Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Simone H. v. State, Dept. of Health & Social Services, Office of Children's Services (3/7/2014) sp-6870

Simone H. v. State, Dept. of Health & Social Services, Office of Children's Services (3/7/2014) sp-6870

         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  



SIMONE H.,                                               )  

                                                         )    Supreme Court No. S-15149  

                          Appellant,                     )  

                                                         )    Superior Court No. 3PA-10-00163 CN  

         v.                                              )  

                                                         )    O P I N I O N  

STATE OF ALASKA,                                         )  

DEPARTMENT OF HEALTH &                                   )   No. 6870 - March 7, 2014  

SOCIAL SERVICES, OFFICE OF                               )  

CHILDREN'S SERVICES,                                     )  


                          Appellee.                      )  


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


                  Judicial District, Palmer, Gregory Heath, Judge.  

                  Appearances:  Renee McFarland, Assistant Public Defender,  

                  and   Quinlan   Steiner,   Public   Defender,   Anchorage,   for  

                  Appellant. David A. Wilkinson, Assistant Attorney General,  


                  Fairbanks,  and  Michael  C.  Geraghty,  Attorney  General,  

                  Juneau,  for  Appellee.    Margaret  McWilliams,  Assistant  

                  Public     Advocate,       Juneau,     and    Richard      Allen,     Public  

                  Advocate, Anchorage, for Guardian Ad Litem.  

                  Before:  Fabe, Chief Justice, Stowers, Maassen, and Bolger,  


                  Justices.  [Winfree, Justice, not participating.]  

                  BOLGER, Justice.  

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



                   Simone H. appeals the trial court's order terminating her parental rights to  

                     1  Simone challenges the trial court's denial of her request to have Irving's  

her son, Irving.                                                       

therapy records released to her for use during the termination trial and the trial court's  

finding that the State Department of Health and Social Services, Office of Children's  

Services (OCS) made reasonable efforts to provide services designed to enable Irving's  


safe return to her custody.  We conclude that the trial court acted within its discretion in  


denying Simone's request for access to Irving's therapy records and that substantial  

evidence supported the trial court's finding that OCS made reasonable efforts to reunify  

Simone with Irving.  


                   Simone is the mother of Irving, who was born in 2003.  Simone has a  


history of engaging in relationships with violent partners, and has mental health and  


substance  abuse  issues.    In  2009  Simone  began  counseling  with  psychiatric  nurse  

practitioner  Kathleen  Hammaker,  who  also  provided  Simone  with  mental  health  


medication management services.  Hammaker treated Simone for obsessive-compulsive  

disorder, posttraumatic stress disorder, panic  disorder, and mood disorders, and she  

prescribed Simone various medications.  


                  In October 2010, after receiving a protective services report alleging that  


Simone had failed to seek medical attention for Irving after he had been injured in a  

bicycle accident, that she was addicted to drugs, and that she had been leaving Irving  

unattended for hours at a time, an OCS specialist and a police officer went to Simone's  

home,  where  they  found  alcohol,  illicit  drugs,  and  drug  paraphernalia.    As  a  result,  

Simone's partner, who had recently been released from jail, was arrested for parole  

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

                                                          -2-                                                      6870  

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

violations.  Simone refused to participate in a drug screen.  OCS took emergency custody  


of Irving and filed an emergency petition to have the child adjudicated a child in need  


of aid (CINA).  

                     OCS developed a case plan for Simone that called for her to participate in  


parenting   classes,   complete  a  family  violence   intervention   program,   complete  a  

psychological  evaluation,  continue  to  engage  in  mental  health  treatment,  obtain  a  


substance abuse assessment, participate in drug screens, and participate in family contact     

with Irving.  Hammaker arranged for Simone to begin receiving services from Daybreak,  


an organization that provides case management services including skill development,  


connection  to  service  providers,  transportation  to  appointments,  and  assistance  in  

organizing daily activities to persons who have been diagnosed with mental illness.  


