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

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


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kylie L. v. State, Dept. of Health & Social Services, Office of Children's Services (10/13/2017) sp-7205

Kylie L. v. State, Dept. of Health & Social Services, Office of Children's Services (10/13/2017) sp-7205

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

KYLIE  L.,                                                           )  

                                                                     )      Supreme  Court  No.  S-16520  

                                Appellant,                           )  


                                                                     )      Superior Court No. 4FA-13-00120 CN  

           v.                                                        )  


                                                                     )     O P I N I O N  


STATE OF ALASKA, DEPARTMENT                                          )


OF HEALTH & SOCIAL SERVICES,                                         )                                              

                                                                           No. 7205 - October 13, 2017




                                Appellee.                            )  



                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                      Fourth Judicial District, Fairbanks, Michael P. McConahy,  



                      Appearances:               Olena   Kalytiak   Davis,   Anchorage,   for  


                      Appellant.          Megyn  Greider,  Assistant  Attorney  General,  


                      Anchorage, and Jahna Lindemuth, Attorney General, Juneau,  


                      for Appellee.  


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


                      Bolger, Justices.  [Carney, Justice, not participating]  


                      WINFREE, Justice.  



                      After the trial court found that the Office of Children's Services (OCS)  


failed  to  demonstrate  it  had  made  reasonable  efforts  to  reunify  a  family,  the  court  


nonetheless terminated the mother's parental rights to her daughter, finding that OCS's  

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

failure was "excused."                     The mother appealed; we earlier issued an order reversing the                                               

court's   "excused"   determination   and   vacating   the   trial   court's   termination   order,  

indicating we would fully discuss our reasoning in a later opinion.                                                      We do so now.       


                        Kylie L. and Kurt B. began a relationship in 2003 and had a daughter,                                              


Belinda B.,            in 2010.                                                                                                                       

                                           Kurt was  often  abusive toward Kylie, who  remained  in  the  


relationship partly because Kurt threatened that if she left him he would kill her and  



                        OCS became involved with the family in May 2013 when Kurt injured  


Belinda.  In the midst of an alcohol-fueled argument Kurt threw a glass beer bottle at  


Kylie; he instead hit Belinda in the back of the head, knocking her off the table on which  


she was seated.  Kylie escaped to the bedroom with Belinda, but Kurt followed them,  


punching Kylie in the head and jumping on her as she attempted to protect Belinda with  


her body.  Despite a "baseball sized lump" on Belinda's head, Kurt refused to let Kylie  


secure medical care, hiding Kylie's phone and car keys to prevent her taking Belinda to  


a doctor.  


                        The next morning Kurt returned Kylie's phone and keys so she could go  


to work.  When Kylie arrived at work she called the police, reported the abuse to a child  


advocacy center, and brought Belinda to a hospital for medical attention.   Kurt was  


arrested and OCS opened an investigation.  Belinda received a forensic evaluation and  


follow-up care. In June Kylie obtained a domestic violence protective order to keep Kurt  


away from her and Belinda.  


                        Kylie soon entered into a relationship with Lou C.   Lou was not a safe  


companion; he used methamphetamine and "had a lot of involvement with the law." Yet  



                        Pseudonyms are used to protect the parties' privacy.  

                                                                           -2-                                                                          7205  

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


Kylie had difficulty accepting that Lou was dangerous because he "didn't physically  


harm her like her past partners had."  


                    OCS closed its investigation in August, substantiating findings that Kurt  


had harmed Belinda.  Only a week after closing its first investigation, OCS received  


another report of harm to Belinda.  Kylie, Belinda, Lou, and Lou's son had gone on a  


road trip.   Kylie explained that during this trip she noticed Belinda was not placing  


weight on one of her legs.  The day after they returned from the trip, Kylie took Belinda  


to the hospital; Kylie and Lou told the hospital staff they did not know how Belinda had  


been injured but thought perhaps Lou had reclined his car seat onto the girl's ankle.  


They told the doctor that Belinda had not cried out when they thought the injury might  


have occurred, nor had she cried during the trip.  The doctor believed the injury - two  


broken  bones  in  Belinda's  leg  - was not consistent with  Kylie's explanation  and  


reported to OCS his suspicions of non-accidental trauma.  


                    OCS initiated an investigation and implemented a protective action plan  


under which Belinda stayed with a family friend.  OCS requested that Kylie and Lou  


submit to urinalysis (UA) testing, but neither showed up. The OCS caseworker referred  


Kylie and Belinda to a family preservation program. The caseworker, who had received  


reports that Lou was involved in drug trafficking, discussed with Kylie that Lou was an  


unsafe person, emphasizing the danger of exposing children to methamphetamine.  By  


September Kylie had begun to express that she understood the danger Lou posed and had  


told  OCS  the  relationship  was  over.                      The  OCS  worker  felt  Kylie  "had  begun  to  


demonstrate protective capacities" and moved Belinda from an out-of-home safety plan  


to an in-home safety plan, requiring supervision by Kylie's mother.  


                    Problems with the in-home safety plan quickly developed; Kylie's mother  


was leaving Belinda alone with Kylie and failing to report to OCS as required.   In  


October Kylie moved to modify the protective order against Kurt, telling the court she  

                                                               -3-                                                         7205

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


wanted "[t]o re-establish [the] relationship between [Kurt] and his daughter."  During  


this period the case was transferred to an OCS family services worker who spoke with  


Kylie about how her pattern of engaging with dangerous men posed a threat to Belinda.  


