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. Emma D. v. State, Dept. of Health & Social Services, Office of Children's Services (4/11/2014) sp-6893

Emma D. v. State, Dept. of Health & Social Services, Office of Children's Services (4/11/2014) sp-6893

         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  



EMMA D.,                                             )  

                                                     )        Supreme Court No. S-15207  

                          Appellant,                 )  

                                                     )        Superior Court No. 3AN-12-00035 CN  

         v.                                          )  

                                                     )        O P I N I O N  

STATE OF ALASKA,                                     )  

DEPARTMENT OF HEALTH &                               )        No. 6893 - April 11, 2014  

SOCIAL SERVICES, OFFICE OF                           )  

CHILDREN'S SERVICES,                                 )  


                          Appellee.                  )  


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


                  Judicial District, Anchorage, Patrick J. McKay, Judge.  

                  Appearances:  Dianne Olsen, Law Office of Dianne Olsen,  

                  Anchorage, for Appellant.  David A. Wilkinson, Assistant  

                  Attorney  General,  Fairbanks,  and  Michael  C.  Geraghty,  

                  Attorney  General,  Juneau,  for  Appellee  State  of  Alaska.  

                  Lisa  M.  Wilson,  Assistant  Public  Advocate,  and  Richard  

                  Allen, Public Advocate, Anchorage, for Guardian Ad Litem.  


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


                  Bolger, Justices.  

                  FABE, Chief Justice.  

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



                   Emma  D.   has  a  history  of  mental  health  issues,  particularly  bipolar  


disorder, dating back to her early childhood.  The Office of Children's Services (OCS)  

became  involved  with  Emma  and  her  newborn  son,  Joey,  following  reports  from  

Covenant House expressing concern about Emma's homelessness, inability to care for  

an infant, and feelings of depression and aggression toward Joey.  OCS took the then- 


six-month-old Joey into emergency custody during Joey's hospitalization for respiratory  

syncytial       virus     and     dehydration,         during      which       he    was     also     diagnosed         with  

supraventricular  tachycardia,  a  heart  disorder  that  required  regular  attention  and  


                   OCS staff subsequently made attempts to assist Emma in obtaining regular  


mental  health  treatment  in  order  to  reunite  her  with  Joey.                       OCS  staff  had  difficulty  


communicating  and  meeting  with  Emma;  she  failed  to  engage  in  regular  treatment,  


maintain consistent visitation with Joey, or attend her appointments with case workers  

and service providers.   


                   The superior court terminated Emma's parental rights 14 months after OCS  

assumed emergency custody.  The superior court made the required statutory findings,  


including the findings by clear and convincing evidence that OCS had made reasonable  


efforts toward family reunification and that Emma had failed to remedy her conduct in  


a reasonable time.   Emma argues that OCS failed to consider adequately her mental  


health issues and therefore its efforts were not reasonable.  She also appeals the superior  

court's finding that she had failed to remedy her conduct in a reasonable time.  

                   After reviewing the record, we conclude that OCS was aware of Emma's  


mental health issues and made reasonable efforts to engage her but was hampered by her  

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

                                                             -2-                                                          6893  

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

refusal to communicate and her lack of consistent attendance at meetings, visitations, or  


treatment appointments.  We also conclude that the superior court did not err in finding  


that Emma had failed to remedy her conduct in a reasonable time.  Therefore, we affirm  


the superior court's decision terminating Emma's parental rights.  


          A.        Emma's Background  

                    Emma  is  the  21-year-old  mother  of  Joey.    Emma  suffered  sexual,  


emotional, and physical abuse as a child and was in foster care between ages five and  


seven.       She  testified  at  her  parental  rights  termination  hearing  that  she  was  first  


diagnosed with bipolar disorder when she was seven, spent time in hospitals as a child,  


and between the ages of 13 and 17 was in an out-of-state residential treatment program.  


She has also been diagnosed with post-traumatic stress disorder "stemming from multiple  

sexual assaults as a child."   

                    The record indicates that even before Joey's birth and Emma's involvement  

with OCS, Emma had difficulty finding an effective treatment regime for her bipolar  


disorder.  While she was in the residential treatment program, Emma was treated with  


therapy and extensive mood-stabilizing and anti-depressant medication for her bipolar  


disorder.  When asked  whether the therapy was helpful, Emma testified "[a]s far as  


emotionally, yes.  As far as my behaviors and my actions and my thought process, no."  

