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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Theresa L. v. State, Dept. of Health & Social Services, Office of Children's Services (8/7/2015) sp-7029

Theresa L. v. State, Dept. of Health & Social Services, Office of Children's Services (8/7/2015) sp-7029

         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@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



THERESA L.,                                           )  

                                                      )        Supreme Court No. S-15622  

                           Appellant,                 )     

                                                      )        Superior Court Nos. 3PA-11-00110/  

         v.                                           )        00111 CN  

                                                      )  

STATE OF ALASKA,                                      )        O P I N I O N  

                                 

DEPARTMENT OF HEALTH &                                )  

SOCIAL SERVICES, OFFICE OF                            )        No. 7029 - August 7, 2015  

CHILDREN'S SERVICES,                                  )  

                                                      )  

                           Appellee.                  )  

_______________________________ )  



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

                  Judicial District, Eric Smith, Judge.  



                  Appearances:  Julie Fields, Contract Attorney for the Public  

                  Defender Agency, Anchorage, for Appellant.  Ruth Botstein,  

                                                             

                  Assistant  Attorney  General,  Anchorage,  and  Michael  C.  

                                                                                    

                  Geraghty, Attorney General, Juneau, for Appellee.  



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

                              

                  Bolger, Justices.  



                  STOWERS, Justice.  



I.       INTRODUCTION  



                  A mother appeals the termination of her parental rights to her two youngest  

                                                                                    



children; the children are now teenagers and testified that they did not want her rights to  

                                                                                                           



be terminated.  The trial court decided that the children were in need of aid because of  

                                                                                                   


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

mental  injury  and  that  termination  was  in  the  children's  best  interests.    The  mother  



                                                                     

argues that the Office of Children's Services (OCS) did not meet its burden of proving  



mental injury and that the trial court clearly erred in deciding that termination was in the  



children's best interests because of their ages, their stated wishes, and their lack of a  



                                                                                                         

permanent placement.  We issued an order reversing the trial court's decision because  



                                                                                                                        1  

                                                                                                                           This  

OCS presented insufficient evidence that the children suffered a mental injury. 



opinion explains our reasoning.  



II.       FACTS AND PROCEEDINGS  



                                    2                                                          3 

                                                                                                                

                    Theresa L.  is the mother of Alicia, Maia, and Zane.   Alicia is now over 18;  



                                                                                     

Theresa's parental rights to her were not terminated.  At issue in this appeal is the order  



                                                                                                                                 4  

                                                                                                      

terminating Theresa's parental rights to Maia, who is currently 16, and Zane, now 14. 



                    Theresa lived in Wasilla for many years before leaving Alaska for Arizona  



                                                                        

in October 2011; she currently resides in Texas.  In February 2011 Alaska State Troopers  



came to the family's home "regarding a domestic disturbance" between Theresa and  



                                                                              

Alicia.  According to the emergency petition filed in the younger children's case, Theresa  



                                                                                                               

had contacted the Troopers because of Alicia's "behaviors." The Troopers reported "that  



                                

the disturbance had not escalated to the point of becoming physical."  The Troopers  



           

called  OCS because Alicia "was adamant that she didn't want to stay at the home."  



Theresa agreed that Alicia could leave, and Theresa knew of "no other safe place[]"  



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



Servs., No. S-15622 (Alaska Supreme Court Order, Jan. 26, 2015).  



          2         We use pseudonyms to protect the family's privacy.  



          3  

                                                                                

                    Theresa  has  another  child,  Julianne,  who  was  20  at  the  time  of  the  

termination trial.  



          4         The  children's  fathers  did  not  participate  in  the  trial;  their  cases  were  



severed at the beginning of the trial.  



                                                               -2-                                                         7029
  


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

                                                                                                  

where Alicia could go.  Because neither Theresa nor Alicia was "willing or able" to  



                                                                                                           

create a protective action plan, OCS took custody of Alicia and placed her at a youth  



shelter.    Alicia  remained  in  OCS  custody  throughout  the  pendency  of  the  younger  

children's cases, and OCS initially included her in the termination petition.5  



                    At the time OCS took custody of Alicia, Theresa's mother, Janet, was living  



with the family.  Janet had been convicted of a sex offense in another state about 20 years  



                            

before Alicia was taken into custody.  Janet has not been charged with or investigated  



                                                     

for any sex offenses since then.  An OCS worker interviewed Maia and Zane separately  



                                                                     

at school about a month after the incident with Alicia, and they told the worker that their  



                                                                                                                    

grandmother was living in the household.  OCS did not remove Maia or Zane from the  



home then and did not open a case for them.  



                                                                                        

                    Theresa began to plan a move to Arizona at some point after OCS took  



                                                                               

custody of Alicia.  OCS was aware that Theresa was planning to move to Arizona and  



                                                 

had talked about a possible visit between Alicia and Theresa in Arizona after the move.  



                                                                           

Theresa sent Maia and Zane to Arizona with Janet in the summer; she planned to move  



                                                                                                

there after Alaska Permanent Fund Dividends were distributed.  According to an OCS  



                                                                                                          

worker, OCS did not have custody of or an open case on Maia or Zane then, nor did it  



tell Theresa that the children had to remain in Alaska; nonetheless, OCS considered her  



sending the children to Arizona "unauthorized" because the worker thought there was  



                                                                                                                          

"an agreement for the two younger children to be in her home, and for them to be in a  



safe environment with her."  



          5         At the time of the termination trial, Alicia was 17 and did not want her  



mother's parental rights to be terminated.  During the termination trial the parties reached  

                            

an agreement that Alicia would be placed either in a guardianship or an Adult Plan  

Living Arrangement.  



                                                             -3-                                                        7029
  


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

                                                                                                                                

                       In Arizona the children lived with Janet and Theresa's brother Jake.  Jake  



was  alleged  to  have  sexually  abused  Maia  and  Alicia  in  2003.    At  the  time  of  the  



                                                                                                                                                6  

                                                                                       

allegations Theresa took the girls for an evaluation and reported the incident to police. 



No action was taken against Jake based on the allegations, and no allegations have been  



                                                                                                                              

made against him since then.  Theresa severed ties with Janet and Jake for a number of  



years  because  of  the  allegations,  but  she  later  resumed  communications  with  them.  



                       In September 2011 OCS contacted its counterpart in Arizona, and Arizona  



                                                                                                                    

removed  the  children  from  Janet's  and  Jake's  care.    Arizona  and  OCS  filed  nearly  



                                        

 simultaneous  petitions  for  emergency  custody  of  Maia  and  Zane  at  that  time.    The  



children were placed in foster care in Arizona, and courts in both Alaska and Arizona  



held jurisdictional hearings.  Theresa moved up her departure date from Alaska and  



                                                

arrived in Arizona at about the time of the jurisdictional hearing in Arizona.  Arizona  



                                           

decided that Alaska was the children's "home state" under the Uniform Child Custody  



                                                        7 

Jurisdiction and Enforcement Act  and transferred custody of them to Alaska because the 



                                                                      8  

                                                                                                 

Alaska court did not decline jurisdiction.   The children were returned to Alaska and  



                                     

placed in foster care; Theresa remained in Arizona.  She testified at the termination trial  



            6          The report to OCS about the incident was "screened out," and OCS took  



no action at the time.  



