Opinion
Supreme Court No. S-13954.
November 2, 2011.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay, Judge, Superior Court Nos. 3AN-09-00306 CN, 3AN-09-00307 CN.
G. Blair McCune, Wasilla, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage and John J. Burns, Attorney General, Juneau, for Appellee.
Shannan Baergen, Law Office of Dianne Olsen, Anchorage, Guardian Ad Litem.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices. Stowers, Justice, with whom Christen, Justice, joins, concurring.
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
A mother appeals the termination of her parental rights to twin sons, arguing the State did not make reasonable efforts to provide family support services to reunify the family. The superior court did not err in finding to the contrary, and we therefore affirm.
II. FACTS AND PROCEEDINGS
A. Facts 1. Before the twins' birth
In August 2007 the State of Alaska, Department of Health and Social Services, Office of Children's Services (OCS) assumed custody of Amanda K.'s seven-month old son Henry after Amanda was hospitalized in Soldotna for suicidal ideation and alcohol intoxication. Karen Hummel, an OCS caseworker in Kenai, was assigned to Amanda's case and worked with her to develop a case plan. Amanda's case plan required outpatient substance abuse treatment, parenting education, and a mental health evaluation. At the end of August Amanda moved from Kenai to Homer.
We use pseudonyms to protect the parties' privacy.
Amanda relinquished her parental rights to Henry in early 2010. Including the twins at issue in this appeal, Amanda has given birth to eight children; one died in infancy, and the others either were placed with the father or Amanda's parental rights were terminated or relinquished.
Amanda completed a substance abuse assessment in September 2007 and started outpatient treatment through Cook Inlet Council on Alcohol and Drug Abuse (CICADA). Amanda participated for several months, submitting urinalysis tests from early October 2007 through the end of June 2008. Amanda admittedly did not complete outpatient treatment. CICADA recommended Amanda enter an inpatient program. Amanda admittedly did not undertake inpatient treatment. Amanda testified that about three weeks after she last attended class at CICADA, the director rescinded the inpatient recommendation and directed Amanda to continue with outpatient treatment, but she did not go back to outpatient treatment.
OCS had also referred Amanda to Dr. Michael Rose for a psychological evaluation, which was conducted in November 2007. Dr. Rose concluded Amanda was alcohol dependent in partial remission, had a possible bipolar disorder, and had a personality disorder with borderline and antisocial features. He determined her prognosis was "guarded to poor because her behavior reflects a chronic pattern of erratic and unpredictable behavior and adjustment that is difficult to change." Although Dr. Rose was "pessimistic" that Amanda would be able to address her problems to reunify with Henry, he recommended that Amanda: (1) consider relinquishing custody or allowing a guardianship so she could maintain contact with him; (2) receive a psychiatric evaluation to determine if she should be medicated for her possible bipolar disorder; (3) enter individual psychotherapy; (4) demonstrate she could consistently financially provide for Henry and keep stable housing; (5) enter and complete substance abuse treatment; (6) abstain from being in a relationship; and (7) receive gradually increased visitation after demonstrating consistent progress towards these recommendations.
In December 2007 Amanda, her medical provider, and a provider from the Homer Community Mental Health Center (the Center), agreed Amanda would follow up with Dr. Charles Burgess for neurologic and psychiatric evaluations. An appointment was scheduled for February 2008. Before her scheduled appointment, Amanda was again evaluated at the Center after another emergency department admission for alcohol intoxication and seizure-like symptoms; Amanda indicated to medical staff that she planned to keep her appointment with Dr. Burgess. Amanda did not.
In May 2008 Dr. Burgess conducted a psychiatric evaluation, concluding Amanda had "reactive attachment disorder," "borderline personality disorder with some antisocial features," and alcohol dependence in "relative remission." Amanda's prognosis was uncertain, as she was at high risk for relapse and her motivation was unclear. Dr. Burgess recommended medications to reduce Amanda's alcohol cravings and supported her return to and continuation with the CICADA and Alcoholics Anonymous programs. He also noted Amanda would benefit from psychotherapy. Amanda attended a July 2008 appointment with Dr. Burgess; another appointment was scheduled for her, but she did not go. In April 2009 Dr. Burgess discharged Amanda from the Center, indicating she did not follow up with services.
Hummel testified she had regular contact with Amanda while she was attending CICADA, and during that time Hummel explained to Amanda that she would need to enter inpatient treatment if she did not complete the outpatient program. Amanda indicated she felt no need to be in treatment. Amanda revoked the information releases allowing OCS access to her treatment records before she stopped attending the outpatient program at CICADA; after she stopped attending treatment, Hummel lost contact with her. It took months for Hummel to receive Dr. Burgess's evaluation. Hummel later discussed Drs. Rose's and Burgess's therapy recommendations with Amanda numerous times. Amanda testified she could not get therapy because there was a long waiting list to see Dr. Burgess and no other psychotherapy services were offered in Homer. Amanda said she discussed this problem with Hummel, but Hummel did not help her nor provide any referrals or travel funds for her to get services elsewhere.
