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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kiva O. v. State, Dept. of Health & Social Services, Office of Children's Services (1/5/2018) sp-7215

Kiva O. v. State, Dept. of Health & Social Services, Office of Children's Services (1/5/2018) sp-7215

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

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                      

KIVA  O.,                                                      )  

                                                               )          Supreme  Court  No.  S-16605  

                                Appellant,                     )  


                                                               )          Superior Court No. 3PA-15-00161 CN  

                     v.                                        )  


                                                               )          O P I N I O N  


STATE OF ALASKA,                                               )  


DEPARTMENT OF HEALTH &                                                                                         

                                                               )          No. 7215 - January 5, 2018  


SOCIAL SERVICES, OFFICE OF                                     )  


CHILDREN'S SERVICES                                            )  


                                Appellee.                      )  




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


                     Judicial District, Palmer, Jonathan A. Woodman, Judge.  


                     Appearances:  Josie W. Garton, Assistant Public Defender,  


                     and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  


                     Appellant.           Ruth  Botstein,  Assistant  Attorney  General,  


                     Anchorage,and JahnaLindemuth,Attorney General,Juneau,  


                     for Appellee.  


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


                     and Carney, Justices.  


                     MAASSEN, Justice.


                     STOWERS, Chief Justice, concurring.



                     An Indian child in the custody of the Office of Children's Services (OCS)  


was  diagnosed  with  post-traumatic  stress  disorder  and  depression.                                              The  child's  

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

psychiatrist recommended treating him with an antidepressant, with the addition of a                                                                                                           

mood   stabilizer  if   it   later   became   necessary.     When   the   mother   rejected   the  

recommendation,   OCS   asked   the   superior  court   for   authority   to   consent   to   the  

medications over the mother's objection.                                                     The court granted OCS's request.                           

                              The mother appeals, arguing that the superior court failed to apply the                                                                                     

correct standard for determining whether her fundamental constitutional rights as a                                                                                                           

parent could be overridden.                                    We agree with her in part.                                   We hold that the constitutional         

                                                                                                                                 1 applies to a court's decision  

framework laid out in                           Myers v. Alaska Psychiatric Institute                                                                                          

whether to authorize medication of a child in OCS custody over the parent's objection.  


We conclude that the superior court's findings in this case regarding the antidepressant  


satisfy the Myers standard but that its findings regarding the optional mood stabilizer do  


not. We therefore affirm in part and reverse in part the superior court's order authorizing  


OCS to consent to the recommended medications.  




               A.             Facts  


                              Alec,2 born in October 2007 to Kiva O., is an Indian child under the Indian  


Child Welfare Act (ICWA).3  

                                                                  He and his sister Maia are both in OCS custody. Alec was  


in a therapeutic foster home during the proceedings relevant to this appeal.  


                              Alechad behavioral problems,includingbeing "irritable[][and]disruptive,  


having conflicts with peers, struggling academically, and generally [being] despondent  


and tearful."   His therapist referred him to a psychiatrist, Dr. Richard Brown.   "Dr.  


               1              138 P.3d 238 (Alaska 2006).                       



                              We use pseudonyms to protect the parties' privacy.  



                              25 U.S.C.  1903(4) (2012).  


                                                                                            - 2 -                                                                                     7215

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


Brown observed [Alec] to be tearful, frustrated, angry, and deeply disheartened" and  


reported that Alec "consistently expressed that he misses his mother, that he would like  


to see his mother, and that he gets frustrated when that [visitation] doesn't happen." Dr.  


Brown diagnosed Alec with post-traumatic stress disorder and adjustment disorder,  


revising the latter diagnosis later to "[m]ajor [d]epressive [d]isorder due to the length and  


severity of [Alec's] symptoms."  


                     1.        Medication recommendation  


                     Dr. Brown tried to treat Alec's behavioral problems without medication.  


He  "first  concentrated  on  giving  [Alec]  time  to  establish  a  consistent  therapeutic  


relationship, develop social strategies, and work on behavioral changes."   But when  


Alec's symptoms persisted, Dr. Brown recommended treating him with Lexapro, an  


antidepressant.  "Dr. Brown's professional expectation [was that] Lexapro would allow  


[Alec] to engage in his other therapeutic interventions in a more effective manner."  He  


testified   that   the   medication   would   probably   decrease   Alec's   irritability   and  


impulsiveness; he believed that if Alec could be "establish[ed] . . . in a calmer mental  


status," he could learn coping strategies, "make use of those, and . . . actually participate  


actively in the treatment process" through ongoing therapy. Dr. Brown intended "to treat  


[Alec] without the need of using an inpatient hospitalization if possible."  


                     Lexapro's potential side effects were addressed in Dr. Brown's courtroom  


testimony.         Like  other  antidepressants  of  the  same  type,  Lexapro  may  cause  mild  


tiredness and increased excitation; it may in rare instances decrease libido; and "a small  


percentage of people (including younger people) experience increased suicidal thoughts  


within the first month of treatment."  Lexapro has a "black-box" warning about its use  


                                                               - 3 -                                                         7215

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


with children under the age of 12 based on the associated risk of suicide,                                                                                                                                                                                                                                                                  but Dr. Brown                      

testified that the warning did not necessarily contraindicate the drug's use in Alec's case.                                                                                                                                                                                                                                                                                                                       

He emphasized that it is more dangerous not to treat a depressed patient at all:                                                                                                                                                                                                                                                                                    "[W]hen  

a person is depressed and they're not treated, they . . . have a higher propensity to either                                                                                                                                                                                                                                                                                        

hurt themselves, kill themselves, or put themselves in [a] position [where] they could be                                                                                                                                                                                                                                                                                                           


                                                              The   "black-box"   warning   notwithstanding,   Dr.   Brown   testified   that  

prescribing the drug for young people "is the national standard of practice amongst                                                                                                                                                                                                                                                                                   

psychiatrists."   He chose Lexapro for Alec because he hoped Alec would respond to it                                                                                                                                                                                                                                                                                                                   

more quickly - the typical response time is within four to six weeks - than he would                                                                                                                                                                                                                                                                                             

to an FDA-approved alternative like Prozac, which typically takes six to eight weeks for                                                                                                                                                                                                                                                                                                         

a response.                                           He was also concerned that Prozac can cause increased irritability, which                                                                                                                                                                                                                                                  

would be "anti-therapeutic" given Alec's symptoms and treatment goals.                                                                                                                                                                                                                                               

                                                              Dr. Brown expected Alec to be on Lexapro for nine months to a year.                                                                                                                                                                                                                                                             He  

testified that if Lexapro did not prove effective at a five milligram dosage "within a                                                                                                                                                                                                                                                                                                                  

reasonable period of time," he would try increasing it to the typical starting dosage of ten                                                                                                                                                                                                                                                                                                     

                                                     5   switching to a different antidepressant, or adding a mood stabilizer (an  


"atypical antipsychotic") like Risperdal.  He testified that the side effects of these mood  


 stabilizers can be serious.  


                               4                              Dr. Brown explained that a black-box warning is used "when the [federal                                                                                                                                                                                                                                      

Food and Drug Administration] has some concerns about some specific side effect" and                                                                                                                                                                                                                                                                                                          

alerts physicians "to make sure we inform people" of the risk.                                                                                                                                                                                                                                  

                               5                              Dr. Brown testified that he started Alec at five milligrams rather than the  


typical starting dosage of ten milligrams because Alec was "under the age that Lexapro  


is typically recommended."  


