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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dara S. v. State, Dept. of Health & Social Services, Office of Children's Services (9/7/2018) sp-7288

Dara S. v. State, Dept. of Health & Social Services, Office of Children's Services (9/7/2018) sp-7288

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

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                     

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



DARA S.,                                                   )  

                                                           )   Supreme Court Nos. S-16126/16526/  

                           Appellant,                      )    16527 (Consolidated)  

                                                           )  

         v.                                                )   Superior Court No. 3AN-13-00386 CN  

                                                           )  

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

OF HEALTH & SOCIAL SERVICES,                               )  

OFFICE OF CHILDREN'S SERVICES,                             )   No. 7288 - September 7, 2018  

                                                           )  

                           Appellee.                       )  

                                                           )  

                                                           )  

STATE OF ALASKA, OFFICE OF                                 )  

PUBLIC ADVOCACY, GUARDIAN                                  )  

AD LITEM,                                                  )  

                                                           )  

                           Appellant,                      )  

                                                           )  

         v.                                                )  

                                                           )  

DARA S.,                                                   )  

                                                           )  

                           Appellee.                       )  

                                                           )  

                                                           )
  

STATE OF ALASKA, DEPARTMENT                                )
  

OF HEALTH & SOCIAL SERVICES,                               )
  

OFFICE OF CHILDREN'S SERVICES,                             )
  

                                                           )
  

                           Appellant,                      )
  

                                                           )
  

         v.                                                )  


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

DARA S.,                                                 )
  

                                                         )
  

                          Appellee.                      )
  

                                                         )
  



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

                 Judicial  District,  Anchorage,  John  Suddock,  Judge,  and  

                 Pamela Scott Washington, Judge pro tem.  



                 Appearances:  Rachel E. Cella, Assistant Public Defender,  

                  and   Quinlan   Steiner,   Public   Defender,   Anchorage,   for  

                 Appellant/Appellee Dara S.  Paul F. McDermott, Assistant  

                 Public  Advocate,  and  Richard  Allen,  Public  Advocate,  

                 Anchorage, for Appellant Guardian Ad Litem.  Laura Fox,  

                                   

                 Assistant       Attorney       General,      Anchorage,        and     Jahna  

                 L in d e m u th ,      A tto r n e y     G e n eral,      J u n e a u ,   fo r   

                 Appellant/Appellee Office of Children's Services.  



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

                  and Carney, Justices.  



                 WINFREE, Justice.
  

                 BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting.
  



I.       INTRODUCTION  



                 We frequently review parental rights termination decisions.  But the appeals  



before us present not only the review of a termination decision, which we affirm, but also  

                                                                                  



the review of a unique parental rights reinstatement decision.  This secondary aspect of  

                                                                                         



                                                                                                             1 

our review causes us t  o  revisit and expound on issues arising from Rita T. v. State ,  in 



which  we  held  that a  parent whose  parental rights  have  been  terminated retains the right,  



upon a showing  of good cause, to request a review hearing,  during which the parent may  



         1        623 P.2d 344 (Alaska 1981).  



                                                       -2-                                                 7288  


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

                                                                                                    2 

seek to set aside a termination order and have parental rights reinstated.   This then leads  



us to review the superior court's reinstatement order in this case.  



                   As we explain below, Rita T. remains viable today.  At a Rita T. hearing,  



                                                                                                          

                                                        

a termination order can be set aside by clear and convincing evidence that the parent has  



                                                                                                                  

been sufficiently rehabilitated and is capable of providing the care and guidance that will  



serve the child's moral, emotional, mental, and physical welfare and that parental rights  



                                                                                  

reinstatement is in the child's best interests.  Because the factual findings supporting the  



                                                                                                      

parental rights reinstatement in this case are inadequate for our review of the necessary  



best interests finding, we remand for further proceedings consistent with our opinion.  



II.       FACTS AND PROCEEDINGS  



          A.       Termination  



                   1.        Facts  



                             a.       Dara and Paxton  

                                                                   3 who was born in February 2011 with  

                   Dara S. is the mother of Paxton, 



serious kidney problems. Paxton had nine surgeries before the age of two.  Dara testified  

                                                                                                          

that parenting Paxton during this period, which she did with "very little support,"4 "was  

                      



incredibly  stressful  and  heartbreaking."    Paxton's  health  improved  while  he  was  in  

                                                                                                              



Dara's care; his right kidney function improved from 0% to 30%, delaying surgery to  

                                                                               



remove  it.    Although  Paxton  continues  to  require  a  strict  diet  and  frequent  medical  



                                                        

checkups,  and  will  require  a  kidney  transplant  by  his  teenage  years,  his  health  has  



generally improved.  



          2        Id. at 347.  



          3        We use pseudonyms to protect the parties' privacy.  



          4        Paxton's father  was never involved in Paxton's life and relinquished his  



parental rights in December 2014; he is not a party to this appeal.  



                                                            -3-                                                      7288
  


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                               b.        Dara's mental health episodes 



                     In the fall of 2011 Dara sought mental health counseling for depression; she     



reported having used Zoloft, an anti-depressant that also treats anxiety and other mood           



               5  

disorders,   for  about  eight  months.    In  October  she  was  diagnosed  with  attention- 



                                                                                                  

deficit/hyperactivity disorder (ADHD), depressive disorder not otherwise specified, and  



                                                                      

post-traumatic stress disorder (provisional). Dara's psychiatrist increased her dosage of  



                                                                                                         6  

Zoloft, and planned to prescribe Adderall, used in treating ADHD.   In October 2012  



                                                                                                                                     7  

                                                            

Dara also was directed to begin taking Viibryd, which treats major depressive disorder, 



                                     8  

and Xanax, for anxiety,  while decreasing her Zoloft dosage.  Five months later Dara  

                                                                                     



expressed  "that  her  medications  weren't  working";  she  felt  her  medications  were  



contributing to more aggressive behavior.  



                                                                         

                     In  June  2013  Dara  and  Paxton  were  taken  to  the  hospital  emergency  



department after she contacted paramedics.  Dara told hospital staff she had a "cloudy  



                                     

mind," did not "know  if she[] [was] on the right medication," and had been having  



                                                      

trouble sleeping for the past three days.  Hospital staff noted that Dara was "scared and  



tearful,"  saying  she  needed  "to  be  in  a  safe  place."    According  to  staff,  Dara  was  



          5          See   Sertraline  (marketed  as  Zoloft)  Information,  DRUG    SAFETY  AND 



                                                          ADMIN ., https://www.fda.gov/Drugs/ 

AVAILABILITY , U .S. FOOD  & DRUG  

DrugSafety/  ucm053351.htm (last updated July 23, 20 15).  



          6          See  Adderall and Adderall XR (amphetamines) Information , DRUG  SAFETY 



AND                                                                       

         AVAILABILITY ,             U.S.   FOOD          &     DRUG        ADMIN .,       https://www.fda.gov/Drugs/  

DrugSafety/ucm111441.htm (last updated July 8, 2015).  



          7          See   Viibryd label, U.S.   FOOD  &   DRUG   ADMIN ., https://www.accessdata.  



fda.gov/drugsatfda_docs/label/2011/022567s000lbl.pdf (last updated Jan. 2010).  



          8          See  XANAX Medication Guide , U.S.  FOOD &  DRUG  ADMIN .,  https://www.  



accessdata.fda.gov/drugsatfda_docs/label/2016/018276s052lbl.pdf#page=24                                                        (last  

updated Sept. 2016).  



                                                                 -4-                                                          7288
  


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

                                                                                            

"significantly paranoid and delusional"; for example:  (1) she asked staff to hide Paxton  



                                                                                  

with a blanket because she was worried a woman who was "impersonating" her would  



"take"  him;  (2)  she  was  "freaked  out"  by  "motorcycles  honking  and  circling  her  



                                                       

apartment complex all day"; (3) she had overheard "a man in the hallway talking about  



                                                             

killing her"; (4) she was worried  "that her son ha[d] been cut open and some of his  



organs were" missing; and (5) her thinking was "not linear . . . [,] logical[,] . . . [or]  



reality  based."    Dara  tested  positive  for  amphetamines,  a  result  explained  by  her  



                                                                                                          

prescribed medications; hospital staff "felt that her impaired cognition [was] substance  



induced" and that "medication management and further observation" were warranted.  



                    OCS briefly took emergency custody of Paxton during Dara's hospital stay.  



                                                                                                   

When Dara later brought Paxton for a medical check up, providers noted that "[Paxton]  



                                                                                                

ha[d] a nice attachment to his mother" and that Dara was "very attentive to [Paxton's]  



needs."  



                                                       

                    In September Dara left her mother a voicemail "asking . . . for help." Dara's  



                                                           

mother - who lived in Oregon - was concerned because Dara "was very distraught";  



                                                         

she "said that she wasn't able to cope at that moment," that "she had taken some pills,"  



                                      

and that she wanted her ashes to be "put . . . in a dumpster."  Dara's stepfather called  



                                                            

Anchorage 911, and the police and fire departments were "[d]ispatched to [Dara for] a  



suicide-threats call."  



                                                       

                    First responders found Dara's apartment clean and well-kept; Paxton was  



sleeping.  Dara was "distraught" and "somewhat uncooperative"; she told responding  



police officers they would "have to shoot [her] to take [her] to the hospital."  She was  



"more cooperative and less hostile" with the fire department responders, admitting to  



                                                                                       

them "that she had taken 30 pills of Adderall."  Both Dara and Paxton were taken to the  



hospital.  



                                                              -5-                                                        7288
  


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

                    Police officers came to the hospital to remove Paxton for OCS to  take  

                                                                                                             



emergency custody; Dara tried to fight them, and she ended up in handcuffs.  Hospital  



staff noted Dara was "rambling and not making sense."  Initially she was "loud and  



disruptive" and "very resistant to staying in" the hospital. Dara stayed at the hospital for                    



about 24 hours before being transported to Alaska Psychiatric Institute (API).  Before  



                                           

transferring to API, she was diagnosed with psychosis, suicidal gesture, and intentional  



Adderall drug overdose.  API diagnosed Dara with an "[a]mphetamine induced psychotic  



disorder,"  and  noted  it  was  "resolved."    API  recommended  that  she  abstain  from  



                                   

"addictive prescription medications such as benzodiazepine," an ingredient found in her  



prescribed antidepressant medications.  



                                                                              

                    During this time, OCS filed a petition for emergency custody of Paxton,  



which the superior court granted.  



                             c.        OCS's initial involvement in Alaska 



                    Dara and Paxton's case was assigned to OCS caseworker Michelle Virden  



                                                                                

after Paxton was taken into emergency custody.  After a first telephonic contact,  Virden  



               

met with  Dara  following an October 2013 court hearing.  Dara said that during her  



                                           

pregnancy with Paxton "she had been raped with shards of glass and sticks," causing his  



health  problems.    Dara  denied  overdosing  on  Adderall,  claiming  that  the  idea  she  



attempted suicide was a fabrication by her mother, and Dara claimed family members  



                                                                                                             

had verbally and physically abused her.  She blamed her recent "episodes" on pesticides  



                                                                                                        

used to treat bed bugs in her apartment.  Virden treated Dara's case as a "mental health  



                                                                 

case"; accordingly, Dara's November case plan included that she:  (1) regularly meet  



                                                                                                        

with her OCS social worker to identify and meet goals; (2) actively  participate with  



chosen  mental  health  providers  and  maintain  her  mental  health  condition  with  



recommended  medication  and  treatment;  (3)  manage  her  anger  and  emotions  with  



                                             

documented progress through counseling services and reports from providers; (4) obtain  



                                                             -6-                                                        7288
  


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

                                                                              

employment  for  six  months  or  more;  and  (5)  set  healthy  limits  and  boundaries  in  



personal relationships.  As a first step in implementing the case plan, Virden referred  



Dara to Dr. Michael Rose for a mental health evaluation.  



                                                                                                   

                    Dr.  Rose  conducted  a  psychological  evaluation  of  Dara  in  November,  



administering five psychological and substance abuse tests.  Dr. Rose diagnosed Dara  



with psychotic disorder not otherwise specified (NOS), along with neglect of child,  



                                                                                             

history of ADHD, and prior amphetamine and cannabis abuse. He noted that the hospital  



                                                                         

had diagnosed her with "Amphetamine-Induced Psychotic Disorder," and that because  



                                                                                             

her "problems have persisted, a Psychotic Disorder NOS is given but  consideration  



                                                                                  

should be given to a formal thought disorder diagnosis such as Schizophrenia, Paranoid  



                                         

Type."  He recommended further assessment, and, concluding that Dara presented a  



                                                                                     

significant risk to abuse or neglect Paxton, recommended against reunification.  Dr. Rose  



                                                                                                    

recommended that Dara:  (1) "work carefully with her psychiatrist and psychotherapist  



to address her diagnosed problems"; (2) "maintain gainful employment over a sustained  



period  of  time  and  show  that  she  can  obtain  and  maintain  housing  for  herself  and  



                                                                                                                        

[Paxton]"; and (3) obtain "individualized [parenting] education and instruction."  In the  



                                                                                                    

event Dara struggled to effectively parent or respond to treatment, Dr. Rose suggested  



developing a legal guardianship for Paxton.  



                                                  

                    After obtaining Dr. Rose's psychological evaluation, Virden arranged for  



                                    

Dara  to  obtain  mental  health  services  from  Anchorage  Community  Mental  Health.  



Because of its lengthy waiting list, Dara's first appointment was not scheduled until the  



end of May 2014, six months after Dr. Rose's evaluation.  In the meantime Virden  



helped  Dara  by  providing  her  bus  passes;  having  a  social  worker  intern,  who  was  



                                                                                       

working  on  a  mental  health  master's  degree,  help  her  with  the  issues  Dr.  Rose's  



evaluation raised; encouraging her to apply for Supplemental Security Income (SSI);  



                                                              -7-                                                        7288
  


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

                            

driving her to sell or return items to save money; supervising visits with Paxton; and  



setting up extra visits with Paxton.  



                   Before her mental health services appointment, Dara traveled to Santa Cruz,  



                      

California - where she had grown up - planning to live with a man with whom she  



                                                                                                   

had gone to high school.  But the relationship did not last and she soon came back to  



                                                                                                           

Anchorage, where she obtained a job.  Dara then lived with a roommate, whom Virden  



described as "off" and "a little strange," for a month or two, before moving out and  



"couch surfing."  



                   In April 2014 Paxton was placed with Dara's sister, Scarlet, in Oregon.  



Scarlet gave Dara a laptop to Skype with Paxton; they regularly Skyped three times a  



week, and Scarlet permitted calls between Skype sessions.  



                                                        

                   Dara did not attend her scheduled mental health services appointment in  



late May.  She instead moved to Wrangell to live with a man she met online.  This  



                                                          

relationship lasted only about a month, in part because the man was worried that living  



                                                           

with Dara would negatively impact his custody of his own three children.  In that time  



                                                                

Dara became pregnant with his child. Dara accused him of having an affair with Virden,  



                                                                                                     

although he and Virden only had spoken once on the telephone. Dara moved out around  



the end of June; she then stayed with a friend.  



                             d.        Dara's move to Oregon 



                    O                                                               

                      CS pays to "fly families quarterly"; Dara stayed in Wrangell until OCS  



                            

paid for her travel in July to see Paxton in Oregon, where she decided to stay.  She was  



                                                                                                         

pregnant, homeless, and "didn't have much money."  Virden informed Oregon's child  



                                                              

protective services agency, Department of Human Services (DHS), of Dara's arrival, and  



Dara was able to obtain housing and prenatal care.  Dara took a job that she then lost for  



                                                

reasons beyond her control, but by early 2015 she had found stable housing and work.  



                                                             -8-                                                       7288
  


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

                   In  September  2014  Dara's  Oregon  caseworker  referred  her  for  an  



evaluation  at  the  local  Center  for  Family  Development.    Dara  was  diagnosed  with  



"Adjustment  Disorder  With  Mixed  Anxiety  and  Depressed  Mood."    A  Global  



                                        

Assessment of Functioning indicated Dara had anxiety to the point of "getting in the way  



of . . . functioning."  The Center recommended she attend weekly therapy sessions for  



one year, and in October she began seeing counselor Alexa Jefferis for therapy.  



                   Dara  also  began  weekly  DHS-supervised  one-hour  visits  with  Paxton  



                                                             

starting in September.  These later turned into two-hour visits, and Dara occasionally  



                                                                 

accompanied Scarlet and Paxton to his doctor appointments.  Dara also attended one or  



                                                                                      

two of Paxton's soccer practices after getting approval from DHS.  During these visits  



there  were  few,  if  any,  complaints  about  Dara's  behavior;  DHS  noted  that  she  was  



receptive to parenting suggestions, rarely canceled appointments, respected her allotted  



visitation time, and acted appropriately with Paxton.  At this time Scarlet was fairly  



supportive  of  Dara  spending  time  with  Paxton  as  long  as  she  first  received  DHS  



approval.  



