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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Grace L. v. State, Dept. of Health & Social Services, Office of Children's Services (7/18/2014) sp-6925

Grace L. v. State, Dept. of Health & Social Services, Office of Children's Services (7/18/2014) sp-6925

         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  



GRACE L.,                                           )  

                                                    )        Supreme Court No. S-15108  

                 Appellant,                         )  

                                                    )        Superior Court No. 3PA-09-00074 CN  

         v.                                         )  

                                                    )        O P I N I O N  

STATE OF ALASKA,                                    )  

DEPARTMENT OF HEALTH &                              )        No. 6925 - July 18, 2014  

SOCIAL SERVICES, OFFICE OF                          )  

CHILDREN'S SERVICES,                                )  

                                                    )  

                 Appellee.                          )  

_______________________________  )  



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

                 Judicial District, Palmer, Eric Smith, Judge.  



                 Appearances:    Christi  A.  Pavia,  Pavia  Law  Office  LLC,  

                 Anchorage, for Appellant.  Jacqueline G. Schafer, Assistant  

                                                                     

                 Attorney  General,  Anchorage,  and  Michael  C.  Geraghty,  

                                                            

                 Attorney General, Juneau, for Appellee.  



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

                             

                 Bolger, Justices.  



                 BOLGER, Justice.
  

                  STOWERS, Justice, dissenting.
  



I.       INTRODUCTION  



                  The superior court terminated a mother's parental rights based on evidence  



of her chronic delusions and the danger these delusions posed to her child.  On appeal,  

                                                                                           


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

the  mother   argues   that  several  aspects  of  the  court's  decision  are  not  adequately  



supported.  In particular, she argues that the Office of Children's Services (OCS) should  



have required an assessment of her psychiatric condition and monitored the course of her  



                      

psychological therapy.  But the record shows that the mother did receive a psychiatric  



                               

evaluation at OCS's direction and that it would likely have been harmful to disrupt the  



positive relationship she had with her counselor.  We thus conclude  that the record  



                                                                                         

supports the superior court's conclusion that OCS fulfilled its duty to make active efforts  



to provide this mother with services designed to prevent the breakup of her family.   



II.       FACTS AND PROCEEDINGS  



                   Ronnie L. was ten years old when he was taken into OCS custody on  



                     1  

                                                                                                               

July 31, 2009.   On July 6, 2009, OCS received a protective services report stating that  



Ronnie's  mother,  Grace,  had  appeared  with  him  at  a  hospital  emergency  room,  



                          

complaining that they had been sexually assaulted by women.  The report reflected that  



Grace showed no physical signs of sexual abuse and that Ronnie denied knowledge of  



                                                                                  

any  abuse.    Christine  Sheridan,  the  social  worker  who  investigated  the  report,  



interviewed Grace and Ronnie.   



                   Because Grace was exhibiting troubling behavior, June Ober of Mat-Su  



                                          

Behavioral Health Services provided a crisis screening.  Grace told Ober that she had  



taken medications for mental illness in the past but that she had not stayed on them  



because she disliked their side effects.  Ober recommended that Grace participate in a  



                                                                                   

psychological evaluation and receive medication. Grace signed a safety plan and agreed  



                                                                                                  

to  seek  mental  health  treatment  in  order  to  keep  Ronnie  safe.                          Sheridan  attempted  



                                                                

multiple times to follow up with Grace, but when she finally reached Grace by phone on  



          1        Pseudonyms are used throughout to protect the family's privacy.  



                                                             -2-                                                          6925  


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

July 20, 2009, Grace told her that she had consulted a lawyer and                                    did   not intend to   



participate in treatment for her mental illness.  



                                           

                   OCS then filed an emergency petition to have Ronnie adjudicated a child  



in need of aid.  The petition cited a number of protective services reports received over  



many years by OCS and OCS's attempts to intervene with the family.  The petition  



concluded:  



                                                                                        

                    [Grace] has demonstrated she will not follow through with  

                   the department's recommendations or follow through with  

                   her treatment plan regarding her mental health.  Currently  

                    [Grace]  is  not  on  any  psychotropic  medication  and  [is]  

                   refusing treatment.   [Ronnie] is exposed to her paranoia and        

                   frightening  delusions  on  a  daily  basis.  .  .  .    [Children's  

                   Services  Specialist]  Sheridan  and  Supervisor  Jones  have  

                   observed [Ronnie] demonstrating paranoid behaviors. . . .  



                             The  department  feels  that  [Ronnie]  is  negatively  

                                                                                      

                   impacted  by  his  mother's  untreated  mental  illness  and  

                   intervention is required at this time. 



 The superior court held an emergency hearing and authorized OCS to take Ronnie into  

                                                                                                   

custody.2  

               



                   OCS referred Grace for an assessment with clinical psychologist Dr. Grace  

                                                                                                                



Long, who reviewed Grace's medical history and conducted a brief interview with her.  

                                                        



Dr. Long recommended that Grace continue in therapy, and that she also be evaluated  



by a psychiatrist to determine if medication would be appropriate for her.  



                                                                                                

                   Soon thereafter OCS entered into a case plan with Grace that identified  



                                                                                                         

Grace's  priority  needs  as  "[u]nresolved  chronic  or  severe  diagnosed  mental  health  



                                                                                                    

problems, [h]ealth problem or disability, [and] [i]neffective/harmful parenting skills."  



          2        Grace and Ronald, Ronnie's father, later stipulated to Ronnie's adjudication  



as a child in need of aid.  Ronald lived in a community far from Grace and Ronnie.  

Ronald later relinquished his parental rights to Ronnie.  



                                                             -3-                                                         6925  


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

The plan stated that Grace "has [a] long history of untreated mental health and instability  

                                                                                       



in her life."  The plan acknowledged that Grace and Ronnie share a strong, supportive,     



loving bond.  It called for Grace to engage in mental health services and follow all  



recommendations, and its stated goals for Grace included decreasing or stopping the  



delusions,  obtaining  stable  housing,  completing  a  course  of  parenting  classes,  and  



participating in regular visitation with Ronnie.  



                   In  March  2010  Grace  participated  in  a  psychological  evaluation  with  



       

Dr. Melinda H. Glass, to whom OCS had referred her.  The purpose of the evaluation  



                                                                                     

was to determine how Grace's mental illness impacted her ability to act as an appropriate  



and protective parent.  Grace told Dr. Glass that she had been working with Richard  



                                     

Gustafson, a clinician at South Central Foundation Behavioral Health; Grace stated that  



she wanted Gustafson to discuss the results of the evaluation with her.   



                          

                   Dr. Glass interviewed Grace, administered a number of tests, and reviewed  



                                                                                                        

collateral information.  Dr. Glass diagnosed Grace with "[d]elusional disorder, mixed  



type,  primarily  persecutory  and  grandiose."    She  reported  that  Grace  "has  been  



                                                

inconsistent in her accessing of mental health treatment, in spite of it repeatedly being  



                                                                                             

recommended.  She has been fairly consistently diagnosed with delusional disorder with  



some questions of schizophrenia, but has apparently only taken medication for a short  



period of time."    



                   Dr. Glass concluded that Grace "is likely to experience great difficulty  



safely and appropriately parenting any child . . . and is likely to be unable to provide  



[Ronnie]  with  guidance  or  stability."    Dr.  Glass  noted  indications  that  Grace  had  



involved  Ronnie  in  her  delusions  in  the  past,  and  she  stated  that  such  involvement  



                         

"would have the potential of being destructive for him and his developing understanding  



of reality."  Dr. Glass concluded, "As long as [Grace] continues to function with an  



                                                             -4-                                                       6925
  


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

untreated delusional disorder she has the potential of causing great harm to her son as  



well as to herself."   



                                                                  

                    Dr. Glass stated that, while it was important for Grace to receive mental  



                                                                                                        

health treatment if she were to have a safe and appropriate parenting relationship with  



                                                       

Ronnie,  her  persecutory  delusions  would  likely  hinder  her  ability  to  participate  in  



treatment.    Dr.  Glass  noted  that  Grace  appeared  to  have  a  good  relationship  with  



                                                                       

Gustafson, who "appears to understand some of her problems."  Dr. Glass recommended  



that Grace continue in therapy, that she be referred to a psychiatrist for a medication  



                                                                                        

review, and that she take any recommended medication to try to improve her ability to  



                                                                                           

discern reality. Dr. Glass noted that Grace "is unlikely to do this without a court order,  



and may not even then."  



