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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Judith R. v. Dept. of Health & Social Services, Office of Children's Services (12/7/2012) sp-6730

Judith R. v. Dept. of Health & Social Services, Office of Children's Services (12/7/2012) sp-6730

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

        corrections@appellate.courts.state.ak.us. 



                THE SUPREME COURT OF THE STATE OF ALASKA 



JUDITH R.,                                       ) 

                                                 )    Supreme Court No. S-14693 

                       Appellant,                ) 

                                                 )    Superior Court No. 3AN-09-00092 CN 

        v.                                       ) 

                                                 )    OPINION 

STATE OF ALASKA,                                 ) 

DEPARTMENT OF HEALTH &                           )    No. 6730 - December 7, 2012 

SOCIAL SERVICES, OFFICE OF                       ) 

CHILDREN'S SERVICES,                             ) 

                                                 ) 

                       Appellee.                 ) 

                                                 ) 



               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial District, Anchorage, William F. Morse, Judge. 



               Appearances:        Olena     Kalytiak    Davis,   Anchorage,      for 

               Appellant.     Megan   R.   Webb,   Assistant   Attorney   General, 

               Anchorage,   and   Michael   C.   Geraghty,   Attorney   General, 

               Juneau, for Appellee. Stephanie Pawlowski, Assistant Public 

               Advocate, and Richard Allen, Public Advocate, Anchorage, 

               for Guardian ad Litem. 



               Before: Fabe, Chief Justice, Carpeneti and Stowers, Justices. 

                [Winfree, Justice, not participating.] 



               STOWERS, Justice. 


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I.      INTRODUCTION 



                Judith   R. challenges the superior court's order terminating her parental 

rights to her son, Dexter.1     The court terminated her rights based on her longstanding, 



unremedied mental illness.   In its ruling on the record, the court, sua sponte, directed the 



parties to consult with Dexter's therapist about the advisability of allowing continued 



contact between Judith and Dexter following termination of Judith's parental rights, but 



the court's written order made no mention of post-termination contact. On appeal, Judith 



challenges the superior court's finding that termination of her parental rights was in 



Dexter's best interests and the court's failure to issue a "detailed order regarding post- 



termination visitation."      Because the court's best interests finding was supported by 



substantial evidence and because the court was not required to address post-termination 



contact in its termination order, we affirm the superior court's decision. 



II.     FACTS AND PROCEEDINGS 



        A.      Judith 



                Judith   suffers   from   serious   mental   health   issues   that,   since   2005,   have 



resulted in Dexter repeatedly being removed from her custody and, ultimately, resulted 



in termination of her parental rights. Judith does not contest the superior court's findings 



that her mental illness and emotional disturbance are unremedied and will almost surely 



continue, that she is unable or unwilling to consistently take medication that has been 



prescribed to treat her condition, that OCS made active reunification efforts to help her 



remedy her condition, or that her condition has harmed Dexter and placed him at an 



ongoing substantial risk of harm.  We need not, therefore, discuss Judith's mental health 



issues or history in detail.  But we provide a summary of Judith's condition and examples 



        1       Pseudonyms are used throughout to protect the privacy of the parties. 



                                                  -2-                                              6730 


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of her conduct in order to give context to our analysis of the superior court's finding that 



termination of Judith's parental rights is in Dexter's best interests. 



                Judith has struggled with mental health, substance abuse, and domestic 



violence issues for at least ten years.        At various times, she has been diagnosed with 



bipolar     disorder,    major    depression,     anxiety     disorder,    psychotic     disorder,    and 



posttraumatic   stress   disorder,   and   she   has   been   prescribed   a   variety   of   medications, 



including antipsychotic and antidepressant medicines.              She has an extensive history of 



abusing      alcohol,     amphetamines,       methamphetamine,          cocaine,     and    prescription 



medications.     In the past five years, she has been hospitalized for treatment of mental 



health issues or received mental health crisis intervention services no fewer than 11 



times, and she has been arrested on numerous occasions.  In addition, she refuses to end 



a relationship with a man who physically and mentally abuses her, and she does not 



appreciate   why   OCS   is   concerned   about   that   relationship.     Richard   Fuller,   Ph.D.,   a 



neuropsychologist who evaluated Judith in fall 2011, concluded that she cannot function 



independently       without    monitoring      and   support    by   an  agency     that  oversees    the 



functioning of disabled individuals, and that she will not likely be able to maintain a 



stable environment for herself or Dexter at any time in the near future. 



