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 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

TIMOTHY G., 

Appellant, 

v. 

STATE OF ALASKA, DEPARTMENT 

OF HEALTH & SOCIAL SERVICES, 

OFFICE OF CHILDREN’S SERVICES,

Appellee. 

) 

) Supreme Court No. S-15725 

Superior Court No. 3AN-12-07478 CI 

O P I N I O N 

No. 7099 – April 29, 2016
 

) 

) 

) 

) 

)
 

) 

)
 

) 

) 

) 

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

Judicial District, Anchorage, Paul E. Olson, Judge. 

Appearances: Kevin G. Brady, Brady Law Office, Anchorage, 

for Appellant. Ali Moser Rahoi, Assistant Attorney General, 

Anchorage, and Craig W. Richards, Attorney General, Juneau, 

for Appellee. 

Before: Stowers, Chief Justice, Fabe, Maassen, and Bolger, 

Justices. [Winfree, Justice, not participating.] 

BOLGER, Justice. 

I. INTRODUCTION 

Timothy G. asserted in the superior court that the statute of limitations had 

been tolled on his claim against the Office of Children’s Services because he was 

mentally incompetentfollowing years of abuse by hisstepfather. The superior court held 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

an evidentiary hearing on this issue and concluded that Timothy had failed to prove that 

he was incompetent. On appeal, Timothy argues that the superior court should have 

ruled in his favor if he produced more than a scintilla of evidence to support his 

assertion. But we conclude that the superior court applied the proper burden of proof 

and the proper test for competency, and that the court did not clearly err in finding that 

Timothy did not prove his incompetence. 

II. FACTS AND PROCEEDINGS 

Timothy G.1 alleges he was abused by his stepfather repeatedly between 

1997 and 2006. In 2006, Timothy reported the abuse to his mother. She took Timothy 

and his four siblings to a shelter, sought a protective order against the stepfather, and 

instituted divorce proceedings. The Office of Children’s Services (OCS) then 

substantiated the report of harm, removed the children from their mother’s care, and 

placed them in foster care. 

On May 25, 2012, Timothy filed a complaint naming OCS and his 

stepfather as defendants.2 He sought compensatory damages from OCS, claiming that 

“[a]s a direct and proximate consequence of [OCS’s] breach of [its] dut[y] of care, [he] 

suffered physical injury, psychological and emotional injury and distress, psychological 

torment, torture and sexual abuse, pain and suffering, and resultant loss of earning 

capacity.” Timothy alleged that OCS had investigated at least ten reports of harm 

involving him and his siblings, but had taken no action. 

In response, OCS moved under Alaska Civil Rule 12(b)(6) to dismiss 

Timothy’s claims as time-barred. It argued that the applicable statute of limitations 

1 We use a pseudonym in lieu of the party’s name to protect his privacy. 

2 The superior court dismissed Timothy’s claims against the stepfather 

because he was never properly served. Timothy does not appeal this order. 

-2- 7099
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

required Timothy’s claim to be filed within two years of its accrual;3 although the statute 

of limitations was tolled during Timothy’s minority,4 he turned 18 on May 27, 2009, but 

did not file his complaint until nearly three years later. 

Timothy replied that he was incompetent by reason of mental disability and 

that the statute therefore remained tolled after his eighteenth birthday.5 He stated that he 

had been diagnosed with “severe post[-]traumatic stress disorder, ADHD, [b]i-polar 

disorder, and obsessive compulsive disorder,” stemming from his abuse at the hands of 

his stepfather. 

Along with his opposition to OCS’s motion to dismiss, Timothy submitted 

an affidavit fromhis friend Sarah G. describing his mental disability. Sarah met Timothy 

in 2008, and in 2010, when she learned he was homeless, she invited him to live in her 

home. She asserted that “based upon [her] personal involvement with [Timothy], his 

treating mental health care professionals[,] and various state and federal agencies, [it was 

her belief] that Timothy suffers from a mental disability.” 

