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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska, Department of Health & Social Services, Office of Children's Services v. Dara S. (1/24/2020) sp-7426

State of Alaska, Department of Health & Social Services, Office of Children's Services v. Dara S. (1/24/2020) sp-7426

         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  


                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

STATE  OF  ALASKA,  DEPARTMENT                                 )  

OF  HEALTH  &  SOCIAL  SERVICES,                               )   Supreme Court No. S-16527  


OFFICE  OF  CHILDREN'S  SERVICES,                             )  

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

                             Appellant,                       )  


                                                              )   O P I N I O N  

          v.                                                  )  


                                                              )  No. 7426 - January 24, 2020  


DARA S.,                                                      )  


                             Appellee.                        )  




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


                   Judicial District, Anchorage, Pamela Washington, Judge pro  




                   Appearances:             Mary  Ann  Lundquist,   Senior   Assistant  


                   Attorney  General,   Fairbanks,   and  Kevin  G.   Clarkson,  


                   Attorney General, Juneau, for Appellant.  Rachel E. Cella,  


                   AssistantPublicDefender, and BethGoldstein, Acting Public  


                   Defender, Anchorage, for Appellee.   Paul F. McDermott,  


                   Assistant  Public  Advocate,   and  James  Stinson,  Public  


                   Advocate, Anchorage, for Guardian Ad Litem.  


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


                   and Carney, Justices.  


                   WINFREE, Justice.  

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


                    We recently confirmed that, under some circumstances, a parent whose  


parental rights have been involuntarily terminated under Alaska's child in need of aid  



(CINA) statutes may seek post-termination review and reinstatement of parental rights.   



We explained that a superior court may vacate a termination order if the child has not yet  


been adopted and the parent demonstrates, "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 welfare of the child." 

                    In  that  earlier  case,  a  mother's  parental  rights  to  her  son  had  been  


                                                                                3   She timely  sought review and  

terminated  as a result  of  her  mental health  issues.                                                                       


reinstatement of her parental rights, and the superior court granted review and ultimately  


granted her reinstatement request.4                     The Office of Children's Services (OCS) and the  


child's guardian ad litem (GAL) appealed the reinstatement decision, arguing both that  


post-termination reinstatement of parental rights after an involuntary termination was  


barred as a matter of law and that the mother had not proved by clear and convincing  


evidence that reinstatement was in the child's best interests.5   We rejected the argument  


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

Servs.,  426  P.3d  975,  991-99  (Alaska  2018).   

          2         Id.  at   1000  (emphasis  omitted)  (quoting  AS  47.10.089(h)).   

          3         Id.  at  983.   We  affirmed  that  decision  in  the  appeal.   Id.  at  988.   

          4         Id.  at  983-87.  

          5         Id.  at  987.   

                                                                -2-                                                         7426

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

that reinstatement was barred as a matter of law, but we remanded the case to the                                                                      


superior court for further elucidation of its best interests determination.                                                         

                        The superior court held a post-remand evidentiary hearing and ultimately  


confirmed its best interests determination.  OCS - joined by the GAL - now appeals  


that determination, arguing that some of the court's underlying factual findings, and  


therefore  its  ultimate  best  interests  finding,  are  clearly  erroneous,  and  that  the  


reinstatement order therefore must be vacated, leaving the parental rights termination in  


place. As in the prior appeal, there is no dispute about the superior court's determination  


that themother met the rehabilitation standard necessary for reinstatement ofher parental  


rights.  Because the disputed underlying factual findings supporting the best interests  


determination either are not material or not clearly erroneous, we conclude that the  


superior court's reinstatement decision must be affirmed.7  




            A.          Brief Background And Earlier Appeal  


                        Dara S. is the biological mother of Paxton,8  born February 2011.  Paxton  


was born in Alaska but has lived with Dara's sister and brother-in-law, Scarlet and  


            6           Id .  at   1002.   

            7           Shortly  after  we  heard  oral  argument  in  this  matter,  we  issued  a  summary  

order  affirming  the  superior  court's  reinstatement  decision,  with  an  explanatory  opinion  

to  follow.   State  of  Alaska,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  Servs.  v.  

Dara  S.,  Office  of  Pub.  Advocacy,  GAL,  Nos.  S-16126/16526/16527  (Alaska  Supreme  

Court  Order,  Sept.   11,  2019).   This  is  the  explanatory  opinion.  

            8           We use the same pseudonyms from our earlier opinion for ease of reference  


and to protect the parties' privacy.  