            7          UNIF .   CHILD  CUSTODY  JURISDICTION   &   ENFORCEMENT  ACT    102(7),  



9 U.L.A. Part IA 658 (1999).  Both Alaska and Arizona have adopted versions of the  

                                                              

Uniform Child Custody Jurisdiction & Enforcement Act.  AS 25.30.300-.910; ARIZ .  

REV .   STAT .  25-1001 to -1067 (2015).  



            8          Theresa has not asked us to review the trial court's decision not to decline             



jurisdiction.    We  note  that  we  question  why  the  Alaska  court  would  elect  to  retain  

jurisdiction when the children, their mother, grandmother, and uncle were all located in     

Arizona at the time.  



                                                                      -4-                                                               7029
  


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

that although        she had      the money       to  buy  a return       ticket to     Alaska, she did         not  have  



enough money to establish herself here again at that time.  



                   Theresa remained in the general geographic area where her mother and  



brother lived for approximately a year, but she did not live with her family because of  



                                         

OCS's concern about them.  While there Theresa met and became romantically involved  



                                                                                                  

with a woman named Tracy, who had two children of her own.   Theresa and Tracy  



                                                                           

moved to Texas because Tracy was offered a job there; Theresa also felt that Texas  



offered better financial opportunities for her.  



                   After Theresa moved to Texas she received a settlement from a personal  



injury lawsuit.  Using this money Theresa purchased a home in Texas, where she was  



                                                              9  

                                                                 At the time of the trial Theresa was a lead  

residing at the time of the termination trial. 



teacher  at  a  preschool,  and  she  and  Tracy  were  no  longer  living  together  because  



Theresa's children had expressed to her that they were uncomfortable with the idea of  



living with Tracy and her children.  



                   Theresa completed a psychological evaluation with Dr. Melinda Glass on  



one of her visits to Alaska.  Theresa attended individual therapy in both Arizona and  



                        

Texas; she saw an individual counselor in Texas roughly once a month, for a total of 13  



                                                                                

times in 16 months.  She also attended family therapy with Zane and Maia, mostly by  



                                                                                                    

phone, although she attended sessions in person when she was  in  Alaska for visits.  



                                                                                     

Theresa missed or was late to several sessions with Zane and Maia, and the counselor  



                  

terminated  family  therapy  with  Theresa  on  December  4,  2013.    At  the  time  of  the  



                                                                                 

termination trial, Zane was no longer in counseling, and Maia was in counseling because  



she "wanted to talk more individually" with the counselor.  



          9        One component of Theresa's case plan was that she have suitable, stable  



housing.  



                                                             -5-                                                         7029  


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

                                                                                                         

                    OCS was interested in placing the children with Theresa in Texas and put  



                                                                    

off termination efforts to explore that option.  But OCS took the position throughout the  



case that it could not place the children with Theresa in Texas unless Texas approved  



placement under the Interstate Compact on the Placement of Children (ICPC); at the  



                                         

termination  trial,  an  OCS  worker  agreed  that  "if  there  were  no  ICPC  requirement,  

reunification would still be on the table."10  OCS requested two home studies, and Texas  



denied placement both times.  



                                                                                            

                    OCS petitioned to terminate Theresa's rights to Alicia, Maia, and Zane in  



March  2013,  alleging  that  the  children  were  in  need  of  aid  under  AS  47.10.011(5)  



                                                                      11  

                                                                                                        

(refusal to return home) and (8) (mental injury).                        After a continuance at OCS's request,  



the court held a termination trial in February and March 2014.  Zane and Maia were  



represented by counsel at the trial.  A number of witnesses testified at the trial:  three  



OCS social workers; Bradley Ohs, the children's counselor; George Gomez, Theresa's  



counselor; Dr. Glass, a psychologist; and Theresa, Zane, and Maia.  



                                                                                                            

                    Only Ohs and Dr. Glass were qualified as experts:  Ohs was qualified as an  



                                                                                             

expert in individual and family counseling, and Dr. Glass was qualified as an expert in  



          10        As OCS notes in its appellate brief, there is a split in authority from other  



states whether the ICPC applies to parental placements.  In this case the trial court said  

                                                                                                            

that the ICPC had no effect on its decision to terminate Theresa's parental rights, so the  

                                                                                                  

applicability of the ICPC to a parental placement is not an issue on appeal.  



          11  

                                                                                                      

                    It appears that subsection .011(5) applied only to Alicia because there is no  

indication that Maia and Zane were refusing to return to Theresa's custody.  They both  

testified at the termination trial that they wanted to live with her.  AS 47.10.011(8) has  

                                                                                                  

several subsections that have slightly different elements; the petition did not specify  

which part of .011(8) OCS was using.  The termination order cites .011(8)(A) because  

                                                          

in its closing statement OCS asked the court to use that statutory subsection.  



                                                              -6-                                                        7029
  


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

                                                                                                                                       12  

                                                                                                                  

"performing  psychological  evaluations."    Dr.  Glass  never  evaluated  the  children. 



                     Ohs testified about his observations of the family and the counseling he had  

                                                    



provided, and he discussed why he had terminated family therapy with Theresa.  Ohs  

                                                                                                                   



expressed concern about "poor boundaries" in the family.  He gave several examples of  

                                                                       



what concerned him.  In a family therapy session in May 2012, which was the first time  



                                                                   

Theresa returned to Alaska to participate in face-to-face counseling with the children,  



                                                                                                         

Alicia became tearful upon hearing her siblings explain how they felt about their life in  



                                                                                                                  

their foster home, and Zane "licked her on the face from her cheek all the way up her  



                                                      

nose and eye" to make Alicia feel better.  The family reacted by laughing, and, according  



                                                                                                      

to Ohs, "They shared with [him] that this was a common practice in their home, that they  



                                                                                                  13  

would lick each other on the face . . . to cheer each other up."                                      Ohs also testified that  



Zane, who was ten at the time, had "demonstrated really poor personal boundaries" in  



the same session by engaging in baby talk and putting his head "right on [his mother's]  

                                                                                       



chest just like an infant would, hugging her."  Ohs acknowledged that Zane's clinginess  

                                                                                                               



was "a natural occurrence for a kid who hasn't seen [his] mother," but he felt Zane's  



                                                                                                                     

behavior, and Theresa's allowing it, showed "poor personal boundaries."  According to  



                                                                                                            

Ohs, in the same therapy session, Zane sang a song about a "butt factory" and "was  



                                              

dancing and shaking his butt inappropriately."  Ohs criticized Theresa for not counseling  



                                                                                   

Zane about "pushing limits."  Ohs also testified that the prognosis for reunification was  



                                                                             

"poor" because of the distance between Theresa and the children but that the "prognosis  



           12        The transcript reflects that an OCS worker did a psychological assessment   



of the children in 2011, shortly after their return from Arizona.  Notwithstanding that  

both children waived any privilege related to this assessment, the assessment was not  

                                           

entered into evidence at trial.  



           13        The notes from the session indicate that Alicia said this.  



                                                                  -7-                                                            7029
  


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

could be enhanced some" if the children lived near Theresa.  Ohs said that it would not  



be in the children's best interests to cease all contact with Theresa.  