Simone's Daybreak counselor, Polly-Beth Odom, prepared a case plan that was designed  

to facilitate Simone's compliance with OCS's case plan.  Odom, who shared the plan  


with OCS, testified that Daybreak's goals included assisting Simone with mental health  

recovery  and  family  reunification.    She  stated  that  Daybreak  helped  Simone  with  


housing,  social  connections,  budgeting,  life  skills,  safety  monitoring,  and  avoiding  

abusive relationships.  


                     In  March  2011  OCS  referred  Simone  to  Dr.  Heather  Macomber  for  a  

neuropsychological evaluation because it was concerned about her mental condition.  Dr.  

Macomber  recommended  that  OCS  set  specific  goals  for  Simone  and  that  Simone  


continue  to  receive  psychiatric  care  and  medication  and  participate  in  therapy.    Dr.  

Macomber did not recommend that Simone participate in substance abuse treatment.  

                     Shortly after this evaluation Simone tested positive for methamphetamine.  


OCS thereupon referred her for a substance abuse assessment at Set Free Alaska, which  

                                                                -3-                                                          6870

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

was conducted in June 2011.  Simone did not participate in the intensive outpatient  


treatment that the substance abuse assessment recommended.   

                    In late 2011, OCS considered placing Irving with his paternal grandmother  


in Pennsylvania. Simone then moved to Pennsylvania, over OCS's objection.  Her move  


temporarily ended her ability to have contact with Irving.  


                    In December 2011, placement with the grandmother was denied under the  

                                                                           3  and the following month Simone  


Interstate Compact on the Placement of Children, 

returned to Alaska.  She reengaged in counseling and medication management services  


with Hammaker and in case management services with Daybreak.  She requested that  


visits be restarted and, in April 2012, they were.  Several visits were held at the OCS  

facility from April through June, but these visits were again suspended when Simone  


stated that she would commit suicide if Irving were not returned to her custody, and OCS  

tried to locate an appropriate visitation supervisor.  


                    In May 2012, OCS referred Simone for a behavior health assessment at  


Alaska Family Services.  The assessment recommended that Simone engage in Alaska  

Family  Services'  dual  diagnosis  treatment  program  and  in  individual  counseling.  


Simone began treatment that month but did not make adequate progress in the program.  


She tested positive for illicit drugs while in treatment and was inconsistent in taking her  


prescription medications.  According to the program's clinical director, by the time of  

Simone's discharge from the program in August 2012, her problems were worsening  

rather     than     improving.            Alaska       Family       Services       discharged         Simone        with     a  


recommendation that she participate in a residential treatment program.  Alaska Family  

          2         Simone claimed at the termination trial that Set Free Alaska refused to  

accept her into its treatment program because she was taking medications to address her  


mental health issues.  

          3         AS 47.70.010-.080.  

                                                             -4-                                                           6870  

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

Services offered to help Simone enroll in a residential program, but Simone did not take  

advantage of the offer.  

                   In  May  2012,  OCS  petitioned  to  terminate  Simone's  parental  rights  to  

Irving.  During the trial on the petition Simone asked the trial court to compel Irving to  


testify and to order the release of Irving's therapy records to her.    After  examining  

Irving's therapy records in camera, the trial court denied both requests.  


                   On March 12, 2013, the trial court issued an order terminating Simone's  


parental rights to Irving.  The court found that Irving was a child in need of aid due to:  


(1) Simone's history of violent relationships and her failure to seek medical attention for  


Irving following the bicycle accident;  (2) Simone's history of relationships involving 



domestic  violence;   (3)  Simone's  history  of  substance  abuse  and  failed  attempts  at  

               6 and (4) the combination of Simone's mental illnesses, her inconsistency in  


taking  her  prescribed  mental  health  medication,  her  abuse  of  substances,  and  her  


continued participation in abusive relationships.7  


                   The  trial  court  found  that  OCS  made  reasonable  efforts  to  provide  the  


family with support services designed to enable the safe return of Irving to Simone's  

custody.    These  efforts  included  identifying  the  issues  Simone  needed  to  address,  

facilitating  family  contact,  coordinating  with  her  service  providers,  and  providing  

Simone  with  case  planning  meetings  and  case  plans,  drug  screens,  substance  abuse  

          4        See AS 47.10.011(6) (substantial physical harm to the child or substantial  

risk thereof).  