The OCS worker believed Kylie was not internalizing these messages: because Lou did  


not physically abuse Kylie, she continued to have trouble accepting that he was unsafe,  


and she was planning to visit an old friend who recently had been released after serving  


time in prison for a manslaughter conviction resulting from a road rage incident.  


                    In November, after Belinda had been returned to Kylie's care under the in- 


home safety plan, OCS received a third report of harm, this time concerning a cigarette  


burn on Belinda's lower back.  Kylie told Belinda's daycare workers that she had been  


holding a cigarette while removing her daughter from a car seat and that the "cherry" fell  


into Belinda's diaper and burned the girl.  OCS took emergency custody of Belinda the  


day after receiving the report; OCS filed an adjudication and temporary custody petition  


the following day asserting that Kylie had minimized the incident.  


                    After assuming custody and placing Belinda in foster care, OCS continued  


providing services to Kylie and Belinda.  OCS arranged visitation between the two and  


made service referrals for relationship classes, a parental risk assessment, a substance  


abuse assessment, and dyadic therapy, which focuses on the parent-child relationship  


with  the  goal  of  healing  the  child's  trauma  within  the  context  of  an  attachment  


relationship.  OCS also assisted Kylie in meeting basic needs by obtaining food boxes  


and assisting her efforts to secure housing and heating fuel.  


                    By all reports the dyadic therapy began very well.  At some point Kylie  


revealed to her therapist that she was still in a relationship with Lou and that he was  


living in her home.   But when the therapist attended a February 2014 OCS meeting  


addressing the possibility of a trial home visit, she did not pass on to OCS information  


about Lou's continued presence in the home.  

                                                                -4-                                                         7205

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


                    OCSlearnedthatKyliewas pregnant with Lou's child thefollowingmonth.  


Because Kylie had previously revealed the pregnancy and continuing relationship to her  


therapist, OCS was concerned that Kylie was triangulating providers - "telling one  


professional one thing, another professional something else" - making it difficult to  


work as a team.  The therapy center did not agree with that assessment.  


                    Kyliecontendedthat herrelationship with her daughter began to deteriorate  


in March, when Belinda was transferred to new foster parents who had little experience.  


Belinda began telling her new foster parents that her mother and father had hurt her; this  


led to another forensic interview, but no abuse was substantiated. OCS also moved visits  


from an off-site center to its own facilities.  Belinda soon began exhibiting troubling  


behaviors and resisting visitation.  


                    In April OCS referred Belinda to individual therapy.  This decision was  


made in part by an OCS supervisor who was herself receiving therapy from the same  


therapist  and  who  was  going  through  a  contentious  divorce  involving  significant  


domestic violence allegations.   The original dyadic therapist tried unsuccessfully to  


coordinate efforts with this new therapist and address issues that might arise if Belinda  


were to continue seeing them both.  


                    In May OCS abruptly ended Kylie and Belinda's dyadic therapy sessions.  


Also in May Lou was arrested on suspicion of involvement in a child's death; another  

woman he was seeing apparently killed her son and Lou was later convicted of failing  


to report the crime.  Lou's arrest effectively terminated his relationship with Kylie.  


                    In July OCS cancelled visitation between Kylie and Belinda.  OCS made  


the decision to cancel visitation based on the advice of Belinda's new therapist, although  


that therapist had never met Kylie.  


                    Kylie began receiving individual therapy in August.  In September OCS  


filed a petition for the termination of Kylie's and Kurt's parental rights.  This situation  

                                                               -5-                                                         7205

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


generally continued - no dyadic therapy or visitation between Kylie and Belinda, each  


of them receiving individual therapy - until December, when Kylie engaged Dr. Marti  


Cranor, a licensed psychologist, to review the OCS file and give an opinion on OCS's  


decision-making in the case.   Dr. Cranor was critical of OCS's efforts; she did not  


believeBelinda's individualtherapy was appropriate, shebelieveddyadictherapyshould  


not  have  been  terminated,  and  she  believed  OCS  had  displayed  a  pattern  of  


misrepresentation and exaggeration.  


                    In January 2015 an OCS staff manager reviewed the case and found it was  


not being handled appropriately. She believed OCS was not being very helpful and that  


providers were working at odds and not communicating.   She directed visitation to  


resume, which it did in late January after almost seven months without any contact  


between Kylie and Belinda.  


                    The OCS staff manager also replaced Belinda's individual therapist.  The  


new therapist restarted dyadic therapy and diagnosed Belinda with post-traumatic stress  


disorder, observing a wide range of associated symptoms.   The therapist noted that  


although Belinda and Kylie appeared to be making progress, things soon deteriorated  


again. Shebelieved contact withKyliewas triggeringBelinda'straumaticsymptoms and  


that as a consequence their bond was weakening.  


                    In July Kylie made what she later acknowledged was a poor choice; she  


emailed Kurt after he was released from jail and arranged to meet with him in a public  


parking lot so she could update him on Belinda.  Kylie told the new therapist about the  


incident but then denied the contact when an OCS caseworker questioned her about it,  


maintaining her denial until the caseworker confronted her with a copy of the email she  


had sent Kurt.  