She also detailed her persistent problems finding an effective and sustainable medication  



                    I was released at 17, but . . . over the years, trying to give me  


                    therapy  kind  of  got frustrating  because  I  would  get  better  


                    over six to eight months and then I would . . . slide right back  


                    down  the  hill.  .  .  .  I  would  get  to  a  therapeutic  level  [of  


                    medication] and I'd do good, good, good, but then I'd have  


                    a medical issue with the medication as far as Depakote made  


                    me stop  the production of my white blood cells, Seroquel  

                                                               -3-                                                         6893

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


                       made me gain too much weight, Lithium dried me out too  

                       much and then I would ask to switch something, but when I  

                       would switch it, I would just start going back downhill.  


                       Since returning to Alaska, Emma has not engaged in regular mental health  


treatment  and  has  been  unable  to  find  regular  employment  or  housing,  periodically  

staying at Covenant House or at the Brother Francis Shelter.  

            B.         Joey's Birth And Subsequent Hospitalization  



                       Emma gave birth to Joey in August 2011.                                          She used Covenant House  

services throughout her pregnancy.  Ten days after Joey's birth, Emma came to the  


Covenant House shelter in distress.  She told staff members that he wouldn't stop crying  


and  hadn't  eaten  since  the  previous  night;  she  also  described  feelings  of  being  


"overwhelmed" and suffering from "post-partum psychosis."  Emma stated that she had  


felt like hurting Joey "three different times today" and that "sometimes I think about  


throwing him against the wall just to get him to shut up."  She described feeling like she  


couldn't take care of him and didn't "even want to touch him." She had been using maxi  

pads and garbage bags as diapers, and Joey had developed a persistent rash.  Covenant  

House staff filed a report with OCS and called the police.   


                       An OCS specialist attempted to contact Emma and after two days was able  


to meet with her.  Emma denied all the allegations in the Covenant House report but  

admitted  having  bipolar  disorder  for  which  she  was  not  receiving  any  treatment  or  


services.  The OCS specialist offered Emma mental health services, but Emma declined  


the services and indicated that she did not want to be medicated.  The specialist thought  

            2          OCS attempted to identify and make contact with men that Emma listed as                                

Joey's possible father.  A paternity test with the man listed on Joey's birth certificate was                         

negative.  Another possible father was ruled out by a paternity test.  A third possible  

father was notified by OCS of Emma's termination proceedings; this possible father was         

incarcerated, opposed to a paternity test, and refused to participate in any proceedings.             

                                                                         -4-                                                                  6893

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


that Joey appeared healthy and that Emma "was able to articulate how to care for a  

child"; OCS took no further action at that time.   


                    In September 2011 OCS received another report from Covenant House  


indicating concern about Joey's health due to Emma's homelessness, inability to care for  


an infant, and unrealistic expectations of an infant.  After speaking with Joey's primary  


care physician, the OCS specialist again determined that no further action was necessary  


at that time.  OCS received an additional report in October 2011indicating that a medical  

professional had seen Joey and that Joey had smelled of body odor and urine.  Another  


report in January 2012 detailed an incident at the Brother Francis Shelter where Emma  


appeared at the shelter screaming, temporarily left Joey unattended, and left in an angry  

and unstable state.  

                    On  January  28,  2012,  Joey  was  admitted  to  Providence  Hospital  with  


respiratory syncytial virus and dehydration. The hospital record reports  that Emma "has  


had very poor visitation since the date of admission" and that she provided staff with  

inoperable phone numbers.  On several occasions, Emma was aggressive and abusive  


toward the hospital staff.  Hospital staff also reported "aggressive speech towards the  

infant as well as aggressive touch."  Joey was diagnosed with a heart rhythm disorder  


called supraventricular tachycardia, meaning that his heart beat could accelerate up to  


300 beats per minute.  This condition could be life threatening if left untreated or treated  


improperly.  The prescribed treatment was monitoring and medication every eight hours,  

as well as the application of a cold compress when necessary.  


          C.        OCS's Emergency Custody Of Joey In February 2012  


                    Providence Hospital filed a report of suspected harm with OCS.  The OCS  


specialist was eventually able to get Emma to attend a team decision meeting with OCS  


staff, nursing staff, and the social worker at Providence on February 8, 2012.  They  


discussed Joey's medical condition and Emma's ability to provide care for him as well  

                                                                -5-                                                         6893

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


as her mental health issues, homelessness, and unpredictable behavior. At the end of the  


meeting, Emma agreed that Joey should go into a foster home.  OCS took emergency  


custody of Joey, and he was discharged to a foster family able to meet his medical needs.  