          5        See AS 47.10.011(8) (mental injury to the child or substantial risk thereof).  

          6        See AS 47.10.011(10) (parental substance abuse).  

          7        See   AS   47.10.011(11)   (parental   mental   illness,   serious   emotional  

disturbance, or mental deficiency of a nature and duration that risks substantial physical  


harm or mental injury to the child).  

                                                             -5-                                                      6870

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


assessments,  and  a  neuropsychological  assessment.                           The  trial  court  also  found  that  


Simone had not remedied conduct or conditions under her control that placed Irving at  


risk  of  harm,  and  that  termination  of  Simone's  parental  rights  was  in  Irving's  best  


                    Simone appeals, challenging the trial court's denial of her request for access  


to Irving's therapy records and its finding that OCS made reasonable efforts to provide  

her with family reunification services.  



                   We have not previously determined the appropriate standard for review of  


a trial court's ruling on a request that a  child's confidential communications with a  

psychotherapist be disclosed for use in the child's CINA proceeding.  Alaska Child in  

Need  of  Aid  Rule  9(b)(3)(B)  provides  that  such  communications  are  presumptively  

privileged.    Rule  9(b)(3)(D)  prescribes  factors  a  trial  court  must  consider  before  

allowing, limiting, or prohibiting disclosure and use of such communications if requested  


to do so by a party.  We will review a trial court's decision on a request for disclosure  


of such confidential communications for an abuse of discretion.     When applying a  

multi-factor  test,  "[t]he  superior  court  abuses  its  discretion  if  it  considers  improper  

          8        See Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008) ("The court's  

discovery rulings are . . . reviewed for an abuse of discretion." ); Booth v. State , 251 P.3d  


369, 373 (Alaska App. 2011) ("[T]he 'abuse of discretion' standard of review applies to  


situations  where  the  law  allows  or  requires  the  judge  .  .  .  to  reach  a  decision  by  

considering and weighing various factors . . . .").  Whether the privilege applies would  


be a legal question that is not raised in this case.  See Griswold v. Homer City Council,  

310 P.3d 938, 940 (Alaska 2013).  

                                                             -6-                                                       6870

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

factors . . ., fails to consider statutorily mandated factors, or assigns disproportionate  


weight to some factors while ignoring others."9  

                    Whether  OCS made reasonable efforts to provide services to reunify a  

                                                              10  We review the trial court's factual findings  


family is a mixed question of fact and law. 


for  clear  error  and  its  legal  determinations  de  novo.                          A  factual  finding  is  clearly  


erroneous if, after reviewing the record in the light most favorable to the prevailing party,  



we  are  definitely  and  firmly  convinced  that  the  finding  is  mistaken.                                  Conflicting  


evidence is generally not sufficient to overturn a trial court's factual findings, and we  


will not reweigh evidence when the record provides clear support for the trial court's  




          A.	       The Trial Court Did Not Abuse Its Discretion In Denying Simone's  

                    Request For Disclosure Of Irving's Therapy Records.  

                    CINA Rule 9(b)(3) governs the introduction of evidence that is subject to  


the evidentiary privilege for communications between a psychotherapist and a patient.  


          9         Iverson v. Griffith , 180 P.3d 943, 945 (Alaska 2008) (applying this standard  

of review to a child custody decision); see also In re M.K., 278 P.3d 876, 881 (Alaska  


2012) (applying the same standard to a guardianship appointment).  