                    In September OCSissued aQuality AssuranceReport -an internal review  


of  its  management  of  the  case.                  The  review  documented  a  number  of  significant  

                                                               -6-                                                        7205

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


concerns, including that: services "have not been well organized and have not served to  


facilitate reunification"; OCS was not providing a warm environment for visitation; and  


documentation of visits was "overly negative," contributing to an unwarranted negative  


"narrative or belief system" about Kylie.  


                    Belinda's behavior surrounding visitation continued to regress; by October  


OCS workers and her foster parents had to physically force her to attend.  Her therapist  


was concerned that visitation had become re-traumatizing for Belinda and that forcing  


her  to  attend  threatened  her  ability to  maintain  safe relationships.                                 Based  on  these  


concerns  OCS  made  visitation  voluntary,  giving  Belinda  the  option  of  attending  


visitation every week; Belinda consistently declined, effectively terminating visitation.  


                    In November Kylie obtained a neuropsychological assessment at OCS's  


request. The assessment was generally quite positive, concluding that Kylie understood  


the impact on her daughter of past trauma and that Kylie could safely care for her  


daughter as long as she avoided abusive relationships.  


                    Although  visitation  had  been  effectively  suspended,  dyadic  therapy  


continued. But by early 2016 the therapist, who had grownincreasingly concerned about  


the risk continued joint therapy sessions posed to Belinda's mental health, discontinued  


dyadic therapy and limited Belinda to individual therapy instead.  


                    Meanwhile, Kylie secured a full-time job with the local school district,  


obtained affordable permanent housing, and completed a number of relevant training  


courses on her own initiative.  Kylie had not been in a relationship since Lou's arrest in  


May 2014.  


                    A  termination  trial  was  held  in  June  2016.                       The  trial  court  issued  its  


decision on record in October.  The court found that OCS met its burden of proof on all  

                                                                -7-                                                         7205

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


issues except for the requirement that it make reasonable efforts to reunify the family.                                                                                                                                    


Despite OCS's failure to demonstrate that it had made reasonable efforts, the court  


nonetheless  terminated  Kylie's  parental  rights,  holding  that  the  reasonable  efforts  


requirement was "excused" because remedying the deficiency by providing OCS more  


time would be pointless and harmful to Belinda due to the ruptured mother-child bond.  

                 2                Under relevant Alaska Child in Need of Aid (CINA) statutes and rules,                                                                     

parental rights may be terminated at trial only if OCS shows:                                                                                                

                                  (1)  by clear and convincing evidence that                                                     

                                                   (A)   the   child   has   been   subjected   to   conduct   or  

                                                   conditions described in AS 47.10.011 and                                                         

                                                                   (i)  the parent has not remedied the conduct or                                                                 

                                                                   conditions in the home that place the child at                                                                   

                                                                    substantial risk of harm; or                                  

                                                                   (ii)   the parent has failed, within a reasonable                                         

                                                                   time, to remedy the conduct or conditions in the                                                               

                                                                   home that place the child in substantial risk so  


                                                                   that  returning  the  child  to  the  parent  would  


                                                                   place the child at substantial risk of physical or  


                                                                   mental injury; [and]  


                                                   . . . .  


                                  (2) by clear and convincing evidence that  


                                                   (A) the Department has complied with the provisions  


                                                   of AS 47.10.086 concerning reasonable efforts; [and]  


                                                   . . . .  


                                  (3) by a preponderance of the evidence that termination of  


                                  parental rights is in the best interests of the child.  


CINA Rule 18(c); see also AS 47.10.088 (establishing requirements for termination).  

                                                                                                          -8-                                                                                                 7205

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

                                   Kylie appealed, and we earlier issued an order vacating the termination of                                                                                                               

her parental rights.                               This opinion explains the basis for that order.                                                                           

III.              STANDARD OF REVIEW                              

                                   " 'Whether OCS made reasonable efforts to reunify the family is a mixed                                                                                                      

question of law and fact.'                                          For mixed questions, 'we review factual questions under the                                                                                           

clearly erroneous standard and legal questions using our independent judgment.' "                                                                                                                                    3  


                                   "Whether the superior court's factual findings satisfy the CINA statutes is  


a question of law that we review de novo, adopting the rule of law that is most persuasive  



in light of precedent, reason, and policy." 

IV.              DISCUSSION  


                                   Kylie challenges the trial court's finding that she failed to remedy the  


conduct or conditions that put Belinda at risk of harm and its holding that OCS was  


excused from making reasonable efforts to reunify her family. Because we conclude the  


trial court improperly excused OCS's failure to demonstrate reasonable efforts were  


made, we do not reach the question of failure to remedy.  


                 A.                Reasonable Efforts Play An Important Role In Every CINA Case.  



                                   We have stated in the Indian Child Welfare Act (ICWA)                                                                                                 context that the  


"scope  of  the  State's  .  .  .  dut[ies]"  may  not  be  varied  "based  on  subjective,  pre- 


intervention criteria such as a parent's motivation or treatment prognosis" because to do  

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

382 P.3d 1154, 1162 (Alaska 2016) (quoting                                                                           Sherry R. v. State, Dep't of Health & Soc.                                                        

Servs., Office of Children's Servs.                                                      , 332 P.3d 1268, 1273-74 (Alaska 2014)).                                                  

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


Servs., 311 P.3d 637, 643 (Alaska 2013) (citing J.S. v. State, 50 P.3d 388, 391 (Alaska  



                 5                 25 U.S.C.  1901-1963 (2012).  