                Dexter has been removed from Judith's custody four times: in 2005, when 



Judith told police officers and OCS that she was not willing to care for him; in 2006, 



when she was admitted to a hospital for medical and psychiatric treatment; in 2007, when 



she left a mental health crisis facility against medical advice; and in 2009, when she 



became suicidal and was unable to care for her son.  Since the final removal, Judith has 



often exhibited behaviors that are inconsistent with safe parenting. Several examples are 



illustrative. 



                In February      2010, police officers responding to a late-night complaint of 



excessive "banging" in Judith's apartment reported that she was acting strangely and 



                                                   -3-                                             6730
 


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

exhibiting extreme mood changes.            Judith told the officers that after she ran out of her 



anxiety medication, her doctor told her to take care of her problems "naturally."  She 



reported that she and her boyfriend, Kirk, had been drinking heavily.  The officers issued 



Judith and Kirk a disorderly conduct warning.             Later that night, police returned to the 



apartment where, although Judith was not at home, the door stood open.                      Judith then 



arrived in a taxi, shoeless, and explained that she had been chasing "the love of her life," 



who had run away from her.            Officers transported her to Providence Alaska Medical 



Center's emergency room, where she told staff that she had been drinking most of the 



night because drinking calmed her and helped her cope. 



                In   April   2010,   Judith   was   again   transported   by    police   to   Providence 



following a disturbance.   At the time, Judith, who had been drinking, appeared agitated 



and   confused.      She   told   the   officers   that   she   loves   police,   that   she   herself   was   an 



undercover police officer, and that she was collecting information about bad people.  On 



the way to the hospital, she rambled on about the United Nations, selling cars, living in 



camps and hotels with an undercover police officer, and her ex-husband's membership 



in a satanic cult.    Judith told staff at Providence that she did not need her psychotropic 



medications and that she had not taken them for a month. 



                In April 2011, Judith had the court dissolve a restraining order she had 



obtained against Kirk, who had twice been arrested for assaulting her, and she resumed 



her on-again, off-again relationship with him. She told her social worker that she did not 



understand why OCS would be concerned about their relationship. 



                In   November   2011,   a   police   officer   discovered   Judith,   intoxicated   and 



passed out, on the side of the road.        He had difficulty awakening her and then keeping 



her awake.  She did not know where she was.  The officer transported her to Community 



Service Patrol for monitoring. 



                                                   -4-                                             6730
 


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

                 These are but a few of many examples of such behavior contained in the 



record. 



        B.       Dexter 



                 Dexter,    who    is  eight   years   old,  suffered    trauma    because    of  Judith's 



behaviors while he was in her custody and also suffered as a result of repeatedly cycling 



between Judith's and OCS's custody.  After his final removal, his condition deteriorated 



to the extent that by fall 2011 he had stopped engaging in school, was experiencing 



intense   anxiety,   and   was   having   difficulty   socializing.     In   October   of   that   year,   he 



reported fearing that his foster mother, his teacher, and his social worker each intended 



to hurt or kill him. That same month, he repeatedly physically attacked his foster mother, 



who   had   been   his   caretaker   for   two   years.   As   a   result   of   his   deteriorating   mental 



condition,   in   December   2011   he   was   admitted   to   North   Star   Hospital   for   "inpatient 



psychiatric treatment as a consequence of depressive symptoms, self-injurious behavior, 



possible   psychotic   features,   and   extreme   irritability   and   aggression."       He   remained 



hospitalized for a month. 