                   In  October  and  November  Dara  met  with  Dr.  David  Truhn  for  "a  



comprehensive   psychological   evaluation   and   parenting   assessment."      She   was  



administered  seven  intelligence,  psychological,  and  parenting  tests,  and  Dr.  Truhn  



reviewed her records, including Dr. Rose's previous evaluation.  



                         

                   Dr. Truhn diagnosed Dara with early onset persistent depressive disorder  



and unspecified anxiety disorder, requiring further evaluation to rule out "unspecified  



                                                                                                                  

schizophrenia spectrum and other psychotic disorder."  Dr. Truhn was confident in the  



                                                                        

first two diagnoses; "at one point [Dara] bec[ame] so anxious she could not remember  



                                                                             

where she currently lived."  But he was less confident in his third diagnosis; he saw no  



                                                                                                           

evidence of psychotic symptoms and recommended further evaluation.  Dr. Truhn also  



noted that Dara's "impulsivity . . . is a significant concern . . . regarding her ability to  



                                                           -9-                                                    7288
  


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

engage in more active parenting responsibilities and necessitates that her visitations  



                                                                                         

continue to be supervised."  He recommended that Dara:  (1) "participate in individual  



psychotherapy";  (2)  "engage  in  ongoing  treatment  and  evaluation  for  anxiety";  



(3) "participate in medication evaluation for the use of an antidepressant medication to  



                                                         

treat anxiety . . . [while] continu[ing] to be evaluated for any symptoms of psychosis and  



                                       

need for an antipsychotic medication"; and (4) "participate in parent training programs."  



                                                                                          

                    During Thanksgiving Scarlet allowed Dara to spend about a half hour with  



                                                                                  

Paxton.  Dara asked Scarlet if she could see Paxton on Christmas Day.  Scarlet indicated  



that she would discuss it with her husband, but by December 17 she had not responded  



                                                                                                 

to Dara.  On December 22 Dara spent four hours with Paxton at a DHS Christmas party.  



After the party Dara repeated her request for time with Paxton on Christmas Day.  After  



                                                                                                    

Scarlet refused, Dara and Scarlet carried on the disagreement over the telephone and via  



                                                                    

text, with Dara cursing at Scarlet and Scarlet saying that Dara was not immediate family.  



Scarlet considered Dara's repeated communications during this time "harassment."  



                    Early in 2015 Dara learned that some of her mail had been sent to her  



                                                                                                             

father's house.  Scarlet picked up the unopened mail and gave it to Dara.  Dara then went  



                           

to the post office and, apparently at the post office manager's suggestion, filed a police  



                                                                                                              

report claiming identity theft.  Dara also left Virden a voicemail about the incident saying  



                                                                       

she felt like she was being stalked.  Dara later testified that she "immediately regretted  



assuming that" her family was stalking her.  



                    2.        Proceedings 



                                                                                                       

                    In December 2014 OCS petitioned to terminate Dara's parental rights, with  

                                                          9  In February Dara sought a continuance because  

                                                                                

trial scheduled to begin in March 2015. 



          9         Alaska retained jurisdiction as Paxton's home state when the child in need       



of aid (CINA) proceeding commenced in September 2013.  See S.B. v. State, Dep't of  

                                                                                                               (continued...)  



                                                              -10-                                                         7288
  


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

she was scheduled to give birth by Caesarean surgery, but her request was denied.  After  



Dara gave birth to a daughter, DHS did not believe she had "sufficient safety service  



                                                                                                   

providers" to help her care for the infant and did not know whether she lived in "a calm  



                                     

[home] setting"; Dara's daughter was removed from Dara's care and also placed with  



Scarlet.  



                             a.        Testimony 



                    The termination trial  took place over three days in March 2015.  Dara  



participated telephonically from Oregon.  OCS's case focused only on Dara's mental  



          10  

                                                                       

illness.      The court heard testimony from Dara, four family members, Dara's coworker  



                                                                              

and friend, Dara's daughter's father, a police officer, three mental healthcare providers,  



and OCS and DHS caseworkers.  



                    Dara's father, brother, and sister all testified in favor of terminating Dara's  



parental rights to Paxton.  Her father described Dara as "very manipulative" and said  



                                                                                                   

"[s]he looks to me like she's become a street person" because of her tattoos and different  



                                                                

hair color.  But Dara's father had very little interaction with her in the past 20 years, and  



                                       

he had not seen her since she moved to Oregon.  Dara's brother also had very limited  



                                                                                                   

interaction with Dara in the previous 10 years, but he characterized her as a "free spirit"  



                                                                                                              

who lived "a gypsy kind of lifestyle." Scarlet recognized that "[Dara] loves her son very  



much," but she also testified that Dara's paranoid and nervous actions had "remained  



pretty steady over the last few years."  



          9         (...continued)  



Health & Soc. Servs., Div. of  Family & Youth Servs., 61 P.3d 6, 13 (Alaska 2002).  



          10       See AS 47.10.011(11) (stating a child may be found in need of aid if "the                     



parent . . . has a mental illness, serious emotional disturbance, or mental deficiency of a   

nature and duration that places the child at substantial risk of physical harm or mental  

injury").  



                                                            -11-                                                       7288
  


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

                     Dara's mother, Dara's friend in Oregon, therapist Jefferis, and DHS worker  



                                                                          

Ryan Clemmons all testified against terminating Dara's parental rights to Paxton.  Dara's  



mother testified that she had no concerns about Dara's ability to parent.  Jefferis, who  



                                                                                                  

obtained a masters degree in marriage and family therapy in 2012, testified that she  



                                                                                              

observed  no  indications  of  psychosis  during  her  sessions  with  Dara.    Jefferis  also  



              

testified that Dara had been doing well dealing with the stresses related to employment,  



                                                                                               

pregnancy, and child custody issues, and that she needed "at least another six months"  



                                                                                 

of therapy.  And although Jefferis had not "observed [Dara] actually parenting," Jefferis  



                                                                                     

had no "major concerns" about Dara's ability to parent.  Clemmons, who had supervised  



                                                                                                                

visits  between  Dara  and  Paxton  at  DHS,  testified  that  Dara  asked  for  parenting  



suggestions,  always  made  up  canceled  appointments,  and  acted  appropriately  with  



                                     

Paxton.  Dara's friend, who had known Dara since shortly after she moved to Oregon,  



        

said that she considered herself part of Dara's "support system" and that she had been  



                                                                                                  

impressed with Dara's ability to take care of herself and others.  The friend also testified  



                                 

that,  "[a]s  a  mental  health  worker"  who  had  a  grandson  "born  with  multiple  heart  



defects," she thought it was understandable Dara had difficulty taking care of Paxton by  



                                                                                                          

herself in Alaska.  But in part because Dara had "formed [a] support group" in Oregon,  



Dara's friend thought Dara could take care of her children.  



                     Dr. Truhn and Virden both expressed concerns at the termination trial about  



                                                                  

Dara's ability to be a full-time parent.  Dr. Truhn explained how his diagnoses for Dara  



                              

differed  from  Dr.  Rose's;  he  noted  that  Dara  appeared  to  have  improved  since  her  



                                                                                               

psychotic episodes, and he attributed many of her behaviors to anxiety and depression  



                                                              

rather than psychosis.  Dr. Truhn had  recommended further evaluation to rule out a  



psychotic  disorder,  and  he  had  recommended  continued  supervised  visitations  with  



                              

Paxton because of Dara's impulsivity.  Dr. Truhn also testified that if Dara had accused  



                                                                                                               

her  daughter's  father  of  an  affair  with  Virden  it  "sound[ed]  kind  of  paranoid"  and  



                                                               -12-                                                          7288
  


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

                                                                    

indicated that Dara's mental problems could "be more severe than what [he] saw in [his]  



assessment."  



                                                                                          

                    Virden testified in favor of Paxton remaining with Scarlet.  Virden relied  



      

on DHS reports as she had not seen Dara in person in ten months.  Virden believed Dara  



                                                        

continued to have unresolved mental health issues and found concerning Dara's repeated  



                                                                               

denials that she had mental health issues. Because of Dara's mental health issues, Virden  



testified that Dara was not ready to assume full-time responsibility for Paxton's care.  

                              b.        Decision11  



                    The parties submitted written closing arguments.  In June 2015 Superior  



                                                                                                                    

Court Judge John Suddock made oral findings and terminated Dara's parental rights.  (In  



                                      

October Superior Court Judge pro tem Pamela Washington issued a written decision  



based on Judge Suddock's oral decision.)   



                    Judge Suddock gave Jefferis's testimony little weight, emphasizing that she  



                                                                                                               

was a "relatively young practitioner" who "presented as quite protective of her client"  



                                                                                          

and who "viewed the world through rose-colored glasses."  He also gave little weight to  



either Dara's father's or brother's testimony.  



          11        Under relevant CINA statutes and rules, parental rights may be terminated  



at trial only if OCS shows:   



                    (1) by clear and convincing evidence that:  (a) the child has been subjected  

                                                                                     

to conduct or conditions enumerated in AS 47.10.011 (CINA Rule 18(c)(1)(A)); (b) the  

                                                                                             

parent has not remedied the conduct or conditions that place the child at substantial risk  

                                      

of harm or has failed within a reasonable time to remedy the conduct or conditions so  

                                               

that the child would be at substantial risk of physical or mental injury if returned to the  

                                    

parent (CINA Rule 18(c)(1)(A)(i) - (ii)); and (c) reasonable efforts have been made to  

                                                        

provide family support services designed to prevent the breakup of the family (CINA  

Rule 18(c)(2)(A)); and  



                    (2) by a preponderance of the evidence that the child's best interests would  

                                                                                           

be served by termination of parental rights (CINA Rule 18(c)(3)).  



                                                              -13-                                                         7288
  


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

                    Judge  Suddock  looked  disfavorably  on  Dara's  decision  to  move  to  



Wrangell,  "a  place  without  the  kind  of  health  services  that  .  .  .  [Paxton],  who  has  



                                                                                                    

profound kidney problems, is going to need."  He characterized the move as "[a] totally  



                                                                                           

unplugged, unhinged life move under the circumstances that reflects a delusional or an  



irrational impulsive thought pattern."  He also found it was "symbolic of just terribly  



                                                        

depreciated judgment to have a child in custody, to be fighting mental health problems,  



                           

and to decide that it's a good time to have a child with a stranger."  Characterizing Dara's  



                                                                                                

life in the summer of 2013 as "kind of a psychiatric mess at that point," Judge Suddock  



                                                              

found Dara "was very unstable in the fall of 2013 and she's gradually gotten better from  



                                                                                        

there."  Judge Suddock found Dara was having "serious . . . delusions" during that time  



period.  



                    Judge Suddock noted that both Scarlet and Virden testified about Dara's  



                                                                                       

lack of awareness of her mental health issues.  He noted that to Dara "[t]here always  



                                                              

seemed to be some cause, external, that explained everything."  He characterized the  



                                                                                                        

incidents around the Christmas Day visit and Dara's mail as "[s]ome frankly paranoid  



                                                                    

style stuff" that occurred relatively recently.  He found Dr. Truhn's testimony "a lighter  



psychiatric diagnosis than Dr. Rose, but . . . it could be mild symptoms of psychosis" that  



would need to be looked at for another year.   



                                                             

                    Judge Suddock noted that this was "a difficult and interesting case . . . .  



                                                          

with issues of a mentally ill mom who [was] getting better."  He found OCS had proved  



"by clear and convincing evidence that [Paxton] was subjected to conduct that [made]  



him a child in need of aid.  That's because of the severe mental illness."  He also found  



        

that OCS made reasonable efforts because Dara was not always "fully engaged" in her  



treatment plans.  He found Dara had "not remed[ied] the conduct within a reasonable  



                                                                                                                 

time" because she "spent essentially the better part of her first year spinning her wheels,  



not adequately engaging with mental health treatment."  He acknowledged Dara's recent  



                                                             -14-                                                        7288
  


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

                                                                                                  

improvements, but concluded that "[i]t appears just overwhelming to me that the clock's  



run  out,  that  the  best  interests  of  [Paxton]  are  to  be  parented  by  [Scarlet]."    Given  



                                                                                                   

Paxton's age and medical condition, Judge Suddock was unwilling to wait an additional  



six months to a year to see if Dara's condition improved.  



                             c.        Dara's appeal  



                                                    

                    Dara appealed Judge Suddock's termination order, arguing that:  (1) as of  



the termination trial Paxton no longer was a child in need of aid due to Dara's mental  



                                                                                                    

health issues because she no longer posed a risk of harm to him; (2) OCS failed to make  



                                                  

reasonable  reunification  efforts;  and  (3)  Dara  was  not  afforded  reasonable  time  to  



remedy the condition causing Paxton to be a child in need of aid.  



          B.        Reinstatement  



                    1.       Facts  



                                  

                             a.        Stay of termination order for review hearing  



                                                                                                                  

                    In September 2015, after the June oral termination decision but before the  



                                                                                                        

October written termination order, Dara moved for a review hearing.  Dara argued that  



                                                       

because  she  had  "made  significant  progress  on  her  case  plan  and  [would]  soon  be  



reunited with her daughter, . . . there [was] good cause for the court to order a review  



                                                                                                          

hearing . . . so that she [could] show that it is in [Paxton's] best interest to return to her  



                                                          

care and custody."  Judge Washington, who was covering Judge Suddock's cases, found  



                                                         

good cause for a review hearing and stayed the termination order.  The parties were  



granted  a  continuance  for  Dr.  Erik  Sorensen  to  assess  Paxton's  attachment  to  Dara  



compared with his attachment to Scarlet and her husband, Paxton's functioning and  



                                         

needs, and a potential plan for reunifying Paxton with Dara.  Although OCS agreed to  



facilitate interim visits between Dara and Paxton, no visits occurred.  



                                                             -15-                                                       7288
  


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

                   We then stayed Dara's appeal of the termination order pending the outcome  



                                12  

of the review hearing.              



                             b.        Dara's stabilization and custody of her daughter  



                   Dara continued improving after the termination trial.  She continued weekly  



therapy  sessions  with  Jefferis,  and  since  December  2014  had  maintained  full-time  



                                                                                         

employment with the same employer. By April 2016 Jefferis believed Dara had become  



"much more grounded and calm," confident, and better at "creating a stable life for  



                                                                                     

herself."  Early in 2016 Jefferis changed the frequency of Dara's sessions to only once  



or twice each month.  



                                                                       

                   In  June  2015  Dara  met  with  Dr.  Truhn  for  an  updated  psychological  



assessment.    Dr.  Truhn  thought  that  Dara  was  "significantly  more  stable  since  the  



previous evaluation," and that she seemed "on track with the projected prognosis . . .  



                                                                                              

from October [2014]." Based on information Dara provided, Dr. Truhn further believed  



that a plan for reunification with Paxton could be possible "within the next two to three  



months."  



                                                                                                   

                   Dara also met with a psychiatric mental health nurse practitioner, Karla  



Marvich, who was authorized to prescribe psychotropic medication.  Dara first met with  



                                                                                                                 

Marvich in October 2015 and had met three times with her by February 2016.  Marvich  



                                                                                                      

concluded that Dara did not meet "criteria for any specific diagnosis" and did not need  



                                                                                                     

"any medication."  Marvich instead thought that the medications Dara was prescribed in  



                       

the summer of 2013 "were excessive," and the combination of medications "could have  



caused increased anxiety" and Dara's psychosis.  



          12  

                                                                                                     

                   Dara S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  

No. S-16126 (Alaska Supreme Court Order, Dec. 11, 2015).  



                                                            -16-                                                         7288  


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

                                                                             

                   In  November  2015,  despite  Scarlet's  opposition,  Dara's  daughter  was  



returned to Dara's care.  Because DHS had no lingering concerns regarding Dara's  



ability to care for her daughter, it was anticipated that DHS would dismiss that child's  



case in May 2016.  



                             c.        Dara's deteriorating relationship with Scarlet 



                   Until  August  2015  Dara  continued  visiting  with  Paxton  through  DHS,  



usually  during  supervised  visits  with  her  daughter.    DHS  social  worker  Sara  Rich  



provided one-on-one parent coaching for Dara during some visits.  And when Paxton  



                                                               

was present at these joint visits, Rich "did not have any concerns" about Dara's ability  



                                                                                                    

to parent.  Rich later characterized Dara's interactions with Paxton as being "[v]ery good  



interactions, very kind and compassionate," as well as positive and appropriate.  For  



                                                                                                         

example, Rich observed Paxton once telling Dara that she was "the best" and once saying  



                                                        

he wanted to go home with her.  Dara responded appropriately in both instances, telling  



Paxton "he was the best" also and answering his request to go home with her only by  



saying she knew that and she loved him.  



                                                                                                                

                   But by then Dara's relationship with Scarlet had deteriorated.  After the  



                                                                                                                       

superior court's oral termination of Dara's parental rights to Paxton, Scarlet left "it up  



to  [Paxton]  [to  decide]  if  he  wanted  to"  have  visitation  with  Dara  and  his  sister.  