                                                                                                             -9-                                                                                                    7205

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


 so   "might   defeat   the   purpose   of   the   active   remedial   effort   requirement."     This  

uncompromising standard holds true in every CINA case:  even if the outlook is bleak                                                                                                                                                                                        

 and the likelihood of success is low, the State has an obligation to provide "timely,                                                                                                                                                                            

reasonable efforts . . . designed . . . to enable the safe return of the child to the family                                                                                                                                                                            

                         7     this  obligation  persists  because  "terminating  parental  rights  is  a  drastic  


measure," as we must always bear in mind.8                                                                                                                    OCS's remedial efforts are a "critical  


 component" of state intervention in the family; they serve to avoid the drastic measure  


 of  termination  whenever  feasible,  and  procedurally  they  form  a  "necessary  bridge  


between a need of aid finding and a failure to remedy finding."9                                                                                                                                                               Before terminating  


                      6                     A.M. v. State                             , 891 P.2d 815, 827 (Alaska 1995),                                                                                 overruled in part on other                                          

grounds by In re S.A.                                                 , 912 P.2d 1235, 1241 (Alaska 1996).                                                                                        Although ICWA's " 'active                                          

 efforts' requirement . . . is more demanding than the 'reasonable efforts' requirement of                                                                                                                                                                                             

AS 47.10.086,"                                        Winston J. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                                                                             

Servs., 134 P.3d 343, 347 n.18 (Alaska 2006), and imposes a "higher burden" on OCS,                                                                                                                                                                                         

 Casey K. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 311 P.3d   

 637, 646-47 (Alaska 2013), the requirements serve the same function of attempting to                                                                                                                      

 facilitate   the   child's  safe   return   to   the   parent,   see   CINA   Rule   18(c)(2)(A)-(B);  

AS   47.10.086(a),   and  the   reasoning   from   ICWA   cases   on   OCS's   active   efforts  

 obligations in varying circumstances is generally applicable in non-ICWA cases as well,                                                                                                                                                                                      

 Winston J.                         , 134 P.3d at 347 & n.18;                                                            cf. Jon S. v. State, Dep't of Health & Soc. Servs.,                                                                                            

 Office of Children's Servs.                                                           , 212 P.3d 756, 765 n.31 (Alaska 2009) ("Our conclusion that                                                                                                                               

the superior court did not err in holding that the state met its active efforts requirement                                                                                                                                                           

 also disposes of [appellant's] argument that the state failed to meet the lower 'reasonable                                                                                                                                                            

 efforts' requirement in AS 47.10.086." (citing                                                                                                            Winston J.                         , 134 P.3d at 347 n.18)).                                 

                      7                     AS 47.10.086(a).  


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


Servs., 254 P.3d 1095, 1104 (Alaska 2011) (quoting Martin N. v. State, Dep't of Health  


 & Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003)).  


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


276  P.3d  457,  468  (Alaska  2012)  (Winfree,  J.,  dissenting)  (2-2  decision)  (citing



                                                                                                                                         -10-                                                                                                                                 7205

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

parental rights, courts must "identify the problem that caused the [child] to be in need of                                                                    



            and then evaluate whether OCS made remedial "efforts to assist the parent in  


remedying the conditions that led to finding the child in need of aid" and ensure those  

                                                                                                                                                       11    To  



efforts were "specifically designed to prevent the breakup of the . . . family." 

provide anything less -although necessary and permissible in some circumstances12 -  


risks infringing the "right to the care and custody of one's own child . . . recognized by  


both the federal and state constitutions."13  


             B.          It Was Error To Excuse Reasonable Efforts In This Case.                                                  

                         Alaska Statutes 47.10.086(a) and 47.10.088(a) "require a finding, by clear                                                       


and convincing evidence, that OCS has made 'timely, reasonable efforts to provide  


family support services to the child and to the parents . . . that are designed to prevent  


out-of-home placement of the child or to enable the safe return of the child to the family  

             9           (...continued)  


Christina J., 254 P.3d at 1104); see AS 47.10.086(a)(1) (requiring reasonable efforts to  


include "family support services that will assist the parent or guardian in remedying the  


conduct or conditions in the home that made the child in need of aid").  

             10          Josh L., 276 P.3d at 468 (Winfree, J. dissenting) (2-2 decision) (alteration  


in  original)  (quoting Barbara  P.  v.  State,  Dep't of Health  & Soc.  Servs.,  Office of  


Children's Servs., 234 P.3d 1245, 1262 (Alaska 2010)).  


             11          Id. (citing CINA Rule 18(c)(2)(B); Jon S., 212 P.3d at 763).  


             12          See AS47.10.086(a) ("Except as providedin (b),(c), and (g) of this section,  


the department shall make timely, reasonable efforts . . . .").  