                                                                                                               

                    In addition to referring Grace to Dr. Glass for an evaluation, OCS helped  



                                                                    

her locate stable housing, enroll in multiple  parenting classes, and engage in family  



contact with Ronnie.  



                    In June 2011 OCS filed a permanency report indicating that while Grace  



had attended parenting classes and therapy sessions with Gustafson, she had not resolved  



her mental health issues to the extent necessary to allow her to provide a safe and stable  



                          3 

home for Ronnie,  she had not sought medication or direct intervention to address her 



mental illness, and she had refused to divulge her housing situation to OCS.  



                                                                                    

                    On January 6, 2012, OCS filed a petition to terminate Grace's parental  



rights to Ronnie.  On May 3, 2012, in preparation for the termination trial, Dr. Glass  



                                                                                                                  

conducted an updated psychological evaluation of Grace.  Dr. Glass's report noted that  



                                                                    

Grace's delusional behaviors were ongoing.  It stated that Grace's response pattern, in  



          3  

                                                            

                    Gustafson later testified at the termination trial that he worked with Grace  

                                                                                            

to enhance her ability to function in the world, but that he did not attempt to ameliorate  

her underlying delusions.  



                                                              -5-                                                           6925  


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

                                                                                                

which  she  "endorsed  a  significant  number  of  psychological  symptoms  related  to  



                                                                           

paranoia, dissociation, flashback, and avoidance," was similar to her earlier evaluation,  



                                                                                                      

but that Grace "presented with more symptoms of depression than she did in the previous  



evaluation."    Dr.  Glass  diagnosed  Grace  with  "[d]elusional  disorder,  mixed  type,  



primarily persecutory and grandiose," and identified "[m]ood disorder, [not otherwise  



specified]" as a rule-out diagnosis.   



                    In  her  conclusions,  Dr.  Glass  stated  that  Grace's  "delusions  appear  



                                                  

somewhat more bizarre than they did in the previous evaluation," and she noted that "[i]n  



this evaluation she had difficulty completing an interview or making sense.  It would  



appear that her paranoia is heightened and her ability to stay grounded in reality is less  



                  

than it was in the past evaluation."  Dr. Glass went on to state that Grace demonstrated  



                                                                     

no positive changes to her mental health status but instead appeared "somewhat worse."  



                                                                                 

Dr. Glass found that "[t]reatment does not appear to be helping [Grace] address her  



                                                                                                     

mental illness and it is not known whether medication would have a significant impact.  



It is unlikely [Grace] would consider it as she has refused medication in the past."    



                    The  superior  court  held  a  trial  on  OCS's  petition  to  terminate  Grace's  



parental  rights  in  May  and  August    2012.    Following  the  trial,  the  superior  court  



terminated Grace's parental rights to Ronnie.  



                                                       

                    Grace appeals the order terminating her parental rights.  She argues that the  



                                                                                       

superior court erred in finding that:  (1) Ronnie was a child in need of aid; (2) Grace did  



                         

not remedy in a timely fashion conduct or conditions that endangered Ronnie; (3) OCS  



                                                                                     

made active reunification efforts to allow Ronnie to be returned to Grace's care; (4)  



Ronnie would likely suffer serious physical or emotional damage if Grace's custody  



                                                                                         

were not terminated; and (5) termination of Grace's parental rights was in Ronnie's best  



interests.  She also argues that she received ineffective assistance of counsel during the  



superior court proceedings.  



                                                             -6-                                                        6925
  


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

III.	     STANDARDS OF REVIEW  



                                                                                  

                     In child in need of aid cases we review a superior court's factual findings  



                      4                                                           5  

                                                                                                                    

for clear error.   We review questions of law de novo.                              A finding is clearly erroneous if  



                                                                                                                    

our review of the entire record in the light most favorable to the party that prevailed at  



                                                                                                                    6  

                                                                                                                       Whether  

trial leaves us definitely and firmly convinced that the finding is mistaken. 



OCS   made   active,   but   unsuccessful,   efforts   to   provide   remedial   services   and  



                                                                                           

rehabilitative programs designed to prevent the breakup of the Indian family is a mixed  



                                      7  

                                                                                              

question of fact and law.   We review de novo "a request for disqualification of a judge  



                                                                8  

based on the appearance of impropriety."    



IV.	      DISCUSSION  



          A.	        The Superior Court Did Not Err When It Concluded That Ronnie Was  

                                                                          

                    A Child In Need Of Aid, That Grace Did Not Remedy The Conditions  

                                                      

                     That Placed Ronnie At Risk Of Harm, And That Ronnie Would Likely  

                                                                                           

                     Suffer Serious Harm If Grace's Custody Were Continued.  



                     Before terminating parental rights, a superior court must find, by clear and  



convincing evidence, that the child was in need of aid and that the parent did not timely  

                                                                                          



          4         Sherman B. v. State, Dep't of Health & Soc. Servs.,   290 P.3d 421, 427   



(Alaska 2012) (citing Christina J. v. State, Dep't of Health & Soc. Servs.                                   , 254 P.3d 1095,   

1103 (Alaska 2011)).  



          5	        Id. at 428 (citing Christina J., 254 P.3d at 1104).  



          6  

                                    

                    Philip J. v. State, Dep't of Health & Soc. Servs., 314 P.3d 518, 526-27  

                                                                                               

(Alaska 2013) (quoting Pravat P. v. State, Dep't of Health & Soc. Servs. , 249 P.3d 264,  

269-70 (Alaska 2011)).  



          7          Christina J., 254 P.3d at 1104 (citing Ben M. v. State, Dep't of Health &  



Soc. Servs., 204 P.3d 1013, 1018 (Alaska 2009)).  



          8          Griswold v. Homer City Council, 310 P.3d 938, 941 (Alaska 2013).  



                                                                -7-	                                                         6925
  


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

                                                                                                                                           9  

                                                                                                                                              

remedy conduct or conditions that placed the child at risk of harm.                                                                           When, as here, the  



child is an Indian child, the superior court must find, by evidence beyond a reasonable  



doubt,  that  the  child  would  likely  suffer  serious  physical  or  emotional  harm  if  the  



                                                                       10  

                                                                            The superior court made these findings in this case,  

parent's custody were to continue. 



                                                                          

basing them on the testimony and report of Dr. Glass.  The superior court found Dr.  



                                                                                                                                                         

Glass's testimony "quite credible" and noted that no expert testimony was presented that  



would call into question Dr. Glass's assessment and conclusions.  



                                                                                                            

                            Grace argues that OCS did not present any evidence to support the superior  



                                                                                                                                                                 11 

                                                                                                                                                                      But the  

court's finding that she had a mental illness that placed Ronnie at risk of harm. 



                                                                                                                            

report  that  Dr.  Glass  prepared  for  the  termination  trial  described  Grace's  bizarre  



                                                                                                                                                           

delusions and her heightened paranoia.  Dr. Glass concluded that Grace would likely  



                                                                                                                              

include Ronnie in her delusional process if she had more contact with him and that  



                                                                                                         

exposure to her delusions would require Ronnie to become her caretaker or to completely  



disengage from her.  Dr. Glass thus concluded that Grace had the potential to cause  



                                                                                                                                       

Ronnie great physical or psychological harm or to expose him to such harm from others.  



                            Grace also argues that the superior court erred in finding that she had not  



                                                                                                                                               

remedied the conditions that placed Ronnie at risk of harm.  But Dr. Glass testified that  



                                                                                      

Grace's mental condition over the course of the case had worsened rather than improved,  



              9             AS 47.10.088(a)(1) & (2).  



              10            25 U.S.C.  1912(f) (2012).  



              11            AS 47.10.011(11) provides that "the court may find a child to be a child in                                                               



need of aid" if "the parent . . . has a mental illness, serious emotional disturbance, or   

mental deficiency of a nature and duration that places the child at substantial risk of   

physical harm or mental injury[.]"  