                                                                                                                                                                                               - 4 -                                                                                                                                                                                     7215


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

                                                                                       2.                           Communication with Kiva                                                                                                             

                                                                             OCS contacted Kiva to discuss Dr. Brown's recommendations for her son.                                                                                                                                                                                                                                                                                                                                                                  

Kiva looked up Lexapro on the internet and found warnings against prescribing it for                                                                                                                                                                                                                                                                                                                                                                                                            

children under 12.                                                                                          She "expressed immediate concerns about the possible side effects                                                                                               

of Lexapro," especially given Alec's age.                                                                                                                                                                                                         

                                                                             OCS asserts that it attempted to set up meetings with Kiva to provide her                                                                                                                                                                                                                                                                                                                                         

with more information, including a meeting with OCS's psychiatric nurse.                                                                                                                                                                                                                                                                                                                                                                   Kiva claims   

 she attempted to call Dr. Brown's office directly for more information but her calls were                                                                                                                                                                                                                                                                                                                                                                                            

never returned; Dr. Brown's nurse testified that Kiva never called.                                                                                                                                                                                                                                                                                                                          It is undisputed that                                                                          

when the OCS case manager tried to visit Kiva at home, Kiva refused to discuss the issue                                                                                                                                                                                                                                                                                                                                                                                              

without her lawyer and a tribal representative present.                                                                                                                                                                                                                                                                        The superior court found that                                                                                                                               

OCS attempted to set up three other informational meetings with Kiva but she "failed to                                                                                                                                                                                                                                                                                                                                                                                                                


                                       B.                                    Proceedings  

                                                                             When it became clear that Kiva would not consent to the administration of  


Lexapro,  OCS  asked  the  superior  court  "for  authority  to  consent  to  psychiatric  


medication for [Alec], as prescribed by treating physicians."                                                                                                                                                                                                                                                                                              OCS attached an affidavit                                                                             

from its psychiatric nurse, who gave her professional opinion that "[d]ue to the lack of                                                                                                                                                                                                                                                                                                                                                                                                             

engagement by mom in this child's case, and the escalation of the child's behaviors[,] . . .                                                                                                                                                                                                                                                                                                                                                                                                           

OCS should be granted the authority to consent to medications for this child."                                                                                                                                                                                                                                                                                                                                                                                       

                                                                             Alec's tribe and his guardian ad litem both supported OCS's request. Kiva                                                                                                                                                                                                                                                                                                                               

opposed it, arguing that the request was overbroad because it was not limited to a                                                                                                                                                                                                                                                                                                                                                                                                                       

 specific medication; she also argued that OCS had to support its request by reference to                                                                                                                                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                              - 5 -                                                                                                                                                                                                                                    7215

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


a test laid out in                         Myers  for the administration of psychotropic drugs to adults who have                                                                                                              

been involuntarily committed.                                                        

                                     The   superior   court   held   an   evidentiary   hearing   over   several   days   in  

December 2016 and January 2017.                                                                      Dr. Brown testified about his diagnosis and his                                                                                

recommendation for Lexapro and possibly, in time, a mood stabilizer like Risperdal. The                                                                                                                                           

court also heard testimony from Dr. Brown's nurse, the OCS caseworker, and Kiva.                                                                                                                                                       

                                     On January 13, 2017, the superior court issued a single-page order granting                                                                                                      

OCS authority to consent to the administration of "Lexapro and an accompanying mood                                                                                                                                          

stabilizer (including Risperdal), as necessary, as determined and prescribed by [Dr.                                                                                                                                            

                          7     Kiva filed a motion to stay enforcement the same day, asserting that Alec  


would  "suffer  irreparable  harm  from  the  premature  administration  of  psychiatric  


medication" and that "[a] stay of the [order] is necessary to avoid the harm arising from  


having  [Alec]  medicated  and  then  abruptly  un-medicated  if  [Kiva]  prevails  in  her  


appeal."  She also asked that the superior court make the specific findings of fact she  


argued were required by Myers .   The superior court  denied her request for a stay,  


reasoning that "[Alec] faces greater harm from not being medicated than he does from  


the potential side effects of medication."  But the court did issue the requested findings  


of fact.  


                                     In its findings, the court summarized Dr. Brown's testimony about his  


recommendations  and  OCS's  attempts  to  contact  Kiva.                                                                                                              The  court  noted  Kiva's  


testimony that she "might be willing to consent at some indefinite point in the future  


                  6                 Myers v. Alaska Psychiatric Inst.                                                          , 138 P.3d 238, 252 (Alaska 2006).                                            



                                     OCS  and  Kiva  agree  that  the  order  should  be  narrowly  construed  to  


authorize only the use of Risperdal, not other atypical antipsychotics that are unnamed.  


                                                                                                                 - 6 -                                                                                                         7215

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


once she feels all options have been exhausted and it's truly necessary."  But the court  


found that Kiva "placed a great degree of weight on the potential risks of medication,  


while displaying a poor understanding of [Alec's] diagnoses and the potential benefits  


of the medication."   The court noted that Kiva also "refused to accept Dr. Brown's  


diagnosis of Major Depressive Disorder in the absence of an opportunity for her to  


independently observe [Alec]."  Although noting that Kiva "spoke compellingly about  

her understanding of [Alec's] ongoing pain and struggles," the court could not "credit  


[her] perspective in light of the collective scientific and medical fields of psychology and  


psychiatry and in light of Dr. Brown's testimony."  


                     The  court found that "Dr. Brown's recommendation that [Alec] begin  


treatment with Lexapro at 5 mg, to increase to 10 mg and/or be accompanied with  


treatment of an atypical antipsychotic, as necessary, is narrowly tailored to treat [Alec's]  


specific  diagnoses  and  to  allow  [him]  to  engage  more  functionally  in  his  holistic  


treatment regimen." The court found that Dr. Brown's recommendation was both "well- 


considered and the least restrictive means necessary to alleviate [Alec's] psychiatric  


symptoms in an out-patient treatment setting."  The court found that Kiva's refusal to  


consent was contrary to Alec's welfare and that OCS "presented clear and convincing  


evidence that conformity with Dr. Brown's psychiatric medication recommendation  


[was] in [Alec's] best interests."  In a footnote, the court rejected Kiva's assertion that  


Myers applied, but it explained that it "provide[d] the extended Findings of Fact above  


[reflecting the factors addressed in Myers] to facilitate rapid resolution of any appellate  


point by the appellate court without further trial proceedings."  


                    Kiva filed a motion for reconsideration the same day.  She cited Huffman  


v. State for the proposition that her "right to make decisions about medical treatments  


                                                               - 7 -                                                        7215

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


for" Alec "is a fundamental liberty and privacy right in Alaska."                                                                                 The court denied       

reconsideration,   explaining  that   OCS   had   "provided   a   compelling   reason   for   the  

requested treatment that sufficiently overrides[Kiva's]right                                                                 toconsent to medication per                         

the state and federal constitution[s]."                                         

                            Kiva appeals.                   