The superior court treated OCS’s motion to dismiss as a motion for 

summary judgment because in ruling on it the court considered matters outside of the 

pleadings, including Sarah’s affidavit and OCS’s responses to the affidavit.6 The court 

3 See AS 09.10.070(a) (establishingatwo-year limitations period for tort and 

personal injury claims). 

4 AS 09.10.140(a). 

5 See id. (tolling the limitations period “if a person entitled to bring an 

action . . . is at the time the cause of action accrues . . . incompetent by reason of mental 

illness or mental disability”). 

6 See Alaska R. Civ. P. 12(b) (“If, on a motion . . . to dismiss for failure of 

the pleading to state a claim upon which relief can be granted, matters outside the 

pleading are presented to and not excluded by the court, the motion shall be treated as 

one for summary judgment . . . .”). 

-3- 7099
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

found that although Sarah’s affidavit would be insufficient to establish Timothy’s 

incompetency, “it [was] sufficient to overcome the low threshold that applies at the 

summary judgment stage.” Accordingly, the court denied OCS’s motion. 

The court scheduled an evidentiary hearing to resolve the statute of 

limitations dispute, noting that the parties had raised “preliminary questions of fact that 

should be decided by the court.” The court stated that at this hearing, “[t]he burden 

[would] be on . . . [Timothy] to establish that he was incompetent as contemplated by 

AS []09.10.140(a) . . . during the relevant period.” 

The superior court held the hearing on September 4, 2014. Two witnesses 

testified on Timothy’s behalf: Sarah and Timothy’s formerpsychiatrist. Sarah described 

her role in Timothy’s life as an “advocate.” She testified that she tried to help Timothy 

find work, complete high school, and obtain disability benefits and counseling and that 

she routinely transported him to appointments and court appearances. Timothy signed 

a medical release giving Sarah access to his medical records, and she sometimes sat in 

on his counseling sessions. She testified that without her help, Timothy would not make 

it to his court dates or appointments: “He misses court dates[;] he can’t remember 

them[;] . . . he doesn’t have the ability to keep track of [his appointments].” 

Timothy’sformer psychiatrist testifiedas an expert in psychiatry; hetreated 

Timothy from approximately 2007 to 2013. According to the psychiatrist, “[Timothy] 

was diagnosed with [p]ost[-][t]raumatic [s]tress [d]isorder and his case was a very 

complicated case dealing with sexual abuse and sexual trauma. [Timothy] . . . also had 

depression and anxiety . . . [and] [b]i-polar disorder.” The psychiatrist also verified the 

accuracy of a letter he wrote in 2012 to support Timothy’s claim for disability benefits 

in which he stated: “[T]he trauma that he has suffered is one of the most egregious cases 

-4- 7099
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I have ever had to manage.” The psychiatrist specifically testified that he did not believe 

Timothy was capable of understanding his legal rights or advocating for himself without 

assistance. 

OCS called Timothy as a witness. He stated that in 2010, when he testified 

before a grand jury about his stepfather’s abuse, he understood that what his stepfather 

had done was wrong. Timothy testified that after the grand jury proceedings he “just 

kind of wanted to walk away from it,” but Sarah encouraged him to file this lawsuit. He 

acknowledged that, although he had appeared in court several times before to face 

criminal charges and to obtain a divorce, he had never claimed to be incompetent and 

had expressly stated that he understood his legal rights. And he testified that he felt 

comfortable asking clarifying questions to the judge during those proceedings if he did 

not understand a particular point. 

On cross-examination, Timothy testified that Sarah helped him with most 

of his criminal cases and that although he represented himself in his divorce, Sarah 

helped him understand and fill out the paperwork. He also testified that he frequently 

missed court dates when he was not living with Sarah, for a variety of reasons. Timothy 

stated: “[A]ll my other rides fall through, people don’t pick me up, I miss the bus[,] . . . 

I forget times . . . or my phone will die and I won’t . . . make it in time.” Finally, he 

testified that although he is “reluctant to tell society and average people [about his mental 

disability], . . . [he is] not afraid to . . . tell [courts, doctors, and professional people] 

about [his] issues,” and he is “not afraid to ask . . . for help when needed.” 