                 



                                                                                        -8-                                                                                6925
  


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

and the superior court found Dr. Glass's testimony credible.  Grace does not address this       



aspect of Dr. Glass's testimony in her brief on appeal.  



                                                                                                                         

                        Grace also briefly argues that the superior court erred in finding that Ronnie  



would likely suffer serious emotional or physical damage if Grace's custody were to  



continue.  The superior court based this finding on evidence that Ronnie was "very  

parentified"  when  he  was  living  with  Grace,12  and  on  Dr.  Glass's  testimony  that  if  



                                                                                                                                   

Ronnie were returned to Grace, his parentification would recur and would be harmful to  



                                                                                                                                    

him, that Grace does not understand Ronnie's basic needs and would be incapable of  



meeting those needs, and that Ronnie would be harmed by having to determine which  



                                                                                                     

of Grace's behaviors were delusional and how to respond to her delusional behavior.  Dr.  



                                                   

Glass's   report   stated   that   Grace   would   "experience   great   difficulty   safely   and  



appropriately parenting any child." (Emphasis added).  



                                             

                        In general, Grace argues that Dr. Glass's testimony should be discounted  



                                                                               

because Dr. Glass was unaware of progress she had made and the fact that she now had  



stable housing, and because Dr. Glass testified that Grace's delusions did not involve  



Ronnie.  But Dr. Glass evaluated Grace only a few weeks before the termination trial,  



                                                                                                                   

and the superior court noted that any progress Grace had made with Gustafson was a  



                                                                                     

matter of treating symptoms rather than treating Grace's underlying delusional disorder.  



And although Dr. Glass acknowledged that Grace's recent delusions might not have  



                                                                                                                                        

directly involved Ronnie, these delusions had involved Ronnie when he was living with  



her, and they were a cause of Ronnie's removal from her home.  



            12          "[P]arentification in the family entails a functional and/or emotional role  



reversal in which the child sacrifices his or her own needs for attention, comfort, and  

guidance in order to accommodate and  care for logistical or emotional needs of the  

                                                                         

parent."    Nancy  D.  Chase,  Parentification :   An Overview of Theory, Research,  and  

                                                                                                                                

Societal  Issues,  in  BURDENED  CHILDREN :     THEORY ,   RESEARCH  AND   TREATMENT  OF  



                                      

PARENTIFICATION 3, 5 (Nancy D. Chase ed., 1999).  



                                                                          -9-                                                                    6925
  


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

                    The  superior  court's  findings  on  these  issues  appear  to  be  adequately  



supported by Dr. Glass's testimony.  We conclude therefore that the superior court's  



findings were not clear error.  



                                                                                    

          B.	       The Superior Court Did Not Err When It Determined That OCS Made  

                    Active Reunification Efforts.  



                                                                                                               

                    A superior court may not terminate  parental rights to an Indian child unless  



                                                 

it finds, by clear and convincing evidence, that OCS made reasonable and active efforts  



                                                                                                                             13  

                                                  

to provide services and programs designed to prevent the breakup of the Indian family. 



The superior court made that finding here, noting that OCS's efforts included providing  

                                                               



Grace with visitation, assessments, transportation assistance, referrals for counseling,  



                                                

contact with Grace's counselor, and meetings with OCS.  Grace challenges this finding,  



                                                                                                              

arguing  that  her  delusions  persisted  because  OCS  failed  to  implement  Dr.  Glass's  



recommendation that she be referred for a psychiatric evaluation.  



                                                  

                    The necessity for a psychiatric assessment was addressed by the superior  



                                                                                  

court during hearings in January and February 2010.   At the adjudication hearing on  



January 20, OCS requested a continuance, noting that Grace had refused to participate  



                                            

in a psychological evaluation or to discuss medication management with her OCS social  



                                                         

worker.  OCS asked the court to order Grace to participate in a psychological evaluation  



and to meet with a psychiatrist to discuss medication.  



                    Grace initially objected to these requests.  But later in the hearing, Grace  



                                                                                          

agreed to work with Gustafson at Southcentral Foundation to set up a psychological  



evaluation and a psychiatric assessment.  When the court convened on February 18,  



                                                                                                 

Grace reported that she had scheduled a psychiatric appointment with Dr. Tim Harvey  



at Southcentral Foundation the following week.  



          13        25 U.S.C.  1912(d); CINA Rule 18(c)(2)(B).  



                                                            -10-                                                           6925  


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

                    On February 23, 2010, Grace saw Dr. Harvey at Southcentral Foundation's  

                                                                       



Behavioral Services clinic,  and his report indicated that Grace came for the evaluation  

                                                                                                



because "OCS[ ]wanted [her] to see a psychiatrist regarding custody of [her] child."  



                                                                                                    

Grace denied having any psychiatric problems at the time, but Dr. Harvey was aware of  



her  prior  contact  with  Southcentral,  her  previous  psychiatric  intake,  and  her  prior  



                                                                 

treatment "for putative delusional disorder versus paranoid schizophrenia."  Dr. Harvey  



was  also aware that Grace had "subtotally discontinued taking [prescribed] medication  



                                     

but  ha[d]  continued  in  interpersonal  therapy  here  in  the  clinic  for  some  time."    Dr.  



Harvey was also aware of Grace's prior inpatient psychiatric hospitalization at Alaska  



Psychiatric Institute.  



                    Grace made clear to Dr. Harvey that she believed she had "no need for  



                                                                                                                   

medication intervention in terms of potential psychiatric illness at this time." Dr. Harvey  



                                                          

concluded that although "[i]t appears that she has had significant symptoms consistent  



with  a  possible  delusional  disorder  or  possible  other  psychotic  disorder  including  



                                                                                                     

schizophrenia in the past" she "also makes it clear that she is not seeking medication  



                                                                                

treatment for any psychiatric disorders at the present time."  Thus, Dr. Harvey indicated  



                                                                                                                  

that he would "not schedule her for further follow[-]up at the present time" but he "did  



urge her to feel free to present once again to the clinic in the future should she have a  



                                                                     

desire for further evaluation or consideration of medication intervention for psychiatric  



issues."  



                                     

                    When Dr. Glass interviewed Grace about two weeks later on March 10,  



                 

2010, and again on March 16, 2010, she apparently did not have Dr. Harvey's report  



         

from  his  February  23,  2010  evaluation.    Her  report  indicated  that  she  reviewed  



                                                                                

Southcentral records through May 28, 2009 and that updated records from Southcentral  



Foundation had been requested but "not received."  



                                                              -11-                                                         6925
  


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

                       Thus, when Dr. Glass recommended that Grace be referred to a psychiatrist  



for a medication review, she was unaware that Grace had just had such a review.  And   



Dr. Glass's  assessment in her March 2010 report that Grace was "unlikely" to take  



medication to improve her ability to discern what is real from what is not was completely  



                    

consistent with Grace's statement to Dr. Harvey that she was "not seeking medication  



treatment for any psychiatric disorders at the present time."  We therefore conclude that,  



by the time of Dr. Glass's report, OCS had already provided active efforts to encourage  



Grace to obtain an appropriate medication review by a psychiatrist.  



                       Grace also argues that OCS failed to provide active efforts because it failed  



                                                                              

to monitor or intervene in her therapy with Gustafson.  But Grace's argument fails to  



                                                                                     

acknowledge the social worker's testimony that OCS did keep in touch with Gustafson  



                                       

and monitor Grace's progress in therapy.  More importantly, a review of Dr. Glass's  



                                                                                         

testimony and reports suggests that Dr. Glass felt that Grace needed to be treated with  



kid  gloves,  and  that  any  treating  professional  suggesting  that  she  was  delusional  or  



                                                      

required medication stood the chance of driving her away and destroying any chance for  



a beneficial, therapeutic relationship.  



                       Dr. Glass's initial reports concluded that "Mr. Gustafson is likely the key  



to  enlisting  her  cooperation  in  treatment  but  there  is  the  chance  that  if  he  becomes  



                                        

involved in a push to get her on medication and become more involved with mental  



health treatment she will incorporate him into her delusional system and cut off the  



                                                                                              

relationship."  She also opined that "[m]ental health therapy would need to occur on a  



regular basis with the focus upon developing a more grounded perception, resolving  



underlying trauma, and addressing her delusional system."  But Dr. Glass ultimately  



                                                               

concluded that these efforts would be futile: "It is unlikely [Grace] will cooperate with  



                       

this  plan  in  any significant fashion, yet if she does not she is unlikely to be able to  



appropriately and safely parent her son."  