III.          STANDARDS OF REVIEW                        

                            We review questions of statutory interpretation and constitutional law de                                                                     

novo, "adopting the rule of law that is most persuasive in light of precedent, reason, and                                                                                      



                     "We review a trial court's factual findings for clear error. Factual findings are  


clearly erroneous if a review of the entire record leaves us with a definite and firm  



conviction that a mistake has been made." 


                            "[W]hether there is a less intrusive alternative is a mixed question of fact  



and law."                 Whether a particular medical treatment is in a patient's best interests is also  



a mixed question of fact and law. 

IV.           DISCUSSION  

                            Kiva's primary argument is that the superior court erred in granting OCS's  


request for the authority to medicate Alec over her objection because its findings failed  


              8             204  P.3d  339,  346  (Alaska  2009).   

              9             Bigley   v.  Alaska  Psychiatric  Inst.,   208   P.3d   168,   178-79   (Alaska   2009)  

(citing   Vezey  v.  Green,   171  P.3d   1125,   1129  (Alaska  2007)).  

              10            Id. at 178 (footnote omitted) (citing Vezey, 171 P.3d at 1128).  


              11            Id.  at   185.  

              12            In  re  Jacob  S.,  384  P.3d  758,  763-64,  772  (Alaska  2016).   

                                                                                       - 8 -                                                                                 7215

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


to   satisfy   the standard developed                                                                             in  Myers v. Alaska Psyhicatric Institute                                                                                              ,    a case   

decided in the different context of an institution's request to medicate an adult patient                                                                                                                                                                       

who had been involuntarily committed.                                                                                              We agree with Kiva that the                                                                     Myers   standard  

must apply to protect her fundamental constitutional rights as a parent to consent to her                                                                                                                                                                                    

child's medical treatment. We conclude that the superior court's findings about Lexapro                                                                                                                                                                      

satisfied   that   standard,   but   that   the   court   should   have   waited   to  decide   whether   to  

authorize the administration of Risperdal until the needfor the drug was less hypothetical                                                                                                                                                      

and the court could better weigh the available alternatives.                                                                                         

                      A.	                  The   Myers   Constitutional Standard Applies To                                                                                                                           OCS's  Request To   

                                           Medicate A Child Over Parental Objection.                                                                         

                                           Kiva argues that her right to consent to medical treatment on behalf of Alec                                                                                                                                                  

is a "fundamental liberty and privacy right" deserving a very high level of protection.                                                                                                                                                                                                  

"The analysis required to resolve an individual rights claim depends upon the type of                                                                                                                                                                                           

                                                                     14       We have explained that we  

right being asserted."                                                                                                                                      

                                           determine  the  boundaries  of  individual  rights  guaranteed  


                                           under the Alaska Constitution by balancing the importance of  


                                           the right at issue against the state's interest in imposing the  


                                           disputed limitation.  When a law places substantial burdens  


                                           on the exercise of a fundamental right, we require the state to  


                                           "articulate a compelling [state] interest" and to demonstrate  


                                           "the absence of a less restrictive means to advance [that]  


                                           interest."  But when the law "interferes with an individual's  


                                           freedom in an area that is not characterized as fundamental,"  


                                           we require the state to "show a legitimate interest and a close  


                      13                    138  P.3d  238  (Alaska  2006).  

                      14                   Huffman  v.  State,  204  P.3d  339,  345  (Alaska  2009).   

                                                                                                                                     - 9  -                                                                                                                            7215  

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

                     and substantial         relationshipbetween              its interest anditschosen       

                     means of advancing that interest."                    [15]  

The first question under this test is whether Kiva had a fundamental right that was  


substantially  burdened  by  OCS's  request  for  authority  to  treat  her  child  over  her  



                     1.	       MedicatingAlecoverKiva's objectionsubstantiallyburdensher  


                               fundamental constitutional rights.  


                     Alaska case law recognizes the fundamental right to consent to medical  


treatment for oneself16                                             17  


                                     and one's children.                 We addressed the rights relevant to an  

                                                                       18   Myers, a patient with a long history of  


individual's own medical treatment in Myers .  

mental illness, had been involuntarily committed.19  


                                                                                   She "refused to discuss treatment  


options with institute doctors," and the hospital sought authority to medicate her without  

                   20  The superior court granted that authority, and Myers appealed.21  


her consent. 

                     Vacating the treatment order, we held that "the right to refuse to take  


psychotropic drugs is fundamental" because of "the nature and potentially devastating  


impact  of  psychotropic  medications  -  as  well  as  the  broad  scope  of  the  Alaska  


           15	       Id.  at  345-46  (alterations  in  original)  (quoting  Myers,  138  P.3d  at  245-46).  

           16        See  Myers,   138  P.3d  at  248  (holding  that  an  individual  has  a  fundamental  

liberty  and  privacy  right  in  his  or  her  own  medical  treatment);  see  also  Bigley,  208  P.3d  

at   180.  

           17        See  Huffman,  204  P.3d  at  346.  

           18        138  P.3d  at  248.  

           19        Id. at 239.  


           20        Id.  

           21        Id.  at  240.  

                                                                -  10  -	                                                       7215

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

Constitution's liberty and privacy guarantees."22  Our conclusion was strengthened by  

"the truly intrusive nature of psychotropic drugs," which "are literally intended to alter  


                 23   Because "a mental patient's right to refuse psychotropic medication" is a  

the mind."                                                                                                                                   


fundamental right, we held that, in the absence of emergency, "the state may override  


[that right] only when necessary to advance a compelling state interest and only if no less  


intrusive alternative exists."24  


                      We later extended Myers 's reasoning - about a patient's own decision- 


making - to parents' medical decisions on behalf of their children.25                                                In Huffman we  


reviewed a school district's decision that the Huffmans' sons could attend school only  


if they received a particular type of skin test for tuberculosis or qualified for a medical  


exemption.26           The Huffmans objected to the test because of its intrusiveness; it required  


the injection of "a solution containing purified protein into the skin on the forearm" in  


order to detect latent or active tuberculosis infection.27  


                      We held that "the right to make decisions about medical treatments for  


oneself or one's children is a fundamental liberty and privacy right in Alaska" because  


"controlling one's medical treatment falls into the same category of personal physical  


autonomy"  that  we  already  held  was  entitled  to  constitutional  protection  in  other  


           22         Id.  at 248 (footnote omitted).



                      Id. at 242.



                      Id. at 248.

           25         Huffman v. State, 204 P.3d 339, 346 (Alaska 2009).  




                      Id. at 341.  





                                                                   - 11 -                                                             7215

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


contexts.                  We explained that compelling students to submit to the skin test over their                                                                              

parents' objection, without considering less intrusive alternatives, unconstitutionally                                                               

infringed on the parents' rights.                                     29  


                              OCS  argues  that  in  this  case  the  parent's  fundamental  rights  are  of  a  


different character because of Alec's status as a child in need of aid in OCS custody.  


OCS points out that by statute it bears "the responsibility of physical care and control of"  


a child in its custody, including "the duty of providing the child with food, shelter,  

                                                                   30     At the same time, OCS acknowledges that "[t]hese  


education, and medical care." 

obligations are subject to any residual parental rights and responsibilities,"31  statutorily  


defined to "include . . . the right and responsibility of . . . consent to major medical  


treatment"; and "major medical treatment" is defined to include "the administration of  


                                                                                                               32  OCS contends, however, that the  

medication used to treat a mental health disorder."                                                                                                                                     


parent's "residual right" may "be overruled when the parent's preference is contrary to  


                                                                                                             33   as providing the appropriate best  

the child's best interests," citing K.T.E. v. State                                                                                                                                  


interests standard for deciding the issue.  