                   Gomez  testified  about  his  treatment  of  Theresa  in  Texas.    He  agreed  



                                                                    

Theresa had made "substantial improvements" and that she "could be a safe and effective  



parent right now."  Gomez deferred to Ohs's opinion about whether the children were  



              

ready  to  be  reunified  with  Theresa,  but  he  felt  "pretty  confident"  about  Theresa's  



                            

progress.  He said he would be willing to work with the family if the children moved to  



Texas.  



                   Dr. Glass discussed her May 2012 psychological evaluation of Theresa,  



whom she had diagnosed with dysthymic disorder and dependent personality disorder.  



She  did  not  think  the  treatment  Gomez  had  provided  was  adequate  to  address  her  



concerns; she thought he should have seen Theresa more frequently.  Dr. Glass testified  



                    

that  she  did  not  think  Theresa  was  ready  to  parent  the  children  at  the  time  of  the  



                                                                                                                

evaluation, but she acknowledged she had not seen Theresa in two years.  Dr. Glass had  



never seen the children.  



                                                                                      

                   The principal OCS social worker in the case, Cynthia Robinson, testified  



                                                                                                       

about Theresa's case plans and efforts made with respect to them.  She testified that the  



children  were  taken  into  custody  because  Theresa  left  them  with  Janet  and  Jake  in  



                                                                          

Arizona and that OCS was still concerned about the possible involvement of these family  



                                                                                                  

members in the children's lives.  She agreed that if there were no ICPC requirement,  



                                                                                         

reunification with Theresa "would still be on the table."  She also agreed that Zane and  



Maia were "pretty good kids" and that "they've always been pretty good, well-rounded  



kids."  Robinson could not recall having identified any special needs for Maia or Zane.  



                                                                                                         

She testified that Maia is "a really sweet, sweet kid" who "does well in school" and is  



"well-rounded."  She described Zane as "easy going," a "goes with the flow kind of a  



                                                             -8-                                                      7029
  


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

                                                                              

kid" and agreed that Zane's characteristics had not "changed considerably" since OCS  



assumed custody of him.  



                    Robinson also testified about placement efforts and the concerns she had  



          

about the foster home where the children were then placed:  she agreed that one of her  



                                                                                                          

concerns  was  "that  the  [foster]  home  [was]  consistently  dirty"  and  testified  that  the  



                                                                                                                 

children did not feel a sense of belonging.  She said that placement in that foster home  



                                                                                            

was originally done "in an emergency situation" and that she had been looking for about  



a year but had not been able to find another placement.  Robinson said she "wouldn't  



                                                                                        

expect" Zane and Maia to be open to adoption at that time and indicated that she did not  



                                                                         

talk to them about it because it upset them and because she "wouldn't want to talk to  



                                                                         

them  about  being  adopted  when  [she  didn't]  even  have  somebody  that  they  have  



                                                                                                     

established a relationship with."  Robinson also said she would  "[r]ecommend, to a  



degree," that the children have continuing contact with Theresa if Theresa's parental  



rights were terminated.  She acknowledged that the children could and would contact  



their mother if they wanted to, through Facebook or other electronic means.  



                    Zane and Maia both testified that Theresa was concerned about their grades,  



                                                                                 

talked to them about their school and activities, and disciplined them when they were  



living  with  her  by  grounding  them,  removing  electronics  or  desserts,  or  sometimes  



                                                                                          

spanking them.  Neither of them voiced any concerns about her care of them except that  



                                                                                                                       

they had moved a lot.  Zane described his removal in Arizona, testifying that once he  



                                                    

realized the authorities were there to take him into custody, he hid in a closet while they  



searched for him.  He denied that licking Alicia's face was a sexual gesture, saying it was  



"gross" and made his family laugh.  Both children testified that they wanted to live with  



                                                                                      

their mother, although Maia was somewhat uneasy about leaving Alaska.  They testified  



about  their  grades,  and  both  indicated  that  they  talked  to  Theresa  frequently  on  the  



                                                                                           

phone.    Zane  testified  that  he  had  only  gotten  one  F  the  whole  time  he  lived  with  



                                                               -9-                                                         7029
  


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

Theresa, and at the time of the termination trial he had one or maybe two Fs.  Maia  

                                                                                                



testified  that  she  had  generally  gotten  As  and  Bs  on  her  report  card.    The  children  



                                                                                                           

testified that Theresa monitored their grades and their friends, and Zane testified about  



                                                                                    

restrictions Theresa placed on him when his grades were bad.  Both children denied any  



abuse or other problems with their uncle or grandmother in Arizona.  Maia testified that  



she did not like Robinson's attitude toward Theresa.  Both children said they would not  



                                                                     

consent to an adoption by anyone other than their sister Julianne or, in Zane's case,  



"family."  



                                                                                                 

                    Theresa testified about her life after she left Alaska, her counseling, Janet  



and  the  resumption  of  contact  with  her,  the  sex  abuse  allegations  against  Jake,  the  



difference between parenting Alicia and the other children, the number of times she  



moved while in Alaska, her relationship with Tracy, and her financial situation.  



                    OCS, Theresa, and the children submitted proposed written findings as their  



closing statements.  OCS's proposed findings asked the court to find that the children  



                                                                               14  

                                                                                  and .011(8)(A) (mental injury).  

were in need of aid under AS 47.10.011(7) (sex abuse) 



                             

                    In its termination order, the trial court decided that OCS had not met its  



                                                                                                                    

burden of proving that the children were in need of aid under .011(7) because "there is  



no evidence of any abuse" since the allegations against Jake occurred ten years earlier.  



                                                                                                     

The court also declined to consider the guardian ad litem's argument, made in her written  



                         

closing, that the children were in need of aid under .011(11) (parental mental illness); the  



trial court observed that "this subsection was not alleged by OCS in its termination  



                                                                             

petition or addressed in its closing argument."  The court decided that OCS had shown  



by  clear  and  convincing  evidence  that  the  children  were  in  need  of  aid  under  



          14  

                                          

                    A large part of the trial was related to OCS's concerns about Janet and Jake,  

even though OCS did not allege sex abuse as a basis for termination in its petition.  



                                                             -10-                                                          7029  


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

AS 47.10.011(8) (mental injury), relying on Zane's diagnosis of post-traumatic stress  



                            15                                                                                             16 

disorder (PTSD),                the children's "boundary issues," and their "behavior."                                         It also  



found that termination was in the children's best interests, but it ordered post-termination  



                                                                                                                          

contact between  the children and  Theresa because Ohs had  testified that cutting  off  



contact between the children and Theresa would not be in their best interests.  



                     Theresa moved for reconsideration, arguing that the court failed to consider  



                                                                                                           

less drastic alternatives to termination, failed to address two issues - whether the ICPC  



                                                                                                               

applied  to  parents  and  whether  the  reasons  for  Texas's  denial  of  placement  would  



warrant termination - and had erroneously relied on facts not established in the record.  



                                                                                       

The children joined in their mother's request, and the court ordered the other parties to  



respond.  OCS and the guardian ad litem opposed reconsideration.  