                                                                        -12-                                                                   6925
  


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

                   The  superior  court  concluded  that  OCS  was  not  required  to  "have  



intervened in the counseling and re-directed Mr. Gustafson to ensure that counseling  



focused on the appropriate issues [relating to Grace's delusions]" because Gustafson  



                   "didn't think it was a priority and the department legitimately  

                                                                                          

                   relied on his opinion of what is going on and his work with  

                                                                     

                   [Grace].  This was a counselor that was free for [Grace], easy  

                                        

                   to get to, and most importantly [Grace] trusted [Gustafson]  

                   and had worked with him for years.  This was an important  

                   relationship  for  [Grace].    Dr.  Glas[s]  testified  [Grace's]  

                   delusional issues are fixed and permanent, so ameliorating  

                   them so she can function well [in] a day to day environment  

                   may well be the best that can be done."                               



These conclusions appear to be well supported.   



                   Based on this record, the superior court reasonably concluded that OCS  



made active efforts to preserve this family, even though these efforts ultimately proved  



unsuccessful.  



          C.	      The   Superior          Court       Did     Not     Err     When        It   Concluded          That  

                                                                                               

                   Termination  of  Grace's  Parental  Rights  Was   In  Ronnie's  Best  

                                                                                               

                   Interests.  



                   Before a superior court may terminate parental rights it must also find that  

                                                     



                                                                  14  

termination is in the best interests of the child.  

                                                                                                  

                                                                      The superior court made that finding  



                                                                   

here, based on Ronnie's need for a permanent living situation and a permanent family.  



                                                                                                             

                   Grace argues that the superior court did not adequately explore the option  



                                                                           

of a guardianship for Ronnie.  But the superior court explicitly rejected guardianship as  



a permanency option, stating that  



                                                                             

                   I gave serious thought to a guardianship approach.  Because  

                   that would allow ongoing contact between [Ronnie] and his  

                   mom.  But as the guardian ad litem pointed out, [Ronnie]  



          14       AS 47.10.088(c).  



                                                          -13-	                                                       6925  


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

                    needs a permanent living situation. . . .  He needs to be done  

                                                                                

                    with this, he needs to know what the plan is until he turns 18.  

                                                                                             

                    And   a   guardianship   would   not   provide   that   sense   of  

                    permanency . . . it can be undone and . . . I don't think things  

                                                                              

                    are going to change with [Grace] significantly in the next five  

                                                                                                  

                    or six years.  



The superior court's conclusion is consistent with our case law.  



                    The law does not require the superior court to consider a guardianship in  



the context of a termination proceeding, except to the extent that the statute requires the  

                                                                                                 



                                                               15  

court to consider the child's best interests.  

                                                                                          

                                                                   The court may reasonably reject a request  



                                                                                                   

for guardianship if such a plan would be inconsistent with a child's need for stability and  



                16  

protection.           Here  the  superior  court  determined  that  Ronnie's  best  interests  favor  



termination.  This was a reasonable conclusion based on the record at trial.  



                                                                                  

                    Grace also argues that the superior court erred in finding that termination  



was  in  Ronnie's  best  interests  because  termination  would  not  allow  Grace  to  have  



ongoing  contact  with  Ronnie,  and  that  ongoing  contact  would  be  in  Ronnie's  best  



                

interests.    As  noted  above,  the  superior  court  clearly  considered  this  factor  when  it  



                                                                                                                

decided that termination was in Ronnie's best interests.  But the court also noted:  "It is  



very  unfortunate  .  .  .  to  me  that  the  current  law  does  not  allow  a  judge  to  order  



termination but also order ongoing contact.  I really wish I had that option, because I  



would certainly order it here, but I don't have that option."  



                    We have previously stated that superior courts probably lack authority to  



                                                                     

order post-termination visitation by biological parents because the CINA statute does not  



          15        Thea G. v. State, Dep't of Health & Soc. Servs                     ., 291 P.3d 957, 968 (Alaska  



2013).  



          16        See Doug Y. v. State, Dep't of Health & Soc. Servs., 243 P.3d 217, 230  



(Alaska 2010).  



                                                             -14-                                                            6925  


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

                                                                                    17  

                                                                                                            

provide for the parents to retain any such residual rights.                             In that case, we relied on a  



decision interpreting the adoption statute, which reasoned that because the adoption  



statute did not mention post-adoption visitation, the statute foreclosed superior courts  

from issuing orders requiring post-adoption visitation.18  But we have also suggested that  



                                                                                                                

in cases involving "extraordinary circumstances" superior courts may have authority to  



                                                 

order post-termination visitation to the extent that such contact will serve the child's best  

interests.19  



                                                                                

                    In this case, Grace did not specifically ask the court to allow visitation  



                                                                                                                              20  

                                                                            

following the termination of parental rights, so we do not consider that issue directly. 



                                                                                                         

Indeed, the superior court explicitly considered the value of continuing contact between  



                                              

Grace and Ronnie as a factor weighing against termination.  But the court ultimately  



determined to order termination to promote Ronnie's needs for stability and protection.  



The superior court did not commit any clear error when it balanced these factors and  



reached its final conclusion that termination would be in Ronnie's best interests.   



          17        C.W. v. State, Dep't of Health & Soc. Servs., 23 P.3d 52, 57-58 (Alaska  



2001).  



          18        See  id.  (citing  In  re  W.E.G. ,  710  P.2d  410,   415   (Alaska  1985)).    The  



adoption  statute  was  subsequently  amended  to  specifically  allow  for  such  "open  

adoptions."  See AS 25.23.130(c).  



          19  

                                                                                                 

                    Burke P. v. State, Dep't of Health & Soc. Servs. , 162 P.3d 1239, 1248  

(Alaska 2007).  



          20  

                                            

                    See Hannah B. v. State, Dep't of Health & Soc. Servs ., 289 P.3d 924, 935  

                                                                                

(Alaska 2012) (declining to consider the question of whether a guardianship would be  

in a child's best interests because the issue was not raised at the termination trial).  



                                                             -15-                                                        6925
  


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

          E.	      The Superior Court Properly Considered Grace's Claim Of Ineffective  

                   Assistance Of Counsel.  



                   Grace argues that her appointed attorney provided ineffective assistance of  



            21  

counsel.          She  raised  this  issue  in  the  superior  court  by  making  three  requests  for  



                                                                                      

substitution of counsel.  The superior court held a hearing on each request and denied  



Grace's motions.  



                                                                                                         

                   The  superior  court  also  denied  Grace's  request  to  have  another  judge  



consider her challenges:  



                                           

                    [T]he fact that [Grace] makes allegations, the fact that she  

                   behaves the way she does has no bearing whatsoever on my  

                   rulings. . . .  I'm going to rule on [the petition] based on the  

                                                            

                   record I have at the trial. . . . It is a necessary part of a judge's  

                   life  that  they  address  people  who  want  to  replace  their  

                                                                 

                   lawyers, and the judge who's  the trial judge is in the best  

                   position  to  figure  out  what  the  problem  is,  because  they  

                    [understand the] context.  



                   On appeal, Grace argues broadly that to avoid an appearance of impropriety  



                                                                                             

the  superior  court  should  have  appointed  another  judge  to  hear  her  requests  for  



                                  22  

substitution of counsel.                                                       

                                      She argues that during the representation hearing she could  



                                                                                  

"have revealed mental infirmities or said something that could negatively affect the trier  



                                         

of fact's view of her."  But Grace does not cite any cases supporting this view or argue  



how the procedure in this case created an appearance of impropriety.   



          21       See V.F. v. State, 666 P.2d 42, 45 (Alaska 1983) (holding that an indigent                 



parent has a constitutional right to the effective assistance of counsel in a proceeding to   

terminate parental rights).  