                                                                              

According to Scarlet, Paxton went to only a couple of visits thereafter because "he didn't  



                                                                                                          

care to go into the visits and see [Dara]."   Scarlet did not seem upset by Paxton not  



                                     

wanting to attend visits; she characterized Dara as "a toxic person" and seemed "very  



                                                                              

upset" when Dara's daughter was returned to Dara's care.  Once Dara regained custody  



of her                                                                                                   

          daughter and DHS no longer assisted in arranging visits, Scarlet never arranged  



                                                                                                      

for Paxton and his sister to visit. In March 2016 Dara and Paxton saw each other for  



the first time in six months at a joint psychological assessment with Dr. Sorensen.  



                                                            - 17-                                                      7288
  


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

                                                                                                   

                   Dr. Sorensen, who had been asked to assess Paxton's attachment  to both  



                                                                                                      

Dara and Scarlet, reported that "[c]ontinued placement with [Scarlet] appears the safest  



                                                                                                             

and  most  supportive  option  that  would  likely  meet  [Paxton]'s  needs  over  time."  



Dr.  Sorensen  noted  that  Paxton  considered  Scarlet  his  mother,  that  Paxton  had  no  



                                                                    

problems  living  with  her,  and  that  she  and  her  husband  adequately  cared  for  his  



medical  needs.             Dr.     Sorensen        also     noted     that     Scarlet     had     little    interest     in  



                                                                                  sen believed Dara had "made  

facilitating  visits  between Dara and Paxton. Dr. Soren 



remarkable progress"  since  the  incidents  in  2013  and  2014,  and  she  "demonstrated  



ample skill in engaging her son";  he  did  not  note  any  concerns  about  her  ability  to  



parent.    But  Dr.  Sorensen  emphasized that any change in custody for Paxton would  



                                                                                                    

be "likely to [cause] distress" and  recommended  careful  monitoring  of  his  medical  



                                      

condition  if  a  custody  change  occurred.    Dr.  Sorensen  also  was  concerned  that  



                                                                                        

Paxton's   language   limitations   and                   "general  tendency  to  answer  'yes'  to  most  



q                                                                                     

  uestions" might lead to difficulties.  Finally, Dr.  Sorensen  recommended  that,  if  a  



change   in   custody   were   to   occur,   it   take   place   incrementally  with  extensive  



monitoring.        2.        Proceedings 



                             a.        Hearing 



                                                                      

                   A  review  hearing  took  place  in  April  and  May  of  2016.    Testimony  



                                                                                                          

primarily concerned Dara's recent progress and Paxton's best interests.  OCS presented  



no expert testimony concerning Dara's current mental health, instead relying on Scarlet's  



                                                  

testimony that she believed Dara was "not capable" of parenting and was mentally ill.  



Dara, her mother, and Scarlet all indicated that Dara would see little of Paxton in the  



current custody situation.  



                                                 

                   Hearing  testimony  indicated  that  any  transition  would  be  difficult  for  



                                                     

Paxton. Scarlet testified it would be "extremely difficult" for Paxton to be removed from  



       

her  home  "to  be  placed  with  a  family  that  he  doesn't  really  know  anymore."  



                                                            -18-                                                       7288
  


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

                                                                                                               

Dr.  Sorensen  thought  Paxton  had  "really  adapted  well  into  [Scarlet's]  family,"  and  



                                                                          

although Dr. Sorensen thought Paxton would be able to adapt to a new family situation,  



                                                            

"there's no guarantee that [it would] . . . go well and sometimes kids really struggle when  



                                                                   

they're forced to leave attachment figures."  Dr. Sorensen thought a change in custody  



would be "a highly confusing event for [Paxton] and one that could very well have a  



            

lasting effect" because he would have no memory of living with Dara.  Dr. Sorensen  



thought that Paxton would "have a really hard time for quite some time" before being  



                                                                                            

able to verbalize his concerns.  Dr. Sorensen "recommended that [Paxton] remain in his  



                                

current placement . . . indefinitely as a means of maintaining his emotional stability and  



                                                                                                            

general safety."  Notwithstanding this recommendation, Dr. Sorensen outlined how a  



reunification could happen to minimize disruption and how it would take at least three  



to four months.  However, he cautioned against removing Paxton from Scarlet's care,  



                                                                           

stating it would be "a guaranteed loss" for Paxton and "certainly take a toll on him."  Dr.  



Sorenson added:  "Whether that [loss] will be made up for through the reconnection with  



his mother and the connection with his sister, I couldn't . . . say."  



                              b.        Decision 



                    In                                              

                        July 2016 Judge Washington issued a written decision reinstating Dara's  



                                                                             

parental rights to Paxton.  Judge Washington first noted that she had "heard testimony  



                                       

from multiple witnesses, listened to the termination trial and Judge Suddock's decision  



                                                                      

on the record, and reviewed medical records, including reports from API, Dr. Michael  



                                                                                                                

Rose, and Dr. David Truhn as requested by the parties." Judge Washington then outlined  



                                                                              

relevant facts leading up to termination, including: (1) Dara's psychotic break due to an  



Adderall  overdose in September 2013; (2) Dr. Rose's report and recommendations;  



                                                                                                                   

(3) Dara's "erratic[]" period of time when she "was in complete denial about her mental  



                                                                     

illness" and "made some irrational decisions" prior to moving to Oregon; (4) Dr. Truhn's  



report and recommendations; (5) Dara's starting individual counseling with Jefferis;  



                                                              -19-                                                         7288
  


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

                                                                                                       

(6) Dara's daughter's birth; (7) the termination trial and the court's findings; and (8) the  



procedural posture of the review hearing.  



                     Judge  Washington  made  19  factual  findings  after  the  review  hearing.  



                                                                

Notably, she found  Dara was "no longer exhibiting delusional or psychotic behaviors,"  



                                 

and   she   was   "not   taking   psychotropic   medications   and   no   medication   [was]  



recommended"; Dara had "been successfully parenting [her daughter] since November  



                                                                                                               

. . . 2015"; "[t]he hostility [between Dara and Scarlet] [was] great and ha[d] caused a  



division  in  the  family";  "Dr.  Sorensen  reported  that  [Paxton]  .  .  .  [was]  'likely'  to  



                                                                                                            

experience distress if moved"; and "Dr. Sorensen conclude[d] that the safest result with  



                                                          

the least amount of risk to [Paxton's] emotional well[-]being would be to keep [Paxton]  



with [Scarlet]."  



                     Judge Washington then outlined what she considered the applicable law:  



                                                 

                               As long as a child remains the ward of the court under  

                                              [13] 

                                                                                          

                     AS 47.10.080(f)               his or her natural parents are entitled to a  

                                     

                     review of the order terminating their parental rights upon a  

                     showing of good cause for the hearing.  Good cause could be  

                                                 

                     established if the parent or parents show that it would be in  

                     the best interests of the child to resume living with him or her  

                                                 

                    because he or she has sufficiently rehabilitated him or herself  

                     such that he or she can provide proper guidance and care for  

                                   [14] 

                     the child.          



          13         See AS 47.10.080(f) ("A child found to be a child in need of aid is a ward                    



of  the  state  while  committed  to  the  department  or  the   department  has  the  power  to  

supervise the child's actions.").    The balance of this statutory provision relates to the  

right to request a permanency hearing.   Cf. AS 47.10.080(l) (providing standards for  

permanency plans, hearings, and court findings regarding various permanency matters).  



          14  

                                                                                                         

                     Judge Washington cited Rita T. v. State , 623 P.2d 344, 347 (Alaska 1981),  

for this legal proposition.  



                                                                                   

                    Rita T. was based on an interpretation of former AS 47.10.080(f), which at  

                                                                                                                (continued...)  



                                                               -20-                                                          7288
  


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

                                                        15                                        16 

The court also listed AS 47.10.011(11)                     and AS 47.10.088(b)(1)-(5)                as bases for its  



decision.  



                   Judge Washington began by acknowledging Judge Suddock's June 2015  



                                                                              

termination findings. But she then stated that "[t]oday, the record presents a new picture  



                             

of [Dara].  She has clearly overcome the severe mental impairment that set this case in  



                      

motion nearly three years ago."  Judge Washington noted that Dara had "complied with  



          14       (...continued)  



that time provided for review hearings rather than permanency hearings.  Id. at 346-47.  

(This is why the superior court described Dara's hearing as a review hearing or a Rita T.  

                                                                                    

hearing.)      Well   after   our   Rita   T.   decision,   however,   the   legislature   amended  

AS 47.10.080(f), and the statute now relates to permanency hearings rather than review  

                          

hearings.  See Ch. 99,  26, SLA 1998.  Compare former AS 47.10.080(f) (1980), with  

                                   

AS 47.10.080(f).  We discuss this more fully below.  



          15       Providing for a child in need of aid finding if "the parent, guardian, or  



                     

custodian has a mental illness, serious emotional disturbance, or mental deficiency of a  

nature and duration that places the child at substantial risk of physical harm or mental  

injury."  



          16       Providing that:  



                                                                                              

                   In making a [failure to remedy] determination under . . . this  

                   section, the court may consider any fact relating to the best  

                   interests of the child, including  



                            (1) the likelihood of returning the child to the parent  

                   within a reasonable time based on the child's age or needs;  



                            (2) the amount of effort by the parent to remedy the  

                                                       

                   conduct or the conditions in the home;  



                            (3) the harm caused to the child;  



                            (4)  the  likelihood  that  the  harmful  conduct  will  

                   continue; and  



                            (5) the history of conduct by or conditions created by  

                                                                          

                   the parent.  



                                                          -21-                                                     7288
  


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

all five of Dr. Rose's treatment recommendations."  And Judge Washington pointed out  



that "[n]either OCS nor the guardian ad litem contested [Dara]'s completion of goals set   



                                                                                              

in her case plan and her current stability."  Judge Washington determined that Dara had  



proved,  "by  clear  and  convincing  evidence,  that  she  has  remedied  the  conduct  and  



conditions in the home that placed [Paxton] at substantial risk of harm."  



                    Judge Washington then found, by clear and convincing evidence, that it was  



in Paxton's best interests to return to Dara's care because:  



                    1) The state favors reuniting children with biological parents.  

                                                                                                

                    2) Mental illness alone cannot support termination of parental  

                                                                    

                    rights.  3) There was no harm caused to the child and it is  

                    unlikely harmful conduct will happen.  4) The child's bond  

                    with the biological parent can be restored.  5) The child can     

                    be returned to the parent within a reasonable time based on  

                    [the] child's age and needs.  6) The parent has put in a great  

                                                                                     

                    amount of effort to remedy the conduct or conditions in the  

                    home.  



                    Judge  Washington  emphasized  a  "presumption  for  keeping  families  



together when the parents have demonstrated that they are capable of meeting the child's  

                                                                           



needs."  She additionally noted that "a parent's mental illness alone may not form the  

                                                                                                                      



basis of a termination of . . . parental rights"; that "[w]hatever nexus the court found at  

                                                                                               



the time of termination" relating to Dara's mental illness placing Paxton at harm, "it [did]  



                                                                                                     

not exist now"; that it was possible to restore Paxton's bond with Dara; and that Dara  



                                                                          

"ha[d] put in a lot of effort to remedy the conduct and conditions in the home that caused  



                                           

her son to be taken."  Judge Washington then ordered OCS to "begin a transition plan"  



to return full custody of Paxton to Dara.  



                    After  OCS  moved  for  reconsideration,  in  October  Judge  Washington  



                                                                               

clarified  her  previous  findings.    OCS  had  argued  that  Judge  Washington  created  a  



burden-shifting presumption that reuniting with a biological parent is in a child's best  



                                                              -22-                                                         7288
  


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

interests.  Judge Washington responded that she instead "simply . . . acknowledg[ed] the  

                                                                                                 



legislative preference in favor of keeping a child with his or her biological parents."  

                                              



Judge Washington then noted OCS's renewed arguments - that it was not in Paxton's  

                                                       



best interests to return to Dara considering permanency and the length of time necessary  



for reunification.  Judge Washington first rejected any suggestion that she had not taken             



into  account  Paxton's  age,  the  length  of  time  he  had  lived  with   Scarlet,   and  his  



attachment to Scarlet.  Judge Washington stated that she also had considered Paxton's  



                                           

prior bond with Dara and his bond with Dara during visitations.  And Judge Washington  



expressly rejected OCS's argument that Dara was a stranger to Paxton.  



                   Although Judge Washington noted that her decision had involved a best  



interests analysis, she also explained her view that "[o]nce good cause is established for  



                                                                                                               

a review hearing, . . . the court is not required to undertake a best interest analysis if  



                                               

circumstances have changed so much that the child is no longer a child in need of aid."  



Judge Washington indicated that "[a] best interest analysis is only done when it is first  



determined that the child is in need of aid."  She emphasized that in the reinstatement  



                    

context, "[a] best interest analysis is not necessary to determine if a child should return  



home, but only required to determine when a child will return home."  (Emphases in  



original.)  Finally, Judge Washington modified her original order to include a future  



"hearing on the timetable for reunification."  



                             c.        OCS's and guardian ad litem's appeals  



                            

                   OCS and Paxton's guardian ad litem (GAL) appealed the reinstatement  



order.  Although OCS does not directly challenge Rita T. 's holding, it questions that  



                                                                                                              

holding's foundation after subsequent statutory changes.  OCS asks us to clarify and  



                                                                                        

limit  Rita  T. 's  application,  primarily  arguing  that:    (1)  a Rita  T.  proceeding  is  not  



appropriate when a child is in an adoptive placement; (2) it was legal error to apply a  



                                    

presumption in favor of reunification; and (3) it was clear error to find it was in Paxton's  



                                                            -23-                                                      7288
  


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

                                               

best interests to return to Dara.  The GAL joins in OCS's arguments and also argues that  



a Rita T. proceeding is intended only in an extraordinary case when permanency has not  



been established post-termination.  



III.      DISCUSSION  

          A.        The Termination Of Dara's Parental Rights17  



                                                                                                  

                    Dara argues the superior court erred by finding that:  (1) her mental illness  



                                                                                             

led to Paxton being a child in need of aid and that she had not remedied the conduct or  



                                                                        

conditions initially placing him at risk; (2) OCS made reasonable efforts to reunify her  



                             

family; and (3) she was afforded reasonable time to remedy.  Because Dara's arguments  



are not convincing, we affirm the superior court's decision terminating her parental rights  



to Paxton.  



                        

                    1.        Child in need of aid finding  



                    Dara makes two separate arguments why the superior court erred by finding  



                   

Paxton was a child in need of aid.  First, Dara argues that the court improperly made its  



                                                                                                                     

CINA finding "based upon Dara's mental illness alone."  Second, Dara argues that the  



                                                   

court clearly erred by finding her mental illness continued to pose Paxton "substantial  



risk of physical harm or mental injury" at the time of trial.  



          17        In a case involving parental rights termination we review a trial court's   



findings of fact for clear error.  Martin N. v. State, Dep't of Health & Soc. Servs., Div.  

of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003).  Findings are clearly erroneous  

                                                                                   

if, after reviewing the entire record in the light most favorable to the prevailing party, we  

                                                                    

are left with a "definite and firm conviction that a mistake has been made."  Brynna B.  

v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529  

                                                                                                        

(Alaska 2004) (quoting A.B. v. State, Dep't of Health & Soc. Servs. , 7 P.3d 946, 950  

                                                                                      

(Alaska  2000)).    "We  review  de  novo  whether  a  trial  court's  findings  satisfy  the  

requirements of the child in need of aid statute."  Barbara P. v. State, Dep't of Health &  

Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1253 (Alaska 2010) (citing Carl  

                                                           

N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 102 P.3d 932,  

                                                                                        

935 (Alaska 2004)).  



                                                             -24-                                                       7288
  


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

                                                                                               

                               a.	       Child in need of aid finding not based on Dara's mental  

                                         illness alone  



                                                                                                     

                     Alaska Statute 47.10.011(11) permits courts to find that a child is in need  



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



                                                                                                              

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



                                    18  

                                        Because AS 47.10.011(11) has two requirements - parental  

harm or mental injury."  



                                                                                          

mental illness and substantial risk of harm to the child - we have repeatedly held that  

"mental illness alone may not form the basis of a [CINA] finding."19  



                                                                          

                     Dara argues that the "court failed to articulate in either its oral or written  



findings the specific conduct flowing from Dara's mental illness that placed Paxton at  



                                                    

risk as required under subsection (11)."  In its oral findings the court stated OCS proved  



                                                        

"by clear and convincing evidence that [Paxton] was subjected to conduct that makes  



                                                                                                                    

him a child in need of aid.  That's because of the severe mental illness."  The court's  



                                                                                    

written findings are similarly succinct:  "There is clear and convincing evidence that the  



                                                                                                                               

child has been subjected to conduct or conditions described in AS 47.10.011(11).  The  



                                                                                   

court adopts herein the oral record of its findings . . . regarding the underlying bases of  



these findings in their entirety."  