                     The court denied reconsideration, explaining that it did not reach the ICPC  



                                                                                         

issue because it "did not rely on Texas'[s] reasons in deciding that [Theresa's] rights  



should be terminated."  The court further stated that neither guardianship nor an Adult  



                                                                      

Plan Living Arrangement would "give the children any permanency at this point," but  



                                                                   

that both options were still available in  the future.  The court said that "leaving the  



children in limbo regarding the status of their relationship with their mother [was] not  



                                                                                       

in [their] best interests."  The court refused to set out specific post-termination contact  



between the children and Theresa, reiterating that "[t]here can be no question that some  



           15         Ohs did not testify about the origin of Zane's diagnosis or why Ohs entered   



the diagnosis on therapy notes related to Zane.  



           16        In its order, the trial court noted that OCS and the guardian ad litem relied  

                                                                                 

on AS 47.10.011(8)(A).  The trial court found that the children suffered mental injury,  

                                                                  

not that they were at risk of suffering mental injury as a result of "a pattern of rejecting,  

                                                                         

terrorizing, ignoring, isolating, or corrupting behavior that would, if continued, result in  

                                                                                        

mental injury," see AS 47.10.011(8)(B)(i), so it appears that the order was made under  

                                                                                           

.011(8)(A) rather than .011(8)(B)(i).  



                                                                  -11-                                                             7029
  


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

                                                                     

contact would be in their best interests."  In response to the evidentiary issues Theresa  



raised, the court explained that Zane's PTSD diagnosis was "only one part of the court's  



                                                   

finding - the key pieces were the inappropriate boundaries found by Mr. Ohs with  



                                                  

respect to both children and the children's negative behaviors after they spent time with  



                                                                      

their mother."  The court said the incident in which Zane licked Alicia's face applied to  



                                                               

Maia because "neither child seemed to believe that this behavior was inappropriate."  



Theresa appeals.  



III.      STANDARD OF REVIEW  



                                                                              

                    Whether a child is a child in need of aid and whether termination is in the  

                                                                                                               17   A finding is  

                                                                                                                       

child's best interests are factual questions that we review for clear error.  



clearly erroneous if we are left with a definite and firm conviction that the trial court  

            

                         18   Whether factual findings satisfy the requirements of the applicable  

made a mistake.     

child in need of aid (CINA) statute is a question of law that we review de novo.19                                              We  

                                                                            

                                                                             20  "We bear in mind at all times that  

interpret statutes using our independent judgment.     

terminating parental rights is a drastic measure."21  



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



Servs., 310 P.3d 943, 948-49 (Alaska 2013) (citations omitted).  



          18        Ralph  H.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  



Servs., 246 P.3d 916, 920 (Alaska 2011) (citation omitted).  



          19        Id. (citation omitted).  



          20  

                                                                                                         

                    Louie v. BP Exploration (Alaska), Inc. , 327 P.3d 204, 206 (Alaska 2014)  

(citation omitted).  



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



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

omitted).  



                                                               -12-                                                          7029
  


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

IV.       DISCUSSION  



          The      Finding        That      The       Children         Were       In     Need      Of      Aid     Under  

          AS 47.10.011(8)(A) Was Clearly Erroneous.  



                   Theresa  argues  that  OCS  did  not  meet  its  burden  of  showing  that  the  



                                           

children were in need of aid under AS 47.10.011(8)(A).  She maintains that there was  



                                                                          

no evidence that the children suffered a "mental injury" as the legislature defined it  



because  there  was  no  expert  testimony  that  they  had  suffered  an  "observable  and  



                                                                                    

substantial impairment in [their] ability to function in a developmentally appropriate  



             22  

                due to her conduct.  Theresa points out that no evidence showed that Maia  

manner"                                                                                             



"had a mental health diagnosis, a serious mental injury, or an inability to function in a  



developmentally  appropriate  manner."    Theresa  acknowledges  that  Ohs's  testimony  



                                                       

"tend[ed]  to  show  that  Zane  lacked  an  understanding  of  personal  boundaries  at  the  



                                                           

beginning of therapy," but she contends that "this lack of insight does not comport with  



the specialized definition of 'mental injury' in the context" of CINA cases.  



                   OCS  counters  that  Ohs's  observation  of  Zane's  behavior  when  Zane  



                                                                                       

engaged in baby talk, clung to Theresa, and put his head on her chest during a visit with  



                                                                                                           

her early in the case is evidence of mental injury. OCS points to testimony from Ohs that  



                                                                                                           

Maia showed "more insight and maturity" than Theresa in therapy as well as displaying  



                                                                     

"parentified" behavior in reminding Theresa of counseling sessions.  OCS also relies on  



Ohs's observation of the children's "deteriorating behavior" in therapy sessions when  



                           

Theresa visited as an indicator of mental injury.  OCS contends that no specific diagnosis  



is needed to prove that a child has suffered a mental injury under the statute.  



                                                                                                   

                   Alaska Statute 47.10.011(8)(A) provides that a child is in need of aid if the  



child has been subjected to "conduct by or conditions created by the parent . . . [that]  



          22       AS 47.17.290(10).  



                                                            -13-                                                         7029  


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

have . . . resulted in mental injury."  For purposes of the CINA statutes, "mental injury"  

                                                               



is defined as "a serious injury to the child as evidenced by an observable and substantial  

                                                                                          



impairment in the child's ability to function in a developmentally appropriate manner and  



the  existence  of  that  impairment  is  supported  by  the  opinion  of  a  qualified  expert  



              23  

                   At a termination trial, OCS must prove that a child is in need of aid by clear  

witness."                                                                                                            

                                        24  Clear and convincing evidence is "evidence that is greater  

and convincing evidence.  

                                                                                                                         

                                                                                                                   25   it  "is  that  

than  a  preponderance,  but  less  than  proof  beyond  a  reasonable  doubt";                                            



amount of evidence which produces in the trier of fact a firm belief or conviction about  

                                                                                                             

the existence of a fact to be proved."26  



                     As  discussed  below,  we  have  considered  whether  evidence  supports  a  



finding of "mental injury" in a number of cases, and we have decided that gross parental  

                                                                 



                                                                                     27  

misconduct is not needed for a finding of mental injury.                                  Here, Theresa challenges the  

                                                                            



adequacy of the trial court's findings to satisfy the statutory standard for "mental injury"  

                                                          



as well as the accuracy of those findings, so we first consider what level of impairment  

                                                                                                                 



the legislature intended when it defined "mental injury."  



          23         AS 47.10.990(21); AS 47.17.290(10).  



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



          25         Bigley  v.  Alaska  Psychiatric  Inst. ,  208  P.3d  168,  187  (Alaska  2009)  



(quoting Buster v. Gale , 866 P.2d 837, 844 (Alaska 1994)) (internal quotation marks  

omitted).  



          26        Id. (quoting Buster , 866 P.2d at 844) (internal quotation marks omitted).  



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



Servs., 174 P.3d 217, 220-22 (Alaska 2007).  



                                                                -14-                                                          7029
  


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

                            We interpret a statute according to reason, practicality, and common sense,  

                                                                                                                                                                          28    The  

taking into account the statute's language, its legislative history, and its purpose. 