               28            Id.  at 346 (first citing                      Breese v. Smith                  , 501 P.2d 159, 169-70 (Alaska 1972)                                 

 (addressing a student's right to determine his own hairstyle); then citing                                                                                       Valley Hosp.   

Ass'n v. Mat-Su Coal. for Choice                                              , 948 P.2d 963, 969 (Alaska 1997) (addressing a                                                              

woman's right to make her own reproductive choices)).                                                 

               29            Id. at 347.  


               30            AS 47.10.084(a).  


               31            Id.  


               32            AS 47.10.084(c).  


               33             689 P.2d 472, 477-78 (Alaska 1984).  


                                                                                         - 12 -                                                                                    7215


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

                           K.T.E.  addressed "reasonable visitation," which is another of the "residual                                                     

rights   and   responsibilities   of   the   parent"   specifically  reserved   to   the   parent   by  

AS 47.10.084(c).  In  K.T.E., the mother objected to the Division of Family and Youth                            

Services' discontinuation of her visitation with her daughter, arguing that the Division's                                                               

                                                                                                  34   We concluded, however, that "[t]he  

action violated this statutory reservation of rights.                                                                                                             

phrase 'reasonable visitation' does not imply an absolute right to visitation" and should  


be read in conjunction with the rest of the statute to allow the Division to deny visitation  


when visits would not be in the child's best interests.35   The superior court had found that  


visitation caused the daughter "extensive emotional harm."36                                                                Citing the testimony and  


credibility assessments that supported this finding, we affirmed the superior court's  


determination that the Division's decision was in the child's best interests.37  


                           We decline to read the K.T.E. best interests test as controlling here, for  


several reasons.  First, in K.T.E. we were asked to decide only the "right to reasonable  


visitation under section .084(c),"38 not whether the right acknowledged by statute was  


a fundamental constitutional right.  The only constitutional issue raised on appeal in  


K.T.E.  was whether the procedures for denying visitation rights complied with due  


process; finding the constitutional issue waived because it had not been preserved in the  


superior court, we nonetheless held that procedures outlined in the opinion as guidelines  


             34            Id.  at 477.   

             35            Id.   

             36            Id.  


             37            Id.  at 477-78.   

             38            Id.  at 477.   

                                                                                 - 13 -                                                                            7215


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


for future cases would be "constitutionally adequate."                                               Second, we noted in                  K.T.E.  that  

"[t]he [statutory] phrase 'reasonable visitation' does not imply                                                        an absolute right to              



visitation";            the statutory phrase "consent to major medical treatment" contains no such  


modifier and explicitly defines major medical treatment as including administration of  


psychiatric medication.  And third, K.T.E.  was decided over two decades before our  


discussions offundamental rights as they relate to medical decision-making in Myers and  


Huffman .  


                        In this case we conclude, as we did in Huffman, that because the parent is  


asserting a fundamental constitutional right in the context of medical treatment for her  


child,  Myers   provides   the   appropriate   analytical   framework.                                                         Our   review   of  


AS 47.10.084 convinces us that its express recognition of the parent's residual right "to  


consent to major medical treatment" does not signal a weakening of the fundamental  


constitutional right.  


                        We also conclude that Kiva's right is substantially burdened in this case.  


OCS's proposed treatment of Alec is significantly more invasive than the tuberculosis  


skin test at issue in Huffman :  as we explained in Myers, treatment with psychotropic  



drugs is "truly intrusive" and "literally intended to alter the mind." 

            39          Id.  at 478 n.14.     



                        Id. at 477.  



                        Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 242 (Alaska 2006).  


                                                                          - 14 -                                                                    7215

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

                           2.           OCS has a compelling interest in Alec's medical care.                                                  

                           We must next determine "whether the State . . . met 'its substantial burden                                                        

of   establishing   that   the   abridgement   in   question   was   justified   by   a   compelling  


governmental interest.' "                             If so, we must decide whether OCS proved that the proposed                                          


treatment was in Alec's best interests and "that 'no less restrictive means could advance'  



the compelling interest it has articulated." 


                           Kiva does not dispute that OCS has a compelling interest in providing  


necessary medical care for children in its custody.   We concluded in Myers  that the  


 State's parens patriae power "to protect 'the person and property' of an individual who  

                                                                    44   gave  it  "a  compelling  interest  in  administering  


 'lack[s]  legal  age  or  capacity'  " 

psychotropic medication to unwilling mental patients in some situations."45  We agree  

that OCS has a similarly compelling interest in this case in providing adequate medical  


care  to  Alec.46  


                                    Its parens  patriae  power  and  its  statutory  obligations  justify  its  

                                                                                                                                             47  To determine  


interferencein Kiva's reservedparentalrightsunder somecircumstances. 

             42           Huffman v. State                   , 204 P.3d 339, 346 (Alaska 2009) (quoting                                                 Breese v.   

Smith, 501 P.2d 159, 171 (Alaska 1972)).                             

             43           Id. (quoting Valley Hosp. Ass'n v. Mat-Su Coal. for Choice, 948 P.2d 963,  


969 (Alaska 1997)); see Myers, 138 P.3d at 249.  


             44           Myers, 138 P.3d at 249 (alteration in original) (first quoting Pub. Def.  


Agency v. Superior Court , 534 P.2d 947, 949 n.2 (Alaska 1975); then quoting Non Sui  


Juris, BLACK 'S  LAW  DICTIONARY  (8th ed. 2004)).                                   


             45           Id.  

             46            See  id.  

             47            See  AS  47.10.084(a)  ("This  relationship  imposes  on  the  department  .  .  .  the  

duty   of  providing  the   child  with   .   .   .  medical   care   .   .   .   .");  AS  47.10.005(1)(a)   ("The  


                                                                                 -  15  -                                                                        7215

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

whether those circumstances exist here, we move to the next step of the constitutional     


 inquiry - the best interests test.                       


                      3.         The administration of Lexapro is in Alec's best interests.  


                                 a.         The Myers best interests factors  


                      In Myers, after concluding that the State had a compelling interest that  


 couldjustify interferenceinthepatient'sfundamentalrights, we laid out a"constitutional  

                                                                    49  We explained that "adequate protection of  

balancing test" for determining the issue. 

 [a patient's liberty and privacy rights] can only be ensured by an independent judicial  


 determination of the patient's best interests considered in light of any available less  


 intrusive treatments."50               Proving that its proposal is in the patient's best interests is the  



burden of the State, which must carry its burden with clear and convincing evidence.                                                            


 Discussing the "appropriate criteria to guide courts" in the best interests inquiry, we  


           47         (...continued)  


provisions of this chapter shall be liberally construed to . . . achieve the end that a child  


 coming within the jurisdiction of the court under this chapter may receive the care,  


 guidance, treatment, and control that will promote 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 . . . .").  