                                                                            -3-                                                                    7426

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Monty, in Oregon since being placed with them by OCS in April 2014.                                                           Dara visited   


Paxton in July 2014 and decided to stay in Oregon.                                         

                       In June 2015 the superior court issued an oral decision terminating Dara's  


                                                                                                                      10   Meanwhile, in  

parental rights to Paxton, followed by an October 2015 written order.                                                                            


September Dara asked for a review hearing, which was held in April and May of 2016.11  


In July the superior court reinstated Dara's parental rights. Following OCS's motion for  


reconsideration, in October the court clarified its findings and application of the law.  


                       Dara appealed the termination decision; OCS and the GAL challenged the  


reinstatement decision.12  We affirmed the superior court's original termination ofDara's  


parental rights.13  But the reinstatement decision appeal raised a number of legal issues.14  


We confirmed that reinstatement remains available under Alaska's CINA framework,  


and we addressed the appropriate substantive and evidentiary standards of proof to apply  


at  a  reinstatement  hearing.15                       We  explained  that  a  superior  court  shall  vacate  a  


termination order if a parent demonstrates, "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,  


           9           Dara  S.,  426  P.3d  975  at  980.  

            10         Id .  at  982-83.   Other  than  noting  that  the  underlying  reason  for  the  parental  

rights  termination  was  Dara's  mental  health  issues,  id.  at  988,  we  will  not  discuss the  

termination  trial  evidence  here.   

            11         Id . at 983, 985.  


            12         Id . at 983, 987.  


            13         Id . at 991.  


            14         Id . at 991-1003.  


            15         Id . at 991-1000.  


                                                                       -4-                                                                 7426

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emotional, mental, and physical welfare of the child."                                              We also provided guidance to                       

superior courts regarding factors that should be considered when determining whether                                                        

                                                                           17    We ultimately concluded that the factual  

reinstatement is in a child's best interests.                                                                                                 

findings underlying the superior court's best interests determination were inadequate for  


our review, and we remanded the case for further proceedings.18  



            B.          December 2018 Superior Court Proceedings On Remand  


                        The superior court held an evidentiary hearing over two days in December  


2018 to gather more evidence about Paxton's best interests.  Dara testified on her own  


behalf and had three other witnesses testify:  her mother, Kate; an Oregon social service  


assistant who had supervised Dara's visits with Paxton; and a licensed clinical social  


worker.   OCS called four witnesses:   Dara's father, Butch; a clinical psychologist;  


Paxton's uncle and foster father, Monty; and Dara's OCS caseworker.  The relevant  


testimony is summarized below.  


                        1.         Dara's witnesses  


                        Kate characterized Dara as the "epitome of a good parent."  Kate testified  


that  Dara  has  maintained  steady  employment  and  a  safe,  clean  home  in  a  good  


neighborhood.  Kate testified that she frequently sees Dara with Georgia and that Kate  


had attended some of Dara's visits with Paxton; on one occasion Kate heard Georgia  


discussing a toy she had at home, and Paxton asked when he would get to go there. Kate  


also testified that she thought it was in Paxton's best interests to live with Dara, rather  

            16         Id .  at   1000  (emphasis  omitted)  (quoting  AS  47.10.089(h)).   

            17         Id .  at   1001.   

            18         Id .  at  1002-03.   In  that  opinion  we  carefully  outlined  the  evidence  presented  

to  the  superior  court,  id.  at  983-88,  relevant  to  the  court's  post-remand  decision.   We  do  

not  repeat  it  here.   

                                                                          -5-                                                                    7426

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than Scarlet, because of Dara's "maternal bond" with him and because she was a more  


"hands-on" parent.  


                    An Oregon social service assistant who supervised some of Dara's visits  


with Paxton testified about a typical visit between Dara, Georgia, and Paxton. The social  


service assistant stated that Paxton often  lingered at the end of these visits, saying  


goodbye to Dara repeatedly and seeming reluctant to leave.  The social service assistant  


also testified that on one occasion she heard Paxton tell Dara that he wanted to go home  


and live with Dara;  the social service assistant emphasized that Paxton said this "out of  


nowhere," with "no prompt," when he and Dara had been "talking about school and life"  


during a visit.  


                    Alicensed clinical social worker who had observedvisitsbetween Daraand  


Paxton  testified  in  support of reunification.                        The social  worker  stated  that she had  


observed the family for over 60 hours in the three-and-a-half years she had worked with  


them; based on those observations, she thought that Dara "is a very attachment-based  


loving, caring mother." The social worker also testified that she was impressed with how  


connected Dara, Paxton, and Georgia were, even though they did not get to see each  


other very often.  The social worker described Dara's visits with Paxton as "textbook  


beautiful visit[s]" and discussed how Dara made sure to tend to her children's needs.  