                    When  Joey  was  discharged  on  February  9,  2012,  the  OCS  specialist  

facilitated a meeting between Emma and the foster parent and asked Emma to participate  


in developing a case plan.  Emma indicated that she was receiving treatment through  

Anchorage Community Mental Health Services (ACMHS), but she declined to sign a  


release of information for ACMHS. She did sign a release of information for the Brother  

Francis Shelter.  Emma also declined the specialist's offer to make a referral for mental  


health  assessment,  treatment,  or  medication.    The  specialist  arranged  for  Emma's  

visitation with Joey twice a week.  OCS filed an emergency petition for adjudication of  

Joey as a child in need of aid and for temporary custody on February 9, 2012.  

          D.        OCS's Case Plan And Efforts To Engage Emma  

                    On February 24, 2012, Emma and Joey's case was assigned to OCS child  


service specialist William James.  Prior to joining OCS, James was a school teacher for  


22 years with experience in special education, including work with bipolar youth.  James  


attempted to reach out to Emma with phone calls and offers to meet with her at "her  


comfort and availability."  He found her "reticent to engage with OCS."  He scheduled  


meetings with her on March 1, 9, and 15, but Emma failed to attend the meetings, despite  


James's calls to  remind her and emphasis on his "interest in engaging with her and  


assisting her in her reunification."  They were finally able to meet on March 20, and they  

developed a case plan.  


                    The case plan noted Emma's "self-proclaimed mental health concerns that  


prevent her from behaving responsibly, or predictably on a day to day basis.  Aggressive  


moo[d] swings and anger management [problems] create an unsafe environment for her  

child who has specific medical needs."  The case plan listed reunification as the initial  

                                                               -6-                                                         6893

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


goal and stated OCS's "desire . . . to assist [Emma] in obtaining the help she requires in  


stabilizing her observed and self-proclaimed depression and mood swings, as well as  


helping her to learn to care for her son's medical needs."  Throughout the case plan,  

reference was made to Emma's observed and self-reported mental health issues and  


strategies for addressing them.  The case plan detailed OCS's plan to refer Emma to the  


service providers that she identified as acceptable: ACMHS and CHOICES for mental  


health services, and Safe Harbor for housing services.  The OCS caseworker was to  


maintain regular contact with the service providers, to provide a bus pass, and to support  


Emma by scheduling planning meetings with her. The case plan also described Emma's  


resistance to receiving services, noting that "[Emma] did not believe she needed any  

support.  She stated she just needed to straighten out her housing situation.  [Emma]  


declined assistance with obtaining an assessment at [ACMHS], and she chose not to sign  

a release of information for ACMHS."  She also refused James's help in communicating  

with Safe Harbor about the possibility of obtaining housing there.   


                    James scheduled additional meetings with Emma, but she failed to attend  


most of them.  James was able to speak with her by telephone on April 5, 2012, and he  

asked her if she had followed her case plan; she said no.  He offered to assist her with the  


services, including by providing transportation, and she declined his assistance.  She also  

continued to decline to release any information from the mental health service providers  

to OCS.   


                    Emma received a screening survey from CHOICES on March 19, 2012,  


which was not sent to OCS at the time because she had not yet signed a release.  Under  

the survey question "Does Client need [fetal alcohol spectrum disorder] assessment?" the  

staff  member  wrote  "Yes"  but  for  follow-up  steps  indicated  "inappropriate  for  


intervention."  On March 30, 2012, CHOICES conducted a behavior health assessment,  

which recommended case management and psychopharmacology management.  

                                                              -7-                                                        6893

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

                   James continued to try to establish regular contact with Emma through  

March and April with limited success, mostly by telephone but also once by looking for  

her at the Brother Francis Shelter.  Emma attended a court hearing on April 20, 2012,  


and James was able to speak with her at the court.  He asked her to sign the OCS case  


plan as well as releases of information from her mental health service providers; she  

again refused.  Emma missed the next scheduled meeting but called James on April 25.  


She was angry because a visit with Joey had been canceled due to his illness, and she  

accused James of being a liar.  James continued to try to meet with Emma through May,  


but she continued to not attend the scheduled meetings.   Emma also missed several  

appointments at CHOICES.  There were also incidents at Brother Francis Shelter that  


resulted in Emma being barred from the shelter until she attended a grievance meeting;  

she failed to attend a grievance meeting.  


                   On May 14, 2012, James called Emma to inform her that due to the number  

of  missed  visits  with  Joey,  they  needed  to  reevaluate  the  visitation  schedule.    OCS  


visitation supervisors had removed Emma from the visitation schedule, but James had  


intervened to put her back on the schedule and continued to try to get her to attend the  


visits.  She responded to James's call by again calling him a liar and declaring that she  

would not be coming to OCS.  


