disrespectful to his coach, and he verbally reprimanded Damien. The incident 

upset Damien because he was concerned his father may hurt him.                 Damien burst into 

tears and would not go out to play at the start of the second half.  After the incident, Joan 

refused to supervise any future visits. 

        E.     Doug's Visitation With Damien Ends 

               In early March 2009 Damien called Dave Pieper, his OCS social worker, 

to report an incident that occurred during a restroom break at a recent OCS supervised 

visit.   Pieper later testified that Damien called while on vacation with his grandmother, 

reported that "he was really scared . . . [and] . . . would feel better if he could just tell 

somebody" that during a recent OCS visit he went to the restroom with his father who 

told him, "if he keeps talking and telling people what - what had happened that dad 

would hunt him down." Pieper testified that Damien reported feeling better after sharing 

this   information.   Pieper   immediately   relayed   the   information   to   his   supervisor   and 

Howard. 

                                                 -9-                                           6527
 

----------------------- Page 10-----------------------

                The   incident   and   Damien's   feelings  about   the   incident   led   Pieper,   his 

supervisor at OCS, and Howard to agree to stop Doug's visitation.   Howard noticed that 

after    the   incident    Damien     was    decompensating        quickly    and    was    at  risk   for 

hospitalization.   The goal of stopping visitation was to stabilize Damien and reduce the 

stressors in his life. 

                On April 20, 2009, Howard indicated that Damien would continue to need 

therapy   to   address   his   PTSD.     She  also   concluded   that   his   therapy   would   only   be 

successful   if   he   attained   psychological  safety,   which   would   not   be   possible   with 

uncertainty about his permanent placement.               In her view, permanent placement and 

stability   were   necessary   for   Damien   to   begin   to   fully   heal   from   the   trauma   he   had 

suffered.    Howard believed that Damien had a good prognosis as long as he was not 

exposed to "any further traumatic events and he has a stable caregiving system that 

understands his psychological needs and can respond to him in a safe manner." 

                In May 2009 Damien was hospitalized at North Star Behavioral Health for 

40 days to stabilize his medication.         Damien returned to Joan after his discharge from 

North Star Behavioral Health, and was able to use coping skills to remain calm. 

        F.      Termination Of Doug's Parental Rights 

                OCS's August 11, 2008 report for permanency hearing stated that if Doug 

was "unsuccessful in [his] quest to regain custody of [Damien] and [Damien] is unable 

to demonstrate an ability to be reunified, [OCS] would seek to accomplish an adoption." 

The report noted that Doug had "not made substantial progress in his case plan," stating 

that "he has not engaged with [his] therapist."            Doug did not dispute that he failed to 

engage in the therapy required by his case plan, but asserted that he "has made the 

changes necessary internally on his own."  OCS reported that AS 47.10.088(d) required 

                                                  -10-                                             6527
 

----------------------- Page 11-----------------------

OCS to file a petition for termination of parental rights because Doug had "made little 

or no effort to remedy his . . .  conduct by the time of the permanency hearing." 

                After the September 2007 removal, Doug only attended four sessions with 

his mental health therapist Linda King - one in 2007, two in March 2008, and one in 

April 2009.   The case plan also required Doug to complete anger management therapy, 

but he only attended some of the initial anger management classes.               Doug participated 

in   a   substance   abuse   program   at   the   Salvation   Army's   Clitheroe   Center,   but   was 

discharged for testing positive for marijuana and reporting alcohol use.                A substance 

abuse assessment after his discharge from the Clitheroe Center recommended continued 

treatment and monitoring of Doug's marijuana use.              Doug was referred for urinalysis 

testing twice a week.   He tested positive for marijuana on several occasions and missed 

many scheduled tests. 

                Doug made some progress toward establishing greater financial security by 

enrolling in an apprentice program and other training.             But he had limited success in 

obtaining regular employment, and he left employment that paid $10 an hour because he 

thought it did not pay enough. 