          22       Alaska Code of Judicial Conduct Canon 3(E)(1) provides that "a judge shall  



disqualify himself or herself in a proceeding in which the judge's impartiality might  

reasonably be questioned . . . ."  



                                                            -16-	                                                     6925
  


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

                                      

                    In Alaska, a judge has an obligation not to order disqualification "when  



                                             23  

                                                 Trial judges are often called upon to compartmentalize  

there is no occasion to do so." 



                                                                                         

their decisions - to review evidence that is later declared to be inadmissable or to rule  



                 

on similar legal issues at different stages of a contested case.  Generally, these decisions  



do not create an appearance of impropriety unless the judge hears something or does  



                                                                                                                         24  

something so prejudicial that further participation would be unfair to the parties.                                          



                                

                    In this case, Grace not only fails to identify any legal error; she also fails  



                                       

to show any way that the consideration of her requests for substitution of counsel by the  



                                                                                                              

assigned judge affected the ultimate decision in this case. Thus Grace has failed to show  



                                                                                            

any error that would require us to reverse the superior court's decision on her request for  



                                                  25  

                                                         And  Grace  does  not  raise  any  other  arguments  

assignment  of  a  different  judge.                                                              



regarding the superior court's decision denying her requests for substitution of counsel.  



                                                                                                              

                    Grace also challenges several decisions by her trial counsel: she argues that  



                                                                                                                   

her counsel failed to zealously assert that OCS did not make active efforts on her behalf,  



          23        Amidon v. State , 604 P.2d 575, 577 (Alaska 1979).  



          24        See Lacher v. Lacher, 993 P.2d 413, 420-21 (Alaska 1999) (judge who had  



been involved in one party's involuntary commitment proceedings not disqualified from  

                                                                                                          

presiding over divorce trial); R.J.M. v. State , Dep't of Health & Soc. Servs. , 946 P.2d  

                                                         

855,  869-70  (Alaska  1997)  (judge  who  presided  over  parents'  divorce  trial  not  

disqualified from later proceedings to terminate parental rights); Cook v. State, 36 P.3d  

                            

710, 728-29 (Alaska App. 2001) (judge who issued restraining order not disqualified  

from plea proceedings on related stalking charge); see also State v. City of Anchorage,  

513 P.2d 1104, 1112 (Alaska 1973) (approving federal rule that "a judge may not be  

                                                                                                                         

disqualified on the mere basis of previous rulings, opinions, or exercises of judicial  

discretion").  



          25  

                                                                                 

                    Alaska Civil Rule 61 provides in part: "The court at every stage of the  

proceeding must disregard any error or defect in the proceeding which does not affect  

the substantial rights of the parties."  



                                                              -17-                                                         6925
  


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

          

failed to pursue the issue of guardianship, and failed to pursue the question of future  



contact  between  her  and  Ronnie.    These  decisions  all  appear  to  involve  tactical  



                                                                                    26  

                                                                                        But Grace did not present  

considerations that are resistant to subsequent challenge. 



these arguments to the superior court, so we have no superior court order to review  



            27 

                                                                                                  

directly.       And the record contains no explanation of her attorney's decisions that would  



                         28  

                                                                                                                        

assist our review.           We conclude that the superior court did not commit plain error in its  

failure to recognize or resolve these challenges.29  



 V.       CONCLUSION  



                   For  the  foregoing  reasons,  we  AFFIRM  the  superior  court's  order  



terminating Grace's parental rights to Ronnie.  



          26        Chloe O. v. State, Dep't of Health & Soc. Servs                        ., 309 P.3d 850, 858-59  



(Alaska 2013) (citation omitted).  



          27       See Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska  



2007) (declining to review an ineffective assistance of counsel claim that was not raised  

                                                                            

in the superior court).  



          28       See  Nelson  v.  State,  273  P.3d  608,  612  (Alaska  2012)  (requiring  a  



                                                                                                           

challenging party to present some evidence ruling out the possibility of a tactical reason  

explaining an attorney's conduct).  



          29  

                                                                                 

                   See Paula E. v. State, Dep't of Health & Soc. Servs ., 276 P.3d 422, 436  

                                                                                                 

(Alaska 2012) (reviewing for plain error an objection that was not raised in the superior  

court).  



                                                            -18-                                                       6925
  


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

STOWERS, Justice, dissenting in part.  



                                                        Prologue  



                                         

                   The Office of Children's Services retained psychologist Dr. Melinda Glass  



                                                                            

to evaluate Grace L.'s mental health problems and to make recommendations for what  



                                                                                      

needed to be done to assist Grace in becoming a safe parent and regaining custody of her  



son.  Dr. Glass recommended:  



                                                           

                   If there were any hope of returning her son to her, ongoing  

                                                                           

                    oversight would be necessary, as well as . . . an evaluation for  

                   medication, and compliance with recommended medication  

                                                     

                    and treatment. Mental health therapy would need to occur on  

                                                                              

                    a  regular  basis  with  the  focus  upon  developing  a  more  

                   grounded   perception,   resolving   underlying   trauma,   and  

                    addressing her delusional system.  



                                                              I.  



                   This appeal involves the superior court's termination of a mother's parental  

                                                                                                



rights to her Indian child.  Thus this Child In Need of Aid case is governed by the Indian  

                                                                              

Child Welfare Act (ICWA).1                                                                                    

                                             Under ICWA, the superior court may not terminate a  



parent's  parental  rights  to  an  Indian  child  unless  it  finds,  by  clear  and  convincing  



evidence, that the State made active efforts to provide services and programs designed  



                                                                2  

to prevent the breakup of the Indian family.   ICWA section 1912(d) provides:  



                            

                   Any  party  seeking  to  effect  a  .  .  .  termination  of  parental  

                   rights to[] an Indian child under State law shall satisfy the  

                    court that active efforts have been made to provide remedial  

                    services and rehabilitative programs designed to prevent the  

                                                                          

                   breakup  of  the  Indian  family  and  that  these  efforts  have  

                                                                                

                   proved unsuccessful.  



          1        25 U.S.C.  1901-1923 (2012).  



          2        25 U.S.C.  1912(d) (2012); CINA Rule 18(c)(2)(B).  



                                                            -19-                                                       6925  


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

                                                                                                                  

                      "No 'pat formula' exists for distinguishing between  active and passive  



                                                                                                                                                3  

                           

efforts, and we have adopted a case-by-case approach for the active efforts analysis." 



But we have repeatedly recognized that efforts are passive "where a plan is drawn up and  

                                                                                                              

the client must develop his or her own resources towards bringing it to fruition."4                                                          In  



                                                                                                 

contrast,  efforts  may  be  termed  active  when  "the  state  caseworker  takes  the  client  



                                

through the  steps  of the plan rather than requiring that the plan be performed on its  

          5  As an example, "rather than requiring that a client find a job [and] acquire new  

own."                                                                                                               



housing, . . . the Indian Child Welfare Act would require that the caseworker help the  

                                                                         

client develop job and parenting skills necessary to retain custody of her child."6  



                      I disagree with the court's opinion concluding that the superior court did  

                                                                                                                                  



not err when it determined that the Office of Children's Services (OCS) made active  



                                                                                                                                

reunification efforts.  I conclude that OCS failed to make active efforts under a clear and  



                                                                                  

convincing burden of proof. This being the case, I also conclude that the superior court's  



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



276 P.3d 457, 466 (Alaska 2012) (quoting                                 Pravat P. v. State, Dep't of Health & Soc.  

Servs., Office of Children's Servs., 249 P.3d 264, 271 (Alaska 2011)).  



           4  

                                                                                                     

                      A.A. v. State, Dep't of Family & Youth Servs. , 982 P.2d 256, 261 (Alaska  

 1999)  (quoting  CRAIG  J.    DORSAY ,    THE  INDIAN    CHILD  WELFARE  ACT  AND  LAWS  



                                  

AFFECTING INDIAN JUVENILES MANUAL 157-58 (1984)); see also Dale H. v. State, Dep't  

of Health & Soc. Servs., 235 P.3d 203, 213 (Alaska 2010); Jon S. v. State, Dep't of  

                                                                             

Health & Soc. Servs., Office of Children's Servs. , 212 P.3d 756, 763 (Alaska 2009); A.M.  