           48         See Myers, 138 P.3d at 249 (explaining that although "the state's parens  


patriae  obligation does give it a compelling interest," it "simply raises the difficult  


 question:  does the current statutory scheme use an overly intrusive means to attain the  


 state's interest by failing to require an independent judicial determination of the patient's  


best interests?" and turning to the "least intrusive alternative requirement" to answer the  






           49         Id. at 252.  


           50         Id.  

           51         Id. at 253.  


                                                                   - 16 -                                                             7215


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

directed courts to consider, at a minimum, "the information that our statutes direct the  

treatment facility to give to patients" regarding the proposed treatment, including:  


                    (A) an explanation of the patient's diagnosis and prognosis,  


                    or  their  predominant  symptoms,  with  and  without  the  



                    (B) information about the proposed medication, its purpose,  


                    the method of its administration, the recommended ranges of  


                    dosages, possible side effects and benefits, ways to treat side  


                    effects,  and  risks  of  other  conditions,  such  as  tardive  




                    (C) a review of the patient's history, including medication  


                    history and previous side effects from medication;  


                    (D) an explanation of interactions with other drugs, including  


                    over-the-counter drugs, street drugs, and alcohol; and  


                    (E) information about alternative treatments and their risks,  


                    side      effects,       and      benefits,        including         the      risks     of  




Weexplained that "[c]onsidering thesefactors will be crucial in establishing the patient's  


best interests as well as in illuminating the existence of alternative treatments."53  


                    We also cited favorably other sometimes-overlapping factors identified by  


the Minnesota Supreme Court:  


                    (1) the extent and duration of changes in behavior patterns  


                    and mental activity effected by the treatment;  


                    (2) the risks of adverse side effects;  


                    (3) the experimental nature of the treatment;  


                    (4) its acceptance by the medical community of the state; and  


          52        Id.  at  252  (alteration  in  original)  (quoting  AS  47.30.837(d)(2)).  

          53        Id.  

                                                              -  17  -                                                      7215  

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

                           (5)  the extent of intrusion into the patient's body and the pain                                                

                           connected with the treatment.                               [54]  

These factors we found relevant in Myers are relevant here as well.  It is by reference to  


these factors, therefore, that we review the superior court's decision to authorize OCS's  


administration of Lexapro and Risperdal over Kiva's objection.  


                                         b.           The Myers best interests factors as applied to Lexapro  


                           Kiva asserts that the superior court erred when it concluded as a factual  


matter that the administration of Lexapro was in Alec's best interests.  She argues that  


the court "failed to properly consider the risk of the proposed medication['s] adverse side  


effects" and "failed to consider the essentially  experimental nature of Dr. Brown's  


proposal." OCS, on the other hand, urges us to conclude that the superior court's factual  


findings support its best interests decision because of the evidence in the following areas:  


(1) Alec's condition, diagnoses, and symptoms; (2) the recommended medications and  


their side effects; and (3) the strong preference for avoiding inpatient treatment. Because  


Kiva presented no countervailing medical evidence but relied only on her own lay  


testimony,  OCS  contends  that  the  superior  court  was  right  to  follow  Dr.  Brown's  


recommendation for Alec's treatment plan.  


                           The superior court's findings of fact, relying primarily on the testimony of  


Dr. Brown, did substantially address the Myers factors. The court found that Alec's "two  


acute mental illnesses . . . impede his ordinary development and functioning in academic  


and personal settings."  The court made specific findings about Alec's "diagnosis and  


              54           Id.  (quoting  Price v. Sheppard                              , 239 N.W.2d 905, 913 (Minn. 1976)).                                           We  

subsequently clarified thattheMinnesotafactors were"helpful"and"sensible,"meaning                                                                              

"to the extent they differ from the                                  Myers  factors, their consideration by Alaskan courts                                         

is favored but not mandatory."                                 Bigley v. Alaska Psychiatric Inst.                                 , 208 P.3d 168, 180-81         

(Alaska 2009).                  

                                                                                  - 18 -                                                                             7215

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

prognosis," his "predominant symptoms" with and without Lexapro, and his treatment                                                         


history, including attempts to treat him without medication.                                                                             

                                                                                                                     The court also made  


findings about Lexapro's "black-box" warning against pediatric use, as well as about the  


drug's "purpose, the method of its administration, the recommended ranges of dosages,  

                                                                                                                             56   And the court  


possible side effects and benefits, . . . and risks of other conditions." 

discussed Lexapro's use with mood stabilizers.  


                        Myers requires only that the court consider the relevant factors; it does not  


dictate  the  weight  the  court  gives  them.57                                  Here  the  superior  court  did  not  err  by  


concluding, based on its findings, that the State had shown by clear and convincing  


evidence that treatment with Lexapro was in Alec's best interests.58  


            55          Myers,   138  P.3d  at  252.  

            56          Id.  

            57          Id. ;  see  also  In  re  Jacob  S.,  384  P.3d  758,  772  (Alaska  2016).   

            58          The    parties    dispute    whether    Alec    was    actually    at    risk   of    being  

institutionalized.   We  need  not  address  this  issue.   Regardless  of  this  potential  negative  

outcome   of   not   treating   Alec,   the   superior   court   adequately   considered   the  potential  

benefits  and  costs  of  administering  Lexapro.    

                                                                         -  19  -                                                                  7215

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

                             4.            There were no available treatments less intrusive than Lexapro                                                                              .  

                             "[T]he patient's best interests [must be] considered in light of any available                                                           

                                                        59    Proving that there are no better alternatives is part of the  

less intrusive treatments."                                                                                                                                                       

State's burden.60  "[T]he alternative must actually be available, meaning that it is feasible  


and would actually satisfy the compelling state interests that justify the proposed state  




                             In Huffman v. State, the parents said they would consent to two different  


types of tuberculosis tests that did "not require inserting any substance into the body,"  


                                                                                                                                                      62   But given the  

and we acknowledged that these could be "less restrictive alternatives."                                                                                                          


limited information about the alternatives in the record, we remanded for the superior  


court  to  decide  whether  the  Huffmans'  proposals,  or  others,  would  be  effective  in  


satisfying the State's compelling interest in preventing the spread of tuberculosis.63  


                             Our decision in Bigley v. Alaska Psychiatric Institute64  came shortly after  


Huffman .  Bigley involved "a petition by API to administer psychotropic medication to  


              59            Myers, 138 P.3d at 252;                                 see also Huffman v. State                               , 204 P.3d 339, 347                 

(Alaska 2009) ("The final step in a privacy analysis is to inquire whether the State has                                                                             

demonstrated that 'no less restrictive means could advance' the                                                                     compelling interest it has                   

articulated." (quoting                        Valley Hosp. Ass'n v. Mat-Su Coal. for Choice                                                     , 948 P.2d 963, 969              

(Alaska 1997))).   

              60            See Huffman, 204 P.3d at 347.  


              61            Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 185 (Alaska 2009).  


              62            Huffman, 204 P.3d at 347.  


              63            Id.  

              64             208 P.3d 168.  