             13          Seth D. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  


 175 P.3d 1222, 1227 (Alaska 2008) (quoting J.M.R. v. S.T.R., 15 P.3d 253, 257 (Alaska  



                                                                             -11-                                                                        7205

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


home.' "              "In the alternative," the trial court can find that OCS "was excused from the                                                                 


requirement to make reasonable efforts"                                                                                                                 

                                                                                    if it finds by clear and convincing evidence  

                                                                                                          16   Two subsections arguably are  



that one of the bases listed in AS 47.10.086(c) applies. 

relevant here. Reasonable efforts may be excused under subsection (c)(1) if "the parent  


. . . has subjected the child to circumstances that pose a substantial risk to the child's  


health or safety," including "abandonment, sexual abuse, torture, chronic mental injury,  


or chronic physical harm." They also may be excused under subsection (c)(7) if the  


"child  has suffered substantial physical harm as the result of abusive or  neglectful  


conduct by the parent . . . or by a person known by the parent . . . and the parent  


. . . knew or reasonably should have known that the person was abusing the child."17  


                          Alaska  Statute  47.10.086(c)(1)  was  "designed  to  eliminate  remedial  


                                                                               18   "[T]he statutory framework prevents [OCS]  

requirements in extreme circumstances."                                                                                                                      


from deciding on its own, prior to a hearing or order by the court, that reasonable efforts  


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

382 P.3d 1154, 1164 (Alaska 2016) (alteration in original) (quoting AS 47.10.086(a))                                                           

(citing CINA Rule 18(c)(2)).          

             15            Vivian P. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  


Servs., 78 P.3d 703, 708 (Alaska 2003).  


             16           AS 47.10.086(c) lists these bases in 11 subsections. Qualifying reasons for  


excusing  reasonable  efforts  under  these  subsections  range  from  extreme  criminal  


behavior - e.g., sexual abuse, torture of the child, or homicide of the other parent - to  


the objectively demonstrated futility of further efforts - e.g., a parent's incarceration or  


failure to comply with court orders, OCS's inability to identify or locate a parent after  


diligent search, or a recurring pattern of removal from the home.  


             17           AS 47.10.086(c).  


             18            Vivian P., 78 P.3d at 708 (citing J.S. v. State, 50 P.3d 388, 392 & n.13  


(Alaska 2002)).  


                                                                                 -12-                                                                           7205

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

are unnecessary . . . . The statutory language instructs the court, and not [OCS], to make                                                            


the determination regarding the need for reasonable efforts . . . ."                                                                                    

                                                                                                                               "But the fact that  


[OCS] is precluded from determining on its own that reasonable efforts are unnecessary  


. . . does not preclude the court from determining after commencement of a termination  



trial that the reasonable efforts requirement is excused." 

                        Here the trial court found "OCS did not meet its burden of proof on the  


issue  of  providing  reasonable  efforts  to  reunify  this  family."                                                    But  the  court  later  


continued:  "That is not the end of the question though. . . .  [O]nce I find that [OCS] has  


not met its reasonable efforts requirements, then the issue is what does the court do with  


that."  The court felt that doing what "traditionally . . . happens" and setting the case out  


for 6 to 12 months to permit continued efforts was "a non-starter."  The court instead  


chose to excuse the reasonable efforts requirement, stating that its decision was based on  


its understanding of testimony by Kylie's expert witness, Dr. Cranor, that the "parent- 


child bond has been irrevocably breached" so that it would be "harmful to [Belinda]" and  


pointless to continue attempting to reunify the family.  


                        Kylie  argues  the  trial  court  erred  by  excusing  the  reasonable  efforts  


requirement.  OCS argues that we can affirm:  first, on the alternative ground that OCS  


madereasonableefforts, notwithstanding thetrial court's finding to the contrary; second,  


on   the   basis   that   the   decision   to   excuse   reasonable   efforts   was   valid   under  


AS 47.10.086(c)(1) or (c)(7), even if the trial court did not expressly rely on either.  


            19          Id.  at  709  (citing  AS  47.10.086(c)).  

            20          Id.  

                                                                            -13-                                                                           7205  

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


                     1.	       The  trial  court  did  not  clearly  err  in  finding  OCS  failed  to  


                               demonstrate it had made reasonable efforts.  


                    OCS first argues that we should "affirmthe superior court's decision on the  


alternative ground[] that OCS's efforts, viewed in totality, were reasonable," in effect  


asking us to rule that the trial court clearly erred in finding OCS failed to demonstrate  


it had made reasonable efforts.  But the trial court's determination was supported by  


evidence in the record.   The court noted that OCS's own internal review found the  


department had unreasonably stopped visitation and made poor decisions, and that those  


bad decisions had "really influenced the outcome of the case thereafter." OCS's internal  


review also found that:  services "ha[d] not been well organized and ha[d] not served to  


facilitate reunification"; case managers had changed providers "because [they did] not  


like [the initial providers'] findings"; Kylie "appeared to be spot lighted [sic] in the  


visits" and the supervising OCS worker excessively regulated her interactions with  


Belinda; the OCS worker refused to refer to Kylie as "mom" during visits and did not  


provide a "warm environment"; Kylie "appear[ed] to be a lonely figure, not receiving  


much support"; "documentation of the visits [wa]s overly negative, appearing to inflate  


incidents"; and that this negative documentation "appear[ed] to migrate to other parts of  


the case record, contributing to a 'narrative or belief system' about the mother which  


may not [have been] based in fact."  