                                                                                              

                     But Dara does not consider the underlying oral findings the superior court  



made  in  reaching  its  decision.    The  court  made  explicit  oral  findings  concerning  



                                                                                                    

Dara's September 2013 "suicide attempt [from] overdosing on . . . Adderall"; her May  



          18	        AS 47.10.011(11).  



          19        Barbara P. , 234  P.3d   at 1255 (citing K.N. v. State , 856 P.2d 468, 475  



(Alaska 1993);  V.S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth     

Servs., 45 P.3d 1198, 1206 n.22 (Alaska 2002)); see also Alyssa B. v. State, Dep't of                          

Health & Soc. Servs., Div. of Family & Youth Servs. , 165 P.3d 605, 618 (Alaska 2007)   

("Mental illness, absent related conduct, cannot be a basis for termination of parental  

rights." (alteration omitted) (quoting  V.S.B., 45 P.3d at 1206 n.22)).  



                                                               -25-	                                                         7288
  


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

                                                                                                             

2014 "totally unplugged, unhinged life move" to Wrangell "that reflects a delusional or  



                                                                                                            

an irrational impulsive thought pattern"; her November 2014 diagnoses by Dr. Truhn of  



persistent  depressive  disorder  and  anxiety  disorder;  her  December  2014  "verbally  



               

abusive" and "unrealistic demands" to spend time with Paxton on Christmas, symbolic  



of her general tendency to make unrealistic demands about visitation; and her January  



2015 "paranoid style" "identity theft" allegations relating to her mail.  



                    These  underlying  factual  findings  of  specific  conduct  are  sufficient  to  



                                                                                                              

support  the  superior  court's  finding  that  Paxton  is  a  child  in  need  of  aid  under  



AS  47.10.011(11),  especially  given  his  elevated  medical  needs.    For  example,  in  



Barbara  P.  v.  State,  Department  of  Health  &  Social  Services,  Office  of  Children's  



                                                     

Services we affirmed a termination finding under AS 47.10.011(11) because of evidence  



that  the  mother  "had  attempted  suicide  when  [the  child]  was  one  year  old";  might  



                                                                                      

"attempt  suicide  again"  "if  her  depression  remain[ed]  untreated";  had  "a  pattern  of  



                                                                                            

entering into relationships with abusive men with substance abuse problems"; and had  



                                                                                                                                20  

                                                                                              

"impact[ed] her ability to safely care for her children" by not treating her depression. 



                                                         

We similarly affirmed a termination finding under AS 47.10.011(11) in Alyssa B. v.  



                                                                                                            

State, Department of Health & Social Services, Division of Family & Youth Services  



                                         

because the superior court adequately linked evidence of the mother's mental illness and  



                                                                                      

other "actual conduct-based problems creating a risk of substantial harm" including a  

refusal to get psychological treatment.21  



          20        234 P.3d at 1255-56;             see also id. at 1255 ("[M]ental health issues had a  



'very  clear  ramification[]'  for  'her  ability  to  parent  .   .  .'  impacting  her  'day-to-day  

functioning and her judgment.' " (alteration in original)).  



          21        165 P.3d at 618-19.  



                                                              -26-                                                         7288
  


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

                                                                                                              

                              b.	       Substantial risk of physical harm or mental injury at the  

                                        time of trial finding not clearly erroneous  



                                    

                    Dara also argues that the superior court clearly erred by finding that she  



posed a substantial risk of physical harm or mental injury to Paxton at the time of the  



termination trial.  When reviewing factual findings we "ordinarily will not overturn a  

trial court's finding based on conflicting evidence,"22 and will not re-weigh evidence  



                                                                                                   23 

                                                                                                       It "is the function  

"when the record provides clear support for the trial court's ruling." 



of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting  



                24  

evidence."    In this admittedly close case, the court did not clearly err in its findings;  



"[m]erely because the superior court reached a different conclusion than [Dara] desired  



                                             25 

does not constitute legal error."                 As discussed above, the court identified manifestations  



                                                                               

of Dara's then-untreated mental illness - including "unhinged" life moves, continued  



                                               

paranoia, and suicidal ideation - that placed Paxton, a child with acute medical needs,  



at substantial risk of physical harm and mental injury at the time of trial unless Dara's  



                                                                                   

parental  rights  were  terminated.    Because  the  record  provides  clear  support  for  the  



superior court's ruling, Dara's argument is unavailing.   



                         

                    2.	       Reasonable efforts finding  



                                                                                                         

                    Dara argues that the superior court erred by finding OCS made reasonable  



          22	       Martin N. , 79 P.3d at 53.  



          23        See  D.M.  v.  State,  Div.  of  Family  &  Youth  Servs.,  995  P.2d  205,  214  



(Alaska  2000);  see  also  Barbara  P. ,  234  P.3d  at  1260  ("We  .  .  .  believe  that  the  

                                                                                                         

deference accorded to a superior court's factual findings is particularly appropriate in  

                                      

close cases.").  



          24  

                                                                                              

                    See In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001) (quoting  

Knutson v. Knutson , 973 P.2d 596, 599-600 (Alaska 1999)).  



          25  

                                                                    

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

Servs., 289 P.3d 924, 933 (Alaska 2012).  



                                                             -27-	                                                       7288
  


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

efforts to reunify the family.  She disputes the superior court's factual finding that she  



was uncooperative and unwilling to engage in treatment necessary for reunification.  



                       

Dara also contends that OCS's "failure to pursue critical mental health services in a  



                                                                                                                                 

prompt fashion," and its reliance on Oregon DHS to connect her with adequate mental  



                                     

health providers, render the superior court's reasonable efforts finding clearly erroneous.  



                                                                                                         

                            We disagree.  Although Dara claims the record shows she was cooperative  



and willing to engage in treatment, ample evidence presented at the termination trial  



suggests otherwise.  The court considered evidence that Dara did not acknowledge her  



                                                                                                                                                                

mental illness; that she missed her mental health and SSI appointments by moving to  



Wrangell; and that she "spent essentially the better part of her first year spinning her  



                         

wheels, not adequately engaging with mental health treatment."  Given this evidence, the  



court's  finding  that  Dara  was  uncooperative  with  OCS's  efforts  to  engage  her  in  



treatment was not clearly erroneous.  



                                                                        

                            Although  Dara  had  to  wait  six  months  to  begin  services  at  Anchorage  



                                                            

Community Mental Health, the existence of a waiting list or delay in the provision of  



                                                                                                                                                                  26 

                                                                                                                                                                       This is  

services does not automatically preclude a reasonable or active efforts finding. 



particularly true when, as here, OCS's reasonable efforts were frustrated or limited by  



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



Servs., 309 P.3d 850, 854, 857 (Alaska 2013) (affirming active efforts finding despite   

"little success [with obtaining treatment] other than to have [the parent's] name added   

to months-long waiting lists for several programs");                                                       E.A. v. State, Div. of Family & Youth  

Servs., 46 P.3d 986, 990-91 (Alaska 2002) (holding seven month lapse not fatal to active       

efforts finding where extensive other efforts were made and parent's evasive, combative                             

conduct made providing further services practically impossible).    Because the active  

efforts requirement is more stringent than reasonable efforts, cases concluding that active  

efforts were made are relevant in evaluating reasonable efforts.  Kylie L. v. State, Dep't  

                                        

of Health & Soc. Servs, Office of Children's Servs., 407 P.3d 442, 448 n.6 (Alaska 2017).  

                                    



                                                                                      -28-                                                                                 7288
  


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

                                                                                             27  

the parent's actions and unwillingness to engage in treatment.       We agree with the  



                       

superior  court  that  OCS's  efforts  were  timely  under  the  circumstances.    The  OCS  



caseworker quickly referred Dara for a psychological evaluation by Dr. Rose, referred  



         

Dara to a program equipped to address the severity of her mental illness, got her on the  



program's  "significant"  waiting  list,  and  made  an  appointment  with  the  program  to  



                                                                             

provide Dara with resources and information about medication management while she  



                                                                                                 

waited for an opening.  Moreover, OCS continued to support Dara in finding stability in  



the  interim.    Although  a  waiting  list  at  the  suitable  program  presented  unfortunate  



barriers to immediate treatment, OCS's efforts were on the whole timely and reasonable.  



The court's finding was not clearly erroneous in this regard.  



                    Finally, we are unpersuaded by Dara's argument that there was a lapse in  



reasonable efforts when she relocated to Oregon.  Dara asserts that "OCS should have  



exercised oversight designed to ensure the services satisfied OCS, not just Oregon DHS."  



                                                                                                                  28  

                                                                                                                      It was  

We note OCS is not required to duplicate the efforts of other service providers. 



                                             

not unreasonable for OCS to cede some responsibility to DHS to connect Dara with  



                                                                                                                    29  

mental health services when she abruptly left Alaska and relocated to Oregon.                                           And  



                                                                                             

DHS's efforts were successful; after initially taking custody of Dara's infant daughter,  



          27       See E.A., 46 P.3d at 991 ("We have consistently held that '[a] parent's  



demonstrated  lack  of  willingness  to  participate  in  treatment  may  be  considered  in  

                                                                                             

determining whether the state has taken active efforts.' " (alteration in original) (quoting  

                                                                                   

N.A. v. State, Div. of Family & Youth Servs., 19 P.3d 597, 603-04 (Alaska 2001))).  



          28  

                           

                   See Jude M. v. State, Dep't of Health & Soc. Servs., Office of Children's  

Servs.,  394  P.3d  543,  555  (Alaska  2017)  (observing  "[w]e  have  approved  superior  

courts' consideration of efforts made by outside entities" in active efforts analysis and  

holding "the rationale extends to services provided by others that OCS should not be  

required to duplicate").  



          29       See id. at 556.  



                                                            -29-                                                       7288
  


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

it provided assistance that led to her return to Dara's care.  



                                                                                                                 

                    The record nonetheless shows that OCS exercised a reasonable degree of  



                                                         

oversight while Dara was in Oregon.  OCS communicated Dara's case plan to Oregon  



                                                    

DHS, faxed the assessments by Dr. Rose and Dr. Truhn, and received updates regarding  



            

Dara's  progress.    Oregon  DHS  in  turn  referred  Dara  to  the  Center  for  Family  



                                                                             

Development, a program with psychiatrists on staff with whom OCS encouraged Dara  



                                                                                                          

to consult.  OCS conveyed to Dara and her Oregon providers its concern that she remain  



compliant with her prescribed psychotropic medication.  Dara's Oregon therapist was  



aware of OCS's recommendation and provided Dara with a list of psychiatrists who  



                                                                                                

would accept her insurance in the area.  These facts suggest OCS was involved at every  



level to ensure Dara's access to adequate mental health treatment while in Oregon.  



                                                                                                          

                   Moreover,  an  Oregon  DHS  representative  testified  that  DHS  adopted  



OCS's case plan and assigned workers to implement it.  DHS also spoke with Dara about  



her previous diagnoses and agreed with OCS that she required a "higher level of care,"  



possibly including medication.  DHS's deferential approach, described by the superior  



                                 

court  as  "Alaska  did  it,  then  Oregon  should  do  it,  too,"  further  cuts  against  Dara's  



argument that OCS did not sufficiently steer the out-of-state agency to provide services  



designed to satisfy Alaska's reunification requirements.  In light of the foregoing, we  



                                                                                         

conclude it was not clearly erroneous for the superior court to find OCS made reasonable  



efforts even while Dara was in Oregon.  



                   3.        Reasonable time to remedy finding  



                                                                                                          

                   Dara argues that the superior court clearly erred by finding she "was given  



                                                                    

a reasonable time to remedy."  Dara contends she was following her case plan, it would  



take less than a year for her to be ready for reunification, and there was no evidence  



                                                                           

suggesting Paxton would be harmed by continuing to live with Scarlet during that time.  



                                                            -30-                                                       7288
  


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

                   Alaska Statute 47.10.088(a)(2)(B) allows for termination of parental rights  

                                          



if the parent "has failed, within a reasonable time, to remedy the conduct or conditions  

                                                 



in the home that place the child at substantial risk of physical or mental injury."  We have  

                                 



"emphasize[d] that the [legislature] clearly put[] the criteria for 'reasonable time' in  

terms of the child's needs,"30 and we have indicated that what constitutes a reasonable  



                                                                         31  Failing to follow a case plan may  

time "is likely to be shorter  for younger children."                                                           

show that a parent did not remedy the situation,32 and even "completion of a case plan  

                

does not guarantee a finding that [a parent] has remedied [her] conduct."33  



                   The superior court did not clearly err in finding that Dara was given a  

                                                                                                                  



reasonable amount of time to remedy OCS's concerns.  Dara's case plan required her to  



                                                                                                       

engage fully in mental health treatment, and, contrary to her assertions, she failed to do  



                                                                                                       

so.    Dara  did  not  follow  her  case  plan  when  she  missed  her  mental  health  and  SSI  



                                                                   

appointments in May 2014, and her continued denial of any mental health issues, despite  



                                                                                                                   

evidence of paranoia and delusion shortly before trial in 2015, demonstrates that she had  



                                        34  

not  remedied  her  conduct.                  There  was  testimony  that  Dara  might  be  ready  for  



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



Servs., 254 P.3d 1095, 1108 (Alaska 2011).  



          31       See id. at 1107.  



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



Servs., 310 P.3d 943, 952 (Alaska 2013) ("A failure to comply with a case plan may  

constitute a failure to remedy." (citing Maisy W. v. State, Dep't of Health & Soc. Servs.,  

                                                                                                             

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



          33       Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's  



Servs., 234 P.3d 1245, 1260 (Alaska 2010) (citing V.S.B. v. State, Dep't of Health & Soc.  

Servs., Div. of Family & Youth Servs., 45 P.3d 1198, 1208 (Alaska 2002)).  



          34       See id.; Sherman B., 310 P.3d at 952.  



                                                           -31-                                                      7288
  


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

                                                                                                       

reunification within six months.  But we are unable to say it was clear error for the court  



                                             

to find that six months was an optimistic estimate for full reunification and that waiting  



                                     

six months to another full year was unreasonable from Paxton's perspective, given his  



                                                     

young age, acute medical needs, and bond with Scarlet, with whom he had already been  



                                     35  

                                                                                            

living for nearly a year.                 We conclude the court did not clearly err in finding that OCS  



had given Dara a reasonable time to remedy between the establishment of her case plan  



in November 2013 and the termination of her parental rights in June 2015.  



                     4.         Summary  



                                                                                                 

                     Because the superior court's findings to which Dara objects are not clearly  



                                                                                                                          

erroneous, all of the necessary findings for the termination of Dara's parental rights were  



made by the superior court.  We therefore affirm the termination order.  



           B.        The Reinstatement Of Dara's Parental Rights  



                     Resolving   OCS's   and   the   GAL's   appeal   of   the   superior   court's  



                                                                                                      

reinstatement order requires us to confront a number of issues.  We first will outline our  



                                                        

existing  case  law  giving  rise  to  a  parent's  right  to  a  conditional  post-termination  



reinstatement  hearing.    We  then  will  examine  relevant  statutory  changes  since  our  



original decision about reinstatement hearings.  After explaining why, despite some  



                                                                                                                        

statutory changes, our existing case law regarding reinstatement of parental rights retains  



                                        

vitality, we will address the appropriate substantive- and evidentiary-proof standards to  



apply at reinstatement hearings.  Finally, we will review the court's decision in this case  



in light of our holdings along the way.  



           35        See Christina J., 254 P.3d at 1107 ( "[T]he statute defines 'reasonable time'   



not as a specific number of months or by reference to parents' needs, but as 'a period of   

time that serves the best interests of the child, taking in account the affected child's age,         

emotional   and   developmental   needs,   and   ability   to   form   and    maintain   lasting  

attachments.' " (quoting AS 47.10.990(28))).  



                                                                  -32-                                                             7288
  


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

                   1.       Rita T. v. State and subsequent case law  



                            a.       Rita T.  



                   Our  1981 Rita T. v. State decision established a limited opportunity to  



                                                                                 36  

                                                                                     In Rita T. the superior court  

reinstate parental rights post-termination but pre-adoption. 

                                                             37   The mother requested a hearing to review  

had terminated the mother's parental rights.                      

that termination order, which "the superior court denied . . . without explanation."38  We  

                                                                      



reversed the superior court's decision, holding that "as long as a child remains the ward  

                                                                                         



of the court . . . natural parents are entitled to a review of the order terminating their  

                   

parental rights upon a showing of good cause for the hearing."39  



                   We began by examining former AS 47.10.080(f), which then, in relevant  



part, governed periodic superior court review of certain disposition orders relating to  



children in need of aid:  



                   A minor found to be . . . a child in need of aid is a ward of the  

                                                                              

                   state as long as he is committed to the department (of health  

                                                                          

                   and  social  services)  or  the  department  has  the  power  to  

                   supervise his actions.  The court shall review an order made  

                   under  .  .  .  (c)(1)  or  (2)  of  this  section  annually,  and  may  

                   review the order more frequently to determine if continued  

                   placement, probation, or supervision, as it is being provided,  

                                                   

                   is  in  the  best  interest  of  the  minor  and  the  public.    The  

                                                                                     

                   department,  the  minor,  the  minor's  parents,  guardian,  or  

                   custodian are entitled, when good cause is shown, to a review  



         36        623 P.2d 344, 346-47 (Alaska 1981).  