                    The social worker testified that she disagreed with OCS's expert, clinical  


psychologist Dr. Erik Sorensen, about whether it would be in Paxton's best interests to  


be reunited with Dara; the social worker stated that Dr. Sorensen does not understand the  


deep attachment Paxton already has with Dara.  The social worker noted that if Paxton  


is not reunified with Dara, he may feel a loss from missing out on a childhood with his  


biological family.  The social worker testified that Paxton also may feel resentment and  


grief as a result and rebel against his foster family.  The social worker acknowledged on  

                                                                -6-                                                         7426

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cross-examination that she had never observed Paxton with Scarlet and Monty or even                                                                                                                                                                                                                                                      

 spoken to them.                                                   

                                                      Dara first testified about her job, her college attendance, and her efforts to                                                                                                                                                                                                                

manage her mental health.                                                                                     She testified that she still attends counseling and that her                                                                                                                                                                    

counselor "helps [her] to build and maintain healthy relationships."  She then testified                                                                                                                                                                                                              

about her efforts to mend relationships with Butch and Scarlet.                                                                                                                                                                                                             Dara said she had                                               

reached out to Butch and her step-mother and had gone on several small day trips with                                                                                                                                                                                                                                                     

them and Georgia.  Dara also stated that Butch recently had sent her several messages  

 saying that he was proud of her for maturing and that she was doing a good job parenting                                                                                                                                                                                                                             


                                                      Dara   said   her   efforts   to   improve   her   relationship   with   Scarlet   were  

unsuccessful.   Dara said she had asked Butch to ask Scarlet to go to family counseling,                                                                                                                                                                                                                     

but Scarlet was not interested. Dara stated that when she and Paxton have visits, Scarlet                                                                                                                                                                                                                                       

has no contact with Dara and that Scarlet refused to keep a drawing and t-shirt Dara and                                                                                                                                                                                                                                                     

Georgia gave Paxton. Dara then spoke about her visits with Paxton.                                                                                                                                                                                                              She stated that she                                           

and Paxton have a "loving and trusting" relationship, that he confides in her during their                                                                                                                                                                                                                                               

visits, and that he is attached to Georgia.                                                                                                                                Dara expressed that she felt ready to raise                                                                                                                  

                                                                                                                                                                                    19  she had no concerns about her ability to  

Paxton and that, despite his health problems,                                                                                                                                                                                                                                                                                                       

get him proper medical attention.  


                                                      2.                         OCS's witnesses  


                                                      Butch testified that Dara had made progress since the termination trial, but  


he disputed her characterization of their relationship.  Although Butch acknowledged  


                           19                         Paxton was born with serious kidney problems requiring nine surgeries                                                                                                                                                                                           

before the age of two.                                                                   Although his health has since generally improved, he requires a                                                                                                                                                                                               

 strict diet and frequent medical checkups; he likely will require a kidney transplant by   

his teenage years.                                                       Id.  at 978.   

                                                                                                                                                                         -7-                                                                                                                                                            7426

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going on a few outings with Dara and Georgia, he indicated he had not seen Georgia in  


the past year despite his multiple requests.   And Butch testified that despite Dara's  


progress, overall he thought Paxton was better off with Scarlet and Monty because their  


home was more stable and because of the possibility of having to seek urgent medical  


care for Paxton at a hospital a hundred miles away.  Butch placed the blame for the  


breakdown in Dara and Scarlet's relationship on Dara:  "[Dara] is the one who burned  


the bridge . . . if she would show some appreciation that [Scarlet] and [Monty] are raising  


her child and try to rebuild the bridge that she burned, . . . perhaps she could have a  


relationship, but she has chosen not to even make any attempt."  


                    Dr. Sorensen testified about his November 2018 evaluation of Paxton.  


Dr. Sorensen stated that his opinion that it was in Paxton's best interests to remain with  


Scarlet and Monty had not changed since the earlier reinstatement hearing. Dr. Sorensen  


testifiedthatreunifyingDaraand Paxtonwould "requireseveringtheprimary attachment  


that he has with his aunt and uncle" and could "result in unnecessary emotional harmand  


distress." Dr. Sorensen characterized reunification as a "destabilizing influence" and an  


"adverse event" that could have long-term impacts on Paxton's emotional functioning  


and anxiety levels. Dr. Sorensen noted that from his observations, Paxton's relationship  


with Scarlet and Monty looks like a typical parent-child relationship; Paxton calls them  


"Mom and Dad," and calls Dara by her first name. Dr. Sorensen testified that Paxton had  


made progress in a number of areas while living with Scarlet and Monty, including  


overcoming a fear of water and doing better in school.  


                    Dr. Sorensen testified that when he broached the possibility of living with  


Dara, Paxton expressed confusion and said he could not imagine what that would be like.  