          10        Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 290 P.3d 421, 428 (Alaska 2012) (citing Christina J. v. State, Dep't of Health &  


Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1104 (Alaska 2011)).  

          11	       Id. at 427-28 (citing Christina J., 254 P.3d at 1103-04).  

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

Servs., 234 P.3d 1245, 1253 (Alaska 2010) (quoting Brynna B. v. State, Dep't of Health  


& Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004)).  



                    Sherman B., 290 P.3d at 428 (quoting Maisy W. v. State, Dep't of Health  

& Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008)).  

                                                              -7-	                                                       6870

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


The rule states that the privilege "applies to the child unless the child or the child's  

guardian ad litem waives the privilege, or the party seeking disclosure shows that the  



need for the requested disclosure outweighs the child's interest in confidentiality." 

rule  provides  that  the  trial  court  must  consider  the  content  and  nature  of  the  



communication, the purposes of the CINA statutes as expressed in AS 47.05.060, 



purposes of Alaska Rule of Evidence 504,                         whether other effective means to obtain the  

information  are  available,  and  whether  the  public  interest  and  need  for  disclosure  

outweigh  the  potential  injury  to  the  patient  and  the  patient's  relationship  with  the  


therapist.        The rule specifies that the trial court may inspect the requested records in  

          14        CINA Rule 9(b)(3)(B).  


                    AS 47.05.060 provides:  

                              The purpose of this title as it relates to children is to  


                    secure for each child the care and guidance, preferably in the  


                    child's  own  home,  that  will  serve  the  moral,  emotional,  


                    mental,  and  physical  welfare  of  the  child  and  the  best  


                    interests of the community; to preserve and strengthen the  

                    child's family ties unless efforts to preserve and strengthen  

                    the ties are likely to result in physical or emotional damage to  


                    the child, removing the child from the custody of the parents  


                    only as a last resort when the child's welfare or safety or the  


                    protection of the public cannot be adequately safeguarded  

                    without removal; and, when the child is removed from the  


                    family, to secure for the child adequate custody and care and  


                    adequate planning for permanent placement of the child.  

          16        Evidence  Rule  504  governs  application  of  the  psychotherapist-patient  


privilege in civil and criminal cases generally.  The rule "is designed to encourage those  

with mental or emotional problems to seek help."  Alaska R. Evid. 504 commentary.  

          17        CINA Rule 9(b)(3)(D).  

                                                              -8-                                                        6870

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


camera  and  that  the  court  may  allow,  limit,  or  prohibit  disclosure  and  use  of  the  



                    The rule as originally drafted did not allow invocation of a psychotherapist- 



parent privilege in a CINA case.                     In 2001, we amended the rule to presumptively apply  


the   privilege   to   communications   between   children   and   their   therapists,   while  


presumptively denying application of the privilege to communications between parents  

                              20                                                      21 

and their therapists.             Both presumptions are rebuttable.  


                    The impetus for the amendment was a concern that, while the former rule  

allowed evidence of "child abuse and neglect [to] be reported and evidence relating to  


the parent [to] be available to the court[,] . . . when the rule was adopted the 'victim's'  



loss of confidentiality was not contemplated."                            At its meeting on January 8, 1998, the  


CINA/Delinquency Rules Committee noted that the primary intent of the proposed rule  


change was "to encourage children to participate in therapy by protecting the counseling  



                    The  committee  noted  that  policy  concerns  dictated  that  different  rules  

should govern applicability of the privilege for children and for parents,  

          18        Id .  

          19        Former CINA Rule 9(b) (amended 2001) provided, in relevant part, "The   

. . . psychotherapist-patient privilege [and] Evidence Rule 504 . . . do not apply in child               

in need of aid proceedings."  

          20        Alaska Supreme Court Order No. 1442 (May 24, 2001).  

          21        CINA Rule 9(b)(3)(B), (C).  

          22        Memorandum from Fairbanks Superior Court Judge Niesje Steinkruger to  

Court Rules Attorney Christine Johnson (May 9, 1996).  