CINA statutes are to be construed consistently with the goal of "promot[ing] the child's     



welfare and the parents' participation in the upbringing of the child to the fullest extent       

consistent with the child's best interests."29  



                            The CINA statute defines "mental injury" as "a serious injury to the child  



as  evidenced  by  an  observable  and  substantial  impairment  in  the  child's  ability  to  

                                                                                                         



function in a developmentally appropriate manner and the existence of that impairment  

                                                                                                                                                  



                                                                                                                          30  

is supported by the opinion of a qualified expert witness."                                                                    As we said in Josephine B.  

                                                                 



v. State, Department of Health & Social Services, Office of Children's Services, the text  

                                                                                      



of  the  statute  limits  CINA  jurisdiction  to  cases  in  which  parental  conduct  causes  



                                                               31  

"substantial  mental  injuries."                                      The  legislature's  choice  of  words  demonstrates  this  



limitation.                "Serious"  means  "[g]rave  in  quality,  character,  or  manner:  SOBER"  or  

                                                                                            



                                                                                                                                32  

"[i]nvolving important rather than trivial matters: WEIGHTY ."                                                                        "Observable" is defined  

                                                                                                                                                                    



as   "deserving   of   observation:   NOTEWORTHY "   or   "capable   of   being   observed:  



                                                                                           33  

DISCERNABLE , DETECTABLE , NOTICEABLE ."                                                         An "impairment" is "the act of impairing  

                                                                                                                                                       



              28            Louie v. BP Exploration (Alaska), Inc.                                             , 327 P.3d 204, 206 (Alaska 2014)  



(citation omitted).  



              29            AS 47.10.005(1).  



              30            AS 47.10.990(21); AS 47.17.290(10).  



              31             174 P.3d at 222.  



              32            WEBSTER 'S II  NEW COLLEGE DICTIONARY  1032 (3d ed. 2005).  



              33  

                                                                                                                                                             

                            WEBSTER 'S THIRD NEW INTERNATIONAL DICTIONARY  1558 (1966).  



                                                                                        -15-                                                                                  7029
  


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

                                                                                             34  

or  the  state  of  being  impaired:  INJURY  .  .  .  DETERIORATION ."                            "Substantial"  has  a  



                                                                                                        MATERIAL" and  

number of meanings, including "[o]f, relating to, or having substance:  

"[b]eing        of    considerable          importance,          value,      degree,        amount,        or    extent."35  



"Developmentally" in this context is related to "develop" and its meaning "[t]o progress  



                                                                                  36  

from  earlier  to  later  stages  of  individual  maturation."                           The  plain  meaning  of  the  



                                                                                    

statutory language thus indicates that for a mental injury to confer CINA jurisdiction, it  



must be significant and must noticeably impact the child's functioning.  



                    The legislative history is consistent with this reading of the statute.  The  



mental injury subsection of the CINA statute was enacted in 1998 to bring Alaska's  



                                                                                     37  

CINA  statutes  into  compliance  with  federal  standards.                                In  its  original  form  the  



                                                                                                      

legislation would have permitted a finding that a child was in need of aid when conduct  



or conditions created by the parent "resulted in emotional harm to the child," which  



                                  

could be "indicated by observable impairment in the child's functioning or development,  



including failure to thrive, extreme anxiety, depression, withdrawal, or aggressive or  



                                                              38  

hostile  behavior  toward  self  or  others."                       "Emotional  harm"  in  the  original  bill  



                                                                                 39 

                                                                                     Minutes from a hearing in the  

"includ[ed] 'mental injury' as defined in AS 47.17.290." 



                                                                                                      

House Health, Education and Social Services Committee reflect that Susan Wibker, an  



assistant attorney general, discussed "emotional harm," saying that these cases "come  



          34       Id. at 1131.  



          35        WEBSTER 'S II  NEW COLLEGE DICTIONARY  1126 (3d ed. 2005).  



          36       Id. at 316.  



          37       Josephine B. v. State, Dep't of Health & Social Servs., Office of Children's     



Servs., 174 P.3d 217, 220-21 & n.14 (Alaska 2007).  



          38        House Bill (H.B.) 375  28, 20th Leg., 2d Sess. (1998).  



          39       Id.  48.  



                                                             -16-                                                       7029
  


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

into the system as emotional neglect where you have a parent not getting care for a child  



that's  maybe  hostile,  aggressive  or  suicidal  and  what  happens  is  the  child  gets  the  



                                                                  

treatment they need and you find out that this child's condition is not going to change or  

get better unless something changes at home."40  



                   The bill was amended by the House Health, Education and Social Services  

Committee;41 the amended version changed "emotional harm" to "mental injury" and  



provided that "mental injury" had "the meaning given in AS 47.17.290."42  In comments  

                                                                      



at a Senate Judiciary Committee hearing, Ms. Wibker indicated that the change was made  

                                                                                                      



                                                                           43  

"to tighten and narrow it to very severe situations."                          At the same hearing the Deputy  

                  



Commissioner of Health and Social Services told the committee that the definition was  

                                                                                              

narrower than that of most other states.44  According to the minutes, Representative Fred  

                                                                                                  



Dyson,  the  bill's  sponsor,  told  the  Senate  committee  that  "they  struggled  with  the  

                                                                                         



agency, starting with 'emotional harm' and ended up with the more conservative 'mental  



          40       Minutes, House Health, Educ. & Soc. Servs. Comm. Hearing on H.B. 375,  



20th Leg., 2d Sess. No. 2287 (Mar. 5, 1998) (testimony of Susan Wibker, Assistant  

                                              

Attorney Gen.).  



          41       There   were   further   changes   to   the   bill,   including   the   addition   of  



subsection .011(8)(B) in the House Finance Committee, see Committee Substitute for  

House Bill (C.S.H.B.) 375(FIN)  19, 20th Leg., 2d Sess. (1998), but we confine our  

                                                                          

discussion to the definition of "mental injury."  



          42       C.S.H.B. 375(HES)  31, 57, 20th Leg., 2d Sess. (1998).  



          43       Minutes, Sen. Judiciary Comm. Hearing on C.S.H.B. 375(FIN) am, 20th  



Leg., 2d Sess. No. 420 (May 8, 1998) (testimony of Susan Wibker, Assistant Attorney  

                                               

Gen.).  



          44       Id. (testimony of Russell Webb, Deputy Comm'r of Dep't of Health & Soc.  

                                                                                                       

Servs.).  



                                                            -17-                                                      7029
  


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

                                                                                              

injury.'  They argued over when mental injury raises it to the level of a child in need of  

aid."45  



                                                       

                    As  we  noted  above,  in  the  original  bill  "emotional  harm"  could  be  



"indicated  by  observable  impairment  in  the  child's  functioning  or  development,  



                                                                     

including failure to thrive, extreme anxiety, depression, withdrawal, or aggressive or  



                                                           46  

                                                                                         

hostile behavior toward self or others."                       Use of the word "include" means that the list  



                                                                                                         47  

                                                                                                            but the types of  

was not exclusive and that other conditions could meet the definition, 



                                                          

impairments listed in the original bill language are significant problems, demonstrating  



                                                                                                             48 

                                                                                                                 A legislative  

an intent to limit mental injury to difficult mental or behavioral problems. 