Lack of communication between Hummel and Amanda continued. Amanda refused contact with Hummel unless Amanda's attorney was present. Hummel had some contact with Amanda via email and made "numerous attempts" to make appointments with Amanda and her attorney, but was unable to schedule a meeting. Because of this lack of contact, Hummel did not make any inpatient treatment referrals for Amanda after she left CICADA. Amanda testified Hummel "worked very hard" to arrange a visitation between Amanda and Henry in October 2008, but Amanda did not attend. Around February 2009 Amanda moved to Anchorage without telling OCS, because she did not want OCS to know her location.
Even while Amanda was in treatment, she continued drinking. Between the time OCS took custody of Henry in August 2007 and December 2008, Amanda was severely intoxicated with seizure-like symptoms, requiring emergency medical treatment on at least ten different occasions. After four emergency department admissions for alcohol intoxication and seizure-like symptoms between August 2007 and February 2008, Amanda was evaluated for substance abuse and mental health issues by medical social workers, independent of OCS's efforts.
2. After the twins' birth
In July 2009 Amanda prematurely gave birth to twin boys at Providence Alaska Medical Center (Providence) in Anchorage. Although Amanda's case involving Henry remained open in Kenai, OCS was not aware of Amanda's whereabouts, her pregnancy, or that she had given birth. In August a Providence social worker made a report of harm to the Kenai OCS office, expressing concerns about the twins' medical needs and that Amanda: (1) was inconsistent in explaining her social situation; (2) had been homeless; (3) had no family support; and (4) was hostile, combative, and manipulative while at the hospital. Due to Amanda's lack of engagement in her previous OCS case and safety concerns for the twins, OCS took emergency custody of the twins the next day.
The father of the children has not been identified and his rights are not at issue on appeal.
OCS updated Amanda's case plan on August 12, noting Amanda refused to discuss the case without her attorney present. The updated case plan required Amanda to: (1) complete a substance abuse assessment and follow the recommendations; (2) follow the recommendations of the previously conducted psychological and psychiatric evaluations; (3) complete a parenting program; and (4) develop an action plan to obtain adequate housing and financial resources to care for the children. A few days later Hummel and Amanda participated in a team meeting. The twins were initially placed in foster care in Kenai, but were later moved to an Anchorage foster home. Venue for the OCS matter was transferred to Anchorage in September.
Amanda continued abusing alcohol. In August Amanda went to Providence's emergency department after having "jerking episodes." Although a Providence social worker reported Amanda had a high blood alcohol level and had been found passed out in her apartment building's lobby with an empty whisky bottle, Amanda denied being intoxicated. In September Amanda was transported to an emergency department after apparently having a seizure outside a bar; test results again showed a high blood alcohol level.
Later in September Amanda received a mental health assessment from Bridges Counseling Connections (Bridges) after a referral from her obstetrician. At that time she signed releases of information for OCS. Amanda was evaluated by Dr. Masao Yanagida, whose initial recommendations included individual therapy and a psychiatric assessment. Amanda attended at least three individual therapy sessions with a licensed professional counselor at Bridges. She testified she attended weekly sessions for approximately two months starting in September 2009. In early October Hummel tried contacting Amanda's counselor, but it is unclear if they ever spoke. Hummel spoke with Dr. Yanagida a few days later.
Testimony at trial reflected Dr. Yanagida said he would not continue seeing Amanda because she was not truthful and he could not get through a full assessment. OCS's case plan notes Dr. Yanagida said "he was not comfortable providing a diagnosis for [Amanda] because she was not a good historian, was not remorseful, and might sue him."
In October Amanda arrived at Alaska Regional Hospital's emergency department with apparent seizures, chest pains, and a high blood alcohol level. Hummel arranged a substance abuse assessment at the Salvation Army Clitheroe Center (Clitheroe Center) and Amanda completed it later that month. During the evaluation Amanda under-reported her alcohol use and denied needing treatment. Although the evaluator relied on some collateral information OCS provided, including a CICADA assessment, medical records, and Amanda's legal history, the evaluator recommended no treatment, concluding Amanda was alcohol dependent but in early remission, and noted Amanda "should be evaluated for a higher level of care" if she could not abstain from alcohol. Three days after the assessment, Amanda again went to Alaska Regional Hospital's emergency department with apparent seizures and a high blood alcohol level.
Melissa Blair became the primary OCS social worker on the twins' case in late October 2009; Hummel remained the primary worker on Henry's case. Because both Hummel and Blair served as primary caseworkers and both case plans were similar, the caseworkers coordinated their efforts until Amanda relinquished her parental rights to Henry in March 2010.