                OCS filed a petition for termination of parental rights in February 2009. 

The termination of parental rights trial was held on July 15-17, July 27, August 18, and 

August 21, 2009.   At the end of the trial, the superior court terminated Doug's parental 

rights to Damien.  It found by clear and convincing evidence that Damien was a child in 

need of aid under AS 47.10.011(6) (physical harm), and (10) (substance abuse); that 

Doug failed to remedy the conduct that placed Damien at risk of harm; and that OCS 

made reasonable efforts in support of reunification.  The superior court also found by a 

preponderance of the evidence that it was in Damien's best interest to terminate Doug's 

parental   rights.    The   superior   court   subsequently   made   permanency   findings   that 

                                                 -11-                                           6527
 

----------------------- Page 12-----------------------

placement of Damien with his grandmother Joan was in Damien's best interests, and 

instructed counsel to relay that finding to Damien so that he would not worry about being 

returned to his father's care. 

              Doug appeals. 

III.   STANDARD OF REVIEW 

              In a child in need of aid (CINA) case, we review a superior court's findings 
of fact for clear error.6 Findings of fact are clearly erroneous if a review of the entire 

record in the light most favorable to the party prevailing below leaves this court "with 
a definite and firm conviction that a mistake has been made."7         We review de novo 

whether a trial court's findings satisfy the statutory requirements of the CINA statutes.8 

IV.    DISCUSSION 

              Before the superior court may terminate parental rights, OCS must prove 

three elements by clear and convincing evidence.  OCS must prove:  (1) that "the child 

has been subjected to conduct or conditions described in AS 47.10.086" making the child 
a "child in need of aid";9 (2) that the parent "has not remedied the conduct or conditions 

in the home that place the child at substantial risk of harm";10 or "has failed, within a 

reasonable time, to remedy the conduct or conditions in the home that place the child at 

       6      Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 88 P.3d 527, 529 (Alaska 2004) (citing A.B. v. State, Dep't of Health & Soc. 
Servs., 7 P.3d 946, 950 (Alaska 2000)). 

       7      Id. (quoting A.B., 7 P.3d at 950). 

       8      Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 102 P.3d 932, 935 (Alaska 2004). 

       9      AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A). 

       10     AS 47.10.088(a)(2)(A); CINA Rule 18(c)(1)(A)(i). 

                                            -12-                                       6527
 

----------------------- Page 13-----------------------

substantial risk of physical or mental injury;11 and (3) that OCS has made reasonable 

efforts under AS 47.10.086 to provide family support services to the child and to the 
parents of the child designed to enable the safe return of the child to the family home.12 

OCS must also prove by a preponderance of the evidence that termination of parental 
rights is in the best interests of the child.13   Doug challenges each element of the superior 

court's findings relating to the termination of his parental rights. 

        A.	     A Finding That Damien Is A Child In Need Of Aid Under Any Part Of 
                AS 47.10.011 Is Sufficient To Support Termination. 

                The superior court found that Damien was a child in need of aid under 

AS 47.10.011(6) (physical harm) and (10) (substance abuse) based on Doug's conduct. 

Doug concedes that Damien is a child in need of aid under AS 47.10.011(6) (physical 

harm) and (8) (mental injury) as a result of his excessive discipline.  But Doug disputes 

the superior court's finding under AS 47.10.011(10) (substance abuse). 

                A    finding   that  a  child  is  a  child  in  need   of  aid  under    any   part  of 
AS 47.10.011 is sufficient to support termination.14           Doug's concession that Damien is 

a child in need of aid under AS 47.10.011(6) (physical harm) is sufficient to support the 

        11      AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(ii). 

        12      AS 47.10.088(a)(3); CINA Rule 18(c)(2)(A). 

        13      AS 47.10.088(b), (c); CINA Rule 18(c)(3). 

        14      See Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family & 

Youth Servs., 165 P.3d 605, 618 (Alaska 2007) ("Because either [CINA] finding alone 
would support the termination order and because [appellant] does not challenge the 
court's finding of abandonment, her challenge to the mental illness finding has no impact 
on the outcome of the case."); Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of 
Family & Youth Servs., 74 P.3d 896, 902 n.7 (Alaska 2003) ("Sherry also makes an 
argument   concerning   her   personality   disorder,   however,   because   we   affirm  the   trial 
court's decision on other grounds, we do not address this argument.") 