                   Emma's  attorney  eventually  intervened  and  arranged  for  a  meeting  on  

May  21.    Emma  did  attend  this  meeting,  and  she  signed  releases  for  ACMHS  and  


CHOICES.  James contacted those providers; CHOICES confirmed that Emma had  

received  their  services.    CHOICES  told  James  that  they  were  helping  Emma  with  

managing  her  calender,  seeing  other  people's  perspectives,  not  speaking  violently,  


maintaining contact, and seeking housing.  ACMHS told James that they had no record  

of Emma.  James sent referrals for her to both agencies.  

                                                             -8-                                                      6893

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

          E.	       Child In Need Of Aid Adjudication  


                    In July 2012 the superior court held an adjudication hearing to determine  


if Joey was a child in need of aid.  Emma failed to attend the hearing.  She also failed to  

attend her scheduled visits with Joey; out of the 29 visits that were scheduled as of  


July 11, three were canceled due to weather; one due to illness; and 17 were missed by  


Emma.  At the hearing, James reported that at the end of June and beginning of July he  


had seen some progress with Emma in her willingness to work with him and in her visits  


with Joey.  He indicated, however, that he wanted  to  see  her maintain that level of  


positive engagement for several more months before considering a return of custody.  At  

the hearing, Emma's lawyer commented briefly on OCS's efforts, including the lack of  


a  parenting  class,  and  argued  that  OCS's  case  plan  "needs  to  be  sort  of  blunt  and  


concrete so that my client clearly understands what needs to be done and what happens  


if it doesn't need to be done."  The court acknowledged that Emma's "mental health  


issues are the crux of the matter" but found that OCS had made reasonable efforts toward  


family reunification "because everybody here has offered and she has rejected.  We can't  

make her do things, but they have to be offered to her."  The superior court adjudicated  


Joey to be a child in need of aid, particularly due to Joey's medical need for careful and  

consistent attention.  


          F.	       OCS's         Efforts       Between          The      Adjudication             Hearing         And       The  

                    Termination Of Parental Rights  


                    In  August  2012  Emma  underwent  a  behavioral  health  assessment  at  


ACMHS, and James received the results. The assessment indicated that she had a serious  

and persistent mental illness but that she was able to express her feelings and make  

decisions.    ACMHS's  case  management  plan  included  a  psychiatric  evaluation,  


individual therapy, medication management, communication with OCS, and help with  

establishing  safe  housing.    James  attempted  to  maintain  monthly  contact  with  both  

                                                               -9-	                                                        6893

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

ACMHS  and  CHOICES.    However,  sometimes  his  messages  with  ACMHS  went  

unreturned.  He also attempted to maintain "near weekly" contact with Emma although  


she responded only once a month on average.  When James had an opportunity to speak  

with Emma, he would ask her if "she was getting the services she felt she needed, if  

ACMHS was following through on . . . their promises to her and if she needed other  


services and she typically would respond that she was following  her case plan."  In  


September and October 2012, James spoke with Emma's case manager at ACMHS who  


reported  difficulty  in  contacting  or  meeting  with  Emma.    When  James  contacted  


CHOICES in November 2012, he was informed that Emma had not been in contact with  

CHOICES  since  early  June  and  that  she  had  been  discharged  due  to  a  lack  of  


participation.  James attempted to communicate with Emma about her case plan and her  


need to engage in services through multiple phone calls and letters mailed to Covenant  

House and to her mother's address.  


                   In November 2012 James was able to meet with Emma, and she responded  


to his concerns by saying that she was following her case plan and actively engaged with  


ACMHS.  She also told him that she did not need to participate in a case plan, would not  


work with CHOICES, had no contact with her attorney, and did not want to visit her son  


or respond to her case worker because she was afraid of being arrested.  Because Emma  

reported greater engagement with ACMHS than the ACMHS case worker reported,  


James attempted to communicate with ACMHS while Emma was in his office, but they  

were unable to speak with her ACMHS case worker.  When James was able to contact  


ACMHS in December, the case worker informed him that Emma had missed her recent  


appointments, including an appointment with a psychiatrist, and had not followed their  

plan  since  August.    In  January  2013  James  was  informed  that  Emma  was  making  

"sporadic contact" with ACMHS though she appeared to be "disengaged and had been  

missing recent appointments."  

                                                            -10-                                                       6893

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


                    On January 28, 2013, James filed a petition for the termination of Emma's  


parental  rights.         The  petition  detailed  Emma's  failure  to  engage  with  mental  health  

services,  work  her  case  plan,  establish  safe  housing,  and  consistently  attend  her  

scheduled  visits  with  Joey.    On  February  4,  2013,  James  met  with  Emma  and  her  


attorney.  Prior to this meeting, Emma had told James that she was taking the medication  


prescribed to her by ACMHS. At this meeting, Emma denied taking medication and said  


that she had not taken medication for several years.  Emma told James that she had been  

assigned a new psychiatrist at ACMHS who refused to prescribe her medication; when  


James contacted ACMHS, he was informed that she had missed her appointment with  

her psychiatrist.  