Dr. Sorensen testified that he tried to attend a visit between Dara and Paxton, but Dara  


did  not want Dr. Sorensen  to  observe them without first speaking  to  her  attorney;  


Dr. Sorensen could not reach Dara's attorney, and he left.  Dr. Sorensen disagreed with  

                                                                -8-                                                         7426

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


the social worker's analysis, stating that she appeared to have ignored the "guaranteed  


harm" that would come from severing Paxton's connection to Scarlet and Monty.  


                    Monty testified about Paxton's life with Monty and Scarlet.  Monty said  


that Paxton  shares a room with his four-year-old cousin, whom Paxton views as a  


brother.  Monty described Paxton's progress in school and his activities.  Monty was  


asked about a March 2017 autism evaluation Paxton had. Scarlet and Monty had wanted  


Paxton evaluated because they felt he had no "empathy"; the evaluators concluded that  


Paxton was not on the autism spectrum, but they recommended he get treatment for  


anxiety.  Scarlet and Monty did not follow that recommendation.  


                    Monty testified that he currently does not have a relationship with Dara.  


He was reluctant to agree to having a future relationship with her, stating:  "[I]n terms  


of our relationship with [Dara] and how that looks . . . that would be a very difficult thing  


to . . . overcome.   It's hard to get burned over and over."  Monty stated that he and  


Scarlet had not given consideration to personally arranging visitation between Paxton,  


Dara, Georgia, and themselves, and he was not sure they were prepared to do that.  But  


Monty testified that he and Scarlet would be willing to continue allowing Dara to have  


supervised visitation with Paxton.  Monty predicted that, if Paxton were reunified with  


Dara, she would not let Monty and Scarlet see Paxton because they had not been able to  


see Georgia for some time.  


                    Dara's OCS caseworker testified in favor of Paxton continuing to live with  


Scarlet and Monty. The caseworker had conducted a home visit with them and observed  


Paxton  interacting  with the family.                     She testified  that Paxton  appeared  to be well- 


integrated into the family and noted that an outside observer "wouldn't have known that  


he was not [Scarlet and Monty's] biological child."  The caseworker stated that Scarlet  


and Monty were "doing an amazing job" caring for Paxton's medical needs and that she  

                                                               -9-                                                         7426

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


was  not  concerned  they  had  not  sought  therapy  for  Paxton  following  the  autism  




                    The caseworker also interviewed Paxton during her visit. She reported that  


Paxton said he enjoyed his visits with Dara, that Dara was his biological mother, and that  


he had two moms, Dara and Scarlet.   When the caseworker asked Paxton where he  


wanted to live, he seemed confused and stated that he wanted to live with his mom and  


dad, Scarlet and Monty. The caseworker testified that in her opinion Paxton's bond with  


Scarlet and Monty was stronger than Paxton's bond with Dara. But the caseworker also  


acknowledged that she had not observed a visit between Dara and Paxton because Dara  


had discovered in advance that the caseworker was going to be there, and the caseworker  


canceled the observation because she thought she would not be able to get an accurate  


picture. The caseworker testified that - even if Scarlet and Monty were to adopt Paxton  


-  OCS still wanted to ensure Dara could maintain ongoing visitation with Paxton  


through an intermediary.  


                    The caseworker was cross-examined about OCS's supervision of what was  


occurring in Oregon.  The superior court also questioned her about OCS's approach in  


this case.  The court's questioning reflected concerns with OCS placing restrictions on  


Dara's and Scarlet's ability to work out problems themselves and with OCS's reliance  


on quarterly reports about Paxton from Oregon's social services department.  


                    3.        January 2019 supplemental findings  


                    The superior court issued clarifying findings in January 2019.  The court  


divided its order into two sections. In the first section, the court made supplemental  


findings based on the evidence from its original reinstatement hearing.  These initial  


findings focus on the length of time Paxton had been removed from Dara; his bonds with  


Dara,Georgia, Scarlet, and Monty; and Paxton'sphysical, medical, and emotional needs.  


The court noted that, at the time of the initial reinstatement order, Paxton had been in  

                                                              -10-                                                         7426

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


out-of-home placement for three years; up to that point, he had resided with Dara for a  


little over two-and-a-half years and with Scarlet and Monty for a little over two years.  


The court then found that, at the time of the initial reinstatement order, Paxton was still  


at  an  age  where  critical  attachments  are  formed  and  that  the  previous  "traditional  


mother[-]child relationship" he had with Dara could be restored.  The court found that  


Paxton had maternal bonds with both Dara and Scarlet and a bond with his biological  


sister, Georgia.   It discounted Dr. Sorensen's contrary testimony regarding Paxton's  


attachment to Dara, noting that he did not have the opportunity to observe them together.  