On September 12, 2014, the superior court issued an order granting OCS’s 

motion to dismiss, finding that Timothy’s mental condition did not toll the statute of 

limitations. The court noted that the standard for mental incompetency is “whether a 

person could know or understand his legal rights sufficiently well to manage his personal 

affairs,” and the court found that Timothy had not met his burden to show his 

-5- 7099
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

incompetency during the period following his eighteenth birthday. The court found it 

telling that during Timothy’s prior interactions with the legal system, both as a plaintiff 

and as a defendant, “[h]e repeatedly asserted his competence to courts . . . and 

represented himself.” While the court was careful not to “minimize the trauma . . . 

[Timothy] endured or his diagnosis of bi-polar and post-traumatic stress disorder,” it 

found that he had not shown that he could not understand his legal rights during the 

relevant period, and accordingly granted OCS’s motion to dismiss. 

Timothy now appeals, arguing that the superior court should instead have 

applied the summary judgment standard at the hearing and denied the motion. 

III. STANDARD OF REVIEW 

“When the superior court holds an evidentiary hearing to resolve factual 

disputes about when a statute of limitations began to run, we review the resulting 

findings of fact for clear error.”7 Clear error is present “if, after reviewing the entire 

record in the light most favorable to the party prevailing below, we are left with a 

definite and firm conviction a mistake has been made.”8 

IV. DISCUSSION 

A. The Superior Court Applied The Correct Burden of Proof. 

Timothy’sprimary argument on appeal is that thesuperior court applied the 

wrong legal standard when granting OCS’s motion to dismiss. He interprets the court’s 

7 Christianson v. Conrad-Houston Ins., 318 P.3d 390, 396 (Alaska 2014) 

(citing Williams v. Williams, 129 P.3d 428, 431 (Alaska 2006)). 

8 Id. (citing John’sHeating Serv.v. Lamb,129P.3d 919, 922 (Alaska2006)). 

-6- 7099
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

order as a grant of summary judgment and argues that the court should therefore have 

denied OCS’s motion if there was “more than a scintilla of . . . evidence” supporting his 

claim of mental incompetency.9 

In Cikan v. ARCO Alaska, Inc. we held that if material questions of fact 

exist as to a statute of limitations issue, summary judgment is improper and the superior 

court should instead consider the statute of limitations defense at a pre-trial hearing.10 

Timothy incorrectly assumes that the standard to be applied at that hearing is the 

summary judgment standard. The hearing is only required if the court has already 

determined, as it did here, that summary judgment is improper; our prior cases make 

clear that the purpose of the hearing is to resolve the factual issues, not simply to flag 

their existence.11 

The superior court precisely followed the procedure set out in Cikan: After 

determining that summary judgment was improper because Timothy had raised a factual 

9 See Alaska R. Civ. P. 56(c) (stating that summary judgment should be 

granted if “there is no genuine issue as to any material fact and . . . any party is entitled 

to a judgment as a matter of law”); Kalenka v. Infinity Ins. Cos., 262 P.3d 602, 607 

(Alaska 2011) (“Any evidence sufficient to raise a genuine issue of material fact, so long 

as it amounts to more than a scintilla of contrary evidence, is sufficient to oppose 

summary judgment.” (quoting Beal v. McGuire, 216 P.3d 1154, 1161 (Alaska 2009))). 

10 125 P.3d 335, 342 (Alaska 2005). We have approved of this procedure in 

several other cases, both before and after Cikan. See, e.g., Richardson v. Municipality 

of Anchorage, 360 P.3d 79, 91 (Alaska 2015); Catholic Bishop of N. Alaska v. Does 1-6, 

141 P.3d 719, 725 (Alaska 2006); Williams, 129 P.3d at 431; Lamb, 46 P.3d at 1033; 

Pedersen v. Zielski, 822 P.2d 903, 907 n.4 & 908 (Alaska 1991). 