                    In March 2013 the ACMHS case worker told James that Emma had moved  


into   Safe   Harbor,  which  provides  housing  for  "individuals  with  mental  health  


assessments and recommendations."  The case worker told James that the case worker  


had taken Emma shopping for food and clothes but that Emma remained inconsistent in  


her interactions and was in danger of losing her housing at Safe Harbor due to her lack  


of attendance at meetings.  The case worker told James that when she was able to meet  


with Emma, the case worker found that Emma was "belligerent and demanding" and not  

making progress.   

          G.        Termination Of Emma's Parental Rights  


                    The trial on OCS's petition to terminate Emma's parental rights was held  

on April 29, 2013.  Between the time of Joey's removal in February 2012 until the  


termination  trial  in  April  2013,  Emma  was  scheduled  for  64  visits  with  Joey;  she  


attended 17.  She had 33 scheduled meetings with James; she attended 13.  In response  


to Emma's expressed sleep problems, James asked her to choose a time and location  


comfortable for her for scheduling meetings and visits.  When he scheduled afternoon  


visits with Joey, she failed to attend.  Emma agreed with James's testimony that she had  

                                                               -11-                                                         6893

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

missed two-thirds of her scheduled visits with Joey.  She testified that she missed visits  


because  of  family  issues  and  "legal  issues  with  an  assault  charge  and  a  [domestic  


violence] order against me."  

                    The superior court found that Joey continued to be a child in need of aid  


due to Emma's neglect and mental illness and that termination of the parental rights of  


Emma and any possible father was in Joey's best interests.  The superior court also found  


that   OCS's   reunification   efforts   were   reasonable,   noting   James's   difficulty   in  


communicating with Emma as well as her misleading statements to James.  The superior  


court terminated Emma's parental rights.  She now appeals the superior court's finding  


that  OCS's  reunification  efforts  were  reasonable  and  that  she  failed  to  remedy  her  

conduct in a reasonable time.   


                    In child in need of aid cases, "we review the trial court's factual findings  


for clear error and its legal determinations de novo."   "Factual findings are 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's  decision  was  



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 a trial court's ruling."5  

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

Servs., 309 P.3d 850, 855 (Alaska 2013) (citing Sherman B. v. State, Dep't of Health &  


Soc. Servs., Office of Children's Servs., 290 P.3d 421, 427-28 (Alaska 2012)).  

          4         Id. at 855-56 (citation omitted).  

          5         Id. at 856 (citation omitted).  

                                                              -12-                                                         6893

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

                   Whether the parent failed to remedy the conduct or  the conditions that  

placed the child at substantial risk of harm is a factual finding that we review for clear  

error.6  "Whether OCS made reasonable efforts to reunify the family is a mixed question   

of law and fact," and "[w]e review questions of law de novo."7  


                   To terminate parental rights under AS 47.10.088, the superior court must  


                                                                            8  "First, the court must find that  

make three findings by clear and convincing evidence.  


the child has been subjected to conduct or conditions that have caused the child to be in  



need of aid."   "Second, there must be a finding that the parent has failed, within a  


reasonable time, to remedy the conduct or conditions that placed the child at substantial  


risk of harm."10  "Third, the court must find that OCS made reasonable efforts to promote  


                     11  "The court must also find by a preponderance of the evidence that  


                                                              12  Emma does not challenge the superior  

termination is in the child's best interests."      

court's findings under AS 47.10.011 that Joey was a child in need of aid.  She challenges  


only the superior court's findings that OCS made reasonable efforts and that Emma  

failed to remedy her conduct in a reasonable time.    

         6         Sherman B., 290 P.3d at 428 (citation omitted).

         7         Id. (citations omitted).

         8         Id.

         9         Id. (citing AS 47.10.088(a)(1); AS 47.10.011).

         10        Id. (citing AS 47.10.088(a)(2)(A)-(B)).  

         11        Id. (citing AS 47.10.088(a)(3); AS 47.10.086 (describing department's duty  

to make reasonable efforts)).  

         12        Id. (citing CINA Rule 18(c)(3) (comporting with AS 47.10.088(c))).  

                                                          -13-                                                    6893

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

         A.	       The  Superior  Court  Did  Not  Err  In  Finding  That  OCS  Made  

                   Reasonable Efforts To Reunify Emma With Joey.  

                   Alaska Statute 47.10.088 requires the superior court to find by clear and  


convincing evidence that the State has made timely and reasonable efforts to provide  


services to the family for the purpose of reunification before terminating parental rights.  