                                                 -13-	                                           6527
 

----------------------- Page 14-----------------------

termination order, making review of the finding under AS 47.10.011(10) (substance 

abuse) unnecessary. 

        B.	     Doug      Did   Not    Remedy      The    Conduct      That    Placed    Damien      At 
                Substantial Risk Of Harm. 

                The superior court found that Doug failed to remedy the conduct that placed 

Damien at risk of harm.  Doug argues that it was clearly erroneous for the superior court 

to find that he had not remedied his conduct or could not remedy it within a reasonable 

period of time. 

                In making a determination that a parent failed to remedy the conduct or 

conditions that place the child at substantial risk of harm we may consider five factors 

under AS 47.10.088(b): 

                (1)	    the   likelihood   of   returning   the   child   to   the parent 
                        within a reasonable time based on the child's age and 
                        needs; 
                (2)	    the   amount   of   effort   by   the   parent   to   remedy the 
                        conduct or the conditions in the home; 
                (3) 	   the harm caused to the child; 
                (4) 	   the likelihood that the harmful conduct will continue; 
                        and 
                (5)	    the history of conduct by or conditions created by the 
                        parent. 

We note "the best interest factors listed in the statute are not exclusive and the superior 
court need not accord a particular weight to any given factor."15          The superior court must 

"consider the best interests of the child"16 and may "consider any fact relating to the best 

        15      Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 234 P.3d 1245, 1263 (Alaska 2010). 

        16      AS 47.10.088(c). 

                                                 -14-                                              6527 

----------------------- Page 15-----------------------

interest of the child,"17 including the statutory factors, in terminating parental rights. 

Here all five factors support a determination that Doug did not remedy the conduct or 

conditions placing Damien at substantial risk of harm. 

               1. 	   Damien   has   a   low   likelihood   of   returning   to   Doug   within a 
                      reasonable time. 

               The superior court found that Doug "failed to acknowledge or accept that 

he is the cause of [Damien's] fear." Dr. Rose's evaluation placed a high priority on Doug 

acknowledging that his actions were wrong.          According to Dr. Rose, Doug needed to 

appreciate "the nature and extent of [Damien's] psychological problems" and the role he 

played in contributing to them.     Doug's own expert, Vivian Patton, explained, "[Doug 

is] not conscious or aware that a change needs to occur."  In his own testimony, Doug 

described the incidents as "fall[ing] short as most people do," trivializing the severity of 

his conduct and the serious impact his conduct had on Damien. The court concluded that 

Doug "has not taken responsibility in the sense of thinking that what he has done is 

wrong. Change has not occurred." The superior court commented that Doug "comes off 

kind of blaming everybody else," that Doug blamed his girlfriend and her children for 

distracting his focus on Damien, and that he blamed having "too much on [his] plate and 

not knowing how to properly address everything." Ultimately, the superior court saw the 

situation "as a failure [of Doug] to fulfill [his] obligations."     Doug's unwillingness to 

take responsibility for his actions in the two years since he first came into contact with 

OCS illustrates that there is a low likelihood of reunification in the reasonable future. 

        17     AS 47.10.088(b). 

                                              -15-	                                          6527 

----------------------- Page 16-----------------------

                2. 	    Doug only put in a minimum  amount of effort to remedy his 
                        conduct. 

                The superior court found that Doug "engaged only minimally in his case 

plan."   On appeal Doug emphasizes that he had learned a skill that would allow him to 

obtain gainful employment to support himself and his son, had completed some of the 

classes required by his case plan, and had participated in whatever counseling and anger 

management he could afford. 