         37        Id. at 345 (citing In re C.L.T. , 597 P.2d 518 (Alaska 1979)).  



         38        Id. at 346.  



         39        Id. at 347.  



                                                          -33-                                                     7288
  


----------------------- Page 34-----------------------

                                          [40] 

                    on application.  



                                                                                                        

                                                                                                           

                    We explained that "[i]t is clear that [termination] orders . . . are not entitled  



                                              

to automatic review, inasmuch as subsection (f) specifies which orders are entitled to this  



                                                                                                              41  

                                                                                                                    But  we  

review  and  [termination]  orders  .  .  .  are  not  included  within  the  list." 



nonetheless held that termination orders conditionally could be reviewed upon request.  



Our examination of the underlying public policy and purposes of Title 47, the CINA  



                                                          42  

                                                                             

statutes, "convince[d] us" of this result.                    We held that even termination orders would  



                                                                                     

be subject to review upon request if the "interested party . . . establishes good cause . . .  

and if the child is still a ward of the court."43  



          40       Id.  at  346  (quoting  former  AS  47.10.080(f)  (1980)).    The   reference  to  



reviews for "an order made under . . . (c)(1) or (c)(2) of t  his section" referred to orders  

committing children in need of aid to state custody for appropriate placement ((c)(1)),  

or to a parent or suitable person under state supervision ((c)(2)).  Id. at 346 & n.2.  



          41       Id. at 346.  



          42       Id.   



          43       Id.    Termination  orders  were  referenced  in  former  AS  47.10.080(c)(3)  



(1980).  



                    Although not mentioned in Rita T. , language in the then-current statute  

providing continuing court jurisdiction over a child in need of aid was consistent with  

                                                                                                   

our view of review hearings under former AS 47.10.080(f):  



                             (a) The court retains jurisdiction over the case and may  

                                                                                                 

                    at  any  time  stay  execution,  modify,  set  aside,  revoke,  or  

                    enlarge a judgment or order, or grant a new hearing, in the  

                                                                             

                    exercise of its power of protection over the minor and for his  

                                         

                    best interest, for a period of time not to exceed two years or  

                    in  any  event  extend  past  the  day  the  minor  becomes  19,  

                               

                    unless  sooner  discharged  by  the  court,  except  that  the  

                    department  may  apply  for  and  the  court  may  grant  an  

                                                                                                           (continued...)  



                                                             -34-                                                       7288
  


----------------------- Page 35-----------------------

                                                                                                    

                   Our     public     policy     and     purpose       discussion       derived      from      former  



AS 47.05.060:  



                   The purpose of this title as it relates to children is to secure  

                                                    

                   for each child the care and guidance, preferably in his own  

                  home,  that  will  serve  the  moral,  emotional,  mental,  and  

                  physical  welfare  of  the  child  and  the  best  interests  of  the  

                   community; to preserve and strengthen the child's family ties  

                  whenever possible, removing him from the custody of his  

                  parents only as a last resort when his welfare or safety or the  

                  protection of the public cannot be adequately safeguarded  

                  without removal; and, when the child is removed from his  

                                                                                           [44] 

                   family, to secure for him adequate custody and care.  



We then explained:  



                            We      believe      that    an    interpretation        of    [former  

                  AS 47.10.080](f) which permits the review of an order that  

                  terminates  parental  rights  is  most  consonant  with  these  

                  purposes because it provides an opportunity for the child to  



         43	       (...continued)  



                   additional  one-year   period  of  supervision  past  age  19  if  

                   continued supervision is in the best interests of the person  

                   and the person consents to it.  An application for any of these  

                                                                 

                  purposes may be made by the parent, guardian, or custodian  

                                                             

                   acting in behalf of the minor, or the court may, on its own  

                                                                                            

                   motion, and after reasonable notice to interested parties and  

                                                                      

                   the appropriate department, take action which it considers  

                   appropriate.  



                            (b) If the court determines at a rehearing that it is for  

                                                                                                

                   the best interests of the minor to be released to the care or  

                                

                   custody of the minor's parent, guardian, or custodian, it may  

                                                              

                   enter an order to that effect and the minor is discharged from  

                                                                    

                   the control of the department.  



Former AS 47.10.100(a)-(b) (1977) (emphasis added).  



         44       Rita T. , 623 P.2d at 346 (quoting former AS 47.05.060 (1980)).  



                                                         -35-	                                                   7288
  


----------------------- Page 36-----------------------

                    resume  living  with   his  or  her  parents  when  the  parents  

                    become capable of providing "adequate custody and care" for  

                    the child.  While it may not be true of all, some parents are  

                    capable  of  changing  and  overcoming  the  problems  that  

                                                      

                    caused the termination of their parental rights.  For those who  

                    can now provide the care and guidance "that will serve the  

                    moral, emotional, mental and physical welfare of the child,"  

                                                                                           

                    good  cause  exists  for  reviewing  the  order  that  terminated  

                                                                        

                    their parental rights.  Many children who become wards of  

                    the court when their parents' rights are terminated are not  

                    adopted  and  they   therefore  remain  wards  of  the  court  

                                                  

                    throughout  their  minority.    Permitting  a  renewal  of  the  

                    relationship between the child and his parents if the child is  

                                                                          

                    still a ward of the court and the parents have undergone a  

                    substantial rehabilitation fulfills the purposes of [T]itle 47 as  

                                                                                             

                    much, if not more, than permitting the child to spend his or  

                                   

                                                                                                 [45] 

                    her entire minority in a succession of foster homes.  



                                                                                                            

We  clarified  that  this  holding  "[did]  not  conflict"  with  the  statutory  requirement  to  



                                                                                             

"attempt to find a permanent placement for the child when  the parental rights of his  



                                                          46  

                                                              And we stated that "[o]nce the child has been  

natural parents have been terminated." 



adopted, he or she is no longer a ward of the court and the natural parents cannot seek  



                                                                                     47  

review of the order that terminated their parental rights."                                



                                                                       

                    We "conclude[d] that as long as the child remains the ward of the court,  



                                                                                             

under [former] AS 47.10.080(f) his or her natural parents are entitled to a review of the  



                                                                                                                                48  

                                                                                                             

order terminating their parental rights upon a showing of good cause for the hearing." 



                                                                                                                   

We noted that "[g]ood cause could be established if the parents showed that it would be  



          45        Id. at 347 (citation omitted) (quoting former AS 47.05.060).  



          46        Id. (citing former AS 47.10.080(c)(3)).  



          47        Id.  



          48        Id.  



                                                              -36-                                                         7288
  


----------------------- Page 37-----------------------

                                                                                      

in the best interests of the child to resume living with them because they have sufficiently  



                                                          

rehabilitated  themselves  so  that  they  can  provide  proper  guidance  and  care  for  the  



          49  

                                                                  

child."       Turning to the facts of Rita T. , we held that the mother had made "a sufficient  



showing of good cause to entitle her to a review of the order terminating her parental  



                                                                       50  

rights if [her child] ha[d] not yet been adopted."                         



                              b.       Nada A.  



                                                                                                          

                    In Nada A. v. State we considered the State's argument that allowing a  



                                                                                        51  

                                                                                              The  superior  court  had  

Rita  T.  review  violates  a  minor's  equal  protection  rights. 



                                                                 

terminated a mother's parental rights, but it also had ordered that, in the event of changed  



circumstances, the mother could seek reconsideration of the termination any time before  



                                 52 

                                                                                                     

the child was adopted.               The mother appealed the termination order, and the State cross- 

appealed the order allowing the mother to seek reconsideration of the termination order.53  



                                                                                        

                    The State based its equal protection argument on a claim that children have  



                                                                                                         

constitutional rights to permanent, adequate homes, and that allowing some children's  



          49        Id.  



          50        Id.   We  expressly noted that when the mother in Rita T. had applied for her  



review  hearing, adoption  proceedings  already had commenced.  Id.  at  347 n.6.  We stated  

that if a final adoption decree already had been entered by the time of our decision, the  

review hearing request should be denied.  Id.   But in a later case we stated, without  

                                                                        

citation, that in Rita T. we interpreted former AS 47.10.080(f) to permit "any natural  

parent to stay adoption proceedings upon a showing of good cause."  Nada A. v. State ,  

                                    

660 P.2d 436, 441 (Alaska 1983), superseded by statute on other grounds, Ch. 99,  1,  

                                                                                                                     

18, SLA 1998, as recognized in David S. v. State, Dep't of Health & Soc. Servs., Office  

                                                                                                             

of Children's Servs., 270 P.3d 767, 776 & n.20 (Alaska 2012).  



          51        660 P.2d at 441.  



          52        Id. at 437.  



          53        Id. at 437, 441.  



                                                             -37-                                                        7288
  


----------------------- Page 38-----------------------

parents to seek review of their termination orders, but not others, leads to disparate  

treatment of children in this context.54  Asserting "that the issuance of a termination order  



                                                                                                   

[should] overcome[] the statutory presumption in favor of a natural parent's fitness," the  



                             

State  asked  us  to  overrule  or  modify  Rita  T.  because  it  "undermines  finality  by  

                                            55    The  State  proposed  that  courts  consider  "the  best  

resurrecting  this  preference."       



interests of the child (as determined in a neutral adoption process), rather than parental  

                                     

rehabilitation alone."56  



                    We stated we would adhere to Rita T. 's "good cause" formulation57 and  



rejected the State's finality and equal protection arguments, explaining:  



                    Termination of parental rights is a drastic measure resulting  

                                                                     

                    in severance of all legal ties between the child and parent.  

                        

                    The revocability of termination orders up until the time of  

                    adoption is a necessary compromise between the desire for  

                                                                                              

                    finality and the desire to avoid unnecessary interference by  

                    the  state  in  the  natural  parent-child  relationship.    Rita  T.  

                    recognizes, and seeks to accommodate, the inherent potential  

                    for    fallibility      in    judicial      determinations           based      upon  

                    predictions of human behavior with respect to the likelihood  

                    of continued parental misconduct. The subsequent review of  

                                                                              

                    termination orders permitted by that decision cannot be said  

                                                                                        

                    to  deny  equal  protection  to  .  .  .  other  children  similarly  

                        

                                                                        [58] 

                    situated who are awaiting adoption.  



          54       Id. at 441 n.5.  



          55       Id. at 441.  



          56       Id.  



          57       Id.  



          58       Id.  



                                                             -38-                                                       7288
  


----------------------- Page 39-----------------------

                              c.        Alden H.  



                                                                                                           

                    Over two decades later we assumed without deciding that a father who had  



voluntarily relinquished his parental rights could seek a Rita T. hearing, and we then  



decided the superior court had not abused its discretion by determining the father had  



                                                          59  

                                                                            

failed to show good cause for a hearing.                      We first noted OCS's misplaced "concern that  



                                                                                                   60  

Rita T. reflects an anachronistic emphasis on family reunification."                                    We explained that  



                                                                                                            

"Rita T. does not privilege a parent's desire to regain custody over the best interests of  



                                    

the  child"  because  "a  Rita  T.  hearing  requires  a  parent  to  show  both  that  she  is  



rehabilitated and that she is currently capable of providing 'the care and guidance "that  

will serve the moral, emotional, mental and physical welfare of the child." ' "61  



                    We then made clear that "it is not only appropriate but necessary for a court  



                                                                                                              62  

to consider the needs of the child who is the subject of a Rita T. motion."                                        The needs  



of the child play a determinative role in whether a putatively rehabilitated parent can  



                

"provide  the  care  and  guidance  'that  will  serve  the  moral,  emotional,  mental[,]  and  



                                                                                                                                63  

                               

physical welfare of the child,' " i.e., whether there is good cause for a Rita T. hearing. 



                                                                                                                    

In light of  the weak evidence of the father's rehabilitation, the child's special needs, and  



                                                                                         

the father's failure to demonstrate a capability of providing for those needs, we affirmed  



          59        Alden H. v. State, Office of Children's Servs. , 108 P.3d 224, 231 (Alaska  



2005).  



          60        Id. at 231 n.21.  



          61        Id. (emphasis added) (quoting Rita T. v. State , 623 P.2d 344, 347 (Alaska                   



1981)).  



          62        Id. at 232.  



          63        Id. (quoting Rita T. , 623 P.2d at 347 (quoting AS 47.05.060)).  



                                                              -39-                                                         7288
  


----------------------- Page 40-----------------------

the superior court's denial of a Rita T. hearing.64  



                    2.       Post-Rita T. statute changes  

                    Alaska Statute 47.10.080(f) was amended in 1998,65 replacing references  



                                                                                                        

to review hearings with references to permanency hearings required after a child has  



                                                         66  

                                                                                                      

been in state custody for a certain time.                    This change seems to have been prompted by  



          64       Id. at 233.  



          65        Ch. 99,  26, SLA 1998.  



          66        See AS 47.10.080(f):  



                    A child found to be a child in need of aid is a ward of the  

                                               

                    state while committed to the department or the department  

                    has the power to supervise the child's actions.  For an order  

                                                                                          

                    made  under  (c)(1)  of  this  section,  the  court  shall  hold  a  

                                                                          

                    permanency hearing as required by (l) of this section and at  

                    least annually thereafter during the continuation of foster care  

                                                                                          

                    to determine if continued placement, as it is being provided,  

                                                                                  

                    is in the best interest of the child.  The department, the child,  

                                                                      

                    and the child's parents, guardian, and guardian ad litem are  

                    entitled, when good cause is shown, to a permanency hearing  

                                                                         

                    on application. . . . After the permanency hearing, the court  

                         

                    shall make the written findings that are required under (l) of  

                    this section.  The court shall review an order made under  

                    (c)(2)  of  this  section  at  least  annually  to  determine  if  

                                                                     

                    continued supervision, as it is being provided, is in the best  

                    interest  of  the  child;  this  review  is  not  considered  to  be  a  

                    permanency hearing and is not governed by the provisions of  

                    this subsection that relate to permanency hearings.  



See also 47.10.080(l) (providing that a permanency hearing shall be held "[w]ithin 12  

                                                                                                             

months after the date a child enters foster care"); 47.10.088(f) (defining entry into foster  

                                                                         

care on earlier of (1) date of first judicial filing of child abuse or neglect or (2) 60 days  

                                                                                                                

after removal of child from child's home).  



                    The reference in AS 47.10.080(f) to permanency hearings for "an order  

                                                                                                           (continued...)  



                                                             -40-                                                       7288
  


----------------------- Page 41-----------------------

                                                                                         

a then-new federal requirement that permanency hearings - designed to reach decisions  

regarding permanent placements of children in need of aid67 - be held at least every 12  



                                                    68  

months for a child in state custody.                     



                    The significant change driven by the statutory amendment is reflected by  



                                                                                                         

the subsequent change in our Child In Need of Aid rules.  Prior to the amendment, the  



                                                                                                             

relevant rule provided for annual reviews of disposition orders -  with  or without a  



                                                                                             

hearing - and required findings focused on why the child was removed from the home,  



what efforts had been made to facilitate the child's return to the home, and when the  



                                                            69  

                                                                                                 

child was expected to return to the home.                      After the amendment, the rules provided for  



                                                              

both annual reviews of disposition orders releasing a child to a parent or suitable person  



                                     70  

                                                                                               

under  state  supervision,               and,  for  a  child  in  state  custody,  permanency  hearings  



evaluating   the   appropriateness   of   the   child's   foster   placement   and   establishing  



          66        (...continued)  



made under (c)(1) of this section" continues to refer to an order committing a child in  

                                                                                                                     

need  of  aid  to  state  custody  for  appropriate  placement.    AS  47.10.080(c)(1).    The  

reference to "an order made under (c)(2) of this section" continues to refer to an order  

releasing a child in need of aid to a parent or suitable person under state supervision.  

                                                                                                      

AS 47.10.080(c)(2).  (Recall that Rita T.  had  interpreted former AS 47.10.080(f) to  

                                                                      

implicitly  provide  potential  review  hearings  of  termination  orders  under  former  

AS 47.10.080(c)(3).  Rita T. , 623 P.2d at 347.)  



          67        See AS 47.10.990(27) (defining "permanency hearing" as designed for this  



purpose); CINA Rule 17.2(a) (stating purpose of hearing is "to establish a permanency  

plan for each child committed to state custody").  



          68  

                                         

                    See Adoption & Safe Families Act of 1997, 42 U.S.C.  675(5)(c) (2012).  