Alaska Statute 47.10.086(a) elaborates on the reasonable efforts requirement by requiring  

the State to  


                   (1)      identify  family  support  services  that  will  assist  the  


                   parent or guardian in remedying the conduct or conditions in  

                   the home that made the child a child in need of aid;  

                   (2)       actively  offer  the  parent  or  guardian,  and  refer  the  


                   parent or guardian to, the services identified under (1) of this  


                   subsection; the department shall refer the parent or guardian  

                   to   community-based   family   support   services   whenever  

                   community-based services are available and desired by the  

                   parent or guardian; and  

                   (3)      document the department's actions . . . .  

In considering the reasonableness of the State's efforts, "[w]e have acknowledged that  


the State has some discretion both in determining what efforts to pursue and when to  


pursue them."                                                                                               

                        "A parent's willingness to participate in services is relevant to the scope  


of the efforts OCS must provide.  The efforts that OCS makes must be reasonable but  

need not be perfect."14  


                   Emma's  primary  argument  on  appeal  is  that  OCS's  efforts  were  not  


reasonable because they failed to adequately take into account her disability, which her  

brief identifies as her diagnosed bipolar disorder and the potential of undiagnosed fetal  


alcohol spectrum disorder (FASD). She relies heavily on our decision in Lucy J. v. State,  

          13       Id. at 432 (citations omitted).  

          14       Id. (internal quotation marks omitted) (citations omitted).  

                                                           -14-                                                        6893  

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

Department of Health & Social Services, Office of Children's Services 15 for her argument  


that her disability mandated additional or different efforts from OCS.  She also makes  


passing reference to the Americans with Disabilities Act (ADA).                                   

                   In  Lucy  J. ,  we  addressed  a  mother's  arguments  that  OCS  failed  to  


reasonably accommodate her disability under the ADA because her case plan did not  


incorporate her disability diagnosis and because OCS had difficulty communicating with  



her disability services provider.                In response to the mother's arguments, we noted that  


"[o]ur case law and the internal policies of OCS suggest that family reunification services  

                                                                                                                    18  We  

should be provided in a manner that takes a parent's disability into account." 

concluded  that  "the  'requirement  that  [OCS]  make  reasonable  efforts  to  provide  [a  

parent] with family support services appears to be essentially identical to the ADA's  


reasonable  accommodation  requirement.'  "                            We  determined  that  an  independent  

analysis under the ADA was unnecessary because "the question whether reunification  

services reasonably accommodated a parent's disability is already included within the  


question whether active or reasonable efforts were made to reunite the family. . . . OCS  

must  reasonably  tailor  those  [reunification  plan]  steps  to  the  client's  individual  


capabilities."    We also noted that in determining whether OCS met its burden, "a court  

          15       244 P.3d 1099 (Alaska 2010).

          16       42 U.S.C.  12101-12213 (2012).

          17       244 P.3d at 1115.

          18       Id.

          19       Id.  at  1116  (alterations  in  the  original)  (quoting  J.H.  v.  State,  Dep't  of  

Health & Soc. Servs. ,  30 P.3d 79, 86 n.11 (Alaska 2001)).  

          20       Id. (footnote omitted).  

                                                            -15-                                                      6893

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

may consider 'a parent's demonstrated lack of willingness to participate in treatment.' "21  


                     The  mother  argued  in  Lucy  J.  that  OCS  should  have  referred  her  to  a  


different treatment program and that "with proper supports, explanation, and lead time  



[she] would have been better able to process the plan."                                   We concluded that OCS had  

made "remarkable and exemplary efforts" at reunification based on a record that showed  


that OCS made disability services referrals, assisted with housing, and made numerous  


phone calls and other attempts to remind the mother of meetings and appointments.23   In  


upholding the superior court's termination of parental rights, we concluded that "Lucy's  


repeated failures to complete the elements of her case plan, engage in meaningful . . .  


treatment, and show up for meetings that OCS had arranged for her provided the trial  


court with evidence that she was more hindered by her unwillingness to participate in the  



plan than she was by a lack of capacity to do so."                              Based on OCS's repeated referrals  


to treatment programs and the mother's refusal to participate in treatment or engage with  


OCS, we concluded that "[a]ny argument that OCS failed to refer Lucy to a particular  

plan or to offer her more explanation or lead time is simply not persuasive."25  

                     We  have  held  that  "  'the  requirement  that  the  state  offer  reunification  

services is fulfilled by setting out the types of services that a parent should avail himself  


          21        Id. at 1114 (quoting Maisy W. v. State, Dep't of Health & Soc. Servs., Office   

of Children's Servs., 175 P.3d 1263, 1268 (Alaska 2008)).  