Blair met with Amanda in early November 2009 and they reviewed the previous case plan and OCS's concerns. They discussed counseling and Amanda said she was seeing a provider. Amanda expressed financial concerns and Blair noted Amanda was provided information about counselors offering sliding scale fees. One of the agencies Blair referred Amanda to was Anchorage Community Mental Health (ACMH). Amanda later told Blair that her mental health issues were not severe enough to qualify her for their programs. Blair did not follow up with ACMH directly and admitted that this was "a failure on [her] part." Blair also considered Medicare payments for Amanda's therapy.
In December 2009 Amanda went to an emergency department after a bystander found her having an apparent seizure. She had a high blood alcohol level, but denied any use of alcohol that month. In January 2010 Blair, Hummel, the guardian ad litem, and Amanda all collaborated to update Amanda's case plan. Four days later, Amanda again went to an emergency department with possible seizures and a high blood alcohol level.
Amanda's updated January case plan required her to: (1) complete an updated substance abuse assessment and follow the recommendations; (2) follow Dr. Rose's assessment recommendations, including individual psychotherapy; (3) complete a psychiatric evaluation and follow the recommendations; (4) complete a parenting education program; (5) participate in in-home family preservation and a trial home-visit if reunification became an option; (6) develop an action plan to obtain adequate housing and financial resources to care for the twins; and (7) seek appropriate care for her own medical issues.
In early February Amanda was scheduled at South Central to complete an intake assessment. Amanda stated that when she arrived for the appointment, South Central did not have funding authorization from OCS and therefore the intake could not be completed. Hummel reported to Blair that she had turned in the form but thought the fax must not have been properly transmitted; Hummel said she would resend the authorization so that Amanda could reschedule her appointment.
The record documenting this intake assessment is ambiguous; it might refer to either South Central Mental Health Counseling Center or Southcentral Foundation.
In early February an evaluator at Clitheroe Center completed another substance abuse assessment for Amanda. Blair provided the evaluator a report about the December alcohol incident and other collateral information. The evaluator amended Clitheroe Center's original October 2009 assessment, diagnosed Amanda with alcohol dependency, and recommended inpatient treatment. A mental health professional at Clitheroe Center reviewed the evaluation and recommended Amanda attend long-term, dual-diagnosis treatment (to address both substance abuse and mental health issues) and complete random urinalysis tests.
Blair testified Amanda said that it did not make sense to start counseling and then stop to do inpatient treatment, and that she would not go to counseling. Blair therefore did not try to resume services with a counseling provider. Blair also testified Amanda (again) requested they not discuss case planning or meet unless her attorney was present.
Once the Clitheroe Center assessment was completed, Blair sent Amanda a letter with releases of information. Blair also sent emails to Amanda's attorney asking if Amanda wanted treatment or a reassessment. Once a month for several months after that, Blair sent Amanda letters with case plans and releases of information for an inpatient treatment referral asking her or her attorney to contact Blair, but Blair received no responses. Blair and Amanda occasionally spoke about non-case plan related issues, such as medication for the twins.
Other assistance OCS provided Amanda in complying with the January 2010 case plan included: (1) arranging for her to take parenting classes, which she did not complete; (2) helping the twins secure medical services and physical therapy, and trying to accommodate Amanda's work schedule so she could attend the twins' medical appointments; (3) providing Amanda with a bus pass; (4) starting trial visitations at her home; and (5) arranging visitation.
In April 2010 OCS filed a petition to terminate Amanda's parental rights to the twins. That same month Amanda completed a substance abuse assessment arranged by her attorney at Addiction and Alcohol Resolution Services. The evaluator noted Amanda was "adamantly against" the Clitheroe Center's amended assessment, she believed residential treatment was unnecessary, and she did not want to lose her employment and housing. The evaluator determined Amanda was alcohol dependent and recommended formal outpatient treatment contingent on Amanda also separately receiving mental health services. The evaluator explained:
Although [Amanda] would benefit from [inpatient] treatment and it is probably the most appropriate setting for her to get the intensive services she needs. . . . [i]t is therapeutic to allow client[]s bordering on intensive outpatient and [inpatient] treatment, if they are adamantly opposed to [inpatient,] the opportunity under strict guidelines to start in intensive outpatient agreeing to enter [inpatient] if they are not able to meet the program requirements. This client absolutely will need a long[-]term therapeutic process to include mental health treatment in parallel to any substance abuse treatment program. . . .
The evaluation noted Amanda's attorney had provided collateral information, including Dr. Rose's evaluation, OCS records, shelter and medical records, and that Amanda had signed releases of information for OCS and Clitheroe Center, among others. Blair testified OCS would not accept this recommendation because OCS did not provide collateral information. Blair told Amanda that OCS was requiring her to complete dual-diagnosis, inpatient treatment because that was the clinical recommendation from the latest assessment OCS relied on and such a program could treat both her substance abuse and mental health issues. Blair also explained OCS did not want to pay for separate treatments when one treatment facility could address both of Amanda's needs.