          69        See former CINA Rule 19 (1987).  



          70        CINA  Rule  19  amended   by   Alaska   Supreme   Court   Order   No.  1355  



(July 15, 1999) (providing reviews for children under state supervision pursuant to (c)(2)  

orders); see also Ch. 99,  75, SLA 1998.  



                                                             -41-                                                       7288
  


----------------------- Page 42-----------------------

permanency plans for the child.71  



                  In  2005  the  legislature  enacted  AS  47.10.089,  regarding  the  voluntary  



                                             72  

                                                 Subsection (h) provides a  Rita T.-like review hearing  

relinquishment of parental rights. 



for  a  parent  voluntarily  relinquishing  parental  rights,  and   it   sets  out  the  required  



evidentiary and substantive standards for setting aside a subsequent termination order:  



                  After a termination order is entered and before the entry of an  

                  adoption   or   legal   guardianship    decree,   a   person   who  

                  voluntarily relinquished parental rights to a child under this  

                  section  may  request  a  review  hearing,  upon  a  showing  of  

                              

                  good  cause,  to  vacate  the  termination  order  and  reinstate  

                  parental rights relating to that child.  A court shall vacate a  

                                                                          

                  termination   order   if   the   person   shows,   by   clear   and  

                                                                    

                  convincing evidence, that reinstatement of parental rights is  

                  in  the  best  interest  of  the  child  and  that  the  person  is  

                  rehabilitated and capable of providing the care and guidance  

                  that  will  serve  the  moral,  emotional,  mental,  and  physical  

                                              [73] 

                  welfare of the child.  



Alaska  Statute  47.10.089(h)  was  enacted  during  the  legislative  session  when  our  



                                

Alden H. decision was issued and we noted that it was an open question whether a parent  



who voluntarily relinquished parental rights was entitled to request a Rita T. review  

hearing.74  



         71       CINA  Rule  17.2  enacted  by  Alaska  Supreme  Court  Order  No.  1355  



(July 15, 1999).  



         72       Ch. 64,  17, SLA 2005.  



         73       AS 47.10.089(h).  



         74       See  Alden  H.  v.  State,  Office  of  Children's  Servs.,  108  P.3d  224,  231  



(Alaska  2005)  (noting  in  March  2005  "[w]e  have  never  decided  whether  the  right  

announced in Rita T. is available to parents who voluntarily relinquish their parental  

rights . . . and we need not address this issue here"); Ch. 64,  17, SLA 2005 (effective  

                                                                                                    (continued...)  



                                                        -42-                                                   7288
  


----------------------- Page 43-----------------------

                   Finally, in 2012 the legislature added a statutory presumption, found at  



AS  47.10.080(w),  regarding  sibling  relationships:    "The  court  shall  recognize  a  



presumption that maintenance of a sibling relationship, including with a sibling who is  



                                                                                                                          75  

                                           

related by blood, marriage, or adoption through one parent, is in a child's best interest." 



                   3.        Rita T. 's continued validity  



                   At  oral  argument  before  us,  OCS  represented  that  it  has  agreed  to  



reinstatement of parental rights in some cases after those rights have been terminated,  



and that reinstatement of parental rights sometimes can be in the best interests of a child  



                                   

in OCS custody.  OCS, joined by the GAL, nonetheless in its briefing attacked Rita T. 's  



                                    

statutory underpinning, arguing that "[a]ssuming Rita T.  remains viable," we should  



                                                                                                        

preclude its applicability when a child is in an adoptive placement.  The GAL drew the  



line on Rita T. 's possible application at what it described as permanent placement rather  



than adoptive placement.  



                                                                                                     

                   In their briefing to us, neither OCS nor the GAL sought outright reversal  



                                                                                              

of Rita T. , and they did not argue that Rita T. was wrong when initially decided.  Put  



more  directly,  they  did  not  argue  that  it  was  originally  wrong  to  interpret  former  



                                                                                                             

AS  47.10.080(f)  to  allow  a  parent  the  right  to  request  that  the  court  review  an  



AS  47.10.080(c)(3)  termination  order  and  consider  reinstatement  of  parental  rights.  



OCS's focus instead is on the legislative change to AS 47.10.080(f) -  the original  



                                                                                                          

statutory underpinning for Rita T. - which eliminated "review hearings" and instituted  



          74       (...continued)  



June 30, 2005).  



          75       See Ch. 59,  4, SLA 2012 (establishing the new presumption).  



                                                           -43-                                                      7288
  


----------------------- Page 44-----------------------

                                    76  

"permanency hearings."                  



                                                                                     

                    OCS argues that permanency hearings  are  held for all children in state  



                                                                                                         

custody and do not involve reconsidering finalized termination orders. OCS also argues  



that  permanency  hearings  do  not  involve  parents  whose  parental  rights  have  been  



                                                                                                         77  

terminated because they no longer are "parents" under our court rules.                                       OCS finally  



                                

argues that if Rita T. remains viable based on the modified version of AS 47.10.080(f),  



                                                                       

then courts handling permanency hearings for children whose parents have had their  



parental rights terminated must consider reinstatement at every one of those hearings.  



OCS protests too much.  



                                                                            

                    The modification to AS 47.10.080(f) regarding permanency hearings did  



                                                                                                    

not create the sudden statutory void advanced by OCS.  Under the modified provision  



courts  must  at  some  point  hold  permanency  hearings  regarding  AS  47.10.08(c)(1)  

disposition orders,78 just like courts previously were required to conduct reviews of those  



                            79  

disposition  orders.              Parents  can  apply,  with  good  cause  shown,  for  permanency  

hearings regarding those disposition orders,80 just like parents previously were able to  



          76        See infra notes 78, 79, 80, 81 and accompanying text.  



          77        In 1999 we amended the definition of "parent" in our Child In Need of Aid  



Rules of Procedure to mean "a biological or adoptive parent whose parental rights have  

                                                                                                                

not  been  terminated."    CINA  Rule  2(k)  amended  by  Alaska  Supreme  Court  Order  

                                                                                   

No. 1355 (July 15, 1999).  



          78        See AS 47.10.080(f), (l).  



          79  

                                                                                                            

                    See former AS 47.10.080(f) (1980) ("The court shall review an order made  

under . . . (c)(1) or (2) of this section annually . . . .").  



          80        See AS 47.10.080(f) ("The department, the child, and the child's parents  



                                          

. . . are entitled, when good cause is shown, to a permanency hearing on application.").  



                                                             -44-                                                       7288
  


----------------------- Page 45-----------------------

                                                                81  

                                                                                                  

request reviews of those disposition orders.                       Continued reliance on AS 47.10.080(f) for  



                                                              

the right of parents to apply for hearings regarding termination orders - just as parents  



could previously ask for hearings regarding termination orders under AS 47.10.080(c)(3)  



      

                                                                      

- fits just as well, if not better, with the label "permanency hearing" as it does with the  



label "review hearing."  



                                                                                                                          82 

                                                                                                                             and  

                    The focus of a permanency hearing is a permanency plan for a child, 



the  focus  of  Rita  T.  is  a  pathway  to  permanency  for  a  child  through  possible  



                           

reinstatement of parental rights and return of the child to the parent.  If - as OCS  



                                                                                                   

represented at oral argument - OCS actively works with some parents to have their  



                                                                                        

parental rights reinstated, it presumably is in the context of post-termination permanency  



                           83  

                                                                                                                      

plans or hearings.             Because Paxton is in a foster care placement, we know this case  



                                84  

                                                                                                         

involves that context.              A Rita T. hearing request therefore generally should arise only  



                       

when a parent and OCS engage in post-termination permanency discussions and OCS,  



                                                                                                                           

in its discretion, rejects the parent's proposal for reinstatement of parental rights.  And  



          81        See former AS 47.10.080(f)  (1980)  ("The department, the minor, [and] the  



minor's parents . .    .  are entitled,  when good  cause is shown, t  o a review  on application.").  



          82        See CINA Rule 17.2(a).  



          83        See AS 47.10.080; CINA Rule 17.2.  



          84        See AS 47.10.088(f) (providing "[a] child is considered to have entered  



foster care" upon the earlier of "the date of the first judicial finding of child abuse or  

neglect" or "60 days after the date of removal of  the  child  from  the  child's  home").  We  

note that foster care  placement  generally implies  that  the  child is temporarily in a "home  

with a person or persons who provide parental care for th                           e c   hild," a   s Paxton is here.  See  

Foster-Care Placement , B                                                                               

                                       LACK 'S LAW DICTIONARY (10th ed. 2014); AS 47.10.990(25)  

                                                                                       

(defining "out-of-home care provider" as "a foster parent or relative other than a parent  

                                                                                          

with whom the child is placed"). Although we use the term "foster care placement," we  

                                                     

wish to clarify this holding applies to children in out-of-home placements more broadly.  



                                                              -45-                                                         7288
  


----------------------- Page 46-----------------------

a  Rita  T.  hearing,  then,  essentially  would  focus  on  a  contested  permanency  plan.85  



                                                                                                      

Absent a Rita T.  hearing, the reinstatement decision would be left entirely to OCS's  



discretion.  This certainly would be inconsistent with the legislature's creation of a Rita  



                                                                                                    

T.-like process for parents who voluntarily relinquish their parental rights and later seek  



                                                                          86  

to set aside the termination of their parental rights.                        And it would be ironic if, after the  



                                                                                                        

legislature apparently enacted AS 47.10.089(h) to ensure Rita T. parity for parents whose  



parental rights are voluntarily and involuntarily terminated, an actual disparity arose  



                                                                                              

because the legislature eliminated the Rita T. process for those parents whose rights are  



involuntarily terminated when it amended AS 47.10.080(f), even though OCS concedes  



there is no clear reason to believe the legislature intended such action.  



                                                                                 

                    We emphasize that maintaining parents' rights to ask for Rita T. hearings  



does  not  mean  that  courts  must,  on  their  own,  consider  reinstatement  at  every  



                    

permanency hearing involving children whose parents have had their parental rights  



                 87  

terminated.    Rita T. did not in any way direct or otherwise suggest that courts had to  



          85        We wish to make clear that we are not suggesting parents whose parental  



rights have been terminated necessarily are, in the normal course, parties to permanency  

plans and hearings.  The context of our discussion must be understood to involve parents  

                                                                          

whose parental rights have been terminated but who have reappeared for the purpose of  

                                  

seeking relief.   



          86  

                                                                                

                    See AS 47.10.089(h) ("[A] person who voluntarily relinquished parental  

rights to a child under this section may request a review hearing, upon a showing of good  

cause, to vacate the termination order and reinstate parental rights . . . .").  



          87        OCS's  reliance  on  our  court  rule  defining  "parent"  as  a  parent  whose  



parental rights have not been terminated cannot help OCS in this context.  Our rules are  

                                     

procedural; they do not override statutes.  For example, under AS 47.10.080(i) "the  

                                                                                       

child's parents" may appeal from an order terminating their parental rights:  



                    A child or the child's parents, guardian, or guardian ad litem,  

                                                    

                                                                                                            (continued...)  



                                                             -46-                                                        7288
  


----------------------- Page 47-----------------------

                                                                                                        88  

                                                                                              

consider reviewing termination decisions absent a request by a parent.                                      Nor do we  



direct or suggest such a thing today.  



                   We reiterate that, although it was not mentioned in our Rita T. decision and  



the parties do not discuss it in their briefing, AS 47.10.100(a) continues seemingly to  



                                                              

                                                                                                        

provide express statutory authority for the superior court to stay, grant a new hearing, or  



set aside a parental rights termination judgment, upon a parent's application:  



                                                                                   

                   The court retains jurisdiction over the case and may at any  

                                                                                            

                   time stay execution, modify, set aside, revoke, or enlarge a  

                                                                                  

                   judgment or order, or grant a new hearing, in the exercise of  

                   its power of protection over the child and for the child's best  

                   interest . . . .  An application for any of these purposes may  

                                                                                     

                   be made by the parent, guardian, or custodian acting in behalf  

                   of the child, or the court may, on its own motion, and after  

                   reasonable  notice  to  interested  parties  and  the  appropriate  

                   department,         take     action     that    it   considers       appropriate.  

                   (Emphasis added.)  



With  this  authority,  we  can  think  of  no  better  overall  context  for  reevaluating  a  

                                



termination decision and considering reinstatement of parental rights than a permanency  

                                                                                          



hearing.  



          87	      (...continued)  



                   or attorney, acting on the child's behalf, or the department  

                   may appeal a judgment or order, or the stay, modification,  

                   setting aside, revocation, or enlargement of a judgment or  

                   order issued by the court under this chapter.  



 If our court rules overrode this statutory directive regarding who can appeal from court  

                           

orders, then Dara had no right to appeal the order terminating her parental rights.  OCS's  

argument has no merit.  



          88       See   623  P.2d  344,  346  (Alaska  1981)  (distinguishing  between  orders  



entitled to automatic review and orders reviewed upon application).  



                                                           -47-	                                                     7288
  


----------------------- Page 48-----------------------

                    We finally note that the relevant Rita T.  public policy - that of preferably  

maintaining children in their homes and strengthening family ties whenever possible89  



                                                                                           

-  has  not  gone  away  in  the  intervening  years.                        In  1990  the  legislature  modified  



AS 47.05.060, but it maintained the statutory purpose of securing "for each child the care  



                                                                                                     

and guidance, preferably in the child's own home, that will serve" the child's welfare and  



                                              90  

                                                  The legislature also maintained the statutory purpose  

the community's best interests. 



                                                                                  

of preserving and strengthening family ties, although it expressly conditioned that upon  



                        

the child's best interests, as follows:  "unless efforts to preserve and strengthen the ties  



                                                                                                 91  

                                                                                                     The legislature in  

are likely to result in physical or emotional damage to the child." 



1998 added a specific best interests consideration - "the potential harm to the child  

                                                                            



caused by removal of the child from the home and family environment" - in disposition  

                                                                                                        

orders under AS 47.10.080(c).92   And in 2005 the legislature modified AS 47.10.005, in  

                                                                                         



relevant part, to clarify that statutes in AS 47.10  - the CINA statutes - "shall be  

                                                                            



liberally construed" so a child in need of aid may receive the care, guidance, treatment,  

                                                                                           



and  control  promoting  "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."93  

                                             



In sum, although now expressly subject to the child's best interests, the legislature's  



preference for parental participation in the upbringing of their children in the home has  

                                                                                     



not wavered.  



          89        See id. (quoting former AS 47.05.060 (1980)).  



          90        Ch. 29,  2, SLA 1990; see also AS 47.05.060 (1990).  



          91        Ch. 29,  2, SLA 1990; see also AS 47.05.060 (1990).  



          92        Ch. 99,  31, SLA 1998; see also AS 47.10.082(3).  



          93        Ch. 64,  6, SLA 2005 (emphasis added).  



                                                             -48-                                                       7288
  


----------------------- Page 49-----------------------

                    With  the  foregoing  in  mind,  what  of  OCS's  putative  challenge  to  the  



                                                      

continuing vitality of Rita T.?  We could start and stop with the obvious point that OCS  



                                                                                                                   

did not ask us to overrule Rita T.  OCS's primary concern seems to be that because we  



                                                                                     

have  not  had  occasion  to  address  the  substance  of  a  Rita  T.  hearing  and  neither  a  



"review"  under  former  AS  47.10.080(f)  nor  a  "permanency  hearing"  under  current  



AS 47.10.080(f) contemplates the substance of a Rita T. hearing, it is unclear when and  



                                                                                                                        

how Rita T. should apply.  OCS's concern is real, and we will address it below.  But that  



concern is untethered to the continuing vitality of Rita T.  



                                                                  

                    We reject OCS's suggestion that there is no statutory underpinning for a  



                              

Rita  T.  hearing.           OCS  does  not  challenge  Rita  T. 's  original  premise  that  former  



                                                                                                        

AS 47.10.080(f) implicitly provided a parent the right to seek review of a parental rights  



termination order under AS 47.10.080(c)(3).  OCS's primary argument, that the statutory  



change  from  "reviews"  to  "permanency  hearings"  eviscerates  our  interpretation  of  



AS 47.10.080(f), is unpersuasive.  And AS 47.10.100(a) provides an express grant of  



                                                                                                        

authority to the court to stay, grant a new hearing, modify, or set aside any order or  



                             

judgment entered in a CINA matter - upon application by, among others, a parent -  



                                     

which does not exclude termination orders.  A Rita T. hearing fits comfortably within the  



                                                                                               

statutory framework of AS 47.10.100(a) and AS 47.10.080(f).  This conclusion remains  



                                                                                 

true to the public policy articulated in Rita T. and the legislative purpose of the Title 47  



                                                                                       

statutes regarding children.  If it might ultimately be in a child's best interests to be with  



parents in the family home - assuming the parents are fit parents and not a danger to the  



                                                                              

child - then the CINA statutes should be liberally construed to provide an opportunity  



                                                                                        

for  parents  to  demonstrate  everything  necessary  to  set  aside  a  prior  termination  of  



parental rights and to obtain reinstatement of those rights.  



