Miranda T. v. State

• Docket Number: Supreme Court No.: S-18190
• Decision Date: 24 February 2023
• Parties: MIRANDA T., Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES and Bishope A., Appellees.
• Court: Alaska Supreme Court

524 P.3d 1105

MIRANDA T., Appellant,

v.State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES and Bishope A., Appellees.

Supreme Court No.: S-18190

Supreme Court of Alaska.

February 24, 2023

Amanda Harber, 49th State Law, LLC, Soldotna, for Appellant.

Ryan A. Schmidt, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellee Office of Children's Services.

Kelly R. Taylor, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for Appellee Bishope A.

Laura Hartz, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for Guardian Ad Litem.

Before: Winfree, Chief Justice, Maassen, Carney, and Borghesan, Justices. Carney, Justice, dissenting. [Henderson, Justice, not participating.]

OPINION

WINFREE, Chief Justice.

I. INTRODUCTION

A mother appeals the superior court's entry of a disposition order in child in need of aid (CINA) proceedings. She contends that the court erred by moving forward with an adjudication hearing without having considered her request for a review hearing on a previously stipulated temporary custody and placement arrangement. She contends that the court also erred by later refusing to enforce two subsequent agreements she had reached with the Office of Children's Services (OCS) about placements for her daughter. She further contends that the evidence does not support the disposition order's predicate findings that (1) OCS had made sufficiently active efforts to reunify the family and (2) removal of the daughter from the family home was necessary to avoid harm to her. We reject the mother's claims of error and affirm the superior court's disposition order.

II. FACTS AND PROCEEDINGS

During the CINA proceedings underlying this appeal, Bishope A.¹ was a nearly 17-year-old minor. Bishope is an Indian child² under the Indian Child Welfare Act (ICWA);³ her Tribe intervened and participated throughout the proceedings.⁴ Bishope has both a guardian ad litem (GAL) to advocate for her best interests⁵ and an attorney to advocate for her personal interests.⁶ Miranda T. adopted Bishope in 2015; the current CINA proceedings began in April 2019 after OCS was contacted because Bishope, who had been arrested and taken to a juvenile facility, refused to return home to Miranda.

A. Relevant Early Stages Of A CINA Case

A brief summary of a CINA case's three early stages will provide context for the following discussion of the proceedings in this matter. A CINA case generally begins with OCS filing a petition to adjudicate a child as a child in need of aid under AS 47.10.011.⁷ OCS sometimes will take emergency custody of a child believed to be in need of aid and then immediately file a petition for adjudication and temporary custody pending the adjudication hearing.⁸ Other times OCS will file an adjudication petition with a request for temporary custody or legal supervision of the child pending the adjudication hearing.⁹ In either event, OCS must show that there is probable cause to believe the child is in need of aid or the case will be dismissed.¹⁰ Once probable cause is established and a temporary custody or supervision order is in place, any party may request that the temporary order be reviewed due to a change of circumstances.¹¹

If probable cause is established and an order for temporary custody or supervision is issued, the case moves to the adjudication stage. An adjudication hearing must be completed within 120 days of the probable cause determination, although continuances may be granted for good cause while taking into account the effect of delay on the child.¹² If at the hearing the court finds by a preponderance of the evidence that the child is in need of aid, the court will order that the child be committed to OCS's temporary custody pending a disposition hearing.¹³ If, as a part of the adjudication order, the court approves removal of an Indian child from the home, the court must make certain removal findings.¹⁴

The next stage of a CINA case is a disposition hearing to determine whether OCS's custody of the child shall continue and, if so, the appropriate placement for the child during the ongoing CINA proceedings.¹⁵ The court is allowed, but not required, to combine an adjudication hearing and a disposition hearing.¹⁶ Assuming certain predicate findings are made after the disposition hearing, the court shall place the child in OCS's custody for up to 2 years but not extending past the child reaching age 19.¹⁷ The court may approve removal of an Indian child from the child's home only if the court makes the same removal findings required at the adjudication stage (regarding placement preferences and active efforts)¹⁸ and also finds "clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child."¹⁹