          22        Id. at 1115.  

          23        Id. at 1117.  

          24        Id.  

          25        Id. at 1115.  

                                                                -16-                                                          6893

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


or herself of in a manner that allows the parent to utilize the services.' "                                  Another recent  


decision  from  this  court  reviewing  the  termination  of  parental  rights  involved  the  

adequacy of OCS's reunification efforts with a parent unwilling to engage with services  



or follow a case plan.                The mother in that case argued  that OCS cannot "passively  


accept  a  parent's  reluctance  to  participate  in  a  mental  health  evaluation,"  but  we  

concluded that "her argument is contradicted by the social worker's testimony that it is  



not possible to force an unwilling client to participate in mental health treatment." 

acknowledged the difficulty of dealing with uncooperative parents and reiterated our  

conclusion that  "requiring OCS to seek court orders for every uncooperative parent  



would put a huge and pointless burden on the department and the court system." 


concluded that OCS had made sufficient efforts to provide mental health services when  


OCS referred the mother to a mental health assessment and offered to help her reengage  


with  mental  health  services  after  she  had  stopped  participating.                                   In  upholding  the  


superior court's finding, we noted the mother's refusal of OCS's help in reengaging in  

          26        Audrey H. v. State, Office of Children's Servs.                       , 188 P.3d 668, 679 (Alaska  

2008) (quoting Frank E. v. State , Dep't of Health & Soc. Servs., Div. of Family & Youth                                 

Servs., 77 P.3d 715, 720 (Alaska 2003)).  



                     Chloe  O.  v. State, Dep't of  Health  & Soc. Servs.,  Office  of  Children's  

Servs., 309 P.3d 850 (Alaska 2013).  

          28        Id. at 857.  



                    Id. (quoting  Wilson W. v. State, Office of Children's Servs., 185 P.3d 94,  

102 (Alaska 2008)).  

          30        Id.  

                                                               -17-                                                         6893

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

services  and  her  discharge  from  a  treatment  program  due  to  her  "inappropriate  


                    The State does not dispute that OCS must take a parent's disability into  


account  in  its  case  plan  but  argues  that  the  record  shows  that  OCS  took  Emma's  


disability into account and its efforts were reasonable.  In support of this argument, the  

State cites to numerous places in the record to show OCS's awareness of Emma's mental  


health issues and James's testimony that he attempted to "wrap services around her with  


people  she  could  communicate  with  [and]  interact  with."    James  testified  that  he  


"coordinated with those services providers, encouraged [Emma] to engage with them,  

sought out her input as to how [he] could assist her with that engagement."  


                    The case plan prepared by James included numerous references to Emma's  


mental health issues and her need for mental health treatment.  The case plan also set out  

a plan for Emma to receive mental health treatment at ACMHS and CHOICES and  


housing assistance from Safe Harbor with OCS maintaining contact with her and her  

service providers and providing her with transportation assistance.  


                    Emma does not dispute James's testimony about his numerous attempts to  


contact her and meet with her and maintain contact with the service providers.  Nor does  


she dispute the fact that she missed the majority of her meetings with James as well as  

the majority of her visits with Joey.  Instead Emma offers extended argument about  


additional steps that she feels OCS should have taken, including a FASD evaluation and  


individual counseling.  While there is some evidence in the record of initial concern by  

both  OCS  and  CHOICES  over  the  possibility  of  FASD,  CHOICES's  subsequent  


behavior health assessment did not identify FASD as a concern.  Emma did not present  

          31        Id.  

                                                             -18-                                                            6893  

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

evidence or claim to the superior court that she in fact suffers from FASD or that she was  

unable to understand her case plan.    


                   Emma  also  argues  that  OCS  should  have  ensured  that  she  received  


medication  and  individual  counseling;  arranged  for  a  more  proactive  agency  than  


CHOICES; and made her case plan "more concrete."  Emma does not explain how OCS  

could have ensured treatment given the fact that she failed to consistently respond to  


attempts at communication or attend scheduled meetings and appointments with OCS or  

with her service providers.  

                   Contrary to Emma's arguments, we conclude that not only were OCS's  

efforts reasonable, but that James made commendable efforts to reunify Emma with Joey.  

He  consistently made efforts to communicate with Emma, despite her unresponsiveness,  


even going so far as to personally seek her out at Brother  Francis Shelter.  He also  


intervened to keep Emma on the visitation schedule after she missed the majority of her  

scheduled visits with Joey, and he attempted to maintain contact with Emma's mental  

health service providers despite receiving contradictory and misleading information from  


                   Based on Emma's unwillingness to engage in treatment or services, we  

conclude that the superior court did not err in its finding of reasonable efforts.  