                    Having concluded that the Rita T. hearing process remains viable, we next  



                                                                  

confront the GAL's and OCS's arguments that a parent should not be allowed to apply  



                                                               -49-                                                        7288
  


----------------------- Page 50-----------------------

for  a  Rita  T.  hearing  if  a  child  is  in  a  "permanent"  placement,  a  "pre-adoptive  



                    

placement," or an "adoptive placement."  The fundamental flaw in those arguments is  



                 

that those placements are simply foster placements with descriptive labels apparently  



                                                            

intended to convey meanings beyond foster placements.  Neither OCS nor the GAL  



                                                                                                            

supplies statutory or other definitions suggesting otherwise.  We find it only logical that  



                     

a  child  is  in  foster  care  placement  until  adoption,  or  perhaps  legal  guardianship,  is  



completed and permanency is actually achieved.  Defining some attempted out-of-home  



                                                                                          

placements as "permanent," "pre-adoptive," or "adoptive" would render the definition  



                                                                                            

of true permanency meaningless, and the GAL's and OCS's arguments are better suited  



to the best interests analysis, discussed below.  Consistent with the legislature's view  



                                                                                                     

when  it  enacted  its  Rita  T.-like  provision  for  parents  who  had  executed  voluntary  

relinquishments,94 we believe that actual adoption or legal guardianship is the correct  



place to draw the line.  



                                                                 

                    The more difficult, and more practical, problem arises when a parent seeks  



                                                                                                     

to stay an adoption pending Rita T.  proceedings.   We leave this issue to the capable  



hands of our superior court judges.  Such a judge generally will:  (1) have presided over  



                                                                                                                 

the termination trial and be familiar with the family and all of the relevant child in need  



                                    

of aid issues, past and present; (2) have participated in post-termination permanency  



planning  for  the  child;  (3)  be  in  a  position  to  determine  whether  adoption  or  other  



                                                                                                    

appropriate permanent placement actually is close to fruition; and (4) be in a position to  



                                                                                                      

determine whether a stay in adoption or legal guardianship is in the child's best interests  



                                                                                                

pending a Rita T. hearing.  Rigid rules from our court would be no substitute for the  



appropriate exercise of discretion by the superior court in the child's best interests.  



          94        See AS 47.10.089(h) (allowing request for review hearing "before the entry  



of an adoption or legal guardianship decree").  



                                                              -50-                                                             7288  


----------------------- Page 51-----------------------

                                                          

                    4.	        The substantive and evidentiary standards for granting a Rita T.  

                               hearing and for reinstating parental rights  



                                                                                                                            

                    OCS is correct that we have not had occasion to define the contours of the  



                                                                                            

Rita T. process or expound upon what must be proved - or at what evidentiary level -  



                                                                                                         

to obtain reinstatement of parental rights.  Rita T. and Nada A.  at best stand for the  



proposition  that  a  parent's  "good  cause"  showing  for  a  Rita  T.  hearing  is  sufficient  



                                                                                                                     

rehabilitation from the factors that led to the termination of parental rights in the first  



         95  

place.       Not until Alden H.  did we make clear that a child's needs play a part in this  



                                                                                    

consideration, stating that at an actual Rita T. hearing "a parent [would have] to show  



                                                               

both that she is rehabilitated and that she is currently capable of providing 'the care and  



                                                           

guidance  "that  will  serve  the  moral,  emotional,  mental  and  physical  welfare  of  the  

child." ' "96  And we concluded that it is "not only appropriate but necessary" to consider  



the needs of a child for a Rita T. hearing request.97  



                                                                                                    

                    We have never had occasion to consider what must be proved at a Rita T.  



                                                                                             

hearing or the evidentiary standard of proof required. But as we have discussed, in 2005  



                                                                                                                     

the legislature created an express statutory provision for a Rita T.-like hearing for parents  

                                                                       98 and there the legislature expressed both  

                                                                                         

who voluntarily relinquish their parental rights, 



the necessary substantive and evidentiary standards:  



                              

                    After a termination order is entered and before the entry of an  

                                    

                     adoption   or   legal   guardianship   decree,   a   person   who  



          95        See Rita T. v. State        , 623 P.2d 344, 347 (Alaska 1981); Nada A. v. State                          , 660  



P.2d 436, 441 (Alaska 1983).  



          96        Alden  H.  v.  State,  Office  of  Children's  Servs. ,  108  P.3d  224,  231  n.21  

                               

(Alaska 2005) (emphasis added) (quoting Rita T., 623 P.2d at 347).  



          97        Id. at 232.  



          98         Ch. 64,  17, SLA 2005.  



                                                               -51-	                                                        7288
  


----------------------- Page 52-----------------------

                    voluntarily relinquished parental rights to a child under this  

                                 

                    section  may  request  a  review  hearing,  upon  a  showing  of  

                    good  cause,  to  vacate  the  termination  order  and  reinstate  

                    parental rights relating to that child.  A court shall vacate a  

                                                                                             

                    termination   order   if   the   person   shows,   by   clear   and  

                    convincing evidence, that reinstatement of parental rights is  

                                                     

                    in  the  best  interest  of  the  child  and  that  the  person  is  

                                                                               

                    rehabilitated and capable of providing the care and guidance  

                    that will serve the moral, emotional, mental, and physical  

                                                  [99] 

                    welfare of the child.  



                                                                        

We      believe       the    legislature's         approach        to    vacating        termination         orders      under  



                                                                                                          

AS 47.10.089(h) reflects its continued statutory emphasis on children's best interests and  



                                                                                                 

articulates appropriate substantive and evidentiary standards of proof for reinstatement  

of parental rights.  We therefore adopt these standards for a Rita T. hearing.100  



                    5.        Remand for clarifying findings regarding Paxton's best interests  



                    Because OCS did not really challenge either Dara's rehabilitated status or  



                                                                                               

that she was capable of caring for Paxton, the superior court's decision to set aside the  



                                                                                          

termination order and reinstate Dara's parental rights was based on its view that Dara  



          99        AS 47.10.089(h) (emphasis added).  



          100       In Lara S. v.  State, Department of Health & Social Services, Office of   



Children's  Services,  209  P.3d  120,  121-22  (Alaska  2009)  we  considered  whether  a  

parent  who  had  voluntarily  relinquished  her  parental  rights  submitted  an  affidavit  

sufficient to entitle her to a hearing on reinstatement under the statute.  We interpreted  

                                                       

AS 47.10.089(h) and held that to demonstrate "good cause" for such a hearing, "a person  

                                                                                               

must  make a prima facie showing that:   (1) it is in the child's best interest  that  the  

                                                                                                          

person's parental rights be reinstated, (2) the person is rehabilitated, and (3) the person  

                            

is capable of caring for the child's moral, emotional, mental, and physical welfare."  Id.  

                                                                                                                

at 125.  Because the mother's affidavit failed to meet these statutory requirements, we  

affirmed  the  superior  court's  decision  to  decline  to  hold  a  hearing  on  possible  

reinstatement.  Id. at 125-28.  In light of our adoption of AS 47.10.089(h)'s substantive  

                                                                                     

standards for a Rita T. hearing, the Lara S. test for a "good cause showing" appears to  

                                                                                           

be the appropriate test for a Rita T. hearing.  See id. at 125.  



                                                              -52-                                                         7288
  


----------------------- Page 53-----------------------

                                                                                              

proved by clear and convincing evidence that it was in Paxton's best interests to be  



                                                                                                         

reunited  with  her.    This  conforms  to  the  substantive  and  evidentiary  standards  we  



                                

adopted above.  But after OCS moved for reconsideration, the court also explained its  



                                                                                

view that "if circumstances [had] changed so much that the child is no longer a child in  



                                                     

need of aid," our case law  did not require a best interests analysis and that the child  



                                                                                                                                      

should be reunited automatically with the parent.  This latter reasoning was erroneous,  



but - except as noted below - somewhat immaterial to the disposition of the case,  



because  the  initial  decision  was  based  on  the  correct  substantive  and  evidentiary  



standards.    We  therefore  review  OCS's  challenges  to  the  court's  initial  decision,  



                                                     

specifically  that  the  court  erred  by  allegedly  applying  a  presumption  in  favor  of  



reunification and that the court's best interests finding was clearly erroneous.  



                                                                                                                

                         We start with the general concept of the child's best interests in this context,  



                                                                                                      

and we conclude that, just as in a termination trial, the superior court may consider any  



                                                                                                                                                               101  

                                                                                                                                   

factor relevant to the child's best interests for possible reinstatement of parental rights. 



                                                             

The dispute here is whether, or to what extent, the court may consider the previously  



                                                                                                                                                    

described legislative preference for keeping families together.  OCS maintains that the  



                                                                                                        

court improperly crafted a burden-shifting presumption from this legislative preference,  



             101         See Thea G. v. State, Dep't of Health & Soc. Servs., Office of Children's   



Servs., 291 P.3d 957, 967 (Alaska 2013) (noting we have held "a superior court may   

consider 'any fact relating to the best interests of the child in its best-interests analysis' "   

and "the superior court need not accord a particular weight to any given factor" (quoting       

Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                 , 289 P.3d  

924, 932 (Alaska 2012))); see  also Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177,  

 185 (Alaska 2008) (holding lack of permanent placement may be a factor in deciding                                              

whether termination would be in the child's best interests); AS 47.10.088(b) (setting out                                                     

factors to consider when determining child's best interests in context of termination  

proceedings); AS 47.05.065(4)-(5) (setting out legislative findings regarding attachment  

                                                                                        

and the best interests of child who has been removed from child's home).  



                                                                             -53-                                                                       7288
  


----------------------- Page 54-----------------------

and that, once parental rights have been terminated, there should be no presumption or  

                                                    



preference in the parent's favor.  Dara maintains that the public policy and legislative  



                                                    

purpose  we  identified  in  Rita  T. ,  and  that  are  still  articulated  in  AS  47.05.060  and  



                                                                     

AS  47.10.005,  are,  subject  to  the  child's  best  interests,  still  applicable  in  the  



reinstatement context.  



                                                                          

                    We agree with Dara that the public policy and legislative preference we  



identified in Rita T.  have some application in the reinstatement hearing context.  We  



disagree with OCS that a prior termination of parental rights means the superior court  



                                                                                                         

should pretend there is no family relationship. But the 1990 amendment to AS 47.05.060  



                                      

and the 2005 amendment to AS 47.10.005 also make clear that the legislative preference  



for keeping a child with a parent is subject to the child's best interests.  In this context  



                                                                                                              

the court may be required to evaluate the family relationship and the child's best interests  



                         

on at least three different levels.  Are there reasons specific to the child and family why  



                                                                                               102  

                                                                                                    Are there reasons  

it would be in the child's best interests to return to the family? 



                                                                        

specific to the child and family why it would not be in the child's best interests to return  

                    103  Are there specific countervailing reasons in the child's best interests not  

to the family? 



to return to the family despite the legislative preference?  Every case will be decided on  

                                                                                                                



its own facts, always based on the child's best interests.  



                    Although here the superior court first described the legislative preference  



as a presumption, after OCS moved for reconsideration the court explained it had not  



          102       Cf. AS 47.10.080(w) (providing courts shall recognize presumption that it        



is in child's best interests to maintain sibling relationship).  



          103       Cf. AS 47.05.060 (providing for child's removal from home when "the  



child's welfare or safety" cannot be adequately safeguarded).  



                                                             -54-                                                       7288
  


----------------------- Page 55-----------------------

treated  the  legislative  preference  as  a  burden-shifting  presumption,  but  rather  as  a  



                                                                 

preference, and it had held Dara to her burden of proof.  We therefore see no legal error  



in the court's stated use of the legislative preference.  



                      OCS also argues that the superior court clearly erred in its best interests  



finding.  OCS points to the court's few supporting findings and contends that nothing  



                                                                                              

explains why the court ultimately determined that it was in Paxton's best interests to be  



                                                                                           

uprooted  from  Scarlet's  care  and  returned  to  Dara.                                  Dara  responds  that  the  court's  



                                                                         

underlying factual findings are sufficient to support the best interests finding, especially  



given the court's consideration of a wide number of factors.  



                      There was testimony about a variety of factors relevant to Paxton's best  



                                                                       

interests, for example, Paxton's bond with Scarlet and her husband; Paxton's bond with  



Dara and his half-sister; Scarlet's wrongful interference with Paxton's visitation with  



                                                                                    

Dara and Scarlet's likely refusal to allow Paxton to have a relationship with his relatives,  



                                        104  

                                                                                       

including his half-sister;                  Paxton's current medical needs; Paxton's permanency needs  



and likely harm from removal and reunification with Dara; and the time necessary for  



transition if reunification were ordered.  



                                                       

                      Yet the court's best interests findings seem limited in focus to a generalized  



                                                                                                       

legislative family preference and Dara's rehabilitation, rather than more specifically to  



Paxton's best interests:  



                      1) The state favors reuniting children with biological parents.  

                                                                        

                      2) Mental illness alone cannot support termination of parental  

                      rights.  3) There was no harm caused to the child and it is  

                                      

                      unlikely harmful conduct will happen.  4) The child's bond  

                                                                                               

                      with the biological parent can be restored.  5) The child can  

                      be returned to the parent within a reasonable time based on  



           104        Cf. AS 47.10.080(w) (providing courts shall recognize presumption that it       



is in child's best interests to maintain sibling relationship).  



                                                                    -55-                                                                   7288  


----------------------- Page 56-----------------------

                                                              

                    [the] child's age and needs.  6) The parent has put in a great  

                    amount of effort to remedy the conduct or conditions in the  

                   home.  



                                                                                           105 

                                                   

The court seemingly followed the factors in AS 47.10.088(b),                                   relating to the child's  



                                                                                  

best interests in the involuntary termination context, but it did not expressly consider the  



                                                                                  106  

                                                                                                       

legislative findings enumerated in AS 47.05.065(4)-(5),                               relating to the best interests  



          105      AS 47.10.088(b) provides:  



                    [T]he court may consider any fact relating to the best interests  

                                                                                         

                    of the child, including (1) the likelihood of returning the child  

                                                                              

                   to the parent within a reasonable time based on the child's  

                    age or needs; (2) the amount of effort by the parent to remedy  

                                                                                    

                   the  conduct  or  the  conditions  in  the  home;  (3)  the  harm  

                                                                                             

                    caused  to  the  child;  (4)  the  likelihood  that  the  harmful  

                    conduct will continue; and (5) the history of conduct by or  

                    conditions created by the parent.  



          106      AS 47.05.065(4) sets out the legislative finding that the following principles  



serve a child's best interests after removal from the child's home:  



                    (A) the child should be placed in a safe, secure, and stable  

                                         

                    environment;          (B)     the     child      should       not     be     moved  

                   unnecessarily; (C) a planning process should be followed to  

                    lead to permanent placement of the child; (D) every effort  

                    should  be  made  to  encourage  psychological  attachment  

                   between  the  adult  caregiver  and  the  child;  (E)  frequent,  

                   regular, and reasonable visitation with the parent or guardian  

                                                                     

                    and family members should be encouraged; and (F) parents  

                    and  guardians  must  actively  participate  in  family  support  

                    services so as to facilitate the child's being able to remain in  

                   the home; when children are removed from the home, the  

                                                                                            

                   parents  and  guardians  must  actively  participate  in  family  

                                       

                    support services to make return of their children to the home  

                                                                       

                   possible.  



And AS 47.05.065(5) gives credence to studies establishing "it is important . . . to ensure  

                                                                                            

                                                                                                           (continued...)  



                                                            -56-                                                       7288
  


----------------------- Page 57-----------------------

of a child who has already been removed from the child's own home, as Paxton has been  



                                                

here.  These guiding principles place greater emphasis on permanency, the child's age,  



                                                                                                     107  

                                                                                                          Such factors go  

attachment to caregivers, and regular visitation, among other factors. 



                                                                                                                

beyond the harm that caused a child to be in need of aid and are highly relevant to  



determining a child's best interests in the context of reinstating parental rights.  



                    In its reconsideration order the court indicated that it had considered a  



                                                                                                                      

variety of best interests factors, including "[Paxton's] young age, the length of time he  



                                                                              

had been out of the home, . . . his attachment to his current placement, [his] bond with  



                                                                                 

[Dara] prior to his removal and his ongoing bond with her exhibited during visitations."  



                                                                                             

This would seem to align with AS 47.05.065(4)-(5). However, despite stating that it had  



                                                                                         

considered  these  factors, the  court did  not actually  make  any  additional  underlying  



findings about Paxton's best interests.  It may be that the court's decision to limit its best  



                                     

interests findings at this juncture derived from its misunderstanding that a best interests  



analysis was not necessary.   



                    We are unable to review the superior court's best interests finding absent  



                                                                                               

a more robust set of underlying factual findings.  We therefore remand for the court to  



                                                                      108  

clarify its findings consistent with this opinion.                         



          106       (...continued)  



that all children, especially those under the age of six years, who have been removed  

from their homes are placed in permanent homes expeditiously."   