                 David Sperbeck, Ph.D., conducted Dexter's neuropsychological evaluation. 



At the termination trial, Dr. Sperbeck described Dexter as being reflective, intelligent, 



verbal, and articulate.   He testified that Dexter showed no signs of brain injury, but was 



"a very anxious, nervous, self-conscious, sensitive little boy who is very vulnerable and 



fragile in his emotional functioning."          Dr. Sperbeck diagnosed Dexter with dysthymic 



disorder ("a chronic, low grade depression"), intermittent explosive disorder ("a very bad 



temper in which he will have explosive, unpredictable outbursts out of proportion to the 



precipitating events"), generalized anxiety or separation anxiety disorder, and reactive 



attachment disorder (which "occurs when a child does not develop a good bond with the 



child's parents, a consistent, loving, predictable relationship with a mother and father"). 



                                                    -5-                                              6730
 


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

In addition, Dr. Sperbeck thought that Dexter probably suffered from bipolar disorder, 



but the doctor was hesitant to confirm that diagnosis because of Dexter's young age. 



                Dr. Sperbeck testified that children in general do best in a highly structured, 



predictable environment with clear limits and lots of affirmations and opportunities to 



be successful, but that Dexter "in particular" needs "a much safer, [more] predictable 



environment than most children.           He is very anxious, he's very nervous about future 



catastrophe     befalling    him.   .   .   . [H]e  needs  a  very  secure,   predictable,   consistent 



environment that has a fixed schedule." Dr. Sperbeck concluded that Dexter was "a very 



disturbed little boy," whose hypersensitivity and fragility meant that if he were placed 



in a situation that exposed him to active substance abuse, mental instability, and domestic 



violence - such as he would likely experience if placed with Judith -  he would suffer 



"significant emotional damage." 



        C.      Proceedings 



                In   April   2010,   OCS   petitioned   to   terminate   Judith's   parental   rights   to 



Dexter.    At the close of the trial, which was held in October and November 2010, the 



court   stated   that   termination   of   Judith's   parental   rights   would   be   in   Dexter's   best 



interests, but it denied the petition, concluding that OCS had not provided Judith with 



sufficient reunification efforts, given the severity of her mental health issues.                Dexter 



remained in OCS's custody while the   agency   made additional efforts to help Judith 



remedy her issues. 



                In January 2012, OCS filed a supplemental petition to terminate Judith's 



parental rights.   The following month, the superior court held another termination trial. 



The court found on the record, by clear and convincing evidence, that Judith's mental 



illness and serious emotional disturbance rendered Dexter a child in need of aid, that 



Judith had not remedied conditions that endangered Dexter, and that OCS's active efforts 



at reunification had failed primarily because of Judith's "inability to take advantage of 



                                                   -6-                                             6730
 


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

what has been offered to her despite the admirable and very detailed and responsive 



efforts of OCS since October and November of 2010."   The court also found, beyond a 



reasonable doubt, that Dexter would suffer serious emotional damage if Judith's custody 



of   him   were   to   continue.   In   announcing   its   decision,   the   court   questioned   whether 



ongoing, post-termination        contact with Judith would be in Dexter's best interests, and 



it instructed the parties to explore that matter with Dexter's therapist and report back to 



the court in the future. 



                The court followed its oral ruling with a written order, which, in addition 



to restating its oral findings, contained a finding, by a preponderance of the evidence, 

that termination of Judith's parental rights was in Dexter's best interests.2              The written 



order did not mention post-termination contact between Judith and Dexter. 