                    The trial court found the internal review's conclusions were buttressed by  


Dr. Cranor's testimony, which the court gave "value and weight."  Dr. Cranor testifed  


that: stopping visitation and changing therapy had been unwarranted; the decision to do  


so was based on "inaccurate or misleading information that had . . . been perpetuated in  


the file"; OCS had "tried to justify [the decision] after the fact by saying . . . the therapist  


told  [them]  to  do"  so  when  that  was  not  the  case;  and  OCS  minimized  positive  


information about Kylie while exaggerating harm to Belinda.  

                                                               -14-	                                                        7205

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

                                    OCS points to extensive other services it provided to the family, including                                                                                                 

visitation during other periods, regular therapy for both mother and daughter, efforts to                                                                                                                                           

remedy the problems identified in the internal review, various action and safety plans,                                                                                                                 

referrals   for   UAs   and   a   substance   abuse   assessment,   and   assistance   with   stress  

management and housing.                                                  It argues that "the court's decision to narrowly focus on the                                                                                           

months in which there was no visitation                                                                             fails  to appreciate or acknowledge" those                                                            

"broader    services"    and    notes    that    we    have    frequently    held    reasonable    efforts  

determinations must be made by looking at OCS's efforts in their entirety and not at a                                                                        


particular segment in time.                                                   

                                    These are valid arguments.  But "we will not reweigh evidence when the  


record provides clear support for a trial court's ruling" and "[c]onflicting evidence is  


                                                                                                                                                                                 22   The trial court had  

generally not sufficient to overturn a trial court's factual findings."                                                                                                                                                         


clear support - from OCS's own witnesses and internal review, as well as credible  


expert testimony - for its finding that OCS failed to carry its burden of demonstrating  


it had provided reasonable efforts.  That finding was not clearly erroneous.  


                                    2.                Excusing reasonable efforts on the grounds provided was error.  


                                    Alaska Statute 47.10.086 permits a trial court to excuse reasonable efforts  


when it finds by clear and convincing evidence that one of the bases enumerated in  


AS 47.10.086(c) applies. But Kylie correctly argues that AS 47.10.086(c) "clearly [wa]s  


not [the] reason for the court's ruling." At the trial's conclusion the court noted its view  


                  21                See Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family &                                                                                                                          

 Youth Servs.                      , 77 P.3d 715, 720 (Alaska 2003)                                                                  ("[W]e examine whether the state's                                                

reunification   efforts,   when   looked   at   in   their   entirety,   satisfy   the   requirements  of  

AS 47.10.086(a).").   

                  22                Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 322 P.3d 842, 849 (Alaska 2014) (quoting Chloe O. v. State, Dep't of Health &  


Soc. Servs., Office of Children's Servs., 309 P.3d 850, 856 (Alaska 2013)).  


                                                                                                               -15-                                                                                                         7205

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

of   Dr.   Cranor's   testimony   that   the   mother-daughter   bond   had   been   "irrevocably  

damaged" and                                                       asked   for   closing   briefing   on   what   to  do   with   that information                                                                                                                                                                                                                     if it   

concluded   sufficient services had                                                                                                                      not been                                   offered   by OCS.                                                                 It acknowledged that                                                             

"[s]ometimes judges will see cases" without sufficient services and will order additional                                                                                                                                                                                                                                                     

time for further efforts, but stated "this case doesn't resonate with me as something that                                                                                                                                                                                                                                                                                

if [there were not sufficient services]" more time would be an appropriate remedy. In its                                                                                                                                                                                                                                                                                       

decision on record the court repeatedly pointed to its view of Dr. Cranor's testimony that                                                                                                                                                                                                                                                                                

the parent-child bond had been damaged or destroyed; the court based its decision to                                                                                                                                                                                                                                                                                            

excuse the failure in services on its finding that the bond was destroyed and that further                                                                                                                                                                                                                                                                  

                                                                                                                                                                                               23                  The  court  relied  exclusively  on  its  

efforts   would   be   harmful   and   pointless.                                                                                                                                                                                                                                                                                                                                           

                             23                           We note our concern that Dr. Cranor's testimony was too conditional and                                                                                                                                                                                                                                         

ambiguous to stand as the primary support for the trial court's determination. There                                                                                                                                                                                                                                                                                were  

two relevant exchanges at trial.                                                                                                          On direct examination by Kylie's attorney, Dr. Cranor                                                                                                                                                            


                                                           Q:                           Based on your two reports and what you viewed of the                                                                                                                                                                       

                                                           file through March of 2016, did you come to any conclusions                                                                                                                                                      

                                                           as to whether OCS has acted fairly with [Kylie]?  


                                                          A:                            In my opinion, I do not believe she was given a fair  


                                                           opportunity to demonstrate that she was able to safely parent                                                                                                                                                                            

                                                          her child and, . . . I believe that she was deprived visitation                                                                                                                   

                                                           for questionable reasons and that, as a result of that, more  


                                                          than likely . . . her relationship with her daughter has been  


                                                           irrevocably altered, if not destroyed.                                                                                                                           

                                                           On cross-examination by OCS shortly after this, Dr. Cranor testified:                                                                                                                                                                                                  

                                                           Q:                           So based on your experience and the information you                                                                                                                                                                    

                                                          reviewed,   what   services   should   be   and   are   available   in  

                                                          Fairbanks, and how long - well, what services would be                                                                                                                                                                                                    

                                                           available if the dyadic therapy isn't working to repair what                                                                                                                                                                                   


                                                                                                                                                                                     -16-                                                                                                                                                                            7205

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

          23         (...continued)


                     you  perceive  to  be  an  irreparable  rift  in  the  parent-child



                     A:        Well, I think you just answered the question there.  If  


                     it's irreparable, I don't think there are services that can repair  



                     Q:        So at this point, your testimony would be that perhaps  


                     no length of time of further waiting is going to fix our current  



                     A:        That's correct.  