                                                                                                 

v. State, 945 P.2d 296, 306 (Alaska 1997).  



           5          A.A. , 982 P.2d at 261 (quoting DORSAY , supra note 4, at 157-58).  



           6          Id.  



                                                                     -20-                                                               6925
  


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

                                                                                                        

order terminating Grace's parental rights should be reversed and the case remanded for  



                                                                              7  

OCS to make the active efforts that ICWA requires.   



                                        

                    When OCS refers a parent with mental health problems like Grace to a  



            

mental health professional for an evaluation, it does so for a variety of reasons.  One of  



          7         Because I conclude that OCS failed to make active efforts, I also necessarily  



conclude that it was error to  find that Grace failed to timely remedy the conduct or  

                                              

conditions that made her son a child in need of aid.  And because it is premature to find  

                                                                                                         

that termination of a parent's parental rights is in the best interest of the child where OCS  

                                                                                                     

fails to make active efforts, I disagree with this finding also.  I concur with the court's  

opinion that the superior court's finding that Ronnie is a child in need of aid was not  

error,  and  that  the  superior  court  properly  considered  Grace's  claim  of  ineffective  

assistance of counsel.  



                    I  also  disagree  to  a  point  with  the  superior  court's  refusal  to  consider  

                                                 

Grace's request for an order for post-termination visitation.  The court explained:  "It is  

                                                                                                  

very  unfortunate  .  .  .  to  me  that  the  current  law  does  not  allow  a  judge  to  order  

termination but also order ongoing contact.  I really wish I had that option, because I  

                                                       

would certainly order it here, but I don't have that option."  We stated in Ralph H. v.  

State, Department of Health and Social Services, Office of Children's Services :  



                    After a trial court terminates parental rights, the parent retains  

                                                                                           

                    no residual parental rights to the child. Although there is no  

                                                             

                    CINA  statute  that  expressly  grants  the  superior  court  the  

                    authority to order post-termination visitation, we have not  

                    foreclosed  the  possibility  that  the  superior  court  could  

                    authorize        post-termination            visitation       in    "extraordinary  

                                    

                    circumstances."  In  such  circumstances,  post-termination  

                    visitation  will  only  be  permitted  "to  the  extent  that  the  

                    authorized visitation is in the best interest of the child."  



255 P.3d 1003, 1014 (Alaska 2011) (quoting Burke P. v. State., Dep't of Health & Soc.  

                                                                                                          

Servs., Office of Children's Servs., 162 P.3d 1239, 1248 (Alaska 2007); C.W. v. State,  

                                                                              

Dep't of Health & Soc. Servs. , 23 P.3d 52, 58 (Alaska 2001)) (footnote omitted).  In my  

                                                                                             

view, of all the cases where this court has considered the question of post-termination  

                                                                                        

visitation, if a trial court may order such visitation (an unresolved legal question), this  

                              

case would likely satisfy the criteria of "extraordinary circumstances."  



                                                              -21-                                                         6925
  


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

the most important reasons is to gain an understanding of exactly   what the parent's  



mental health problems are and what can be done   to   treat them.  The mental health  



professional  often  will  make  critical  recommendations  for  further  assessment  and  



                                                                                                         

treatment, and OCS will (or should) include these recommendations in the parent's case  



                                                                                                          

plan.  Developing an appropriate case plan is crucial for the parent to know what she  



                                                   

must do in order to maximize the possibility of reunifying with her child.  Developing  



                                                       

an  appropriate  case  plan  based  on  the  recommendations  is  also  crucial  for  OCS  to  



demonstrate that it has made active efforts under ICWA.  



                                              

                    In this case, OCS failed to comply with the recommendations of its retained  



mental health professionals - namely, to refer Grace to a psychiatrist for medication  



assessment  and  management  of  her  delusional  disorder,  and  to  closely  monitor  her  



                                                                                                             

therapy to ensure that the therapist was actually providing therapy "with a focus upon . . .  



                  

addressing her delusional system."  Because OCS failed to make these efforts, in the  



words of Dr. Glass, Grace had no hope of having her son returned to her.  



                                                              II.  



                                                                                                           

                    OCS took emergency custody of Ronnie on July 31, 2009.  The following  



month, OCS referred Grace for an assessment with clinical psychologist Dr. Grace Long,  



                                                                                                          

who recommended that Grace continue in therapy and be evaluated by a psychiatrist to  



determine if medication would be appropriate for her.  



                                                                       

                    On February 23, 2010, Grace was seen by Dr. Tim Harvey at Southcentral  



Foundation's Behavioral Services clinic.  The court today places much emphasis on this  



                                                                                                       

visit with Dr. Harvey, relying on it to support its erroneous conclusion that OCS satisfied  



                                                  

its  active  efforts  obligation  to  make  a  referral  to  a  psychiatrist  for  medication  



                                                                                                               

management.   I therefore quote from Dr. Harvey's report in some detail and ask the  



                                           

reader to pay close attention to exactly what Dr. Harvey said.  According to Dr. Harvey's  



                                                             -22-                                                        6925
  


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

 evaluation report, Grace explained that "OCS wanted me to see a psychiatrist regarding  

                                                                                           



 custody of my child."  Dr. Harvey elaborated:  



                   The patient presents today for medication evaluation in the  

                   clinic for somewhat unclear reasons. . . .  



                   The  patient  is  somewhat  reticent  to  discuss  her  psychiatric  

                   history  today  and  indicates  that  she  feels  that  she  has  no  

                                        

                   psychiatric       problems         at    the    present       time      requiring  

                   treatment.  .  .  .    Once  again  she  indicates  that  she  is  only  

                                                                                              

                   presenting  today  somehow  at  the  behest  of  OCS  or  others  

                   involved with the custody proceedings.  



In his Clinical Summary, Dr. Harvey stated:  



                   This  is  a  patient  with  an  apparent  history  of  delusional  

                   disorder  versus  possible  schizophrenia  who  is  presenting  

                                                                             

                   today apparently primarily for procedural reasons relating to  

                                                               

                   an apparent custody case regarding her youngest child.  The  

                   patient is currently in ongoing interpersonal therapy . . . but  

                   makes   it   clear   that   she   feels   no   need   for   medication  

                   intervention  in  terms  of  potential  psychiatric  illness  at  this  

                   time.  



In his Recommendations, Dr. Harvey wrote:  



                   I  discussed  with  the  patient  []  that  I  do  not  do  psychiatric  

                                                  

                   evaluations  for  OCS  or  agencies  other  than  [Southcentral  

                   Foundation] at the present time.  I urged her to speak with her  

                   attorney or other representatives if she should have further  

                                                                      

                   questions  about  her  custody  case.    It  appears  that  she  has  

                                           

                   significant  symptoms  consistent  with  a  possible  delusional  

                   disorder  or  possible  other  psychiatric  disorder  including  

                   schizophrenia in the past but does not present with complaints  

                   particularly consistent with this today.  She also makes it clear  

                   that   she   is   not   seeking   medication   treatment   for   any  

                          

                   psychiatric disorders at the present time.  



                   Several things become immediately clear from Dr. Harvey's report.  It is  



evident that OCS did not contact Dr. Harvey or provide him with any information about  



                                                           -23-                                                    6925
  


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

Grace  or  the  reason  OCS  wanted  her  to  be  evaluated  by   him.    Had  OCS  done  so,  



Dr. Harvey would certainly have referenced this collateral information, and he would not   



have been so reliant on his delusional patient's self-reporting or so uncertain about why  



                                                                                    

she came to him.  It is also significant that Dr. Harvey clearly stated that he does not "do  



                                                                                                                                                   

psychiatric evaluations for OCS."  It may be inferred that OCS told Grace to  go see  



                                                                                           

Dr. Harvey for a medication evaluation, though a mere referral would not have satisfied  



                                                                                                                                          

OCS's active efforts obligation.  But under these circumstances, where Dr. Harvey had  



                                                                                                                               

no clear idea what he was being asked to do, and where he was plainly not in the business  



                                                                                                                                     

of working on OCS matters, surely this referral, if a referral it was, cannot constitute clear  



                                                

and convincing evidence that OCS met its active efforts obligation to refer Grace for a  



                                                                8  

psychiatric medication assessment.    