III.    STANDARD OF REVIEW 



                A trial court's determination that termination of a parent's parental rights 

is in a child's best interests is a factual finding that we review for clear error.3         A finding 



is   clearly   erroneous   if,   after   reviewing   the   record   in   the   light   most   favorable   to   the 



prevailing party, we are left with a definite and firm conviction that the trial court was 

mistaken.4    We decide de novo whether the trial court's findings satisfy the requirements 



of the child in need of aid statute.5 



        2       This finding is required by Alaska Child in Need of Aid Rule 18(c)(3) 



before a court may terminate parental rights. 



        3       Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's 



Servs., 254 P.3d 1095, 1104 (Alaska 2011). 



        4       Maisy   W.   v.   State,   Dep't   of   Health   &  Soc.   Servs.,   Office   of   Children's 



Servs., 175 P.3d 1263, 1267 (Alaska 2008). 



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



                                                                                         (continued...) 



                                                   -7-                                             6730
 


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

IV.	    DISCUSSION 



        A.	      Termination         Of   Judith's     Parental     Rights     Was    In   Dexter's     Best 

                 Interests. 



                 Alaska Statute 47.10.088(c)  requires a court to consider the best interests 



of the child in a proceeding involving termination of parental rights under AS 47.10. 



CINA Rule 18(c)(3) specifies that a court may only terminate parental rights if it finds 



by a preponderance of the evidence that termination is in the child's best interests. 



                 Judith raises two challenges to the superior court's finding that termination 



of her parental rights was in Dexter's best interests.            First, she claims that the court did 



not conduct an adequate best interests analysis as part of its oral ruling, and second, she 



claims that the court relied upon insufficient evidence in making its best interests finding 



in its written decision. 



                 Judith supports her argument that the trial court erred in its oral ruling by 



asserting   that   the   court   did   not   specifically   address   best   interests   but   that   instead   it 



"implicitly, inappropriately, and   only indirectly" addressed the issue by questioning 



whether   post-termination   contact   between   Judith   and   Dexter   would   serve   Dexter's 



interests.  Judith errs in interpreting the court's query about post-termination contact as 



an   analysis   of   whether   termination   of   Judith's   parental   rights   was   in   Dexter's   best 



interests.    The two matters are distinct questions.             The trial court's discussion of the 



potential for post-termination contact was in no way an analysis of whether Dexter's best 



interests   would   be   advanced   by   termination   of   Judith's   parental   rights.        That   best 



interests   analysis was not explicitly performed by the court in its oral ruling on the 



record, but was performed by the court in its written decision.  To the extent that Judith 



        5(...continued) 



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



                                                     -8-	                                                6730 


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

may be arguing that the court erred by including in its written decision a best interests 

analysis and finding that it had not made orally, her argument is without merit.6 



                 As to her second argument, Judith concedes that the court's written order 



terminating her parental rights contained an explicit best interests finding.   In its order, 



the   court   specified   that   this   finding   was   based   on   evidence   recited   at   length   in   the 



portions of its decision addressing Dexter's status as a child in need of aid, OCS's active 



efforts to reunify the family, and the harm that Dexter would likely suffer if he were 



returned   to   Judith's   care.    That   evidence   included   Judith's   long   history   of   mental 



instability    and   her   failure   to  follow   her   doctors'    treatment   advice;   her    pattern    of 



repeatedly using OCS as "respite care" for Dexter; her refusal to leave her physically and 



mentally abusive boyfriend; the trauma her conduct had caused Dexter; Dr. Fuller's 



testimony that Judith will not be able to function independently without monitoring and 



support and that she will not be able to maintain a stable environment for herself or 



Dexter   in the near future; and Dr. Sperbeck's testimony that additional exposure to 



substance abuse, mental instability, and domestic violence would cause Dexter to suffer 



significant additional emotional damage.   The trial court thus found that termination of 



Judith's   parental   rights   was   in   Dexter's   best   interests,   and   it   explained   its   finding 

sufficiently clearly and explicitly to allow for meaningful appellate review.7 



        6        See Sandy B. v. State, Dep't of Health & Soc. Servs., Office of Children's 



Servs., 216 P.3d 1180, 1187-88 (Alaska 2009) (holding that trial court did not err by 

following its initial written order terminating parental rights with a second written order 

that contained findings required for termination that, while implied in the initial order, 

were   not   explicitly   stated   in   it);  K.T.E.   v.   State ,   689   P.2d   472,   477   (Alaska   1984) 

("Generally, where inconsistencies exist between a court's written findings and its oral 

statements, the written findings control."). 