                     The trial court interpreted this testimony as conclusive evidence that the  


parent-child bond had been ruptured beyond repair.  


                     Kylie challenges the court's interpretation of Dr. Cranor's testimony with  


justification. Kylie is correct that Dr. Cranor on direct examination did not take as strong  


a stand as the court later credited.  Dr. Cranor testified that the relationship had "more  


than likely" been "irrevocably altered, if not destroyed."  If the relationship had merely  


been altered, then that would undermine the reasoning behind the trial court's decision  


to terminate parental rights. And if the damage were not "irrevocabl[e]" - a possibility  


Dr. Cranor's testimony allowed for, although she believed it more likely that the damage  


was permanent - that would also undermine the basis for the decision.   It also is  


noteworthy that in this first exchange, Dr. Cranor was responding to a question not about  


the extent or manner of the damage to the mother-child relationship but about OCS's  


failings in the case; she referenced the damage only in passing to illustrate the problems  


caused by what she considered OCS's unfair treatment of Kylie.  


                     Kylie's  challenge  to  the  trial  court's  interpretation  of  Dr.  Cranor's  


testimony  on  cross-examination  likewise  has  merit.                               As  Kylie  notes,  "Dr.  Cranor  


answered  a  conditional  and  tautological  question  with  a  conditionally  affirmative  


answer."  This is an accurate characterization.  The question was conditional:  "[W]hat  


services would be available if the dyadic therapy isn't working . . . ?"  The question was  


tautological:  What could be done to "repair . . .  an irreparable rift . . . ?"  And the  


answer was only conditionally affirmative:  "If it's irreparable, I don't think there are  


services that can repair it."  


                                                               -17-                                                         7205

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

conviction   that further              efforts would          be pointless,         and   it did      not find by          clear   and  


convincing evidence that an AS 47.10.086(c) basis applied.                                         

                     That decision was legal error.  Alaska Statute 47.10.088(a)(3) requires the  


trial court to determine by clear and convincing evidence that OCS has complied with  

AS 47.10.086's provisions; AS 47.10.086(a) provides that OCS "shall make timely,  


reasonable efforts" except, in relevant part, as provided in subsection (c).25   If the trial  


court does not find by clear and convincing evidence that one of those enumerated bases  


applies, there is no room in the statutory framework to excuse reasonable efforts on  


           23        (...continued)  


                     OCS responds with two arguments. It first notes that Dr. Cranor was asked  


what could be done to repair "what you perceive to be an irreparable rift," and that rather  


than denying she viewed the rift as irreparable or otherwise equivocating about the  


question's assumptions, she simply stated that in such a situation nothing could be done.  


OCS then points to the exchange's conclusion as confirmation that the doctor did not  


question the premise of an irreparable rift that further efforts could not repair.  In that  


exchangeDr.Cranoransweredaffirmatively when asked whether "your testimony would  


be that perhaps no length of time of further waiting is going to fix our current situation."  


That is questionable:  "perhaps" means just that - perhaps.  

           24        The court made a passing reference to AS 47.10.086(c)(7) in its decision  


on record when acknowledging OCS's argument - made for the first time in its closing  


brief after trial had concluded - that the subsection should apply, remarking that it  


"[did]n't disagree with that."  Briefly acknowledging OCS's closing argument does not  


constitute a finding by clear and convincing evidence that the subsection applies under  


the facts of this case.  


                     The  only  other  legal  authority  the  trial  court  provided  for  excusing  


reasonable efforts was our decision in Vivian P. v. State, Department of Health &Social  


Services, Division of Family & Youth Services, 78 P.3d 703 (Alaska 2003).  But in that  


case the trial court found OCS was excused from the reasonable efforts requirement on  


the basis of AS 47.10.086(c)(1) because the parent had subjected the child to "chronic  


mental injury or chronic physical harm."  Id. at 708.  


           25        AS 47.10.086(a) (emphasis added).  


                                                                  -18-                                                            7205

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

alternative   bases.    Nor   would   a   decision   to   forego   required   reasonable   efforts   in  

expectation of their futility comport with our parallel ICWA holdings; in that context we                                                                                                                         

have stated that courts may not "vary the scope of the State's ICWA duty based on                                                                                                                                 

subjective, pre-intervention criteriasuch                                                           as aparent'smotivation                                     or treatmentprognosis"         

because doing so "might defeat the purpose of the active remedial effort requirement, for                                                                                                                         

it would enable the State to argue, in all doubtful and difficult cases, that it had no duty                                                                                                                 

to make active remedial efforts."                                                 26  

                                  3.              We decline to affirm on the basis of AS 47.10.086(c)(1) or (c)(7).                                                                                     


                                  Citing  Torrey v. Hamilton                                         ,                                                                                                          

                                                                                                             OCS next argues that we "may affirm the  


superior court's decision on any appropriate ground, even if it is a ground that was  


rejected by the trial court," and that AS 47.10.086(c)(1) and (c)(7) both provide bases  


to do so.   OCS contends that subsection (c)(7) should apply because the trial court  


"found Kylie subjected Belinda to circumstances that posed a substantial risk to her  


health or safety," noting she had "endured three physical injuries while in Kylie's care."  