Blair did not require Amanda to do urinalysis testing, explaining that tests can be done only four times a week and are good only for that day. Because Amanda was a binge drinker, she could drink the night before a test, wait approximately twelve hours, and have a negative test result. Blair communicated this position to Amanda and her attorney. But Amanda requested urinalysis testing, and Blair arranged for it beginning in late April. Amanda recorded negative results for the tests she took, but failed to show up for two tests.
At the time of trial Amanda reported attending Alcoholics Anonymous meetings two to three times a week and being sober for five or six months. She admittedly was not engaged in either outpatient or inpatient treatment.
B. Trial Proceedings
The superior court held a two-day parental rights termination trial in July 2010. The court found Amanda "manipulative," saying what she believed the court wanted to hear. The court clarified it was not saying that Amanda "totally lack[ed] credibility," but that her behavior was more likely a "byproduct of her complete lack of insight."
The court found: (1) the twins were at substantial risk of harm due to Amanda's substance abuse and mental health issues; (2) Amanda failed to remedy the conduct and conditions that placed the twins at risk of harm; and (3) returning the twins to Amanda would place them at substantial risk of physical or mental injury. The court determined the "real issue" in the case was whether OCS provided reasonable efforts to reunify Amanda and the twins. The court found OCS made reasonable efforts to provide remedial services to Amanda and the twins to prevent the breakup of the family and to promote reunification and that these efforts proved unsuccessful. But the court noted: "Although the efforts made by [OCS] were insufficient prior to the time venue in this matter was transferred to Anchorage, sufficient efforts ultimately were made, and the department's efforts in their entirety were reasonable under the circumstances of this case."
AS 47.10.011 provides in relevant part:
[T]he court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following:
. . . .
(10) the parent['s] . . . ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child . . .;
(11) the parent . . . has a mental illness, serious emotional disturbance, or mental deficiency of a nature and duration that places the child at substantial risk of physical harm or mental injury. . . .
AS 47.10.088(a)(2)(A) provides for termination of parental rights if the parent "has not remedied the conduct or conditions in the home that place the child at substantial risk of harm."
AS 47.10.088(a)(2)(B) in relevant part provides for termination of parental rights if "returning the child to the parent would place the child at substantial risk of physical or mental injury."
AS 47.10.086 provides in relevant part that OCS "shall make timely, reasonable efforts to provide family support services . . . to enable the safe return of the child to the family home," and shall "actively offer . . . services."
The court noted Hummel's efforts "fell short of the standard" expected in Alaska, but that Amanda had made the process "very difficult." The court also found: (1) "due in no small part to [Amanda's] loss of contact during a significant period of time just preceding the twins' birth . . . [OCS] was unable to assist her"; (2) when OCS was again able to assist her, it "fell down" by not sending collateral information to the Clitheroe Center evaluator; and (3) by the time OCS "got [its] act together," Amanda's mental health issues led to the inability to reunify the family because she became "reactive" and although OCS "kept trying," all they could do was write her letters because she refused contact with OCS without her attorney present.
The court found terminating Amanda's parental rights was in the best interests of the children, and her rights were terminated on July 13, 2010. Amanda appeals.
III. STANDARD OF REVIEW
In a case involving the termination of parental rights this court reviews a trial court's findings of fact for clear error. Findings are clearly erroneous if, after reviewing the record in the light most favorable to the prevailing party, this court is left with a "definite and firm conviction that a mistake has been made." When reviewing factual findings this court "ordinarily will not overturn a trial court's finding based on conflicting evidence," and will not reweigh evidence "when the record provides clear support for the trial court's ruling." It "is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." Whether the trial court's factual findings satisfy the requirements of the CINA statute is a question of law this court reviews de novo.
Barbara P. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1253 (Alaska 2010) (citing Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004)).
Id. (quoting Brynna B., 88 P.3d at 529).
In re Adoption of S.K.L.H., 204 P.3d 320, 325 (Alaska 2009) (quoting Tessa M. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 182 P.3d 1110, 1114 (Alaska 2008)).
Id. (quoting Tessa M., 182 P.3d at 1114).
Barbara P., 234 P.3d at 1253.
IV. DISCUSSION
A. Reasonable Efforts
Amanda appeals only the superior court's finding that OCS made reasonable efforts to provide services to the family. Before terminating parental rights under AS 47.10.088 a superior court must make several findings, including finding by clear and convincing evidence that OCS made reasonable efforts under AS 47.10.086. OCS is required to "make timely, reasonable efforts to provide family support services to the child and to the parents . . . of the child that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home. . . ." OCS is required to:
We note Amanda asserted in her points on appeal that the superior court erred in denying her preferred placement for the children, but she did not brief this issue and it is therefore waived. Pravat P. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 249 P.3d 264, 270 n. 18 (Alaska 2011) (finding issue waived when listed in formal points on appeal, but not briefed) (citing Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010) ("[I]ssues not argued in opening appellate briefs are waived.")).