                        It is also highly significant that at the termination trial, OCS did not rely on  

                                                                                                                            



Dr. Harvey's "assessment" to support its active efforts argument; indeed, OCS never  



mentioned Dr. Harvey by name during the termination proceedings.  And while it is true  

                                                                                                                             



that Dr. Harvey's report was included within numerous other Southcentral Foundation  



records for Grace which were collectively admitted as OCS's trial exhibit 4, no party  

                      



referred to Dr. Harvey's report either at trial or in argument, and the superior court never  

                                                                                 



mentioned, much less relied on, Dr. Harvey's report for any purpose in its oral and written  



                                                                                                      

findings and order terminating Grace's parental rights.  In other words, while this court  



                                         

relies heavily on Dr. Harvey's report to save OCS from its obvious failure to follow  



Dr. Glass's urgent recommendation, neither the parties  nor the trial court mentioned  



Dr. Harvey or his report at any stage of the proceedings below.  



              8  

                                               

                          For efforts to be active, "the state caseworker takes the client through the  

  steps of the plan rather than requiring that the plan be performed on its own." A.A. ,  

  982 P.2d at 261 (quoting DORSAY ,  supra note 4, at 157-58).  



                                                                            -24-                                                                           6925  


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

                   In  March  2010,  after  Grace  visited  Dr.  Harvey,  she  participated  in  a  



psychological evaluation with Dr. Melinda H. Glass, to whom OCS had referred her.  



Dr. Glass interviewed Grace, administered a number of tests, and reviewed collateral  



information.    Dr.  Glass  diagnosed  Grace  with  "[d]elusional  disorder,  mixed  type,  



primarily persecutory and grandiose."  She noted that Grace started taking medication  



                                                                                                          

after completing a psychiatric assessment in 2008, but had stopped taking it within weeks.  



Dr.  Glass  concluded  that  without  medication  Grace  "is  likely  to  experience  great  



difficulty safely and appropriately parenting any child . . . and is likely to be unable to  



provide [Ronnie] with guidance or stability."  Dr. Glass then stated:  



                   If there were any hope of returning her son to her, ongoing  

                                                                                   

                   oversight would be necessary, as well as ongoing  in-home  

                                   

                   parenting        services,      an     evaluation       for    medication,         and  

                   compliance  with  recommended  medication  and  treatment.  

                                                                       

                   Mental health therapy would need to occur on a regular basis  

                                          

                   with the focus upon developing a more grounded perception,  

                   resolving underlying trauma, and addressing her delusional  

                               [9] 

                    system.  



Dr.  Glass  concluded,  "[A]s  long  as  [Grace]  continues  to  function  with  an  untreated  



                                                                                                              

delusional disorder she has the potential of causing great harm to her son as well as to  



herself."  



                                                                           

                   Dr. Glass also stated that while it was important for Grace to receive mental  



                                                         

health treatment if she were to have a safe and appropriate parenting relationship with  



                                                                           

Ronnie,  her  persecutory  delusions  would  likely  hinder  her  ability  to  participate  in  



                       

treatment.  Dr. Glass noted that Grace appeared to have a good relationship with Grace's  



Southcentral Foundation therapist, Richard Gustafson, who "appears to understand some  



           9  

                               

                     These critical needs - ongoing oversight, psychiatric medication referral,  

 and ongoing therapy focused on Grace's delusional disorder - are the areas where OCS  

 utterly failed to make active efforts.  



                                                             -25-                                                          6925  


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

of her problems."  Dr. Glass recommended that Grace continue in therapy and also be  



                                                                                       

referred to a psychiatrist for a medication review and that she take any recommended  



                                                                        

medication to try to improve her ability to discern reality.  Dr. Glass noted that Grace "is  



unlikely to do this without a court order, and may not even then."  



                                                                                                              

                       But, having received this recommendation from the expert it retained, OCS  



failed to refer Grace to a psychiatrist for a medication evaluation.  



                                                             

                       On May 3, 2012, OCS asked Dr. Glass to conduct an updated psychological  



                                                                   

evaluation of Grace.  Dr. Glass noted that "[t]reatment does not appear to be helping  



                                                                                                                              

[Grace] address her mental illness and it is not known whether medication would have a  



                                                                                                        

significant impact.  It is unlikely [Grace] would consider it as she has refused medication  



in  the  past."    Dr.  Glass  concluded  that  "a  psychiatric  evaluation  to  rule  out  a  mood  



disorder and consider the usefulness for medication is still recommended."  (Emphasis  

added.)  Yet again, OCS did not act on this recommendation.10  



                                                                       III.  



                                                                                                                         

                       Compounding  its  failure  to  make  a  real  referral  to  a  psychiatrist  for  



                                                                                                                           

medication and treatment, OCS also failed to monitor to any significant degree Grace's  



                                   11  

                                          Grace's  Southcentral  Foundation  Behavioral  Health  therapist  

progress  in  therapy. 



             10         If one were cynical, one might conclude that in asking Dr. Glass to conduct     



  a follow-up assessment, OCS was more interested in generating evidence to support its                        

 petition  to  terminate  Grace's  parental  rights  than  in  making  active  efforts  towards  

 reunifying Grace with her son.  OCS filed its petition to terminate Grace's parental rights  

                                              

  on January 6, 2012.  OCS had Dr. Glass reassess Grace on May 3.  The termination trial  

                                                                                                                  

  commenced on May 21.  It would be disingenuous for OCS to argue that this eleventh  

                                                                                                                        

 hour, follow-up assessment by Dr. Glass should count as an active effort; it would be  

                              

  error for the court to consider it an active effort.  



             11  

                                                                                                                                        

                        Cynthia  Robinson  was  the  only  OCS  caseworker  to  testify  at  the
  

                                                                         

 termination trial.  She stated that she was assigned to Grace's case on October 1, 2011.
  

                                                                                                                             (continued...)
  



                                                                       -26-                                                                6925
  


----------------------- Page 27-----------------------

                                                                                                              

Gustafson testified at the termination trial that he worked with Grace to enhance her  



                                                                                                               

ability to function in the world, but that he did not attempt to ameliorate her underlying  

delusions.12  He was clear that his intent in therapy was to help Grace alleviate the anxiety  



                                                                                              

she experienced as a result of her mental issues, not to address what Dr. Glass referred to  



                                                                                                                      

as Grace's "delusional system."  The trial court paraphrased Gustafson's goal to be "not  



so  much  [addressing]  the  cognitive  element  of  identifying  whether  something  is  



delusional or not but dealing with the sort of ramifications, the anxiety that flows from  



                                                                                                                      

the  perceptions  she  has  and  the  behaviors  that  flow  from  the  perception  she  has."  



                                                              

Gustafson agreed with this summary.                          He  admitted that "[he was] not sure what the  



                                                                                                 

criteria are[] exactly" for delusional disorder, and would "have to go with whatever the  



DSM says."  



          11(...continued)  



 She  was  asked  at  trial  whether  she  had  been  in  contact  with  Gustafson  since  being  

                                                                         

 assigned to the case, and she answered, "I did just briefly, not telephonically, but there  

                                                                                           

 was  an  email  sent  to  me."    She  was  not  asked  whether  other  caseworkers  had  any  

 discussions or communications with Gustafson about his therapy sessions with Grace.  

 Robinson  answered  "yes"  when  asked  whether  "the  department  over  various  times  

 contacted him for updates."  Presumably she was referring to OCS's obtaining copies of  

                                                                                                         

 his notes of therapy sessions with Grace.  There is nothing in the record to indicate that  

                                                                 

 OCS and Gustafson were in direct contact or what the content of any communications  

                                          

 may have been.  Nor does the record disclose that OCS took any action in response to  

 communications it may have received from Gustafson.  What is absolutely clear is that  

                                                                                                

 OCS was unaware until Gustafson testified at the termination trial that he did not see that  

                                                                                                                          

 his role was to treat Grace's underlying delusional disorder; rather, he saw his role to be  

                                                                                                                  

 treating Grace's anxiety symptoms.  