OCS argues that although "the court's finding did not rest" on subsection (c)(7), its  


passing remark in its decision on record - the court stated it "[did]n't disagree" that  


subsection (c)(7) should apply -  shows the court "clearly understood that it could  


have."               OCS concludes that "given the breadth  of evidence  supporting the court's  


substantial  physical  harm  finding  -  and  Kylie's  acknowledgement  [sic]  that  the  


provision has 'some relation to this case,' " we "should affirm the court's finding that  

                 26              A.M. v. State                   , 891 P.2d 815, 827 (Alaska 1995),                                                     overruled in part on other                          

grounds by In re S.A.                                 , 912 P.2d 1235 (Alaska 1996).                                

                 27               872 P.2d 186, 188 (Alaska 1994) ("Although the trial judge explicitly  


declined to base the award on Civil Rule 79, this court may affirm the judgment on any  


appropriate ground, even if it is a ground which was rejected by the trial court." (citing  


State v. Alaska Land Title Ass'n, 667 P.2d 714, 725 (Alaska 1983); Ransom v. Haner,  


362 P.2d 282, 285 (Alaska 1961))).  


                                                                                                       -19-                                                                                                 7205

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

efforts were excused" under the statute.                                                             Kylie argues that if subsection (c)(7) "applies                                               

in this case - not a case at the margins of parent conduct . . . - then [the statute] will                                                                                                                    

apply   in   every   CINA   case   involving   domestic   violence   (whether   the   parent   is   the  

perpetrator or, like Kylie, the victim)."                                  

                                 We first note that AS 47.10.086(c) does not exist to absolve OCS's failure                                                                                             

to execute its responsibilities in routine interventions; it is intended to operate as a safety                                                                                                        

                                                                                                                                                                                   28  - remedial  

valve, permitting courts to excuse - in the best interests of the child                                                                                                                          

efforts if extraordinary circumstances or the parent's egregious conduct would render  


those efforts pro  forma or, more importantly,  endanger  the child's welfare.29                                                                                                                            And  


second, although OCS is correct that we "may affirm . . . on any appropriate ground,"30  


it is prudent to avoid  doing so when alternative grounds would require us to enter  


discretionary rulings best committed to the sound judgment of the trial court, which will  


generally be much more intimately familiar with the parties and the case.31  A finding that  


                 28              See  AS 47.10.086(f) ("In making determinations and reasonable efforts                                                                                                

under this section, the primary consideration is the child's best interests.").                                                                               

                 29              See Vivian P., 78 P.3d at 708 (noting AS 47.10.086(c)(1) was "designed to  


eliminate remedial requirements in extreme circumstances" (citing J.S. v. State, 50 P.3d  


388, 392 & n.13 (Alaska 2002))).  


                 30               Torrey, 872 P.2d at 188 (citing Alaska Land Title Ass'n , 667 P.2d at 725;  


Ransom, 362 P.2d at 285).  


                 31              See Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1001 (Alaska  


2005) ("The rule that an appellate court may affirm a judgment on any ground supported  


by the record regardless of whether the ground was relied on by the trial court should not  


ordinarily extend to discretionary rulings that the court might properly have declined to  


make. But where it is clear that the court would have exercised its discretion in a manner  


that upholds the judgment, we believe that an appellate court can properly apply the  


rule."); see also Moira M. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs.,  370  P.3d  595,  602  (Alaska  2016)  ("[T]he  statutory  scheme  recognizes  the  



                                                                                                       -20-                                                                                                7205

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

reasonable efforts are not required under AS 47.10.086(c) is just such a discretionary                                                   

ruling.   The statute permits trial courts to excuse reasonable efforts when one of the                                                                     

                                                                                                                   32   We leave it for the trial  

enumerated bases applies, but it does not require them to do so.                                                                                           

court to first consider statutory exceptions to OCS's reasonable efforts requirement, if  


V.           CONCLUSION  

                         We REVERSE and VACATE the trial court's order terminating Kylie's  


parental rights.  We REMAND for reconsideration of the trial court's order denying  


Kylie further visitation and for further proceedings consistent with this order.  


            31           (...continued)  


superior court's role in determining whether OCSmay cease making reasonable efforts."  


(citing AS 47.10.086(b)-(c))); cf. Parson v. State, Dep't of Revenue, Alaska Hous. Fin.  


Corp., 189 P.3d 1032, 1039 (Alaska 2008) ("Although an appellate court may affirm a  

grant of summary judgment based on any grounds appearing in the record, this power  


is discretionary." (citing Snyder, 119 P.3d at 1001)).  

            32           See AS 47.10.086(c) ("The court may determine that reasonable efforts . . .  


are not required" (emphasis added)).  


                                                                             -21-                                                                       7205

Case Law
Statutes, Regs & Rules

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

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