          23        Minutes, Alaska CINA/Delinquency Rules Comm. (Jan. 8, 1998).  

                                                                -9-                                                         6870

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

                   because the parent and the child are in therapy for different  


                   reasons.    The  parent  usually  receives  therapy  to  fix  the  


                   behavior which is the basis of the case.  The parties and the  


                   court need to know how the parent has progressed in order to  

                   make decisions about disposition.  The child, on the other  

                   hand, is usually in  counseling to fix a harm that has been  

                   done to the child.  Although it may be helpful for the parties  


                   to know what the child says in therapy, this disclosure may  


                   reduce the chances that the therapy will succeed.[ 24]  

The history of this rule amendment is thus consistent with our observation when we first  

recognized  the  existence  of  a  common  law  psychotherapist-patient  privilege:    "in  

balancing  injury  to  the  [psychotherapist-patient  relationship]  by  fear  of  disclosure,  


against the benefit to justice by compelling disclosure, the scales weigh heavily in favor  

of confidentiality."25  

                   In this case, Simone asked the trial court to provide her with access to  

records  of  Irving's  sessions  with  his  psychotherapist  for  her  to  use  in  the  trial  to  


terminate her parental rights.                After examining the records in camera the trial court  


denied  Simone's  request.    The  court  found  that  the  requested  records  "only  affirm  

[Irving's] need for permanency," and that their disclosure would cause Irving undue  

emotional and mental stress, would constitute an invasion of his privacy, and would  

undermine his therapeutic relationship with his current and future counselors.  

          24       Id .  

          25       Allred v. State , 554 P.2d 411, 418 (Alaska 1976).   In 1979 we codified the   

psychotherapist-patient privilege in Evidence Rule 504.   Alaska Supreme Court Order  

364 (May 29, 1979).  



                   Irving's guardian ad litem refused to waive the privilege in regard to the  

requested records, as allowed by CINA Rule 9(b)(3)(F)(ii).  

                                                           -10-                                                      6870

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

                    Simone  argues  on  appeal  that  Irving's  therapy  records  could  contain  


evidence that Irving was having difficulty bonding with his foster family and that there             


was no evidence that Irving would suffer harm if the records were disclosed.  But we  

have examined the therapy records ourselves and confirmed that they do not contain the  


information that Simone was seeking.  And the trial court's finding that disclosure could  

undermine  Irving's  relationship  with  his  counselors  was  based  on  the  informed  

recommendation  of  Irving's  guardian  ad  litem.    We  conclude  that  the  trial  court  


considered the relevant factors and that the order denying disclosure of these records was  

not an abuse of discretion.  

          B.	       The Trial Court Did Not Deny Simone Due Process By Relying On  

                    Irving's Therapy Records In Reaching Any Decision In This Case.  


                    Simone argues that the trial court denied her due process by relying on  

Irving's therapy records in making decisions in this case without providing Simone  

access to the contents of the records.  She relies on the trial court's statement in the order  


denying  release  of  the  records  that  "the  records  only  affirm  [Irving's]  need  for  


permanency."  But CINA Rule 9(b)(3)(D) required the court to consider "the content and  


nature" of the records to determine whether disclosure should be allowed.  We read the  


trial court's conclusion as a statement that the records did not contain the type of material  

that Simone was requesting.  After reviewing the record, we agree with the trial court's  

conclusion that the therapy records did not contain information that would support an  


attack on Irving's relationship with his foster parents; they only contained information  

that supported Irving's need for permanency.  


                    Moreover, Simone makes no showing that the therapy records played a role  

in the trial court's decision to terminate Simone's parental rights.  The trial court did not  

discuss or even mention the therapy records in its order terminating Simone's parental  

rights.  The trial court's best interests finding was based entirely on its evaluation of  

                                                              -11-	                                                        6870

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


factors involving the actions of Simone and Irving's father and the demonstrable harm  

Irving suffered while in their care.  We thus conclude that the court did not consider  

these records in a way that could compromise Simone's right to due process.  