See AS 47.10.088(a)(3).
AS 47.10.086(a).
(1) identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid;
(2) actively offer the parent or guardian, and refer the parent or guardian to, the services identified under (1) of this subsection; [and]
(3) document the department's actions. . . .
Id.
In making determinations under AS 47.10.086, the superior court's "primary consideration is the child's best interests."
AS 47.10.086(f).
This court's starting point for evaluating OCS's reunification efforts is to "identify the problem that caused the children to be in need of aid and then determine whether OCS's efforts were reasonable in light of the surrounding circumstances." OCS's efforts may be reasonable when taken in their entirety even if its efforts were not reasonable for a limited period of time or a specific event. OCS's efforts "must be reasonable but need not be perfect" and a parent's unwillingness to participate in services is relevant to the reasonableness inquiry. Evaluation of OCS's efforts includes consideration of efforts made before the affected children were born.
Barbara P., 234 P.3d at 1262 (citing Burke P. v. Dep't of Health Soc. Servs., Office of Children's Servs., 162 P.3d 1239, 1245 (Alaska 2007)).
Id. (citing Audrey H. v. State, Office of Children's Servs., 188 P.3d 668, 679-81 (Alaska 2008)).
Audrey H., 188 P.3d at 678.
Audrey H., 188 P.3d at 679 n. 35 (considering in case of younger children OCS's efforts toward mother and older child because "determination of whether OCS made reasonable efforts may involve consideration of all interactions between the parent and OCS"); Erica A. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 66 P.3d 1, 7-8 (Alaska 2003) (considering OCS's involvement with mother prior to birth of children); see also Tara U. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 239 P.3d 701, 705 (Alaska 2010) (holding in published order "that it was legal error for the superior court to consider only OCS's post-removal efforts in its examination of whether OCS made reasonable efforts").
It is uncontested that Amanda's mental health and substance abuse issues cause the twins to be children in need of aid. OCS assumed emergency custody of the twins in August 2009 and, although the superior court found OCS's family reunification efforts "insufficient" prior to Amanda's case transferring to Anchorage in September 2009, the court found by clear and convincing evidence that OCS's efforts were reasonable in their entirety.
Amanda first argues OCS failed to provide reasonable efforts because it did not adequately assist her in obtaining mental health treatment. Amanda asserts OCS failed to: (1) provide individual therapy per Drs. Rose's and Burgess's assessments and the August 2009 and January 2010 case plans and (2) make any mental health referrals until approximately three months after OCS took custody of the twins. Amanda also argues that after receiving the February 2010 Clitheroe Center assessment, Blair mistakenly "made the decision that OCS would no longer seek to provide Amanda with individual psychotherapy," and this position was "manifestly unreasonable" because it was not supported by Drs. Rose's and Burgess's recommendations.
Amanda argues for the first time in her reply brief that OCS failed to document the reasonable efforts it provided under AS 47.10.086(a)(3). To the extent this raises a new argument, it is waived. See Barnett v. Barnett, 238 P.3d 594, 603 (Alaska 2010) ("Because we deem waived any arguments raised for the first time in a reply brief, we do not here reach the merits of these issues.").
Amanda next argues OCS failed to adequately assist her with substance abuse treatment. Amanda asserts OCS failed to: (1) provide Clitheroe Center with collateral information in October 2009, resulting in an erroneous evaluation; (2) approve and implement a substance abuse treatment plan until six months after the twins were born; and (3) be more flexible in allowing her to participate in outpatient treatment instead of dual-diagnosis, inpatient treatment. Amanda argues "social workers need to do more than just inform a parent, especially a parent with substance use or mental health difficulties, that a particular type of treatment is needed."
Amanda relies on In re Natalya C., 946 A.2d 198, 203-04 (R.I. 2008) (holding state failed to prove reasonable efforts by clear and convincing evidence because "it was wholly unreasonable for [the state] not to include any mental-health treatment in [the mother's] case plans, given that her mental illness was one of the primary barriers to her reunification with [her daughter]," which the caseworkers knew or should have known about based on mother's medical records (emphasis in original)); In re Tiffany B., 228 S.W.3d 148, 159-60 (Tenn. App. 2007) (holding, under clear and convincing standard, state failed to provide reasonable efforts because caseworkers did little to locate parents, did nothing beyond having couple of conversations with them, and expected them to initiate remedial efforts or ask caseworkers for help, even though caseworkers knew parents were addicted to drugs, homeless, unemployed, and facing criminal charges); In re Alvin R., 134 Cal. Reptr. 2d 210, 217-19 (Cal. App. 2003) (holding, under clear and convincing standard, state failed to provide reasonable services to get father and son into joint therapy, which was critical for visitation, when father "had done all that was required of him under the plan" and state's "only effort to overcome" son's caregiver's schedule was to make referral to therapist who did not have available time).