                                                                              

intent to narrow the circumstances in which mental injury applied by using the definition  



                                                                   

in AS 47.17.290 indicates that a finding that a child has suffered a mental injury requires  



                                                                                                      

that the child exhibit at a minimum some serious overt emotional or behavioral problem.  



                    Looking at cases in which we have reviewed findings of mental injury  



                                                                                                                

under AS 47.10.011(8), we observe that the children involved had either mental health  



                                                                                   

diagnoses, significant behavioral difficulties, or both. For example, we upheld a finding  



                                                                              

of mental injury when a child "showed disturbing behavior" during his initial removal  



(when he was four to five years old) such as "choking a cat, killing a pet duck, [and]  



                                                                                   

fondling his foster mother," and later exhibited more disturbing behaviors after being  



returned to his father's care, "including an incident in which [the child] shoved a girl's  



          45        Id. (statement of Rep. Fred Dyson).  



          46        House Bill (H.B.) 375  28, 20th Leg., 2d Sess. (1998).  



          47        Thoeni  v.  Consumer  Elec.  Servs.,   151  P.3d  1249,  1258  (Alaska  2007)  



(citations omitted).  



          48        See Adamson v. Municipality of Anchorage, 333 P.3d 5, 20 (Alaska 2014)  

                                                                                        

(citation omitted) (construing a statute by looking at items on a list to identify a class to  

                                                                                                                      

which the items belong).  



                                                              -18-                                                         7029
  


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

                                49  

head into his crotch."               In another case we affirmed a finding of mental injury when the  



                         

child had been diagnosed with reactive attachment disorder and "severe Oppositional  



              

Defiant Disorder," and the trial court found that the child suffered from a number of  

problems,  including  "cognitive  delays,  .  .  .  anger  and  aggressive  outbursts."50                                        In  



                     

Josephine B. we affirmed an adjudication decision because the child's therapist testified  



              

that the child's anxiety was causing her to have "marked difficulties with her eating  



                                                 

patterns" as well as difficulties with her sleeping patterns and difficulty concentrating,  



all of which were affecting the child's ability to do schoolwork and interact well with  



           51  

                                                                                                    

others.        And in an unreported decision, we affirmed a finding of mental injury because  



                  

the child's therapist testified that the father's "failure to follow OCS's visitation rules  

caused [the child] severe anxiety, manifested by physical symptoms."52  



                          

                    In  its  appellate  brief  OCS  relies  on Martha  S.  v.  State,  Department  of  



                                                                                        

Health & Social Services, Office of  Children's Services , where we affirmed, using the  



                                                          

preponderance              of     the     evidence         standard,         an      adjudication           finding        under  



          49        Rick P. v. State, OCS , 109 P.3d 950, 952-53 (Alaska 2005).   



          50        Ralph H. v. State, Dep't of Health & Social Servs., Office of Children's  



Servs., 246 P.3d 916, 923-24 (Alaska 2011) (internal quotation marks omitted); see also  

 V.S.B. v. State, Dep't of Health & Social Servs., Div. of Family & Youth Servs., 45 P.3d  

                                                     

 1198, 1201-02, 1204-05 (Alaska 2002) (affirming finding that children were in need of  

                                                                                                

aid due to mental injury when all four children acted aggressively and two of the children  

displayed inappropriate sexual behavior).  



          51  

                                                                                            

                    Josephine B. v. State, Dep't of Health & Social Servs., Office of Children's  

Servs., 174 P.3d 217, 223-24 (Alaska 2007).  



          52  

                                                                  

                     Wystan Z. v. State, Dep't of Health & Soc. Servs., Office of Children's  

Servs., Mem. Op. & J. No. 1501, 2014 WL 2716672, at *3 (Alaska June 11, 2014).  



                                                               -19-                                                         7029
  


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

                          53  

AS 47.10.011(8).    Martha S. , like this case, involved two children, Andy and Allie, and     



                                                                                        54  

we considered the mental health of each child separately.                                   Andy had multiple mental  



                                                                                              

health diagnoses and significant behavior problems at school, and had to be hospitalized  

at North Star; we affirmed the finding that he had suffered a mental injury.55  As to Allie,  



                                                                                                       

we stated that she "currently displays mental injury as evidenced by her sexual reactivity  



and  is  at  risk  of  suffering  future  mental  injury  as  a  consequence  of  inadequate  



                                                                          56  

supervision  and  a  hostile  home  environment."                                Testimony  about  Allie's  "sexual  



reactivity" included detailed information Allie had related to her therapist about sex  



                                            

abuse in the home as well as the foster parent's and the therapist's observations of Allie's  



                               57  

                                                                                                                     

sexualized behavior.                The children's hostile home environment included a father who  



isolated the family from social services, had threatened to kill OCS workers, and was  



                                                                                                                       58  

                                                                                                                           In the  

charged with trying to run over an OCS worker in the courthouse parking lot. 



                                                              

appeal from the termination order about the same children, we affirmed the trial court's  



                                                                                                          59  

                                                                                                              We noted that  

finding that Allie had suffered mental injury as defined in the statute. 



                                                                                        

Allie's mental health diagnosis was adjustment disorder, which her therapist described  



                                                                               

as "benign," but that the therapist also testified that Allie's "sexual reactivity" impaired  



          53        268 P.3d 1066, 1080, 1084 (Alaska 2012).  



          54        Id. at 1081-82.  



          55        Id. at 1069-70, 1081.  



          56        Id. at 1082.  



          57        Id. at 1072.  



          58        Id. at 1068-69, 1072-73.  



          59         William S. v. State, Dep't of Health & Social Servs., Office of Children's  



Servs., Mem. Op. & J. No. 1474, 2014 WL 199882, at *8 (Alaska Jan. 15, 2014).  



                                                               -20-                                                         7029
  


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

                                                                                

Allie's  ability  to  function  in  a  developmentally  appropriate  manner  and  that  Allie's  



                                                                 

impairment had been substantial when she was taken into custody; we relied on this  



                                                                                                     

testimony, coupled with the lack of change in the family home, to affirm the finding that  

Allie was in need of aid because of mental injury.60  



                                                                                                            

                      There is  no comparable evidence here. In finding that the children suffered  



                                                                                              61 

                                                                                                 and found that the children  

a mental injury, the trial court summarized Ohs's testimony 



had  "suffered  mental  injury"  due  to  "[Zane]'s  diagnosis  [of  PTSD],  the  children's  



                                                                                          62  

                                                                                              On reconsideration, the court  

behavior, and the boundary issues discussed by Dr. Ohs." 



                                                                               

said that even if the PTSD were caused by Zane's removal rather than Theresa's conduct,  



                                                                                                                        

"that entire situation was brought on by [Theresa] and the court found that removal was  



                                                                                                                               

appropriate."  The court further said that the PTSD was only part of the finding: "the key  



            

pieces were the inappropriate boundaries" and "the children's negative behaviors after  



                                                                                   

they spent time with their mother."  The court said that Zane's licking Alicia applied to  



                                                                                                             

both children because Maia did not see it as inappropriate. The court justified its reliance  



           60        Id. at *2, *8.  



           61        In its summary of the evidence, the court said that both Zane and Maia   



"exhibited . . . a pattern of sexually acting out in certain respects."                                   We found nothing in  

the record to support this statement.  Ohs testified that                               Alicia  had acted out sexually in  

her foster placement, but he did not testify that Zane or Maia had a pattern of sexually  

acting out.  OCS points to Ohs's opinion that the children were at risk for acting out  

                                                                                                 

sexually to support its contention that we should consider the children to be in need of  

                                                                                                                            

aid under AS 47.10.011(8)(B)(i).  In giving this opinion, Ohs relied on an incident,  

reported  to  him  by  an  OCS  worker,  in  which  Alicia  "straddled"  Zane.    The  court  

sustained an earlier objection to his testimony about the report because it was hearsay.  