                                                                                      - 20 -                                                                                 7215


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


an unconsenting adult" who had been diagnosed with paranoid schizophrenia.                                                                            Bigley  

proposed an alternative plan by which API would provide him food and shelter while                                                                      

                                                                                                           66   Bigley also asked that API  

allowing him to "come and go from API as he wishe[d]."                                                                                                     

"pay for a reasonably nice apartment" for his use and provide staff support that would  


"enable him to be successful in the community."67                                                    The superior court rejected this  


proposedalternativeand granted API authoritytoadminister psychotropicmedications.68  


                         On appeal, thoughsome Myers issues becamemoot,weconsideredthefinal  


element  in  the  Myers  constitutional  test  -  whether  API's  proposal  was  the  least  


restrictive alternative.69   We clarified that as part of the constitutional balancing test, the  


superior court must consider any proposed alternativeto determinewhether it is "actually  


. . . available, meaning that it is feasible and would actually satisfy the compelling state  


                                                                                          70    We explained that "[a]ssessing the  

interests that justify the proposed state action."                                                                                                           


feasibility  and  likely  effectiveness  of  a  proposed  alternative  is  in  large  part  an  



evidence-based factual inquiry by the trial court."                                               


             65          Id.  at   172.  

             66          Id.  at   177.  

             67          Id.   

             68          Id.  at   178.  

             69          Id.  at   179,   185-87.  

             70          Id. at   185 (citing  Treacy v. Municipality of Anchorage, 91 P.3d 252, 267  

(Alaska  2004)).  

             71          Id.  ("While  this  inquiry  involves  a  balancing  of  legal rights  and  interests,  

it  is  also  a  fact-intensive  inquiry.").  

                                                                            - 21  -                                                                      7215

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

                               We affirmed the superior court's finding that treatment with psychotropic                                                                

medications was the least restrictive alternative, in large part because the superior court                                                                                               

 found that Bigley's proposal "faced practical obstacles to being implemented at all" and                                                                                                    

                                                            72   We also affirmed the finding that Bigley's proposal would  

was therefore not feasible.                                                                                                                                                            

not be effective in satisfying the State's interest because it "would not likely provide  


Bigley with the needed therapeutic benefits, and that API's proposed use of medication  


offered a better chance of improving Bigley's functioning and helping himto address his  


basic needs."73  


                               The question for the superior court in a case such as this, thus, is whether  


the State has demonstrated that the parent's proposed alternatives to medication are not  


actually available.74                          If a parent's proposed alternatives are not feasible or would not be  


effective in satisfying OCS's compelling interest in caring for a child in its custody, they  


are not available less intrusive treatments.75  


                72            Id.  at   186.  

                73            Id.  at   187.  

                74             See  id.  at   185.  

                75             See id. ("Although the state cannot  intrude on a fundamental right where  

there is a less intrusive  alternative, the alternative must actually be available, meaning  

that  it  is  feasible  and  would  actually  satisfy  the  compelling  state  interests  that  justify  the  

proposed  state  action.");  Huffman  v.  State,  204  P.3d  339,  347  (Alaska  2009)  ("The  final  


 step in a privacy analysis is to inquire whether the State has demonstrated that 'no less                                                                                                   

restrictive means could advance' the compelling interest it has articulated."); Myers v.  


Alaska Psychiatric Inst. , 138 P.3d 238, 252 (Alaska 2006) ("[A]dequate protection of  


 [the fundamental right to refuse psychotropic medication] can only be ensured by an  


independent judicial determination of the patient's best interests considered in light of   

any available less intrusive treatments.").  


                                                                                             - 22 -                                                                                       7215

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


                    Kiva points to alternatives she proposed to the superior court that could  


have alleviated some of Alec's symptoms, including family therapy, increased visitation  


with her, and visitation with other family members.  But we conclude that the superior  


court did not err in finding that Lexapro was the least intrusive treatment available.  


                     The court concluded that "[t]he proposed medication recommendation is  


well-considered andtheleastrestrictivemeans necessary to alleviate[Alec's]psychiatric  


symptoms  in  an  out-patient  treatment  setting."                           The  court  found  that  Dr.  Brown's  


general "goal [was] to avoid the need for inpatient services," and that Lexapro was not  


his first treatment option; Dr. Brown first attempted less invasive therapeutic means. But  


"[b]ehavioral and therapeutic interventions have failed to alleviate [Alec's] symptoms,  


despite consistent intervention and the passage of a clinically reasonable period of time."  


Only  when  Alec's  symptoms  persisted  and  increased  in  severity  despite  these  


interventions did Dr. Brown recommend placing him on Lexapro.  The superior court  


found  that  this  recommendation   resulted  "from  a  failure  of  those  therapeutic  


interventions" and that medication was the "least restrictive means necessary to alleviate  


[Alec's] psychiatric symptoms."  


                     The court's conclusion implicitly rejected Kiva's argument that consistent  


visitation between her and Alec was a feasible less restrictive alternative.  Although Dr.  


Brown acknowledged that consistent visitation would "help this kid not be so sad," he  


explicitly denied that it could substitute for medication. And Kiva's history of visitation  


challenges andcancellationssupportsaconclusionthat consistent visitation was unlikely.  


Kiva had had difficulties with telephone communication, scheduling, and transportation,  


and her primary OCS caseworker testified that the failed visits were hard on Alec.  The  


record supports a finding that concentrating on increased visitation with Kiva could not  


feasibly satisfy OCS's compelling interest in providing Alec with medical care.  


                                                              - 23 -                                                         7215

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

                                       Kiva   also   suggested   enhancing   Alec's   connection   with   other   family  

members   as   an   alternative   to  medication.     At   the   time   of   the   hearing,   Alec   was  

consistently meeting with his grandmother and sister once a week. Kiva also argued for                                                                                                                                                            

family therapy, an option OCS had considered but not yet employed.                                                                                                                                           But again, Dr.                     

Brown  made   clear   his   opinion   that   he   would   recommend   such   therapies   only   in  

conjunction with medication, not in lieu of it. Although OCS did not show that increased                                                                                                                                       

family visits and family therapy were not feasible, it did carry its burden of proving that,                                                                                                                                                 

absent medication, they would not be effective in satisfying its compelling interest in                                                                                                                                                             

Alec's mental health.                                           

                                       In sum, while the superior court made few explicit findings on Kiva's                                                                                                                         

proposed alternatives, the record supports its conclusion that Lexapro was the least                                                                                                                                                        

restrictive alternative for addressing Alec's psychiatric symptoms. We conclude that the                                                                                                                                                         

court did not clearly err in holding that administration of Lexapro was in Alec's best                                                                                                                                                        

interests "in light of any available less intrusive treatments."                                                                                                              76  

                   B.                  The Conditional Authorization Of Risperdal Was Premature.  


                                       In addition to the antidepressant Lexapro, the superior court granted OCS  


the authority to consent to the administration of Risperdal as an atypical antipsychotic,  


or mood stabilizer, "as necessary, as determined and prescribed by [Dr. Brown.]"  The  


court related the details of Dr. Brown's treatment plan for Alec in its findings of fact.  


The decision whether to increase the dosage of Lexapro from five milligrams to ten  


would occur "at one to two months" into the treatment regime and would depend on  


whether  Alex  was  "experienc[ing]  reprieve  within  a  reasonable  period  of  time."  


Alternatively, treatment with Lexapro would halt at this point "[i]f suicidality emerges."  