         B.	       The Superior Court Did Not Err In Finding That Emma Failed To  

                   Resolve Her Conduct In A Reasonable Time. 


                    To terminate parental rights, the superior court must find by clear and  


convincing evidence that the parent has "failed, within a reasonable time, to remedy the  


conduct or conditions . . . that place the child in substantial risk so that returning the child  

to the parent would place the child at substantial risk of physical or mental injury."32   A  

         32        AS 47.10.088(a)(2).  

                                                          -19-	                                                      6893  

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

reasonable time is statutorily defined as "a period of time that serves the best interests of     

the child, taking in[to] account the affected child's age, emotional and developmental   


needs, and ability to form and maintain lasting attachments."                                        In determining whether  

a parent has remedied his or her conduct in a reasonable time, the superior court "may  


                                                                                                  34   "[W]hether the parent  

consider any fact relating to the best interests of the child."     

failed to remedy the 'conduct or the conditions that placed the child at substantial risk'  


of harm [is a] factual finding[] reviewed for clear error."35  


                      The superior court found by clear and convincing evidence that Emma had  


failed to remedy the conduct and conditions that placed Joey at substantial risk of harm  

and that "it's clear that the best interest of [Joey] would be to terminate."  

                      Joey was placed into foster custody in February 2012, and OCS filed a  

petition   for   termination   of   parental   rights   in   January   2013.      Emma   points   to  

AS 47.10.088(d), which requires OCS to file a termination petition if the child has been  


out of the parent's custody for 15 of the most recent 22 months, and argues that OCS  


pursued  termination  "much  faster  than  the  law  mandates."    In  Christina  J.  v.  State,  


                                                                                                                      36 we upheld  

Department of Health & Social Services, Office of Children's Services ,  

termination when the petition was filed nine months after OCS took custody.  In rejecting  


an argument similar to Emma's, we explained our reasoning:  

                     AS 47.10.088(g) explicitly allows OCS to file a petition for  

                     termination before the expiration of the mandatory foster care  


                     period (i.e., 15 out of 22 months) if it "determines that filing  


           33        AS 47.10.990(28).  

           34        AS 47.10.088(b).  

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

Servs., 290 P.3d 421, 428 (Alaska 2012) (citation omitted).  

           36         254 P.3d 1095 (Alaska 2011).  

                                                                  -20-                                                             6893

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

                    a petition is in the best interests of the child."                 This provision  

                    suggests  that  the  22-month  period  is  not  intended  as  a  

                    minimum time OCS must wait before filing.  Rather, OCS  


                    determines when to file a petition based exclusively on the  

                    best  interests  of  the  child;  the  statute  defines  "reasonable  

                    time" not as a specific number of months or by reference to  

                    parents' needs, but as "a period of time that serves the best  


                    interests  of  the  child,  taking  in[to]  account  the  affected  

                    child's age, emotional and developmental needs, and ability  

                    to form and maintain lasting attachments." As the superior  

                    court  noted,  this  period  is  likely  to  be  shorter  for  young  

                    children; the legislature has recognized, and expert witnesses  

                    confirmed  in  this  case,  that  children  "undergo  a  critical  

                    attachment process before . . . they reach six years of age,"  


                    and a failure to bond with adult caregivers during this time  



                    can result in lasting emotional damage.  


We cautioned that the determination "must be made on a case-by-case basis and the  


amount of time considered 'reasonable' will vary," but we "emphasize[d] that the statute  


                                                                                                                 We upheld  

clearly puts the criteria for 'reasonable time' in terms of the child's needs." 



the superior court's finding based on the child's age and the parent's lack of progress. 

                    The guardian ad litem submitted a brief in this appeal to emphasize that the  


superior court considered evidence that "[w]hile [Joey] thrived in foster care, [Emma]  


failed to complete her case plan and failed to comply with service providers."  In addition  

to the evidence discussed above regarding Emma's failure to attend visitations with Joey  

and lack of cooperation with OCS and mental health service providers, the superior court  


heard testimony about Emma's long history of mental health issues and her life-long  


difficulties in establishing an effective and sustainable treatment regime.  The superior  

          37        Id. at 1106-07 (internal footnotes and citations omitted).  

          38        Id. at 1108.  

          39        Id.  

                                                             -21-                                                           6893  

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


court also heard testimony about Joey's health improvement while in foster care and his  


bonding with his foster family.  Based on the record, we conclude that the superior court  


did not err in finding that Emma failed to remedy her conduct in a reasonable time as  

defined by statute and in light of Joey's best interests.  

V.        CONCLUSION  


                   For the foregoing reasons, we AFFIRM the superior court's termination of  

Emma's parental rights.  

                                                           -22-                                                      6893

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