The court then found that Dara was equally capable as Scarlet and Monty of providing  


for Paxton's physical and medical needs, but the court also found that  Scarlet and  


Monty's hostility toward Dara had caused a rift in the family that could harm Paxton's  


emotional well-being.                The court noted  that,  in contrast, Dara was open  to  Paxton  


continuing a relationship with Scarlet and Monty.  


                    Given that the superior court believed the parties were similarly situated  


with respect to their bonds with Paxton and their ability to care for him and meet his  


physical  needs,  the  court  concluded  that  Paxton's  emotional  well-being  was  the  


determinative factor in evaluating his best interests.  The court found:  


                     [Scarlet and Monty] have demonstrated a troubling lack of  


                    concern for Paxton's attachments. . . . While the court was  


                    watching, while the child was still in state's custody, while  


                    their  adoption  was  pending,  [Scarlet]  exhibited  a  clear  


                    unwillingness to support [Paxton's] emotional well[-]being  


                    if it had anything to do with Dara.  


In large part because Dara was supportive of Paxton maintaining his bond with Scarlet  


and Monty, while they were not supportive of Paxton maintaining his bond with Dara,  


the court concluded that reinstating Dara's parental rights was in Paxton's best interests.  


The court ended the first section of its findings by stating that the supplemental findings  

                                                               -11-                                                         7426

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


"make  clear  that  the  court's  [initial]  determination  was  supported  by  clear  and  


convincing evidence of the importance of Paxton's . . . emotional well[-]being compared  


to the other factors."  


                    In the order's second section, the superior court made updated findings  


based on evidence presented during the December 2018 evidentiary hearing.  The court  


first found that, despite the doctors' recommendations after Scarlet and Monty had  


Paxton evaluated because they felt he showed no "sympathy, empathy, or remorse," they  


had failed to seek counseling for his anxiety.  In part because of this incident, the court  


concluded that Scarlet and Monty were "not credible witnesses regarding Paxton's  


emotional and mental health needs."  The court also found that Scarlet and Monty still  


were unwilling to personally facilitate visitation between Paxton and Dara and had given  


it "no meaningful consideration"; the court found that this attitude "compromise[d]  


Paxton's emotional and mental well[-]being."  The court found that Dara continued to  


be open to fostering a better relationship with Scarlet and Monty and engaging in family  




                    Thesuperior court also summarized Dara's interactionswith Paxton at their  


biweekly visits.  The court noted that Dara, Paxton, and Georgia have a "very close and  


affectionate bond," that Dara was very attentive and affirming at visits, and that Dara set  


appropriate boundaries and parented Paxton very well under the circumstances.  The  


court concluded that Paxton's connection with Dara "was never broken" and that Dara  


and Georgia are not strangers to him despite periods of disruption.  


                    The superior court also made findings based on the third-party testimony  


at the hearing.  The court concluded that Dara's OCS caseworker "was unable to offer  


the court any credible testimony about Paxton's attachment to either [Scarlet and Monty]  


or Dara," due to the caseworker's negligent supervision of Paxton.  The court appeared  


to discount Dr. Sorensen's testimony because he did not observe Dara and Paxton  

                                                              -12-                                                         7426

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

together   or  review   Oregon   visitation   records,   and   the   court   believed   Dr.   Sorensen  

unquestioningly relied on Scarlet and Monty's "compromised" reporting.                                                                                                                                                                                                                                        The court   

 credited the social worker's opinion that it was in Paxton's best interests to be reunited                                                                                                                                                                                                                              

with Dara, because the social worker was "the only professional that has spoken about                                                                                                                                                                                                                                              

the elephant in the room of this case:                                                                                                                 the open hostility from Paxton's uncle and aunt                                                                                                                                  

towards Dara."                                                 

                                                      The court then focused its findings on Paxton:                                                                                                           

                                                      Paxton wants to be home with his mother and sister.                                                                                                                                                                            He  

                                                      knows them and is attached to them.                                                                                                                  Paxton's return home                                               

                                                      will give him the sense of identity that can only come from                                                                                                                                                               

                                                      honoring his attachment to his mother. . . . Paxton will not be                                                                                                                                                                      

                                                      moved unnecessarily; his moveis necessary                                                                                                                                   for his emotional          

                                                      well[-]being,   which  is   of   paramount   importance   in   an  

                                                      analysis of his best interest.                                                                                   

 The superior court ended its order by determining that Paxton's emotional well-being                                                                                                                                                                                                                         

was still the decisive factor in its analysis.                                                                                                                              The court stated that its "updated findings                                                                                                 

 further   support   placement   with   Dara"   because   "[p]lacing   Paxton   with   [Scarlet   and  