                   76                 Myers,   138  P.3d  at  251-52.  

                                                                                                                     - 24  -                                                                                                                           7215  

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


But if treatment with Lexapro continued at the ten-milligram dosage level and Alec's  


"symptoms persist[ed]," Dr. Brown would consider other alternatives:  he might "try  


another antidepressant or introduce a very small dose of an atypical antipsychotic [such  


as Risperdal] alongside Lexapro" to act as a mood stabilizer.  The time frame for these  


further decisions is unstated in the court's findings, though the court cited Dr. Brown's  


testimony "that a patient typically remains on antidepressants for nine months to a year"  


and "[i]t is not desirable for a patient to remain on antidepressants indefinitely."  


                     On appeal Kiva argues that the superior court failed to adequately consider  


the severity of Risperdal's potential side effects, the experimental nature of Dr. Brown's  


proposal, and the possibility that the proposal made unwarranted assumptions about  


Alaska Native and non-Native children's different responses to treatment.  Kiva also  


argues  that  the  court  should  have  held  a  second  hearing  to  determine  whether  to  


authorize the administration of Risperdal rather than authorizing its use as a future  


option. We find Kiva's last argument persuasive and consider it unnecessary to address  


the others.  


                     1.	      A  determination  whether  Risperdal  was  the  least  intrusive  


                               available treatment should have awaited a later hearing.  


                    Responding  to  Kiva's  arguments  about  the  open-ended  nature  of  the  


Risperdal authorization, OCS contends that the superior court heard specific evidence  


from  Dr.  Brown  regarding  when  and  why  he  would  use  a  mood  stabilizer  and  


incorporated that testimony into its order by making the administration of any mood  


stabilizer dependent on Dr. Brown's futurerecommendation. OCScontends thatbecause  


the  court  already  heard  evidence  sufficient  to  support  the  future  administration  of  


Risperdal, a second hearing would be burdensome and impractical.  


                                                              - 25 -	                                                       7215

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

                      We explained in              Myers  that "[t]he constitution itself requires courts, not                               


physicians, to protect and enforce" the fundamental rights at issue.                                                                         

                                                                                                                           Although the  


balancing "certainly must be fully informed by medical advice received with appropriate  


deference, in the final analysis the answer must take the form of a legal judgment that  


hinges  not on medical expertise but on constitutional principles aimed at protecting  



individual choice." 

                       On  the  other  hand,  courts  have  neither  the  time  nor  the  expertise  to  


micromanage medical treatment plans that are proposed by qualified medical experts.  


It may be in some cases that a medical care provider is able to map out a decision tree  


with enough specificity that a court can approve it consistent with the Myers test; we do  


not mean to preclude that possibility. But we conclude in this case that the superior court  


was not in a position to make a "less restrictive means" determination with respect to  


Risperdal and that it should have waited until the progress of Alec's treatment plan  


required that the determination be made.  


                      Whether Dr. Brown would eventually prescribe Risperdal depended on  


Alec's response to Lexapro at five- and ten-milligram dosages and also, possibly, on  


Alec's response to a different antidepressant.   Whether to prescribe Risperdal was a  


decision that was apparently at least several months in the future.  And Risperdal has  


serious side effects that counsel caution in any decision to use it, as the superior court  


acknowledged. Dr. Brown testified that Risperdal's "pretty significant side effects" may  


include  tremors,  muscle  stiffness,  and  "akathisia[,]  which  is  sort  of  like  a  motor  


restlessness."  He described a metabolic change - hyperprolactinemia - which can  


           77         Id.  at  250.  

           78         Id.   (emphasis  added).  

                                                                    - 26  -                                                                   7215  

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

cause gynecomastia (the growth of mammary tissue in males) and which, though "not                                                                                                                                                                                                                              

very common," is more common with Risperdal than with other atypical antipsychotics.                                                                                                                                                                                                                                                                                                                                                   

He explained another possible side effect, tardive dyskinesia, as causing muscle rigidity,                                                                                                                                                                                                                                                                                                  

tremors,   "and   sometimes   difficulty  with   walking   and   ultimately   swallowing";   he  

described it as "very, very, very similar to Parkinson's disease" and explained that it                                                                                                                                                                                                                                                                                                                                   

could be permanent, unlike other possible side effects that "if you stop the medication,                                                                                                                                                                                                                                                                                 

they will go away."                                                                              

                                                                 An additional consideration is that if Lexapro proves ineffective alone, the                                                                                                                                                                                                                                                                       

 situation may have changed in the intervening months in ways that make it unnecessary                                                                                                                                                                                                                                                                           

to authorize further medication                                                                                                                                  over  Kiva's objection.                                                                                             Alec's progress in therapy,                                                                        

improvements   in   Kiva's  exercise   of   visitation,   or   other   developments   may   suggest  

 feasible   alternatives   to   medication   that   deserve   the   court's   consideration.     Further  

attempts to discuss Alec's status with Kiva may bring her and OCS closer together on  

his treatment plan.                                                                       Upon seeing how Alec responds to Lexapro, Kiva may be willing to                                                                                                                                                                                                                                                               

consent to Dr. Brown's next recommendation, be it a different antidepressant or the                                                                                                                                                                                                                                                                                                                               

addition of a mood stabilizer, in which case there would be no need to burden her                                                                                                                                                                                                                                                                                                                                


parental rights by overriding her objection.                                                                                                                                                                              

                                                                 Given  the  serious  risks  of  Risperdal  and  the  possibility  of  changed  


circumstances in the time frame at issue, we conclude it was error to find that the open- 


 ended  authorization  to  administer  the  drug  in  the  future  was  the  least  intrusive  




                                 79                              As mentioned above, the superior court noted Kiva's testimony that she                                                                                                                                                                                                                                                                          

"might be willing to consent at some indefinite point in the future once she feels all                                                                                                                                                                                                                                                                                                                              

options have been exhausted and it's truly necessary."                                                                                                                                                                                                                   

                                                                                                                                                                                                     - 27 -                                                                                                                                                                                                7215

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

                                     2.	               An   order   authorizing   medication   over   a   parent's   objection   

                                                       should be judicially reviewed at least every 90 days.                                                                                    

                                     Kiva argues that the superior court should have placed a time limit on                                                                                                                           

OCS's authority to act on Dr. Brown's recommendation, and she analogizes to the time                                                                                                                                              

limits imposed in other types of involuntary treatment or commitment proceedings. For                                                                                                                                               

example, when OCS places a child in need of aid in a secure residential treatment center,                                                                                                                                   


the superior court is required to review the placement at least every 90 days.                                                                                                                                                        

                                                                                                                                                                                                                             At the  


review hearing, the court assesses "the testimony of a mental health professional" to  



determine whether the child's needs can be addressed in a less restrictive setting. 


not, then the court may authorize continued residential psychiatric treatment until the  



next 90-day hearing. 


                                     In involuntary commitment proceedings, the court limits placement to 30  

                                                                           83     Upon petition and hearing, the court may order a 30-day  


days, 90 days, or 180 days. 

commitment, then an additional 90-day commitment, then an unlimited number of 180- 


                  80                 AS 47.10.087(b).

                  81                Id.

                  82                Id.



                                     AS 47.30.730, .735, .755, .770.  