                                                                                                                       

Nothing indicated that Maia had ever acted inappropriately, and it is not clear whether  

                                                                                                                      

the trial court considered Zane's licking Alicia's face together with the report from the  

              

OCS worker to be a "pattern of sexually acting out," in spite of Zane's denial that licking  

                                                   

Alicia had any sexual meaning.  



           62         Ohs was not a doctor, as the court acknowledged on reconsideration.  



                                                                  -21-                                                             7029
  


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

on Dr. Glass's testimony to find mental injury, even though Dr. Glass never saw the  



                                                                                                            

children, because Dr. Glass's observations assisted the court in evaluating Theresa's  



interactions with the children.  



                                                                            

                      Turning  first  to  Zane's  PTSD  diagnosis,  OCS  did  not  identify  in  its  



                                                                                                                   

appellate brief any testimony about that diagnosis or its origin, and we found none.  The  



                                                                                  

only trial evidence we found suggesting that Zane had a diagnosis of PTSD were therapy  



                                                                                                                     63  

notes from Ohs, where PTSD was listed as Zane's primary diagnosis.                                                        Ohs did not  



                                                                                                                  

testify at trial about his basis for making the diagnosis or its causes.  The same therapy  



notes with Zane's PTSD diagnosis also consistently show a score of 80 on the global  



                                                                    64  

                                                                           A  GAF  of  71  to  80  indicates  that  "[i]f  

assessment  of  functioning  (GAF)  scale. 



                                        

symptoms  are  present,  they  are  transient  and  expectable  reactions  to  psycho-social  



                          

stressors  (e.g.,  difficulty  concentrating  after  family  argument);  no  more  than  slight  



impairment  in  social,  occupational,  or  school  functioning  (e.g.,  temporarily  falling  



                                        65 

                                                                                                                    

behind in schoolwork)."                     80 is the high end of the scale from 71 to 80, so even if Zane's  



                                      

PTSD  diagnosis  was  linked  to  Theresa's  conduct,  the  only  evidence  showing  the  



                                                

diagnosis also indicates that Zane had only a slight impairment in functioning, not that  



           63         One therapy note with Maia as the client is in the record; no diagnosis was  



entered on the note.  



           64         The earliest note in the record with Zane's diagnosis is from April 2012 and       



shows a GAF of 80.  



           65         AMERICAN  PSYCHIATRIC ASS 'N ,  DIAGNOSTIC &  STATISTICAL MANUAL OF  



                                                                                           

MENTAL DISORDERS , FOURTH EDITION , TEXT REVISION (DSM-IV-TR) 34 (4th ed. 2000)   

(emphasis omitted).  The GAF scale has been removed from the latest version of the  

DSM.  See AMERICAN   PSYCHIATRIC ASS 'N ,   DIAGNOSTIC  &   STATISTICAL  MANUAL OF  



                                                               

MENTAL DISORDERS , FIFTH EDITION , DSM-5 16 (5th ed. 2013).  



                                                                    -22-                                                              7029
  


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

he was suffering "an observable and substantial impairment in [his] ability to function  

in a developmentally appropriate manner," as the statute requires.66  



                    Theresa also points out, as she did when she moved for reconsideration, that  



no  evidence  linked  Zane's  diagnosis  to  her  conduct.    We  agree.    We  found  no  



evidence - and OCS points to none - establishing that the PTSD diagnosis was caused  



                                                                                                                     67  

                                                                                                                         With  

by Theresa's conduct or conditions created by her, as the CINA statute requires. 



respect to Zane's PTSD diagnosis, we hold that the trial court clearly erred in its finding       



that this was evidence of mental injury.  



                                                                

                    The other facts the trial court relied on to find mental injury included "the  



                                                                          

children's behavior" after visits with Theresa and "the boundary issues discussed by . . .  



                                                                                                      

Ohs."  In summarizing the evidence, the court said that Zane and  Maia "acted very  



poorly with their foster parents after sessions with their mother" and "were subject to an  



                                                                              

'us versus them' mentality created by their mother."  Theresa argues that these grounds  



are inadequate to support a finding of mental injury for CINA purposes.  OCS sets out  



                                                       

specific examples of behavior that it claims support the conclusion that the children had  



substantial impairments.  



                                                                                                                  

                    It is undisputed that Ohs testified about "poor boundaries," but OCS does  



                                                           

not explain how the "poor boundaries" described by Ohs meet the statutory standard for  



                                                                                         

mental injury.  OCS relies primarily on Ohs's testimony that in one therapy session Zane  



                                 

"regressed" by using "some baby talk" and putting his head on his mother's chest, "just  



like  an  infant  would,  hugging  her."    Ohs  did  not  testify  that  Zane  repeatedly  acted  



                                                         

babyish when he was with Theresa, as OCS implies:  the behavior he described happened  



          66        AS 47.17.290(10).  



          67        AS 47.10.011(8)(A).  



                                                             -23-                                                           7029  


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

                          68 

                                                                                        

at one session,               and the therapy notes from that session say that Zane was "markedly"  



clingy, "more so than the previous day."  One instance of infantile behavior by a ten- 



                                                                                           

year-old child is not "an observable and substantial impairment in [his] ability to function  

in a developmentally appropriate manner,"69 particularly here, where Ohs also testified  



                                                                            

that Zane's clinging to his mother was "a natural occurrence for a kid who hasn't seen  



[his] mother."  



                        In the termination order, the trial court identified Zane's licking Alicia's  



                                                                                            

face as a "notabl[e]" example of poor boundaries.  When describing other examples of  



                                                                                                                                   

"poor  boundaries,"  Ohs  testified  that  ten-year-old  Zane  sang  a  song  about  a  "butt  



                                                                           

factory" and "was dancing and shaking his butt inappropriately" in a family therapy  



session.  While Zane's behavior perhaps may have been inappropriate for family therapy,  



                                                                       

we cannot conclude that it rises to the level of severity the legislature contemplated in  



                                                                                                                

enacting the mental injury subsection of the CINA statute.   More importantly, OCS  



points to no testimony that Zane or Maia were substantially impaired in their ability to  



function in a developmentally appropriate manner because of their "poor boundaries."  



                        We found no evidence to support the trial court's statement that the children  



                                        

behaved poorly with their foster parents after family therapy with Theresa.  As OCS  



                                            

notes, Ohs testified that the children were disruptive in a therapy session with Theresa;  



                                                                                                  

he said the children "laughed out of control, giggling [and] were disrespecting mom."  