Monty] will lead to a loss of Paxton's bond with Dara and Georgia" while "[r]einstating                                                                                                                                                                                                              

Dara's parental rights will allow Paxton to maintain connections with everyone."                                                                                                                                                                                                         

 III.                      STANDARD OF REVIEW                                                        

                                                      Whether reinstatement is in a child's best interests is a factual finding that                                                                                                                                                                                                       

                                                                                                        20         "When reviewing factual findings we 'ordinarily will not  

we review for clear error.                                                                                                                                                                                                                                                                                                                  

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


 evidence  'when  the  record  provides  clear  support  for  the  trial  court's  ruling.'  "21  


                           20                         See id.                    at 1001.   



                                                     Id. at 989 (first quoting Martin N. v. State, Dep't of Health & Soc. Servs.,


Div. of Family &Youth Servs., 79 P.3d 50, 53 (Alaska 2003); then quoting D.M. v. State,


                                                                                                                                                                     -13-                                                                                                                                                             7426

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

"[A]ppellate review of trial court rulings based on testimonial credibility must give 'due                                                       


regard to the opportunity of the trial court to judge the credibility of the witnesses.' "                                                                

A finding is clearly erroneous if we are "left with a definite and firm conviction that a  

mistake has been made after review of the entire record."23  


IV.         DISCUSSION  


            A.          Compliance With Dara S.  


                       We first address whether - contrary to OCS's argument - the superior  

court complied with our remand directions.  We remanded because we concluded that  


the court had not made sufficient factual findings to support its ultimate finding that  



reinstatement of Dara's parental rights was in Paxton's best interests.                                                        We explained  


that  in  the  reinstatement context,  the  court  should  consider  the  legislative  findings  

                                                                                                                           25   The court had  



enumerated in AS 47.05.065(4)-(5) for its best interests determination. 

not done so in its initial reinstatement order or its reconsideration order.26  


                                                                                                                                         We also  


clarified that Alaska's legislative preference for keeping biological families together has  



"some application" in the reinstatement context.                                            We noted that courts considering  

            21          (...continued)  

Div.  of  Family  &  Youth  Servs.,  995  P.2d  205,  214  (Alaska  2000)).  

            22         Harrower  v. Harrower,  71  P.3d  854,  861  (Alaska  2003)  (quoting  Alaska  

R.  Civ.  P.  52(a)).   

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

            24         Dara  S.,  426  P.3d  at   1002.   

            25         Id .  and  n.106  (setting  out  legislative  findings).   

            26         Id .   

            27         Id .  at   1001-02.   

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reinstatement should try to evaluate a child's best interests "on at least three different                                                                                 

levels" by asking:                       

                             Are there reasons specific to the child and family why                                                                           it  

                             would be in the child's best interests to return to the family?                                                     

                             Are there               reasons specific to the child and family why it                                                          

                             would not be in the child's best interests to return                                                                   to the   

                              family?    Are   there   specific   countervailing   reasons   in   the  

                             child's best interests not to return to the family despite the                                                               


                             legislative preference?                                   

                             A  review  of  the  superior  court's  supplemental  order  indicates  that  it  


complied with our directions on remand.29                                                         The supplemental findings referenced the  


three questions posed in Dara S.  and the legislative findings in AS 47.05.065(4)-(5).  


Considering AS 47.05.065(4)-(5), the court made findings about:   (1) Paxton's age;  


(2) his attachment to caregivers; (3) his potential opportunities tomaintain visitation with  


those to whom he is bonded; (4) the safety, security, and stability of Scarlet and Monty's  


home  and  Dara's  home;  and  (5)  the  necessity  of  moving  Paxton  from  his  current  



                             OCS  argues  that  the  superior  court  erred  by  focusing  on  Dara's  best  


interests, not Paxton's.   OCS contends that the court was over-reliant on the social  


worker's testimony and report.  OCS argues that the social worker's report focuses on  


Dara's progress, rather than Paxton and his potential response to a transition away from  


Scarlet and Monty.  We reject OCS's characterization.  The social worker's report does  


include information about Dara's progress and the safety and stability of her home, but  


it also discusses Dara and Paxton's connection and his "healthy" attachment to and love  


for  her.              The  social  worker  elaborated  on  their  connection  during  her  testimony.  


