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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  

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                    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  

                           

                   tem.  



                                                                                            

                   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-----------------------

I.        INTRODUCTION  



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

                                                                                                                           



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

                                                                                                                                



                                                                                                                                   1  

(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,  



                                                                                  2  

                                                                                      

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                                                                      



                                                                                                                                 6  

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  

                                                                                        



II.         FACTS AND PROCEEDINGS  

                                        



            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
  


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

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



                                                                                       9  

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
  


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

                                                                                               16  

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
  


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

                                                                                                                             

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
  


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

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                                                                                                                                                                                                                             



Georgia.    



                                                      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
  


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

                                                                                                                                  

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  



                    

evaluation.  



                                                                                                                              

                    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  



                   

counseling.  



                                                                                                                             

                    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.   



                           21  

                                                                                                                                                                                                                                                                                                                               

                                                     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,
  

                                                                                                                                                                                                                                                                                                     (continued...)
  



                                                                                                                                                                     -13-                                                                                                                                                             7426
  


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

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



                                                                                                                                                     22  

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  



                                                                                                                          24  

                                                                                                                                       

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  



                                                                                      27  

                                                                                                                       

"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.   



                                                                        -14-                                                                   7426
  


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

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                                                               

                                                                               [28]  

                             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  

                                                                                                                                                                              



placement.  



                             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.   



                                                                                           -15-                                                                                            7426  


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

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"                                                                                                                                                                                                                                                                                      



                                   30  

period.                                                                                                                                                                                                                                                                                                                                                                                                                  

                                               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  



                                 30  

                                                                                                       

                                                                  See AS 47.05.065(5)(A).  



                                                                                                                                                                                                           -16-                                                                                                                                                                                                  7426  


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

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



broken."   



                                             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))).                                                            



                                                                                                                                           -17-                                                                                                                                    7426
  


----------------------- 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
  


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

                                                                                                                      

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  



                  

erroneous.  



                                               

                    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
  


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

                                          32  

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  



erroneous.  



                                    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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