                The record shows that in the two years between the second incident and 

trial, Doug failed to seriously undertake the kind of counseling and therapy necessary to 

make him a safe parent for Damien.  Dr. Rose and OCS repeatedly emphasized that the 

most important part of Doug's case plan was individual therapy, yet Doug only attended 

four sessions between 2007 and 2009.             Doug did not follow through on his required 

anger management classes, and essentially ignored or  rejected the recommendation that 

he abstain from marijuana and alcohol use. 

                Doug contended that he could not afford more therapy sessions, but his 

claims that he would restart and complete counseling and substance abuse treatment once 

he had a higher income are contradicted by the record.              He admitted at trial that "the 

financial   reasons   weren't   the   biggest" reasons   he   did   not   continue   therapy,   and   he 

testified that he did not complete the substance abuse program because he was being "put 

through   something   that   [he]   didn't   feel   [he]  needed   to   go   through." Based   on   this 

evidence, the superior court did not err in concluding that the real problem in this case 

was Doug's "feelings and his attitude and his responsibility to [the problems identified 

by OCS]," rather than his financial limitations.          Doug's actions and attitude indicate a 

minimal amount of effort to remedy the conduct that made Damien a child in need of aid. 

                We have repeatedly recognized that a child's need for permanence and 

stability should not be put on hold indefinitely while the child's parents seek to rectify 

                                                 -16-	                                           6527
 

----------------------- Page 17-----------------------

the circumstances that cause their children to be in need of aid.18             Because Doug failed 

to take therapy seriously, the superior court was forced to consider that Doug would have 

to start the therapeutic portion of his case plan from the beginning.              Dr. Rose believed 

that   Doug   would   "require   a   considerable   treatment   period   to   properly   address   [his 

issues]" and that even under the best of circumstances making the necessary changes 

would "take[] a year or more of sustained therapy."               Giving Doug another chance to 

remedy the conduct that made Damien a child in need of aid would inevitably extend 

Damien's   period   of  uncertainty   and   instability.      The   superior   court   was   required   to 

consider this factor when it ruled on the second element of the termination petition. 

                3.      Damien suffered significant harm as a result of Doug's conduct. 

                Doug was involved with OCS for over two years. He first came into contact 

with OCS in September of 2005 after he beat Damien with a spoon and left significant 

bruises. His second contact came in September of 2007 when he beat Damien with a belt 

and left extensive welts and bruises on Damien's back, torso, legs, and bottom.  Damien 

suffered tremendous trauma from the incidents and continued to suffer from them at the 

time of the trial:  he had nightmares of his father beating and killing him; mental health 

professionals diagnosed Damien with PTSD resulting from Doug's abuse; and Damien 

repeatedly described significant fear of his father and the possibility that he might be 

returned to his father's care.        We agree with the superior court's assessment of the 

evidence:   Damien suffered significant harm as a result of Doug's conduct. 

        18      See,   e.g.,   Kent   V.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 

Children's Servs., 233 P.3d 597, 603 (Alaska 2010);  Carl N. v. State, Dep't of Health 
and Soc. Servs., Div. of Family & Youth Servs., 102 P.3d 932, 936-37 (Alaska 2004); 
J.H. v. State, Dep't of Health & Soc. Servs., 30 P.3d 79, 87 (Alaska 2001). 

                                                  -17-                                               6527 

----------------------- Page 18-----------------------

                4. 	    There is a high likelihood that Doug will continue to engage in 
                        harmful conduct. 

                Doug's   failure   to   take   full   responsibility   for   his   conduct   is   a   strong 
indication that abuse may occur again.19         In fact, Doug was involved in several incidents 

during visitation that raised significant concerns, ultimately leading to discontinuation 

of the visits.    OCS supervisors found some of Doug's conduct rigid and controlling. 