          107       See  id.    



          108  

                                                                                          

                    See, e.g., State, Dep't of Health & Soc. Servs., Office of Children's Servs.  

v. Michelle P. , 411 P.3d 576, 584 (Alaska 2018) (remanding because court failed to  

make best interests findings before releasing child back to parents);  A.B. v. State, Dep't  

of Health & Soc. Servs., 7 P.3d 946, 954-55  (Alaska 2000) (remanding for additional  

best interests findings).  

                                     



                                                             -57-                                                        7288
  


----------------------- Page 58-----------------------

IV.       CONCLUSION  



                                                                          

                    We  AFFIRM  the  superior  court's  original  decision  terminating  Dara's  



                                         

parental rights to Paxton.  We REMAND for clarifying findings of fact to support the  



best interests finding underlying the superior court's subsequent decision reinstating  



                                                  

Dara's parental rights to Paxton. The superior court may in its discretion take additional  



                                                            

evidence in light of the passage of time and the case's unique circumstances, including  



                              

the  various  issues  about  Paxton's  attachments,  bondings,  and  visitation.    We  retain  



jurisdiction.  



                                                             -58-                                                        7288
  


----------------------- Page 59-----------------------

BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting.  



                                            

                                                                                                               

                    I disagree with both the outcome of the court's opinion and the route it  



                            

takes to get there. In my opinion, the text of AS 47.10.080(f), as amended, can no longer  



support a procedure for reunification after termination of parental rights.  Describing this  



                                                                               

procedure as a "permanency hearing" is inconsistent with the other statutes that define  



                                                                

such  a  hearing.    And  the  record  in  this  case  is  simply  inadequate  to  support  this  



extraordinary remedy.  



I.	       AS  47.10.080(f)  No  Longer  Supports  A  Procedure  For  Reinstatement  Of  

          Parental Rights Following Termination.  



                                                            

                    We first inferred that AS  47.10.080(f) permitted review of termination  



                                                                 1  

                                                                    But this decision was based on a prior  

orders  in the 1981 case of Rita T. v. State . 



version of AS 47.10.080(f).  And it relied on a strained reading of this subsection, even  



                                                                                                              

as it was worded at that time.  When we decided Rita T., AS 47.10.080(f) provided for  



                           

automatic annual review of disposition orders that placed children under state custody  



                                                                                                    

or supervision under AS 47.10.080(c)(1) or (c)(2) and also allowed interested parties to  



                                                2  

                                                                                               

seek such review for good cause.   This subsection did not refer to AS 47.10.080(c)(3),  



          1	        623 P.2d 344, 346-47 (Alaska 1981).  



          2	        Former AS 47.10.080(f) provided:  



                    A minor found to be delinquent or a child  in  need of aid is a  

                    ward of the state as long as  he  is  committed to the department  

                    (of   health  and  social  services)  or  the  department  has  the  

                    power to supervise his actions.  The court shall review an  

                    order   made   under   (b)   [a   delinquency   disposition]   or  

                                                          

                    (c)(1)  [CINA  custody]  or  (2)  [CINA  supervision]  of  this  

                    section annually, and may review the order more frequently  

                                                                            

                    to    determine         if   continued         placement,         probation,        or  

                    supervision, as it is being provided, is in the best interest of  

                                               

                    the minor and the public.  The department, the minor, the  

                                                                                                           (continued...)  



                                                             -59-	                                                      7288
  


----------------------- Page 60-----------------------

the subsection that allowed the superior court to order termination of parental rights.3  



To  overcome  this  legislative  omission,  the  Rita  T.  court  had  to  read  in  isolation  



                                                                                           

subsection (f)'s third sentence, which permitted interested parties to seek review of a  



disposition order for good cause.  Rita T. thus interpreted this sentence to include review  



                                                                     

of termination orders under subsection (c)(3) even though subsection (f) did not mention  



                                                                            

the termination provision.  For this interpretation the court relied in part on the purpose  



                    

of the child in need of aid statute:  "to preserve and strengthen the child's family ties  



                               4  

whenever possible."   



                    In  the  years  since  Rita  T. ,  the  child  in  need  of  aid  statute  has  been  



                                                                                                        

substantially revised in ways that further undermine an interpretation of AS 47.10.080(f)  



                                                               5  

                                                                                

that permits review of termination orders.                        First the purpose of the child in need of aid  



                                                       6  

                                                                                                    

statute, crucial to Rita T. 's holding,  was revised in 1990.   The statute now aims "to  



preserve and strengthen the child's family ties unless efforts to preserve and strengthen  



          2	        (...continued)  



                    minor's  parents,  guardian,  or  custodian  are  entitled,  when  

                    good  cause  is  shown,  to  a  review  on  application.    If  the  

                    application is granted, the court shall afford these parties and  

                    their counsel reasonable notice in advance of the review and  

                             

                    hold a hearing where these parties and their counsel shall be  

                                                                                                    

                    afforded  an  opportunity  to  be  heard.                    The  minor  shall  be  

                                                                                                   

                    afforded the opportunity to be present at the review.  



          3         AS 47.10.080(c)(3).  



          4         Rita T. , 623 P.2d at 346 (citing former AS 47.05.060 (1980)).  



          5         See ch. 99, SLA 1998.  



          6         Rita T. , 623 P.2d at 346.  



                                                              -60-	                                                        7288
  


----------------------- Page 61-----------------------

                                                                                                                            7  

the ties are likely to result in physical or emotional damage to the child                                               ."   Additionally,  

in 1998 the entire chapter on child in need of aid proceedings was substantially revised.                                                           8  



The  intent  of  this  revision  was  "to  protect  children  from  abuse  and  neglect"  and  to  



"override"  several  decisions  from  this  court  that  had  erected  barriers  to  termination  



                       9  

proceedings.     This  revision  included  a  new  set  of  legislative  findings,  including  a  



determination that "it is important to provide for an expeditious placement procedure to  



ensure that all children, especially those under the age of six years, who have been  

                                                                                                                                         10    The  

removed  from  their  homes  are  placed  in  permanent  homes  expeditiously." 



legislature also added a section requiring the child in need of aid statute to "be liberally  

                                                                               



construed to the end that a child coming within the jurisdiction of the court under this  

                                             



[statute] may receive the care, guidance, treatment, and control that will promote the  



                              11  

child's  welfare."                  Another  new  section  redefined  all  the  standards  and  factors  for  

termination of parental rights.12  



            7          AS 47.05.060, as amended by ch. 29,  2, SLA 1990 (emphasis added). 
 



            8          Ch. 99, SLA 1998. 
 



            9
         Id .  1.  



            10         Id .  14.  



            11         Id .  16.  



            12         Id .  33.  



                                                                       -61-                                                                  7288
  


----------------------- Page 62-----------------------

                    In addition to these general revisions, the 1998 revision also substantially  

amended AS 47.10.080(f) in a manner that further undermined Rita T. 's interpretation.13  



The first portion of this subsection now provides that following a custody disposition  



                                                   

under subsection (c)(1) there will be an annual permanency hearing, rather than a review  



                                                                                                                                14  

              

hearing, and allows interested parties to request a permanency hearing for good cause. 



The  second  portion  provides  for  a  review  hearing  following  only  a  supervision  



          13        Id.  26.  



          14        The first seven sentences of this subsection provide:  



                    A child found to be a child in need of aid is a ward of the  

                                                                                             

                    state while committed to the department or the department  

                                                                                    

                    has the power to supervise the child's actions.  For an order  

                                                                                            

                    made under (c)(1) of this section [regarding CINA custody],  

                                        

                    the court shall hold a permanency hearing as required by (l)  

                                                      

                    of  this  section  and  at  least  annually  thereafter  during  the  

                    continuation   of   foster   care   to   determine   if   continued  

                    placement, as it is being provided, is in the best interest of the  

                                                                                                       

                    child.    The  department,  the  child,  and  the  child's  parents,  

                    guardian, and guardian ad litem are entitled, when good cause  

                                                                                      

                    is  shown,  to  a  permanency  hearing  on  application.    If  the  

                    application is granted, the court shall afford these persons and  

                                                            

                    their     counsel       reasonable         advance        notice      and      hold     a  

                    permanency hearing where these persons and their counsel  

                    shall be afforded an opportunity to be heard.  The persons  

                                                

                    entitled       to    notice       under       AS      47.10.030(b)           and      the  

                                 

                    grandparents entitled to notice under AS 47.10.030(d) are  

                    entitled  to  notice  of   a  permanency  hearing  under  this  

                                                       

                    subsection and are also entitled to be heard at the hearing.  

                                                                               

                    The child shall be afforded the opportunity to be present and  

                                                                                              

                    to be heard at the permanency hearing. After the permanency  

                                                                                

                    hearing, the court shall make the written findings that are  

                    required under (l) of this section.   



                                                              -62-                                                         7288
  


----------------------- Page 63-----------------------

                                                       15  

                   

disposition under subsection (c)(2).                       In my opinion, this subsection can no longer be  



read to also permit review of a termination order under subsection (c)(3).  



                                                                     

                    In order to infer a reunification procedure in AS 47.10.080(f), the court's  



                                                                                                                 

opinion depends on construing a natural parent's reinstatement request as a request for  



                                                                                                      

a permanency hearing. But this construction conflicts with the rules and statutes defining  



                                                           

the permanency hearing and outlining the required permanency findings.  For example,  



AS 47.10.080(l)(4) requires the court at the permanency hearing to make findings on  



"whether the department has made reasonable efforts . . . to offer appropriate support  



                                                                                                                  

services" to the parents and whether the parents have "made substantial progress to  



                                                                                                    16  

                                                                                                        But it would make  

remedy . . . the . . . conditions . . . that made the child in need of aid. 



                                                                                                                           

no sense to continue to require reasonable efforts, support services, and progress on the  



parent's part after the court has issued an order terminating parental rights.  



                                                                                             

                    CINA Rule 17.2 governs permanency hearings and specifically limits the  



                        

purpose of the permanency hearing to the purpose implied by AS 47.10.080(f):  "to  



establish   a   permanency   plan   for   each   child   committed   to   state   custody   under  



                                 17  

AS  47.10.080(c)(1)."                  In  other  words,  consistent  with  the  statutory  provision  on  



                                                                                                      

permanency hearings, the CINA permanency hearing rule does not apply to disposition  



          15        The last two sentences of this subsection provide:  



                    The court shall review  an order made under (c)(2) of this  

                                                         

                    section       at    least     annually        to    determine          if   continued  

                                                                       

                    supervision, as it is being provided, is in the best interest of  

                                                                                                

                    the child;  this review is not considered to be a permanency  

                    hearing  and  is  not  governed  by  the  provisions  of  this  

                                                                                  

                    subsection that relate to permanency hearings.  



          16        AS 47.10.080(l)(4)(A), (B).  



          17        CINA Rule 17.2(a) (emphasis added).  



                                                              -63-                                                         7288
  


----------------------- Page 64-----------------------

orders involving termination under AS 47.10.080(c)(3).  CINA Rule 17.2(e) requires  



                                                                                                                        

permanency hearing findings on "whether the child continues to be a child in need of  



aid"  and  "whether  the  child  should  be  returned  to  the  parent[s],"  findings  that  are  



                                                          18  

unnecessary after a termination order.                        And CINA Rule 17.2(f) requires findings on  



                                                                                                                             

whether the department "has made reasonable efforts" (or active efforts in the case of an  



                                                 

Indian child) and "whether the parent . . . has made substantial progress to remedy . . .  

                                                                                             19   Again  these  required  

                                                                                                  

the . . . conditions . . . that made the child  in  need  of aid."  



findings are unnecessary after a termination order.  



                                                             

                    The  court's  opinion  also  conflicts  with  the  rules  that  cut  off  a  natural  



                                                                                                          

parent's participation after an order terminating parental rights. CINA Rule 2(k) defines  



                                                                                                                        

the term "parent" to mean "a biological or adoptive parent whose parental rights have not  



been terminated."  Thus the references to "parent" throughout the CINA rules do not  



apply to a natural parent whose rights have been terminated under  AS 47.10.080(c)(3).  



And CINA Rule 18(h) establishes a different system (instead of permanency hearings)  



                                                                                 

following  a  termination  order;  this  rule  requires  quarterly  reports  regarding  the  



department's  efforts  to  recruit  a  permanent  placement.    But  even  this  rule  does  not  



                                             

contemplate participation of the natural parent following termination:  "Copies of the  



                                                                                                          

Department's reports shall not be served on a parent whose rights have been terminated."  



                                                                                                           

                    The cumulative effect of these rules is to change the focus of the proceeding  



                                                                         

after an AS 47.10.080(c)(3) termination order.  The focus is no longer on reunification;  



the  focus  is  on  finding  another  permanent  placement.    Permitting  post-termination  



                                                                                                  

permanency hearings and allowing natural parents to participate will frustrate this goal.  



          18        CINA Rule 17.2(e)(1), (2).  



          19        CINA Rule 17.2(f)(1), (2).  



                                                              -64-                                                             7288  


----------------------- Page 65-----------------------

                                                                                         

Parental participation will increase the potential for conflict and litigation and increase  



the potential for delay in achieving permanency.  



II.       Dara Did Not Submit Sufficient Evidence To Support Reunification.  



                                                                                                                      

                    Despite my disagreement with the court's opinion, I have no doubt that the  



superior court has the inherent power to modify an order terminating parental rights.  



                                                                            

Alaska Civil Rule 60(b)(5) explicitly allows a court to grant relief from a judgment when  



                                                                                                                      20 

                                                                                                                          But  

"it is no longer equitable that the judgement should have prospective application." 



this power should be sparingly exercised.  We have quoted with approval from then- 



Judge Blackmun:   



                                                                            

                    [M]odification is only cautiously  to  be granted; . . . some  

                                                           

                    change is not enough; . . . the dangers which the decree was  

                    meant       to    foreclose        must      almost        have      disappeared;  

                                                                                     

                    . . . hardship and oppression, extreme and unexpected, are  

                                                                    

                    significant; and . . . the movant's task is to provide close to an  

                                                                   

                    unanswerable case.  To repeat:  caution, substantial change,  

                    unforeseenness, oppressive hardship, and a clear showing are  

                                             [21] 

                    the requirements.  



                                                     

Consistent with this caution, at the very least, a parent seeking reunification following  



                                                                                                  

a termination order must show, "by clear and convincing evidence . . . that reinstatement  

of parental rights is in the best interest of the child."22  



          20        See,  e.g., Cox v. Floreske, 288 P.3d 1289, 1293 (Alaska 2012).  



          21  

                                                        

                   Dewey  v.  Dewey ,  886  P.2d  623,  627  (Alaska  1994)  (alteration  and  

                                                                                   

omissions in original) (quoting Humble Oil & Ref. Co. v. Am. Oil Co. , 405 F.2d 803, 813  

(8th Cir.1969)).  



          22        AS  47.10.089(h)  (allowing  vacation  of  a  termination  order  based  on  a  



                                                                                                                         

relinquishment of parental rights); see also AS 47.10.005, as amended by ch. 99,  16,  

SLA 1998 (requiring the chapter on child in need of aid proceedings to "be liberally  

construed to the end that a child coming within the jurisdiction of the court under this  

                                                                        

                                                                                                           (continued...)  



                                                             -65-                                                       7288
  


----------------------- Page 66-----------------------

                    As  noted  in  the  court's  opinion,  the  superior  court  did  not  make  any  



                                                                                

findings  that  reinstatement  was  in  Paxton's  best  interest.    The  findings  directly  



addressing this issue were inconsistent with reinstatement.  For example, the superior  



                                                                                                       

court found that "Dr. Sorensen reported that [Paxton] . . . is 'likely' to experience distress  



                                                                                 

if moved"; and that "Dr. Sorensen concludes that the safest result with the least amount  



of risk to Paxton's emotional well[-]being would be to keep Paxton with [Scarlet]."  



                    These findings are well-supported by the record.  Scarlet testified that it  



                                                                 

would be "extremely difficult" for Paxton to be removed from her home "to be placed  



                                                      

with a family that he doesn't really know anymore."  Dr. Sorensen thought a change in  



                                                                                                

Paxton's life from living with Scarlet to Dara would be "a highly confusing event for him  



                                                                                           

and one that could very well have a lasting effect" because he would have no memory  



                                               

of living with his mother.  Dr. Sorensen believed that Paxton would "have a really hard  



         

time  for  quite  some  time"  before  being  able  to  verbalize  his  concerns,  and  he  



                                                                            

"recommended that [Paxton] remain in his current placement . . . indefinitely as a means  



of maintaining his emotional stability and general safety."  



                                                                    

                    Dara thus failed to submit clear and convincing evidence that reinstatement  



                                               

was in Paxton's best interest.  I would reverse and vacate the superior court's decision  



reinstating Dara's parental rights.  



          22        (...continued)  



chapter may receive the care, guidance, treatment, and control that will promote the  

child's welfare").  



                                                              -66-                                                        7288
  

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