        7        See Mapco Express, Inc. v. Faulk, 24 P.3d 531, 537-38 (Alaska 2001). 



                                                     -9-                                               6730
 


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

                 Judith argues that the court erred in basing its best interests finding on 



evidence that also supported its other findings.   She argues that the court should instead 



have   conducted   a   best   interests   analysis   independent   of   "factors   .   .   .   required   for 



adjudication   of either CINA status, active efforts or the likelihood of future serious 



emotional harm."         She asserts that the court should, at   a   minimum, have taken into 



account   the   "best   interests"   factors   set   out   in   AS   47.10.088(b).    This   argument   is 



unpersuasive. 



                 First, the evidence cited by the trial court clearly relates to whether Dexter's 



interests lay in terminating his relationship with Judith.   Second, while nothing prevents 



a trial court from considering the factors listed in AS 47.10.088(b) in making a best 



interests determination under AS 47.10.088(c), the factors listed in subsection (b) are 



intended   specifically      to  guide   a   court   in   determining   whether   a   parent   has   timely 



remedied conduct or conditions that endanger a child.   As we have noted, a finding that 



termination of parental rights is in a child's best interests requires a more comprehensive 



judgment   than   does   determining   whether   a   parent   has   timely   remedied   dangerous 

conduct or conditions.8 



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



In addition, we note that the evidence cited by the superior court addressed all of the 

factors set out in subsection (b).   The first factor concerns the likelihood of returning the 

child to the parent within a reasonable time based on the child's age or needs.  The 

superior court cited Dr. Fuller's testimony and report, which explicitly addressed that 

matter, to support its finding.        The second factor involves the amount of effort Judith 

made to remedy the conduct or conditions that placed Dexter in danger.  To this end, the 

court considered Judith's long and cyclical history of engaging in treatment and then 

relapsing, her failure to follow through with mental health treatment and medication 

compliance, her failure to comply with her OCS case plan, and her failure to separate 

herself from her abusive boyfriend.            The third factor, the harm caused to the child, was 

addressed   by   testimony   that   Judith's   actions   had   caused   Dexter   to   suffer   emotional 

                                                                                           (continued...) 



                                                    -10-                                              6730
 


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

                Finally, Judith argues that the trial court erred by not addressing additional 



factors relating to Dexter's best interests.  Specifically, she asserts that the court should 



have considered Dexter's recent loss of his long-term foster placement and his current 

lack of a permanent placement.9 



                While trial courts have discretion in determining whether a child's best 



interests will be promoted by termination of a parent's rights, a child's placement and 

bond with a foster family are factors that trial courts often consider.10         In the present case, 



Dexter had lived with the same foster mother for two years and had bonded with her. 



OCS had anticipated that, if Dexter were not reunited with Judith, this foster mother 



would be his permanent caregiver. Shortly before the second termination trial, however, 



the foster mother lost her job and her home, and could no longer provide care for Dexter. 



So Dexter was placed with his school counselor, with whom he had a rapport.  The 



        8(...continued) 



trauma, and by Dr. Sperbeck's diagnosis of Dexter with numerous mental and emotional 

maladies.  The fourth factor, the likelihood that Judith's harmful conduct will continue, 

was addressed by Dr. Fuller's conclusion that Judith's prospects of being able to parent 

Dexter were "poor," and by evidence about the cyclical, recurring nature of Judith's 

behaviors.     And the final factor, concerning the history of the conduct or conditions 

created by Judith, was the subject of all of the evidence referred to by the court. 