           12  

                                                                                                                   

                     Although Gustafson's notes indicate that one of his objectives in treatment  

                                                                                                      

 was to have Grace identify delusional situations and use behavioral techniques to prevent  

 delusional anxiety, Gustafson explained that he did not attempt to challenge Grace's  

 delusions.    He  also  testified  that  most  of  the  progress  Grace  had  achieved  through  

                                                                             

 therapy had to do with her ability to control her hostility and agitation and to express  

 herself in an appropriate manner.  



                                                                -27-                                                        6925
  


----------------------- Page 28-----------------------

                    Had  OCS  actively  monitored,  to  any   degree,  Grace's  treatment  with  



Gustafson, it would have easily seen that his therapy did not have the recommended  



                                            

"focus upon . . . addressing her delusional system."  But OCS and Gustafson had no  



meaningful contact before the termination trial.  



                                                              IV.  



                                                                                             

                    As noted earlier, a trial court may not terminate a parent's parental rights to  



                                                                                     

an Indian child unless it finds, by clear and convincing evidence, that the State made  



active efforts to provide services and programs designed to prevent the breakup of the  



                     13  

                                                                                

Indian family.          The trial court made that finding here, specifically explaining that OCS's  



                                                                         

efforts included providing Grace with visitation, assessments, transportation assistance,  



referrals  for  counseling,  contact  with  Grace's  counselor,  and  meetings  with  OCS.    I  



disagree:           OCS       breached         its   duty      to    Grace       by     not     referring       her     for    a  



                                                                                             

psychiatric/medication evaluation as Dr. Glass recommended, by not monitoring to any  



                                                                                                            

practical extent the kind of therapy Gustafson was providing, and by not referring Grace  



                                                                 

to a therapist who could provide the kind of therapy identified as necessary by Dr. Glass.  



                                                                                                         

                    The  trial  court  noted  that  while  Gustafson's  goal  was  not  to  eradicate  



                                                                                                           

Grace's underlying delusional disorder, counseling with Gustafson "was free for [Grace],  



easy to get to, and most importantly [Grace] trusted him and had worked with him for  



                                                                                    

years.  This was an important relationship for [Grace]."  I agree with the trial court and  



with Dr. Glass that participating in counseling, particularly in counseling with Gustafson  



- with whom Grace had an established relationship - was important for Grace.  But I  



                                                                                                                               14  

                                                                       

also believe that OCS was required to do more to monitor her progress in counseling. 



           13        25 U.S.C.  1912(d) (2012); CINA Rule 18(c)(2)(B).  



           14        One  of  the  efforts  the  trial  court  credited  OCS  with  having  made  was  



 "maintaining contact with a counselor on ongoing issues."  My review of the record  

                                                                                                             (continued...)  



                                                              -28-                                                           6925  


----------------------- Page 29-----------------------

                                                      

Had OCS done so, it would have realized that Gustafson's objective was  not to treat  



                                                                                                        15 

                                                                                                            In failing to reset  

Grace's delusions but to help her function in spite of being delusional. 



the focus of her treatment with Gustafson to ensure that Grace received the recommended  



                                                                     

counseling targeted at her delusional system or to refer Grace to another therapist who  



                                                

could focus therapy on Grace's underlying delusional disorder, OCS failed to make active  



efforts.  



                                                                                                        

                    OCS  referred  Grace  for  three  different  evaluations:  one  mental  health  



assessment  with  Dr.  Long,  and  two  psychological  evaluations  with  Dr.  Glass.    Both  



                                                                                    

Dr. Long and Dr. Glass specifically recommended that Grace receive an evaluation by a  



                                                                                              

psychiatrist for medication management. As explained above, and contrary to the court's  



                                                                                                            

erroneous  post  facto  justification,  the  assessment  by  Dr.  Harvey  at  Southcentral  



          14(...continued)  



 indicates that such contact was minimal, as I previously demonstrated in note 11, and  

                                                                 

 was certainly not acted on by OCS in any meaningful way.  Had OCS actually engaged  

                                                                                                            

 in monitoring Gustafson's counseling with Grace, it would have discovered long before  

                                                                              

 the termination trial that Gustafson did not see his role as providing therapy focused on  

 addressing Grace's delusions.  



                     Indeed, the trial court seemed flabbergasted after Gustafson testified; the  

 court  was  surprised  that  Gustafson  had  not  been  focusing  on  Grace's  underlying  

                                                                         

 delusions,  and  it  commented  that  Gustafson  "had  nothing  of  use  to  say  about  her  

                                                                         

 delusional disorder.  At all."  In colloquy with the Guardian ad Litem following the  

                                                                    

 conclusion of Gustafson's testimony, the court stated, "I guess, Ms. Skoog-Moore, you'd  

 identified that perhaps the counselor [Gustafson] could give us some sense on how deep- 

                                                                            

 seated this disorder is, and I don't think - I really don't think he cares."  Skoog-Moore  

                                                                   

 replied, "I don't think he thinks he's qualified obviously to go into delusional.  Is what  

                                                                                                                         

 I got out of [Gustafson's testimony]."  



           15        In  her  follow-up  evaluation,  Dr.  Glass  noted  that,  while  Grace  had  



                                                                                                  

 continued in treatment with Gustafson, the treatment "does not appear to be causing an  

 improvement in her functioning."  Again, this is not surprising since Gustafson was  

                                                                                

 treating  Grace's  anxiety  symptoms  and  helping  her  cope  with  the  effects  of  her  

 delusional disorder, not treating the underlying disorder itself.  



                                                                -29-                                                        6925
  


----------------------- Page 30-----------------------

                                          

Foundation  could  not  have  counted  as  OCS's  referral  for  psychiatric  medication  



                                                                                                                            

assessment and treatment if for no other reason than because Dr. Harvey stated that he did  



not do psychiatric assessments for OCS.  And Dr. Glass could not have been clearer when  



                                                       

she recommended, after Grace saw Dr. Harvey, "If there were any hope of returning her  



son  to  her,  ongoing  oversight  would  be  necessary,  as  well  as  .  .  .  an  evaluation  for  



medication."  OCS ignored these recommendations.  



                       This is not a case where I can conclude that OCS's efforts over the course  



                                                                       

of the entire case were active; here, OCS failed to make any real effort to address Grace's  



                                                               

critical needs that were identified by the very mental health care experts that OCS selected  



                                                                    

to guide it in preparing a case plan to identify what efforts it needed to actively make.  



                                                                 

And  this  is  not  one  of  those  cases  where  OCS  can  survive  a  serious  active  efforts  



challenge by pointing to the parent's co-failure to participate in her case plan.  Here,  



Grace  was  complimented  by  Gustafson  for  making,  or  making  up,  every  counseling  

session,16 and OCS did not dispute that Grace satisfied the other elements of her case plan  



                                                                  17  

(housing and visitation with Ronnie).                                  Of course, Grace could not have satisfied the  



psychiatric medication part of her case plan because OCS failed to make that referral.  



                                                                         

And there was no testimony by any OCS caseworker that the worker spoke with Grace  



and urged her to obtain a psychiatric medication assessment or consider taking medication  



for her delusional disorder.  



             16          Gustafson testified that the "only reason she misses [a counseling session]                   



  actually is if I'm not there.  And even in those cases, she'll . . . double up at some point."         

  He went so far as to state, "I'd almost bet my money on if she missed it was because . . . I           

  was gone for family leave."  



             17          Unrebutted testimony indicated that Grace had found stable housing in  



                                                                                             

  Eagle River, was attending all supervised visitation with Ronnie, and was consistently  

  attending counseling with Gustafson.  



                                                                         -30-                                                                  6925
  


----------------------- Page 31-----------------------

                            For these reasons I would hold that the trial court erred in concluding under     



a clear and convincing evidentiary standard that OCS's actions toward Grace amounted  



                                                                                         

to "active efforts . . . to provide remedial services and rehabilitative programs designed  



                                                                                                  18  

to prevent the breakup of the Indian family."                                                          I would reverse the trial court's order  



terminating Grace's parental rights and remand so that OCS can make active efforts as  



recommended by Dr. Glass and required by the Indian Child Welfare Act.  



                18            25 U.S.C.  1912(d) (2012).  



                                                                                          -31-                                                                                         6925  

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