Amanda fails to recognize that ultimately it was not OCS's failures that caused her mental health and substance abuse problems to remain untreated; it was a direct result of her lack of willingness to maintain contact with her caseworkers, to candidly report her health status to service providers, and to engage in services when they were offered. B. Mental Health
See Ben M. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1021 (Alaska 2009) ("Where services have been provided and a parent has demonstrated a lack of willingness to participate or take any steps to improve, this court has excused minor failures by the state and rejected arguments that the state could possibly have done more."); K.N. v. State, 856 P.2d 468, 477 (Alaska 1993) ("Although it is true that [OCS] might have done more, it is unlikely that further efforts by [OCS] would have been effective in light of [the parent's] attitude."), cited with approval in Burke P., 162 P.3d at 1246 n. 26.
OCS made reasonable efforts to provide services that would allow Amanda to reunite with Henry beginning in August 2007. Amanda was participating in outpatient treatment in Homer from October 2007 through at least June 2008 but failed to complete the program. In October 2008 Hummel was still trying "very hard" to schedule visitation with Henry for Amanda, but Amanda failed to attend. By February 2009, Amanda had moved to Anchorage without contacting OCS because she did not want OCS to locate her.
It was not until August 2009 when Providence reported the twins' birth to OCS that Amanda's whereabouts became known. In September Amanda's obstetrician referred her for an initial mental health assessment at Bridges. The record reflects Amanda attended three individual therapy sessions there through early October, although she testified that she went weekly for two months. She also received a second mental health assessment. When Amanda's case was transferred to the Anchorage OCS office Hummel was aware that Amanda was receiving this mental health assistance, and Amanda told Blair that she was seeing a therapist.
Cf. Darcy F. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 252 P.3d 992, 993 n. 6 (Alaska 2011) (noting mother had "lengthy history of obtaining medical care when needed").
Amanda argues her case plans should have referred her to a specific clinic or provider for therapy, relying on Burke P.'s discussion that "a case plan normally should refer parents to appropriate service providers." 162 P.3d at 1246. The lack of specificity was remedied about a month after the August 2009 case plan was adopted, when Amanda started counseling at Bridges. See id. (noting OCS referred father to service providers during three-year duration of previous CINA case, OCS "was entitled to take into account" that father had completed only one of three previous referrals and that remedial services in area appeared to have been exhausted). When Amanda stopped attending Bridges, OCS provided her with information about therapists offering sliding scale fees. The January 2010 case plan included a notation that the caseworker "will make the necessary referrals" for psychotherapy, and Amanda argues it should have specified a provider. But less than two weeks after the January case plan was adopted, an appointment was scheduled at South Central.
After the case moved to Anchorage Amanda not only rejected some of the mental health services OCS offered, she also continued to limit her communication with her caseworkers. OCS provided Amanda with information about individual therapists who offered sliding scale fees, Blair referred her to ACMH, and Blair considered having Medicare pay for Amanda's therapy. In early February 2010 Amanda had an intake assessment appointment at South Central. South Central had not received the funding authorization at that time, but Hummel indicated to Blair that she would resend it. Five days later the updated Clitheroe Center assessment was completed, recommending dual-diagnosis inpatient treatment that would address both Amanda's substance abuse and mental health issues. But Amanda did not want to start counseling before entering inpatient treatment. Later Amanda changed her mind, telling Blair she would not engage in inpatient treatment. Around this time Blair started having trouble contacting Amanda, but Blair continued sending letters, case plans, and releases of information to Amanda asking her or her attorney to contact Blair.
See E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 990 (Alaska 2002) ("Although [OCS's] efforts . . . consisted largely of failed attempts to contact [mother] or obtain information from her rather than the provision of services, [mother's] evasive, combative conduct rendered provision of services practically impossible.").
AS 47.10.086(a) requires OCS to identify support services that will help the parent and then "actively offer" and "refer" the parent to those services. Here Blair identified ACMH and referred Amanda. See Frank E. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 77 P.3d 715, 720 (Alaska 2003) ("[T]he requirement that the state offer reunification services is fulfilled by setting out the types of services that a parent should avail himself or herself of in a matter that allows the parent to utilize the services."). Cf. Audrey H., 188 P.3d at 681 (noting "OCS actively offered [mother], and referred her to, . . . evaluations by making appointments, arranging payment, and providing for transportation").
See Doug Y. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 243 P.3d 217, 227 (Alaska 2010) (noting OCS's policy and procedure manual indicates "OCS is the payer of last resort" and "providers who have sliding scale fees should be used if appropriate and available").