               28            Id .  at   1001  (footnotes  omitted).  

               29            See  id.  at   1002.   

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Contrary to OCS's argument, the superior court focused on Paxton's best interests, and                                                                                                                                                                                                                                                                                                                                

not on Dara's best interests, in its remand decision.                                                                                                                                                                                                         

                                 B.                               Factual Findings Underlying The Best Interests Determination                                                                                                                                                                                              

                                                                  OCS argues that some factual findings underlying the superior court's best                                                                                                                                                                                                                                                                         

interests finding are clearly erroneous, and OCS implicitly concludes that these errors                                                                                                                                                                                                                                                                                                                    

mean the best interests finding is clearly erroneous as well.                                                                                                                                                                                                                                       

                                                                  1.                              Prior family relationship                                          

                                                                  OCS contends the superior court clearly erred when it originally found that                                                                                                                                                                                                                                                                         

Paxton lived the first three years of his life in a "traditional mother-child relationship"   

with Dara. OCS argues that the record shows Dara had a "chaotic life" when Paxton was                                                                                                                                                                                                                                                                                                                                 

in her custody for only two-and-a-half years, including her several hospitalizations due                                                                                                                                                                                                                                                                                                                              

to mental health crises and a suicide attempt.  OCS challenges "the court's assessment                                                                                                                                                                                                                                                                                           

that Paxton would be returning to a home that he knew and loved."                                                                                                                                                                                                                                                                               In doing so OCS                                                

 seems to challenge the court's original determination that Paxton's bonds with Dara and                                                                                                                                                                                                                                                                                                                               

 Scarlet were equivalent. OCS                                                                                                                    notes that Paxton "does not include Dara in his description  

of his family, and his time with Dara was before 'the period of his awareness.' "                                                                                                                                                                                                                                                                                                                      

                                                                  It was not clearly erroneous to find that Dara and Scarlet were similarly                                                                                                                                                                                                                                                 

 situated with respect to their bonds with Paxton at the time of the initial reinstatement                                                                                                                                                                                                                                                                            

order. Paxton then had spent approximately the same amount of his life with Dara as he                                                                                                                                                                                                                                                                                                                                       

had with Scarlet and was still in what the legislature deemed a "critical attachment"                                                                                                                                                                                                                                                                                      



                                               Because over two years passed between the initial reinstatement order and the  


 superior court's supplemental findings, Dara and Scarlet  may no longer have been  


 similarly situated with respect to their bonds with Paxton.  The court made no updated  


 finding about Paxton's relative bonds with Dara and Scarlet.  The court instead merely  



                                                                  See AS 47.05.065(5)(A).  

                                                                                                                                                                                                           -16-                                                                                                                                                                                                  7426  

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concluded that Paxton's "bond with his mother and sister remains intact" and "was never                                                                                                                                                                                          


                                             But Paxton did not need to be equally bonded with Dara and Scarlet for the                                                                                                                                                                  

superior court to find that reinstating Dara's parental rights was in his best interests. The                                                                                                                                                                                         

court could have found that, despite Scarlet's alleged comparatively stronger bond with                                                                                                                                                                                             

Paxton, reuniting him and Dara was in his best interests because of Dara's superior                                                                                                                                                                                   

ability to care for his emotional well-being and to help him maintain bonds with all of   

                                                                   31 Any error is thus harmless because the court most heavily weighed  

his family members.                                                                                                                                                                                                                                                    

Paxton's emotional well-being in its best interests determination, namely his ability to  


maintain all familial bonds.  


                                             2.                    Accounting for the passage of time  


                                             OCS also argues that the superior court erred by making findings based on  


the status quo at the time of the reinstatement trial.  OCS argues that the first section of  


the court's order "minimized the extent of Paxton's relationship with Scarlet and Monty  


by stating Paxton's age at the time of events long past." OCS points to several examples  


in the order's first section where the court determined Paxton's age and measured the  


passage of time as of the reinstatement trial.  But the court complied with our Dara S.  


opinion by making findings based in part on its original reinstatement order.  It might  


have been problematic had the court ended its supplemental findings there because of the  


passage of time since the court's first evaluation of Paxton's best interests.   But, in  


                       31                    See Thea G. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                                                                                        

Servs., 291 P.3d 957, 967 (Alaska 2013) ("We have held that 'a superior court may                                                                                                                                                                                                   

consider "any fact relating to the best interests of the child" in its best-interests analysis,'                                                                                                                                                                   

and that the superior court need not accord a particular weight to any given factor."                                                                                                                                                                                    

(footnotes omitted) (quoting                                                                     Hannah B. v. State, Dep't of Health & Soc. Servs., Office     

of Children's Servs.                                                , 289 P.3d 924, 932 (Alaska 2012))).                                                            

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


addition to clarifying its earlier findings, the court held an additional evidentiary hearing  


and made additional findings based on new developments.  We see no error.  