          C.	        The Trial Court's Finding That OCS Made Reasonable Efforts To  


                     Reunite Simone With Irving Was Supported By Substantial  Evidence.  


                     Before a trial court may terminate parental rights to a child the court must  

find that OCS provided timely, reasonable efforts to provide family support services to  



the parent designed to enable the safe return of the child to the family home. 

argues that OCS did not incorporate the recommendations contained in Dr. Macomber's  


neuropsychological evaluation into her case plan, that OCS did not provide her with  

substance abuse treatment appropriate to her circumstances, and that OCS improperly  

deprived her of contact with Irving.  But our review of the record supports the trial  

court's finding that the efforts OCS provided for Simone were reasonable.  


                     The record suggests that Simone's behavior complicated OCS's efforts to  


provide  her  with  both  mental  health  and  substance  abuse  services.    OCS  initially  


arranged for Simone to receive a neuropsychological evaluation, but two weeks after the  

evaluation was performed she tested positive for methamphetamine, thus causing the  


focus of her case plan to shift from mental health treatment to substance abuse treatment.  


OCS arranged  a substance abuse assessment that recommended intensive outpatient  


treatment, but Simone declined to participate.                            

          27	       AS 47.10.086(a); AS 47.10.088(a)(3).  

          28        According  to  Simone,  Set  Free  Alaska  refused   to   accept  her  into  its  

treatment program because at the time she was taking medication to treat her mental   

health conditions.   The record provides no corroboration for Simone's claim, nor does  

it indicate that she informed OCS of this situation so that OCS could assist her in locating         

an alternate treatment provider.   

                                                               -12-	                                                         6870

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

                      In May 2012, OCS referred Simone for a behavior health assessment at   

Alaska  Family  Services.    That  assessment  noted  that  Simone  was  "in   denial  of  her  

substance abuse problems" and recommended that she enroll in Alaska Family Services'              

dual diagnosis treatment program.  On appeal, Simone complains that the treatment she                             

received at Alaska Family Services was deficient because it consisted of group therapy       

sessions,  and  did  not  incorporate  individual  therapy,  which  Dr.  Macomber  had  



                      But the clinical director of Alaska Family Services testified that Simone's  


program incorporated both  individual and group therapy components.  The director  


testified that Simone's participation in group therapy did not increase during her time in  


the program because she never began functioning at a high enough level to allow such  


participation.  Simone failed to successfully complete the program because she did not  


seek out required sober supports, she continued to use illicit substances, and she was not  

consistent in taking her prescription mental health medications.  


                      Simone's conduct also complicated OCS's efforts to provide visitation.  

OCS provided Simone and Irving consistent contact until Simone chose to move to  


Pennsylvania against OCS's wishes.  On her return to Alaska, it took OCS a couple of  

months to reestablish regular visits, but once contact was reestablished Simone again  


disrupted the program by threatening to commit suicide if Irving were not returned to her  


custody.  OCS was still looking for another appropriate facility to host visits at the time  

of the termination trial.  


                      The trial court also found that OCS provided Simone with many additional  

                            29    These  findings  are  not  contested.                       We  affirm  the  trial  court's  


support  services.  

           29         The court found that OCS helped Simone identify issues she needed to

address,  facilitated  family  contact,  coordinated  with  Simone's  service  providers,


                                                                   -13-                                                                 6870  

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

conclusion that OCS made reasonable efforts to enable Irving to return to Simone's  



               We therefore AFFIRM the superior court's order terminating Simone's  

parental rights.  


provided  case  planning  meetings  and  case  plans,  offered  drug  screens,  and  referred  

Simone for substance abuse assessments and a neuropsychological assessment.   

                                             -14-                                         6870  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights