Dara S. v. State, Department of Health & Social Services, 090718 AKSC, S-16126

Docket Nº:S-16126, S-16526, S-16527
Opinion Judge:WINFREE, JUSTICE.
Party Name:DARA S., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. STATE OF ALASKA, OFFICE OF PUBLIC ADVOCACY, GUARDIAN AD LITEM, Appellant, v. DARA S., Appellee. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellant, v. DARA S., Appellee.
Attorney:Rachel E. Cella, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant/Appellee Dara S. Paul F. McDermott, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for Appellant Guardian Ad Litem. Laura Fox, Assistant Attorney General, Anchorag...
Judge Panel:Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices. BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting.
Case Date:September 07, 2018
Court:Supreme Court of Alaska

DARA S., Appellant,

v.

STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

STATE OF ALASKA, OFFICE OF PUBLIC ADVOCACY, GUARDIAN AD LITEM, Appellant,

v.

DARA S., Appellee.

STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellant,

v.

DARA S., Appellee.

Nos. S-16126, S-16526, S-16527

Supreme Court of Alaska

September 7, 2018

Appeals from the Superior Court of the State of Alaska No. 3AN-13-00386 CN, Third Judicial District, Anchorage, John Suddock, Judge, and Pamela Scott Washington, Judge pro tern.

Rachel E. Cella, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant/Appellee

Dara S. Paul F. McDermott, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for Appellant Guardian Ad Litem.

Laura Fox, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellant/Appellee Office of Children's Services.

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

OPINION

WINFREE, JUSTICE.

I. INTRODUCTION

We frequently review parental rights termination decisions. But the appeals before us present not only the review of a termination decision, which we affirm, but also the review of a unique parental rights reinstatement decision. This secondary aspect of our review causes us to revisit and expound on issues arising from Rita T. v. State,

1 in which we held that a parent whose parental rights have been terminated retains the right, upon a showing of good cause, to request a review hearing, during which the parent may seek to set aside a termination order and have parental rights reinstated.2 This then leads us to review the superior court's reinstatement order in this case.

As we explain below, Rita T. remains viable today. At a Rita T. hearing, a termination order can be set aside by clear and convincing evidence that the parent has been sufficiently rehabilitated and is capable of providing the care and guidance that will serve the child's moral, emotional, mental, and physical welfare and that parental rights reinstatement is in the child's best interests. Because the factual findings supporting the parental rights reinstatement in this case are inadequate for our review of the necessary best interests finding, we remand for further proceedings consistent with our opinion.

II. FACTS AND PROCEEDINGS

A. Termination

1. Facts

a. Dara and Paxton

Dara S. is the mother of Paxton, 3 who was born in February 2011 with serious kidney problems. Paxton had nine surgeries before the age of two. Dara testified that parenting Paxton during this period, which she did with "very little support, "4 "was incredibly stressful and heartbreaking." Paxton's health improved while he was in Dara's care; his right kidney function improved from 0% to 30%, delaying surgery to remove it. Although Paxton continues to require a strict diet and frequent medical checkups, and will require a kidney transplant by his teenage years, his health has generally improved.

b. Dara's mental health episodes

In the fall of 2011 Dara sought mental health counseling for depression; she reported having used Zoloft, an anti-depressant that also treats anxiety and other mood disorders, 5 for about eight months. In October she was diagnosed with attention-deficit/hyperactivity disorder (ADHD), depressive disorder not otherwise specified, and post-traumatic stress disorder (provisional). Dara's psychiatrist increased her dosage of Zoloft, and planned to prescribe Adderall, used in treating ADHD.[6] In October 2012 Dara also was directed to begin taking Viibryd, which treats major depressive disorder, 7and Xanax, for anxiety, 8 while decreasing her Zoloft dosage. Five months later Dara expressed "that her medications weren't working"; she felt her medications were contributing to more aggressive behavior.

In June 2013 Dara and Paxton were taken to the hospital emergency department after she contacted paramedics. Dara told hospital staff she had a "cloudy mind," did not "know if she[] [was] on the right medication," and had been having trouble sleeping for the past three days. Hospital staff noted that Dara was "scared and tearful," saying she needed "to be in a safe place." According to staff, Dara was "significantly paranoid and delusional"; for example: (1) she asked staff to hide Paxton with a blanket because she was worried a woman who was "impersonating" her would "take" him; (2) she was "freaked out" by "motorcycles honking and circling her apartment complex all day"; (3) she had overheard "a man in the hallway talking about killing her"; (4) she was worried "that her son ha[d] been cut open and some of his organs were" missing; and (5) her thinking was "not linear ...[, ] logical[, ] . . . [or] reality based." Dara tested positive for amphetamines, a result explained by her prescribed medications; hospital staff "felt that her impaired cognition [was] substance induced" and that "medication management and further observation" were warranted.

OCS briefly took emergency custody of Paxton during Dara's hospital stay. When Dara later brought Paxton for a medical check up, providers noted that "[Paxton] ha[d] a nice attachment to his mother" and that Dara was "very attentive to [Paxton's] needs."

In September Dara left her mother a voicemail "asking... for help." Dara's mother - who lived in Oregon - was concerned because Dara "was very distraught"; she "said that she wasn't able to cope at that moment," that "she had taken some pills," and that she wanted her ashes to be "put... in a dumpster." Dara's stepfather called Anchorage 911, and the police and fire departments were "[despatched to [Dara for] a suicide-threats call."

First responders found Dara's apartment clean and well-kept; Paxton was sleeping. Dara was "distraught" and "somewhat uncooperative"; she told responding police officers they would "have to shoot [her] to take [her] to the hospital." She was "more cooperative and less hostile" with the fire department responders, admitting to them "that she had taken 30 pills of Adderall." Both Dara and Paxton were taken to the hospital.

Police officers came to the hospital to remove Paxton for OCS to take emergency custody; Dara tried to fight them, and she ended up in handcuffs. Hospital staff noted Dara was "rambling and not making sense." Initially she was "loud and disruptive" and "very resistant to staying in" the hospital. Dara stayed at the hospital for about 24 hours before being transported to Alaska Psychiatric Institute (API). Before transferring to API, she was diagnosed with psychosis, suicidal gesture, and intentional Adderall drug overdose. API diagnosed Dara with an "[a]mphetamine induced psychotic disorder," and noted it was "resolved." API recommended that she abstain from "addictive prescription medications such as benzodiazepine," an ingredient found in her prescribed antidepressant medications.

During this time, OCS filed a petition for emergency custody of Paxton, which the superior court granted.

c. OCS's initial involvement in Alaska

Dara and Paxton's case was assigned to OCS caseworker Michelle Virden after Paxton was taken into emergency custody. After a first telephonic contact, Virden met with Dara following an October 2013 court hearing. Dara said that during her pregnancy with Paxton "she had been raped with shards of glass and sticks," causing his health problems. Dara denied overdosing on Adderall, claiming that the idea she attempted suicide was a fabrication by her mother, and Dara claimed family members had verbally and physically abused her. She blamed her recent "episodes" on pesticides used to treat bed bugs in her apartment. Virden treated Dara's case as a "mental health case"; accordingly, Dara's November case plan included that she: (1) regularly meet with her OCS social worker to identify and meet goals; (2) actively participate with chosen mental health providers and maintain her mental health condition with recommended medication and treatment; (3) manage her anger and emotions with documented progress through counseling services and reports from providers; (4) obtain employment for six months or more; and (5) set healthy limits and boundaries in personal relationships. As a first step in implementing the case plan, Virden referred Dara to Dr. Michael Rose for a mental health evaluation.

Dr. Rose conducted a psychological evaluation of Dara in November, administering five psychological and substance abuse tests. Dr. Rose diagnosed Dara with psychotic disorder not otherwise specified (NOS), along with neglect of child, history of ADHD, and prior amphetamine and cannabis abuse. He noted that the hospital had diagnosed her with "Amphetamine-Induced Psychotic Disorder," and that because her "problems have persisted, a Psychotic Disorder NOS is given but consideration should be given to a formal thought disorder diagnosis such as Schizophrenia, Paranoid Type." He recommended further assessment, and, concluding that Dara presented a significant risk to abuse or neglect Paxton, recommended against reunification. Dr. Rose recommended that Dara: (1) "work carefully with her psychiatrist and psychotherapist to address her diagnosed problems"; (2) "maintain gainful employment over a sustained period of time and show that she can obtain and maintain housing for herself and [Paxton]"; and (3) obtain "individualized [parenting] education and instruction." In the event Dara struggled to effectively parent or respond to treatment, Dr. Rose suggested developing a legal guardianship for Paxton.

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

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