Amanda unpersuasively argues that Blair erroneously decided Amanda's case plan should no longer include individual therapy after the updated Clitheroe Center assessment recommended dual-diagnosis, inpatient treatment. The record clearly shows Blair was asserting Amanda should comply with the most recent assessment, which would treat both her mental health and substance abuse issues, and was indicating OCS would pay for a dual-diagnosis program but not for separate services.
C. Substance Abuse
OCS's efforts in assisting Amanda with her substance abuse issues initially were poor — it took nearly three months after OCS took emergency custody of the twins for Amanda to complete a substance abuse assessment; OCS conceded that it failed to send proper collateral information for that assessment; and the evaluation recommended no treatment, resulting in a treatment plan delay. But this lapse is not sufficient to hold the superior court clearly erred in finding reasonable efforts when considering OCS's efforts in the entirety and Amanda's lack of engagement.
Cf. E.A., 46 P.3d at 990 (holding seven-month long failure did not render overall efforts unreasonable when OCS provided "extensive" efforts outside of this time period and parent had long history of "either refusing services altogether or abandoning treatment plans prior to completion").
After the twins were born in July 2009, Amanda continued having problems with alcohol abuse, resulting in an emergency department visit in August, another in September, and two in October. As noted above, Hummel arranged for Amanda to have a substance abuse assessment in October 2009 at Clitheroe Center but the superior court found OCS failed to send sufficient collateral information. When Blair learned Amanda went to the emergency department for alcohol intoxication in December, Blair worked with Amanda to update her case plan, requiring Amanda to complete a new substance abuse assessment. Blair then sent the Clitheroe Center evaluator updated collateral information about the December incident. The assessment ultimately recommended long-term, dual-diagnosis inpatient treatment.
Amanda concedes she "refused the long-term, dual-diagnosis treatment program" recommended, but asserts OCS should have been more flexible in allowing her to participate in outpatient treatment. She contends she took "appropriate steps through her attorney to get another substance abuse assessment which found that [she] qualified for outpatient treatment." Taking into account Amanda's past performance, it was not unreasonable for OCS to refuse to be flexible in its treatment recommendation: (1) Amanda had previously stopped attending outpatient substance abuse treatment and indicated she did not need treatment at all; (2) Amanda denied the August and December 2009 drinking incidents and relapsed again in January 2010; (3) Amanda stopped discussing her case plan with Blair after the second Clitheroe Center assessment was completed even though Blair had sent monthly letters, cases plans, and releases of information for an inpatient treatment referral; and (4) Blair had sent emails to Amanda's attorney asking whether Amanda wanted to engage in treatment, wanted a reassessment, or was willing to sign releases of information.
See Burke P., 162 P.3d at 1246 ("OCS was entitled to take into account the fact that [the father] had completed only one of three previous referrals.").
It was reasonable for OCS not to give much weight to the results of Amanda's pre-trial assessment because: (1) it was not received until just before trial; (2) Blair testified OCS did not provide collateral information for the assessment and could not accept its results; and (3) it noted inpatient treatment was "probably the most appropriate setting" but recommended outpatient treatment because Amanda would be willing to participate in such treatment. Amanda presented no evidence at trial that she was engaged in outpatient treatment, instead she reported staying sober for five or six months and attending Alcoholics Anonymous meetings.
D. Overall
Although OCS's efforts were not perfect, overall they were reasonable, particularly in light of Amanda's lack of candid communication with her caseworkers and unwillingness to participate in substance abuse treatment. As the superior court noted, "you can't look at this case if you don't already know the history of the case," including OCS's efforts and Amanda's lack of engagement before the twins' birth. Accordingly, the superior court did not clearly err in finding by clear and convincing evidence that OCS's reunification efforts in their entirety were reasonable and effectively overcame any lapses.
See Audrey H., 188 P.3d at 679 n. 35. Were it not for this point, OCS's overall efforts might not have been reasonable.
V. CONCLUSION
We AFFIRM the superior court's termination of Amanda's parental rights.
I agree with the result of this appeal, mainly because Amanda's unwillingness to participate in the services provided to her significantly outweighs the imperfections in OCS's efforts to prevent the break up of this family. I write separately to highlight the inherent tension that exists between a mental illness that may prevent a parent from being able to participate and cooperate in the services OCS provides — and OCS's failure to meaningfully address the parent's mental illness early in the case when early efforts might have made a difference.
Here, OCS was aware before the twins were born that, among other things, Amanda had a possible bipolar disorder and a personality disorder with borderline and antisocial features. In fact, it was OCS's selected psychologist who made these diagnoses. Dr. Rose warned that Amanda's prognosis was guarded-to-poor because her behavior reflected a chronic pattern of erratic and unpredictable behavior and adjustment that is difficult to change. And in November of 2007, he recommended individual psychotherapy.