B. Opening Proceedings

OCS filed a non-emergency petition for adjudication that Bishope was a child in need of aid and sought an order placing Bishope under OCS's temporary legal supervision. OCS asserted that Bishope was in custody at an Anchorage juvenile facility but was ready for release after dismissal of delinquency charges against her. OCS asserted that Bishope did not want to return to Miranda's care and threatened to harm Miranda if she were returned. OCS said that it was seeking only legal supervision while Bishope was in juvenile custody, that it intended to establish a case plan with Miranda and determine appropriate services, and that it would seek a partial delegation of authority for Miranda to allow Bishope to be released to live with a family friend in Anchorage who had been a previous foster placement.

The court issued an order for OCS's temporary supervision based on the court's finding of probable cause that Bishope was a child in need of aid. The order provided for placement with Miranda with a delegation of parental authority from Miranda to the family friend.²⁰

In July OCS filed a supplemental petition for adjudication and temporary custody of Bishope rather than supervision. OCS described continued difficulties with Bishope and Miranda's relationship, Bishope's running away from the family friend's home, Bishope's treatment with her therapist, and Bishope's departure from Anchorage to her biological mother's home. OCS sought temporary custody, but not removal findings, because Bishope's biological mother then had a delegation of parental rights from Miranda. Without making additional findings, other than it was in Bishope's best interests, the superior court granted temporary custody to OCS pending further proceedings.

Miranda and OCS later agreed to the superior court making "provisional findings ... solely and for the limited purpose of facilitating ... foster placement of the child," preserving Miranda's right to later contest removal.²¹ It appears that, for purposes of the agreement, Miranda agreed Bishope was a child in need of aid under AS 47.10.011(5) (regarding child who has "a substantial risk of physical or mental injury" due to habitual absence from the home or refusing available care). The court issued an order with provisional removal findings "subject to challenge at a later proceeding."

In October, after OCS placed Bishope in a residential treatment home rather than in the contemplated foster care, Miranda moved for a review hearing due to changed circumstances in Bishope's placement. Miranda specifically requested formal removal findings. Bishope, the GAL, the Tribe, and OCS opposed Miranda's motion. In late November the court declined to grant immediate review and ordered that removal be addressed at the upcoming adjudication hearing, later referring to "overlapping" factual information and noting that combining review "would be a productive use of court time."

Although the court apparently delayed the adjudication hearing to allow the parties an opportunity to mediate a "path forward," the hearing ultimately started about two months later, on January 27, 2020. The court denied OCS's request for a continuance to allow an expert psychiatrist, Dr. Aryeh Levenson, to conduct a comprehensive evaluation of both Bishope and Miranda, but the court said it would consider allowing the evaluations to go forward for presentation later in the hearing. The court then heard some witness testimony. The hearing resumed on February 4. At the end of that hearing day the parties discussed the next available hearing day, focusing on March 11. During these discussions OCS said that Dr. Levenson had been working on a report. The court stated that it would require a motion to determine whether the additional expert testimony would be allowed.

The court held a status hearing on February 24 to discuss how to handle potential testimony from Bishope. OCS advised that Dr. Levenson was working hard on his evaluations, that he would not be available in person on March 11, but that he could be available later in March. The court requested that the parties provide information from mental health professionals regarding testimony from Bishope and file position papers on allowing Dr. Levenson's report and testimony.

The court held another status conference on March 9, primarily to discuss procedures for Bishope's testimony. The court noted that OCS had filed a motion to allow Dr. Levenson to testify at the trial, although it was made clear at the hearing that Dr. Levenson's report had not yet been provided to all parties. Regarding Bishope's testimony, the court found that pressuring Bishope "to testify in the presence of [Miranda] is likely to cause material psychological harm to her" and would "inhibit her ability to express her testimony." The court proposed having Bishope's testimony conducted in judicial chambers, with an arrangement allowing Miranda to hear the testimony and submit potential questions. Then, regarding Dr. Levenson, the court said...