During a basketball game, Doug verbally disciplined Damien after he was instructed not 

to do so.   That incident left Damien in tears and in fear that Doug may hurt him.  During 

another visit, Doug threatened to "hunt down" Damien if he continued to tell people what 

Doug had done.   Visitation was stopped because Damien was decompensating and was 

at   risk   for   hospitalization. Rather   than   taking   responsibility   for   his   conduct,   Doug 

complained that he did not get credit for the days when he was not abusing Damien. 

Given this record, the superior court correctly concluded that "change has not occurred." 

                5. 	    Doug's history of conduct warrants termination. 

                Doug beat Damien on at least two occasions over a two-year span, thus 

requiring   OCS   intervention.        He   threatened   and   intimidated   Damien,   leaving   him 

suffering with significant anxiety and PTSD.  Doug also failed to engage in the case plan 

designed      by  OCS     to  rectify  his   conduct    and   demonstrate     that   he  is  capable    of 

reunification.    Doug's conduct and the harm done to Damien resulted in the superior 

court's well-supported conclusion that "it is contrary to the welfare of the child to return 

[him to Doug]." 

        19      Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 74 P.3d 896, 903 (Alaska 2003) ("The superior court is entitled to rely on a 
parent's documented history of conduct as a predictor of future behavior." One predictor 
of future behavior is the parent's failure to "fully accept or understand [his] children's 
disabilities."). 

                                                  -18-	                                            6527
 

----------------------- Page 19-----------------------

                C.      OCS Made Reasonable Efforts To Provide Doug With Family 

Services. 

                A court considers reunification efforts in their entirety when reviewing 
whether   OCS   made   reasonable  efforts.20        The   superior   court   found   that   OCS   made 

reasonable efforts to provide family support services to Doug, including "repeated efforts 

to engage [Doug] in a case plan and in substance abuse treatment."                 Doug raises seven 

contentions   in   support   of   his   argument   that   OCS   failed   to   make   reasonable   efforts, 

claiming that OCS failed to assist him in:            (1) obtaining counseling; (2) obtaining a 

parenting assessment; (3) obtaining an updated evaluation by Dr. Rose; (4) keeping Doug 

informed   about   Damien's   schooling   and   medication;   (5)   participating   in   Damien's 

treatment team meetings; (6) ensuring Doug and Damien's therapists had necessary 

information; and (7) visiting Damien. Having considered these arguments, we agree with 

the superior court that reasonable efforts were made. 

                1.      Assisting Doug in obtaining counseling 

                Doug argues that OCS's failure to help him pay for counseling or assist him 

in obtaining affordable counseling constitutes a failure to make reasonable efforts.  OCS 

counters that it was not OCS's duty to request or provide funding to pay for Doug's 

ongoing therapy, particularly under the circumstances of this case. 

                Doug primarily relies on  Section 6.2.2.7 of the OCS's Child Protective 

Services   Manual   to   support   his   argument   that   OCS   should   have   helped   pay   for   his 

ongoing   individual   therapy.        This   provision   covers   special   needs   funds,   and   lists 

"counseling, therapy" among the services that can be provided to parents.  The manual 

        20      Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 234 P.3d 1245, 1262 (Alaska 2010) (citing Frank E. v. State, Dep't of Health & 
Soc. Servs., Div. of Family & Youth Servs., 77 P.3d 715, 720 (Alaska 2003)). 

                                                  -19-                                               6527 

----------------------- Page 20-----------------------

states "OCS may pay for counseling or therapy services only when it is necessary to . . . 

return a child to the child's own home."        It also explains that "OCS is the payer of last 

resort.   Consideration must be given to the parent's resources/income, insurance, and/or 

Medicaid.      Providers who have sliding scale  fees should be used if appropriate and 

available.   Requests are reviewed on a case-by-case basis." 

                As OCS points out, Doug never presented this policy at trial.            And while 

Doug often stated at trial that his ability to participate in counseling was limited by his 

ability to pay, he also conceded that "financial reasons weren't the biggest thing" keeping 

him from participating in individual therapy.  Doug also chose his individual therapist, 

although more affordable options were available.  Doug's social worker spoke with his 

therapist about the possibility of payment on a sliding scale; when that option proved 

unavailing he asked Doug if he would be willing to see a different, more affordable 

therapist. Doug refused. Doug's expert also indicated that, "there are programs out there 

that do deferred fees or sliding scale fees and those programs should be sought out." 