                    3.         Paxton's emotional well-being  


                     OCS asserts that it was clearly erroneous to find Scarlet and Monty were  


not able to provide for Paxton's emotional well-being because they refused to facilitate  


visitation with Dara. OCS contends that Dara had no right to post-termination visitation  


and that Scarlet and Monty were under no obligation to facilitate it. But the lack of legal  


obligation to maintain a relationship with Dara did not preclude the superior court from  


finding that Scarlet and Monty's past - and present - unwillingness to personally  


facilitate Paxton's relationship with Dara was contrary to Paxton's best interests.  The  


court was  concerned  about Scarlet and  Monty's future unwillingness to  personally  


facilitate Paxton's relationship with Dara; its concern was about Scarlet and Monty's  


judgment and ability to support Paxton's emotional needs, not legal requirements for  


visitation.  The court did not clearly err when it found that maintaining familial bonds  


was in Paxton's best interests and that Scarlet and Monty's apparent reluctance to help  


do that was not.  


                     OCSalso argues that thesuperior court erred by discounting Dr. Sorensen's  


testimony because he had not recently observed Paxton and Dara together, but failing to  


do the same with the social worker's testimony because she had not observed Paxton  


with Scarlet and Monty. OCS points out that Dr. Sorensen had observed a visit between  


Dara  and  Paxton  in  March  2016,  and  it  asserts  that  Dara  and  her  attorney  denied  


Dr. Sorensen access when he tried to observe her with Paxton prior to the December  


2018 evidentiary hearing.  


                     OCS's  argument  ignores  differences  in  the  duration  and  types  of  


observations made by Dr. Sorensen and the social worker.   Dr. Sorensen evaluated  


Paxton twice.  During the first evaluation, Dr. Sorensen observed Paxton with Dara and  

                                                               -18-                                                        7426

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interviewed Paxton, Scarlet, and Monty.  During the second evaluation, Dr. Sorensen  


interviewed only Paxton, Scarlet, and Monty. In contrast to Dr. Sorensen's more limited  


contact, the social worker testified that she had spent at least 60 hours with Dara, Paxton,  


and Georgia in the 3.5 years the social worker had been involved in the case, and she had  


spent at least 8 hours observing visits between Dara and Paxton in the 6 weeks prior to  


the December 2018 evidentiary hearing.   The court's findings reflect its legitimate  


concern about Dr. Sorensen's comparative lack of familiarity with the parties.  


                    We  further  reject  OCS's  argument  because  the  superior  court  also  


discounted  Dr.  Sorensen's  opinion  for  failing  to  take  into  account  "the  ongoing  


animosity  [Scarlet  and  Monty]  have  with  Dara."                              As  previously  noted,  the  court  


considered Paxton's emotional well-being "the predominant and decisive factor" in its  


best interests analysis, and it determined that Scarlet and Monty's animosity towards  


Dara was contrary to Paxton's best interests.  


                    We see no legal error, and the superior court's findings are not clearly  




                    4.         Paxton's choice  


                    OCS argues that the record does not support the superior court's finding  


that Paxton wants to live with Dara.  But there is support in the record.  The Oregon  


social service assistant who supervised some of Dara's visits with Paxton testified that  


she heard him say he wanted to live with Dara.  OCS points out that the only two times  


Paxton was asked directly if he wanted to live with Dara, by Dr. Sorensen and the OCS  


caseworker, Paxton expressed a desire to continue living with Scarlet and Monty.  But  


the superior court was entitled to, and did, discount the credibility of both Dr. Sorensen  


and the caseworker.  It is not our role to reweigh the evidence or make new credibility  

                                                               -19-                                                         7426

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determinations.                                 Because there is some support in the record for the court's finding, we                                                                                                          

conclude there was no clear error.                                                           

                                    5.                Negligent supervision   

                                    OCS   contends   that   the   superior   court   clearly   erred   by   finding   OCS  

negligently supervised Paxton while he was in Scarlet and Monty's care. OCS's                                                                                                                                     possible  

negligence is relevant to the best interests determination only to the extent it explains                                                                                                                         

why the court discounted the caseworker's opinion.                                                                                                  Regardless whether OCS was                                                

negligent, the court was entitled to find that the caseworker's contact with Paxton, Dara,                                                                                                                                 

Scarlet, and Monty was insufficient to allow the caseworker to offer an informed opinion                                                                                                                             

on   the   situation.     We   cannot   say   the   court's   credibility   determination  was   clearly  


                                    6.                Summary  

                                    Based  on  the  foregoing  discussion,  we  conclude  that  none  of  OCS's  


challenges to the superior court's underlying findings have sufficient merit to undercut                                                                                                                         

the court's ultimate best interests finding.  


V.                CONCLUSION  

                                    We AFFIRM the superior court's decision.  


                  32                See supra notes 21 and 22 and accompanying text.  


                                                                                                               -20-                                                                                                         7426  

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