        9       Judith also argues that the trial court should have considered her bond with 



Dexter,   her   willingness   to   keep   working   toward   reunification,   and   the   fact   that   her 

presence is the only constant element in Dexter's life.  But Judith's assertions as to these 

matters are not supported by the record. 



        10      See, e.g., Doe v. State, Dep't of Health & Soc. Servs., Office of Children's 



Servs., 272 P.3d 1014, 1023-24 (Alaska 2012); Barbara P. v. State, Dep't of Health & 

Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1263-64 (Alaska 2010); Karrie 

B., 181 P.3d at 184-85; S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & 

Youth Servs., 42 P.3d 1119, 1124-25 (Alaska 2002); M.W. v. State, Dep't of Health & 

Soc. Servs., 20 P.3d 1141, 1147 (Alaska 2001); A.H. v. State, Dep't of Health & Soc. 

Servs., 10 P.3d 1156, 1166 (Alaska 2000). 



                                                  -11-                                            6730
 


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

placement is not permanent; no permanent placement had been identified for Dexter by 



the time of the trial. 



                 These circumstances would certainly have been proper for the trial court 



to have addressed in conducting its best interests analysis.               But the court was aware of 



the situation, having heard testimony about it and explored it with counsel near the close 



of the trial.  That the court chose to exclude Dexter's placement situation from its best 



interests   analysis   and   instead   focus   on   Judith's   conduct   and   the   consequences   that 



placement with her would have for Dexter indicates the court's belief that, regardless of 



Dexter's situation, Judith could not be a functional parent for him, and thus severing her 



parental rights to free him for adoption or another permanent placement would be in his 



best interests.    The court did not err in its analysis. 



        B.	      The Superior Court Did Not Err By Not Addressing Post-Termination 

                 Contact In Its Written Termination Decision. 



                 At   the   close   of   the   termination   trial,   the   superior   court   speculated,   sua 



sponte, about whether Dexter's interests would be served by continued contact with 



Judith after her rights were terminated.           The court directed the parties to explore this 



option   with   Dexter's   therapist,   and   report   back   to   the   court. The   court   specifically 



reserved judgment on whether it would order post-termination contact, pending further 



proceedings.      Judith argues that the court erred by discussing post-termination contact 



in its oral ruling but not resolving the matter in its written decision.  She asks us to order 



the superior court to issue "a detailed order regarding post-termination visitation." 



                 As   with   questions   of   placement,   questions   regarding   post-termination 



contact between a parent and child are independent of the analysis a court performs in 

deciding whether to terminate parental rights.11               In its oral ruling at the close of the 



        11       Cf. Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family & 



                                                                                           (continued...) 



                                                   -12-                                                 6730 


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

termination trial, the superior court discussed with counsel both Dexter's placement and 



post-termination contact.       The court was not required to, nor did it, include a ruling on 



either placement or post-termination contact as part of its order terminating Judith's 



parental rights.      The fact that the court informed the parties that it intended   to   hear 



evidence about post-termination contact did not preclude it from   finalizing its order 



terminating Judith's rights in advance of any proceeding that the court might hold in the 



future concerning post-termination contact.           The trial court did not err in this matter. 



V.      CONCLUSION 



                For the foregoing reasons, the superior court's order terminating Judith's 



parental rights to Dexter is AFFIRMED. 



        11(...continued) 



Youth Servs., 79 P.3d 50, 57 (Alaska 2003) (holding   that existence of relatives with 

whom a child might have been placed "is unrelated to whether [the parent's] parental 

rights should have been terminated"); Erica A. v. State, Dep't of Health & Soc. Servs., 

Div. of Family & Youth Servs. , 66 P.3d 1, 10 (Alaska 2003) (holding that superior court 

is   not   required   to   revisit   earlier   placement   decisions   when   considering   a   petition   to 

terminate parental rights). 



                                                  -13-                                              6730 

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