Doug chose not to seek counseling services from other programs or more affordable 

providers. 

                The   evidence   strongly   suggested   that   Doug's   inability   to   pay   was   a 

secondary reason why he did not attend therapy. Doug's trial counsel seemed to concede 

this point, stating that therapy "didn't seem profitable to [Doug]" because he perceived 

his therapist had not received all the information she needed to help him.  Further, Doug 

chose not to keep the job he held at the beginning of the case plan. 

                2.     Obtaining a parenting assessment 

                Doug argues that OCS failed to make reasonable efforts because it did not 

obtain   a   parenting   assessment   evaluating   Doug's   interactions   with   Damien.      Doug 

emphasizes that on several occasions persons involved with the case recommended a 

                                                -20-                                            6527
 

----------------------- Page 21-----------------------

parenting   assessment   evaluating   Doug   and   Damien.           But   Dr.   Rose   did   conduct   a 

parenting assessment, just not one with Doug and Damien together.  Dr. Rose explained 

at trial that for a parenting evaluation "there's not necessarily a need for observing 

parents and children together," and that in an abuse case the "concern would be primarily 

with the parent's behavior."   Dr. Rose testified  that a parenting assessment addressing 

only   parenting   capacity,   and   not   parent-child   bonding,   was   sufficient   in   this   case. 

According to Dr. Rose, a bonding assessment might have been helpful after Doug made 

progress     on  his   individual   therapy,    but  the  centerpiece   of   Doug's   case   plan   and 

Dr.    Rose's    evaluation    was    individual    mental    health   therapy    to  address    Doug's 

psychological and anger management issues.  Doug's case plan specifically emphasized 

that his progress in the area of parenting would only come after he made substantial 

progress with his mental health therapy.  Because Doug failed to make progress with his 

own   mental   health   therapy,   he   never got   to   the   point   where   a   parent-child   bonding 

assessment was indicated.  The failure to obtain a bonding assessment was not a failure 

to make reasonable efforts. 

                3.      Obtaining an updated evaluation by Dr. Rose 

                Doug also argues that OCS failed to make reasonable efforts because it did 

not get an updated evaluation of Doug by Dr. Rose.                We are not persuaded there was 

need for Dr. Rose to conduct an updated psychological evaluation because Doug made 

so little progress in his mental health therapy. 

                In his argument on appeal, Doug emphasizes that psychological evaluations 

are usually updated once a year, and that Dr. Rose specifically requested, but was denied, 

the opportunity to evaluate Doug a second time.  While this may be the case, Dr. Rose 

testified at trial that if Doug "has not engaged in the services that I recommended since 

the time I made the recommendations then there's no evidence . . .  that there have been 

                                                  -21-                                             6527
 

----------------------- Page 22-----------------------

any    significant   changes."     We   agree.    Doug's    failure  to  address   his  significant 

psychological and anger management issues negated any need for an updated evaluation. 

OCS was not required to pay for a new evaluation when there was no objective reason 

to conclude that Doug had made progress in his case plan. 

               4.	     Keeping      Doug     informed      about    Damien's      schooling     and 
                       medication 

               Doug argues that OCS failed to notify him of important decisions relating 

to Damien's education and medical treatment.             But Damien's doctor, not OCS, was 

obligated to notify Doug of important medical decisions.  Doug also argues OCS never 

informed him of Damien's placement at North Star Behavioral Health, but the record 

shows that OCS sent Doug notice by mail.  As for Doug's argument that OCS failed to 

keep him informed of Damien's school transfer, the transfer from one school to another 

was based on the school's Individualized Education Program for Damien, not OCS's 

actions.    None of these alleged shortcomings rises to the level of a failure to make 

reasonable efforts. 