Also before the twins' birth, Amanda underwent a psychiatric evaluation. Dr. Burgess concluded that Amanda had reactive attachment disorder and borderline personality disorder with some antisocial features, among other conditions. He too recommended psychotherapy. OCS's updated case plan required Amanda to follow the recommendations of Drs. Rose and Burgess, including participation in individual psychotherapy.
But there were significant difficulties with the Kenai OCS worker's communication with Amanda. Amanda testified that she told the worker that there was a long waiting list to see Dr. Burgess for therapy and that there were no other psychotherapists in Homer. Amanda also testified that the worker did not help her get services elsewhere. OCS had an explanation for its worker's difficulties communicating with Amanda, but the superior court's findings are the bottom line we must address on appeal: the court found the Kenai worker's efforts "fell short of the standard" and the "efforts made by [OCS] were insufficient prior to the time venue . . . was transferred to Anchorage."
Before venue was transferred to Anchorage, Amanda received a mental health evaluation and three counseling sessions from Bridges Counseling Connection. Notably, this occurred not because of anything OCS did, but because Amanda was referred there by her obstetrician. Whether this therapy was of the type recommended by Drs. Rose, Burgess and Yanagida, the mental health provider at Bridges, is unclear.
Because the superior court found that OCS's efforts failed to meet the required standard before Amanda's case was transferred from Kenai to Anchorage, the central focus on appeal must be whether OCS's efforts were reasonable as a whole. In other words, we must ask what OCS did after the case was transferred to Anchorage to make reasonable efforts with respect to Amanda's mental illness.
The record shows that the Anchorage worker met with Amanda, reviewed the previous case plans, and discussed the need for counseling. The worker referred Amanda to Anchorage Community Mental Health, but admitted that she did not follow up on this mental health provider. She candidly testified that this was "a failure on [her] part." The evidence shows that Amanda's case plan was updated again in January of 2010, and again it required participation in individual psychotherapy. But when Amanda reported for an intake assessment at Southcentral, she was told that the funding authorization had not been received from OCS. After another recommendation for a long term, dual-diagnosis, in-patient treatment program in February 2010, the Anchorage OCS worker testified that Amanda took the position that it did not make sense to start counseling and then stop to do in-patient treatment. For this reason, Amanda apparently decided not to go to individual counseling. And at that point, the Anchorage worker decided that she would not make further efforts to "resume" services with a counselor.
In fact, resumption of services was not the issue; OCS had yet to meaningfully refer Amanda to any individual psychotherapy despite the recommendations of three different care providers, Drs. Rose, Burgess, and Yanagida.
Shortly before the termination trial in 2010, Amanda completed a substance abuse assessment at Addiction and Alcohol Resolution Services on her own initiative. The evaluator determined that Amanda was alcohol dependent and recommended outpatient treatment contingent upon Amanda also separately receiving mental health services. OCS maintained its position that Amanda would be required to complete a long term, dual-diagnosis in-patient treatment program because the dual-diagnosis program could treat her substance abuse and her mental health issues, and because OCS did not want to pay for separate treatment when one treatment facility could address both needs. Amanda did not agree to attend in-patient treatment; she said she did not want to give up her job or her home. This decision may seem irrational to some — but Amanda suffered from a serious and untreated mental illness. This is the crux of the tension that is so troubling in this case: Amanda's mental illness is not the only reason her children were found to be in need of aid, but her untreated mental illness undoubtedly made it more difficult for her to engage in the services offered to address the other issues that threatened the break up of this family, particularly Amanda's abuse of alcohol.
If the only condition that had rendered Amanda's twins to be "children in need of aid" had been her serious mental health problems, I might conclude that OCS did not make reasonable efforts to provide services aimed at achieving the safe return of the children to her home. By this, I do not suggest that OCS had a duty to "cure" Amanda's mental illness; nor do I suggest that all mental illnesses are amenable to successful treatment even with the most focused and aggressive care. But before OCS can terminate parental rights, the law requires that OCS show it made reasonable efforts to try to prevent the break up of the family. In my view, OCS's efforts to address Amanda's mental illness fell short of that mark in Kenai and, perhaps, even in Anchorage.
I agree with the result reached by the court because mental illness was not the only problem that rendered the twins in need of aid, and because OCS's efforts to address her substance abuse were adequate. OCS's efforts to get Amanda help with substance abuse were unsuccessful due in no small part to Amanda's failure to candidly report the degree of her substance abuse, failure to acknowledge the magnitude of her dependence, and failure to participate in the aspect of her case plan aimed at treating her substance abuse. And OCS did make some belated effort to address Amanda's mental illness. Considering the efforts OCS collectively made over the case as a whole, I cannot disagree with the superior court and this court that OCS made reasonable efforts under the circumstances. But in my view, this is a close case, and it is certainly not an example of OCS's finest hour. Though I concur with the result reached today, I remain troubled that we are left to speculate about the extent Amanda's untreated mental illness impeded her ability to succeed.