                                                                                                                - 28 -	                                                                                                         7215

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

                                   84                                                                                                                         85  

 day   commitments.                       But   any   "order   of   commitment   may   not   exceed  180   days."                                                  


                         Given the importance of the parent's fundamental constitutional rights in  


 cases like this one - along with the necessity that judicial decision-making be fully  


 informed about the patient's therapeutic progress, changes in the parent's perspective,  


 andthedevelopment ofany available less intrusive treatments -we concludethat courts  


 should  regularly  review treatment authorizations that are ordered  over  the parent's  


 objection.  To determine a reasonable time line we look to the limits imposed by statute  


 in the analogous settings described above.  We conclude that for courts to ensure that  

                                                                                                                    86 they should set review  


they are exercising their oversight responsibilities under Myers,  

hearings at least every 90 days, as they do now in cases involving the placement of  


 children in need of aid in secure residential treatment centers.87  


             C.	         The Superior Court's Order Did Not Need To Be Predicated On A  


                         Specific Finding That Kiva Lacked Capacity To Consent Or That Her  


                         Refusal To Consent Was Unreasonable Or Unjustified.  


                         Finally, Kiva argues that before allowing Alec to be medicated over her  


 objection, the superior court had to make a preliminary finding that she lacked the  


 capacity to consent to the treatment or that her objection was unreasonable or without  


justification. Kiva analogizes to the State's authority to override the medical preferences  


             84	         AS 47.30.730, .735, .755, .770.                   

             85          AS 47.30.770(c).                   At successive commitment hearings, findings of fact                                           


 from previous commitment hearings are "admitted as evidence and may not be rebutted  

 except that newly discovered evidence may be used for the purpose of rebutting the                                                                        


 findings."  AS 47.30.740(c), .770(d).  

             86          Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 249-52 (Alaska 2006).  


             87          See AS 47.10.087(b).  


                                                                            - 29 -	                                                                    7215


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

of a person who has been involuntarily committed, which is predicated on a finding that                                                                        


the patient is incompetent to make those decisions.                                                    

                          But we conclude that the Myers  constitutional balancing test adequately  


protects Kiva's parental rights while also considering, as it must, the State's compelling  


interest in Alec's medical care.  The nature of the State's compelling interest differs in  


different contexts.   Sometimes, as in Myers,  the State's interest in making medical  


decisions will be compelling because there is no one else competent to do it.89                                                                          But in  


Huffman we did not require a preliminary finding of parental incompetence or that it was  


unreasonable for the parents to withhold their consent to the tuberculosis skin test.90   We  


took  note  of  the  school  district's  compelling  interest  in  preventing  the  spread  of  


tuberculosis among schoolchildren, and we required the superior court to consider the  


parents' suggested alternatives "to determine if they adequately [met] the State's needs  


without unnecessarily infringing on the Huffmans' rights."91  And in the context of third- 


party visitation, we have held that courts can order visitation over the objection of fit  


parents if there is "clear and convincing evidence that it is detrimental to the child to  


limit  visitation  with  the  third  party  to  what  the  child's  otherwise  fit  parents  have  


determined to be reasonable."92  


             88          Myers, 138 P.3d at 242-43.             



                         Id. at 249 ("We readily agree that the state's parens patriae obligation does  


give it a compelling interest in administering psychotropic medication to unwilling  


mental patients in some situations.").  

             90           See Huffman v. State, 204 P.3d 339, 346-47 (Alaska 2009).  


             91          Id.  

             92          Ross v. Bauman, 353 P.3d 816, 828-29 (Alaska 2015).  


                                                                              - 30 -                                                                        7215


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

                                           Each of these situations involves the burdening of fundamental rights. But                                                                                                                                                   

in each context the fundamental right can be burdened without violating the constitution                                                                                                                                                      

if the burden is justified by a compelling State interest, whether it be caring for the                                                                                                                                                                                  

medical needs of an incompetent person, guarding                                                                                                                           the health of schoolchildren, or                                                                 

preventing clear detriment to a child through an order for third-party visitation. That the                                                                                                                                                                               

 State's   interest   is   readily   demonstrated   by   the   patient's   incompetence   in   a   case   of  

involuntary commitment does not mean that it cannot be demonstrated by other evidence                                                                                                                                                                   

in other types of cases.                                                       Here, the parties do not dispute that OCS has a compelling                                                                                                      

interest in providing adequate and necessary medical care for children in its custody.                                                                                                                                                                                           

                                           Kiva's rights are also protected by the                                                                                Myers  test's "least intrusive means"                                                     

requirement,   which   requires   the   court   to   consider   whether   a   parent's  proposed  

                                                                                                                                            93      Again, Kiva concedes that the court did  

alternatives are unreasonable or unjustified.                                                                                                                                                

that  here:                            "[T]he  trial  court  addressed  at  length  Kiva's  reasons  for  objecting  to  


medicating  Alec,  ultimately  concluding  that  [her]  refusal"  was  "contrary  to  Alec's  


welfare."                           Under  the  Myers  test,  a  parent's  refusal  to  consent  because  there  is  a  


reasonable and effective alternative to OCS's proposed treatment plan should result in  


a denial of OCS's request to burden the parent's rights.  


                                           We conclude that the Myers test is effective in protecting the fundamental  


constitutional rights at issue here.   It did not require a preliminary finding that Kiva  


lacked the capacity to consent or that her objections were unreasonable or unjustified;  


the superior court did not err by failing to make such a finding.  


                     93                   See  Myers,   138  P.3d  at  252,  

                                                                                                                                 - 31  -                                                                                                                                         7215  

----------------------- Page 32-----------------------

V.                            CONCLUSION  

                                                            We AFFIRM the superior court's grant of authority to OCS to approve the                                                                                                                                                                                                                                                    

administration of Lexapro over Kiva's objection.                                                                                                                                                                                We REVERSE the superior court's                                                                                                      

grant of authority to approve the administration of Risperdal and REMAND for further                                                                                                                                                                                                                                                                                  

proceedings consistent with this opinion.                                                                                                                                                   

                                                                                                                                                                                                   - 32 -                                                                                                                                                                    7215

----------------------- Page 33-----------------------

 STOWERS, CHIEF JUSTICE, concurring.                                                             

                                         I   agree   with   Part   IV.A   of   the   opinion   -   the   Lexapro   issue.     I   have  

reservations about Part IV.B - the Risperdal issue - because I think Dr. Brown probably                                                                                                                                                      

provided sufficient information and justification for his contingent plan to use Risperdal                                                                                                                                                 

if the child's response to Lexapro (or lack thereof) requires the addition of a mood                                                                                                                                                                  

stabilizer in the future.                                              I think the issue is a close call and reluctantly concur because it                                                                                                                          

is a question upon which reasonable minds may differ.                                                                                                                        I agree with the opinion that                                                   

"courts have neither the time nor the expertise to micromanage medical treatment plans                                                                                                                                                                   

                                                                                                                                                   1     I am able to concur with the opinion  

that are proposed by qualified medical experts."                                                                                                                                                                                                 

because the sentence immediately following allows that "[i]t may be in some cases that  


a medical care provider is able to map out a decision tree with enough specificity that a  


                                                                                                                                                               2     In this case, I believe Dr. Brown  

court can approve it consistent with the Myers test."                                                                                                                                                                                              


did this, but again, reasonable minds can differ, and as long as he is not foreclosed  


entirely from making a treatment plan containing a contingency plan for the future if  


circumstances warrant, I  do  not object to  giving him another  opportunity to  do  so  


consistent with the Myers test.  


                     1                   Opinion  at  26 .  

                    2                    Id.  

                                                                                                                            - 33  -                                                                                                                                   7215  

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