               5.	     Allowing      Doug    to  participate    in  Damien's     treatment team 
                       meetings 

               Doug argues that OCS should have allowed him to participate in Damien's 

treatment team meetings.       This argument overlooks that OCS initially sought to have 

Doug   participate   in   Damien's   therapy,   and   Doug   chose   not   to   participate. Howard 

testified that Doug initially expressed a desire not to participate in Damien's therapy. 

Further, when Doug did appear at a team meeting in January 2009, he appeared late, was 

hostile, and was antagonistic.      Doug raised his voice when he arrived in the lobby and 

upset Damien who was escorted out of the lobby by a therapist.  Doug was told that he 

would not be able to participate in that meeting, and that future participation would 

depend on Damien's best interests.  After a discussion with Damien's guardian ad litem, 

Howard decided it was not in Damien's best interests to include Doug in Damien's 

                                               -22-	                                          6527
 

----------------------- Page 23-----------------------

therapy   meetings   because   Damien's   expectation   was   that   his   communications   with 

Howard would be kept confidential.           While parental participation in treatment team 

meetings should be encouraged, it must be fostered consistent with the child's best 
interests.21  Here,   OCS   reasonably   concluded  that   Doug's   participation   was   not   in 

Damien's best interest and the superior court did not err by concluding that the decision 

to exclude Doug from future meetings  did not defeat OCS's showing of reasonable 

efforts. 

               6.	     Ensuring      Doug     and    Damien's      therapists    had    necessary 
                       information 

               Doug also argues that "OCS also failed to ensure that Doug's therapist, and 

Damien's therapist all had relevant information."           Doug's main criticism is that his 

therapist should have been provided with more information about Damien's needs.  The 

therapist agreed that such information would have made her counseling more effective, 

but she stressed they could have moved forward immediately in other areas.  The central 

focus of Doug's therapy was the psychological and anger management issues identified 

by Dr. Rose.   Dr. Rose emphasized that only after substantial progress was made in this 

area would he move on to focus on Doug's parenting issues.  Doug's therapist testified 

that once she had Dr. Rose's report in March 2008, she had clear direction and enough 

information to proceed with Doug's therapy. 

               From our review of the record it appears that Doug's therapist and OCS 

could have done a better job communicating with each other about this case.  But given 

the small number of therapeutic visits Doug attended, it is clear that any communication 

        21     AS 47.10.005 (setting forth the goal that state involvement in a CINA case 

"promote the child's welfare and the parents' participation in the upbringing of the child 
to the fullest extent consistent with the child's best interests . . ."). 

                                               -23-	                                           6527 

----------------------- Page 24-----------------------

shortcomings did not constitute a failure to make reasonable efforts nor meaningfully 

contribute to Doug's failure to make progress in his case plan. 

                7.      Allowing Doug to visit Damien 

                Doug   argues   that   OCS's   refusal   to  allow   visitation   with   Damien   from 

September      2007    to  January   of   2008,  and  then   again   from   March    2009    forward, 

demonstrates   that   OCS   did   not   make   reasonable   efforts   to   provide   family   support 

services to Doug. 

                Damien   was   placed   in   state   custody   in   September   2007   following   his 

second incidence of child abuse in less than two years.              Damien's original therapist 

advised against visitation because Damien "expressed fear of his father" and because of 

Doug's "disregard for appropriate parenting help and [failure to take] responsibility for 

removals."     Damien's grandmother and social worker both reported that Damien was 

happy he had reported his father, whom he hoped would go to jail so he could no longer 

beat   him.   Damien's   primary   therapist,   Kristin   Howard,   reported   that   Damien   had 

"numerous" nightmares involving Doug drowning, killing, hurting, and beating him, 
often   occurring   several   times   a   week.22 Following   the   2007   removal,   Damien   was 

diagnosed with PTSD, and his care providers observed that his anxiety and fear were 

triggered by certain facial expressions of his father or seeing his father's belt.             All of 

these conditions justified the decision to stop Doug's visitation. 