                                                                                               

Theresa was unable to settle them, and Ohs said that the following week, when Theresa  



                                                                                                                  

was not with them, the children were much better behaved.  As with Zane's singing and  



                                                                                                     

dancing, the behaviors Ohs described were not ideal, but neither do they demonstrate "an  



            68          This therapy session took place in May 2012, during Theresa's first visit   



to Alaska after the children were removed.  We observe that at the time of this session,   

ten-year-old Zane had not seen his mother for eight months.  



            69          AS 47.17.290(10).  



                                                                          -24-                                                                     7029
  


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

observable  and  substantial  impairment  in  the  child[ren]'s  ability  to  function  in  a  

                                                                                                                     



developmentally appropriate manner" that would justify terminating Theresa's parental  



                                                              

rights.  All of Zane's behaviors may just as easily be explained as the antics of a ten- 



                                                   

year-old boy who, seeing  his  mother for the first time in eight months, was merely  



goofing off to get her attention.  



                      OCS  argues  on  appeal  that  Theresa  made  "unrealistic,  inappropriate  



                            

promises" about reunification and displayed "poor boundaries and poor decisionmaking  



                                                                                 

in her parenting" and that the "poor boundaries" were key to the trial court's decision.  



                                                                                                            

With respect to the unrealistic promises, Ohs testified that Theresa had made unrealistic  



                                                               

promises because she "was passionate about wanting to reunify" with the children; Ohs  



also said, in the portion of the transcript OCS cites, "And they were promises very early  



                                                                                            

on in the case, the first month, that we needed to address and make sure that she did not  



                                                                                               

make promises that were inappropriate based on her desire to have the children."  In any  



                                     

event, this is evidence about Theresa, and it does not support a finding that the children  



                                                                          

were significantly impaired in their ability to function in a developmentally appropriate  



manner.  



                                                                                                                     

                      With respect to Maia, OCS points to Ohs's testimony that Maia exhibited  

                                                                                                           70  The only example  

parentified behavior and had better insight in therapy than Theresa. 



           70         As we noted in Grace L. v. State, Department of Health & Social Services,   



Office of Children's Services                  , parentification "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."          329   P.3d   980,   985   n.12   (Alaska   2014)   (quoting   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))  (internal  quotation  marks  omitted).    The  same  author  cautions,  

"Because  all  families  communicate  parentifying  messages  to  some  degree  to  their  

                                                                                                                      (continued...)  



                                                                   -25-                                                             7029
  


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

Ohs  gave  of  Maia's  parentified  behavior  was  reminding  Theresa  of  family  therapy  



sessions.  OCS also argues that Maia had a mental  injury because she "already has  



                                                                                

trouble forming relationships."  Theresa replies that OCS is exaggerating the testimony  



                                                                                                                

it relies on and that the testimony does not meet the standard for mental injury in any  



                                         

event.  Ohs testified, "I've seen [Maia], in fact, pull back from relationships because she  



                                                         

does not want to be like her mother, she's shared, and not get emotionally involved so  



                                                                                                      

quickly."  We agree with Theresa that this testimony is inadequate to support a finding  



of mental injury.  



                                                                                                            

                    The trial court found only that the children were in need of aid because they  



                                                                                

"suffered mental injury"; it did not make findings under other statutory subsections.  



OCS nonetheless asks us to affirm on the alternative ground that the children were in  



                                                               

need of aid under AS 47.10.011(8)(B)(i), which requires a finding that the child has been  



                                                                              

placed at substantial risk of mental injury as a result of "a pattern of rejecting, terrorizing,  



ignoring,  isolating,  or  corrupting  behavior  that  would,  if  continued  result  in  mental  



               

injury." OCS relies on Martha S ., where we affirmed an adjudication finding that a child  



was  in  need  of  aid  because  of  the  child's  "sexual  reactivity"  and  the  child's  home  

                    71   Theresa replies that in her case the trial court did not make the necessary  

environment.                                                                                           



findings under this statutory subsection and that it would be inappropriate for this court  

                        



to make factual findings.  She also distinguishes Martha S.  factually, noting that the  

                                                                                                                        



"hostile home environment" we described in Martha S. included a father who had uttered  

              



          70        (...continued)  



children, discussions of parentification must distinguish carefully between benign and  

detrimental types and duration of parentified roles."  Chase, supra at 6.  



          71        Martha S. v. State, Dep't of Health & Social Servs., Office of Children's  



Servs., 268 P.3d 1066, 1082 (Alaska 2012).  

                                                                    



                                                              -26-                                                         7029
  


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

                                                                                         72  

death threats to OCS workers and isolated his family.                                         As Theresa points out, no one       



testified that she engaged "in a pattern of rejecting, terrorizing, ignoring, isolating, or   



corrupting behavior." Her children described their conversations with her as well as their                                    



family life with her before they were removed, and they expressed no fear of her or  



                                                                                 

worries about living with her - they both told the court they wanted to live with her.  



                                                                   

At trial Ohs expressed concerns about "personal boundaries" in the family, as OCS  



                                                   

points out in its brief.  But his testimony does not come close to support for a finding of  



"a  pattern  of  rejecting,  terrorizing,  ignoring,  isolating,  or  corrupting  behavior"  by  



Theresa, and the trial court appropriately did not make such a finding.  And it is hard to  



                                                                                       

see why Ohs would recommend continuing contact with Theresa, or why as late as the  



                                                                                                                        

termination trial OCS would think reunification with Theresa "would still be on the  



table" but for the ICPC requirement, if she were engaging in this type of behavior.  



                      Based on the statutory language and legislative history, which indicate that  



mental injury requires a significant or severe problem in functioning or behavior, we  



conclude  that  OCS  did  not  meet  its  burden  of  showing  by  clear  and  convincing  

               73 that either of these children suffered a mental injury as defined in the statute.  

evidence                                          



There was no evidence that they were depressed, extremely anxious, or withdrawn, nor  

                                                                                                                   



was there evidence that either child exhibited aggressive or hostile behavior toward  

                                                                                                                    



anyone.  In fact, the evidence presented at the termination trial indicated that these two  

                                                                                                          



children have done reasonably well in school and elsewhere, and were doing well before  

                                                            



OCS intervened.  No evidence showed that Zane or Maia had any behavioral problems  



     

at school, and the behaviors that concerned Ohs were not severe or aggressive.  We  



discern  no  evidence  that  these  children  had  any  significant  behavioral  or  emotional  



           72         Id.  



           73         AS 47.10.088(a)(1).  



                                                                     -27-                                                                   7029  


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

problems  before  OCS  took  custody  of  them,  and  OCS  does  not  point  to  any.    We  



conclude that OCS did not meet its burden of proving by clear and convincing evidence  



                                                                   

that the children had suffered a mental injury as defined in the CINA statute, and that it  



                                                     

was  clear  error  for  the  trial  court  to  find  by  clear  and  convincing  evidence  that  the  



children were in need of aid under AS 47.10.011(8)(A).  



V.       CONCLUSION  



                  For  the  foregoing  reasons,  we  REVERSE  the  trial  court's  decision  



                  

terminating  Theresa's  parental  rights  to  Zane  and  Maia  and  REMAND  for  further  



proceedings consistent with this opinion.  



                                                         -28-                                                   7029
  

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