                After   Doug   resumed   visitation   with   Damien   in   early   2008,   Damien's 

therapist    reported   that  Damien     was   experiencing     increased   agitation   and   anxiety 

following the visits.     Damien told his therapist "that every time he closed his eyes he 

        22      For example, Howard related an interaction with Damien in May 2009 

where he "drew a picture of [himself] and his father, [and] described a dream in which 
he was assaulted by . . . a man wearing a mask and the man took off his mask and it was 
his father who then shot him." 

                                                 -24-                                             6527 

----------------------- Page 25-----------------------

would see his father beating him."           His therapist also explained that Damien "doesn't 

fully trust his father to be safe with him."          His teacher reported increased anxiety and 

behavioral   problems   both   before   and   after   visits   with   his   father.      Visitation   was 

terminated   in   March   2009   after   Damien   reported   to   his   social   worker   that   Doug 

threatened   him   during   a   supervised   visit   and   his   therapist   concluded   Damien   was 

decompensating quickly and was at risk for psychiatric hospitalization. 

        D.	      The Superior Court Did Not Err In Terminating Parental Rights And 
                 Not Establishing A Guardianship. 
                 Alaska Statute 47.10.11023 permits but does not require the appointment of 

a guardian when "it appears to the court that the welfare of a minor will be promoted by 
the   appointment   of   a   guardian."24       The   superior   court   is   not   required   to   consider 

guardianship in a parental termination proceeding, "except to the extent that the statute 
requires the court to order an arrangement that is in the child's best interest."25 

                 The superior court implicitly rejected the guardianship proposal.  It noted 

that Damien needs "stability, [and] the certainty that he will be protected from his angry, 

abusive father."     The court expressed hope that Doug would change and that a healthy 

relationship could be established, but observed "that's not what the evidence has shown 

has occurred up to now."   The potential that Doug may one day be able to change is not 

sufficient to suggest, much less prove, that guardianship is in Damien's best interest. 

        23       AS 47.10.110 provides:          "When, in the course of a proceeding under this 

chapter, it appears to the court that the welfare of a minor child will be promoted by the 
appointment of a guardian or custodian of the minor's person, the court may make the 
appointment." 

        24       C.W. v. State, Dep't of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 2001). 

        25	     Id. 

                                                   -25-	                                             6527
 

----------------------- Page 26-----------------------

        E.	     The Superior Court Did Not Err In Denying Doug's Request For More 
                Time. 

                Doug argues that he should have been given more time to meet the case 

plan and remedy the conditions that harmed Damien.               He specifically contends that he 

may be able to obtain a better paying job soon, which would make it easier to pay for 

counseling. 

                When   a   court   finds   that   a   parent   has   not   remedied   poor   behavior   in   a 

reasonable time under AS 47.10.088(b)(2), it may also readily find that termination of 
parental rights is in the child's best interest under AS 47.10.088(c).26  We have observed 

that courts may consider factors such as a parent's determination and capability to change 
when assessing whether termination is in the best interest of the child.27   In this case, 

Doug   has   not   demonstrated   determination   to  change.        Doug   admits   that   "financial 

reasons weren't the biggest thing" keeping him from participating in individual therapy. 

He did not seek more affordable solutions that even his expert acknowledges existed. 

Doug put in little effort to meet the case plan but complained often that OCS was not 

doing enough to pay for his counseling, to pay for his transportation, or to excuse him 

from the requirement of completing his case plan.  As the superior court observed, "there 

has to be change in his feelings and his attitude and his responsibility to these problems 

instead of saying that somebody else didn't give me bus fare." 

V.	     CONCLUSION 

                We AFFIRM the judgment of the superior court in all respects. 

        26      Karrie B. ex rel. Reep v. Catherine J.,   181 P.3d 177, 186 (Alaska 2008). 

        27      Id. 

                                                 -26-	                                             6527 
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