11 See Catholic Bishop, 141 P.3d at 725 (“If a genuine issue of material fact 

[about the statute of limiations] is presented it should be resolved in advance of trial . . . 

following an appropriate evidentiary hearing.”); Cikan, 125 P.3d at 342 (“[A] factual 

dispute over mental incompetency [should] be resolved . . . by the court after conducting 

an evidentiary hearing.”). 

-7- 7099
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

issue as to his competency during the relevant period, the court held an evidentiary 

hearing to weigh the evidence and resolve the factual issue prior to trial.12 A party 

claiming that the limitation period was tolled due to a disability has the burden of 

proving that disability by a preponderance of the evidence.13 Accordingly, for Timothy’s 

claim to survive, he needed to show by a preponderance of the evidence that he was 

mentally incompetent during the relevant period. The court weighed the evidence 

presented by the parties, as it was permitted to do, and determined that Timothy had not 

shown that he was incompetent during the relevant period.14 

12 Timothy argues in his reply brief that by making this factual determination 

itself, the court impermissibly deprived him of the right to have that issue decided by a 

jury. But “the task of interpreting and applying a statute of limitations traditionally falls 

within the province of the courts.” Cikan, 125 P.3d at 339. And we have already 

expressly held that “to the extent the superior court does not address the substantive 

merits of a case, the use of evidentiary hearings to decide statutes-of-limitations issues 

is constitutional.” Gefre v. Davis Wright Tremaine, LLP, 306 P.3d 1264, 1279 (Alaska 

2013). 

13 Adkins v. Nabors Alaska Drilling, Inc., 609 P.2d 15, 22 (Alaska 1980) 

(when it is undisputed that the limitations period has run, a party asserting incompetency 

has the burden of proof on that issue); Fernandes v. Portwine, 56 P.3d 1, 5 (Alaska 

2002) (the general civil standard of proof is “a preponderance of the evidence”). 

14 The superior court assumed that if Timothy was incompetent by reason of 

mental disability when he turned 18, the statutory period would have remained tolled. 

We have not directly addressed whether this approach is correct or whether he must have 

been incompetent when his cause of action accrued for that disability to toll the statute 

of limitations. Cf. Cikan, 125 P.3d at 341 n.18. We need not consider the issue now. 

Because we affirm the superior court’s finding that Timothy was not incompetent after 

his eighteenth birthday, the statutory period has expired regardless of whether he was 

incompetent when his cause of action accrued. 

-8- 7099
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We find that the superior court followed the correct procedure for resolving 

factual disputes over statute of limitations issues, as set out in Cikan, and applied the 

proper burden of proof to the evidence presented at the hearing. 

B. Timothy’s Remaining Arguments Are Waived. 

Timothy also argues that the superior court erred in finding that he was 

competent. He argues that the court applied the wrong test and that the court’s factual 

finding was erroneous. Both of these arguments appear only in his reply brief and are 

therefore waived.15 But even if the arguments had been properly raised, they would be 

unavailing because they have no merit. 

1. Adkins provides the correct test for mental competency. 

The superior court used the test set out by this court in Adkins v. Nabors 

Alaska Drilling, Inc. to determine mental competency.16 Under the Adkins test, “[t]he 

general test [of mental competency] is whether a person could know or understand his 

legal rights sufficiently well to manage his personal affairs.”17 

Timothy argues that the superior court should also have asked whether, 

even if he could understand his legal rights, he “nevertheless failed to act upon those 

rights because of [his] mental disability.” He cites to two cases in which he claims this 

court adopted his preferred test. In Hikita v. Nichiro Gyogyo Kaisha, Ltd., we 

characterized the issue as whether the individual claiming mental incompetency “was 

sufficiently competent to run his own legal affairs during the period in question.”18 And 

15 Barnett v. Barnett, 238 P.3d 594, 603 (Alaska 2010) (“[W]e deem waived 

any arguments raised for the first time in a reply brief . . . .”). 

16 609 P.2d 15 (Alaska 1980). 

17 Id. at 23. 

18 713 P.2d 1197, 1203 (Alaska 1986). 

-9- 7099
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

in Hernandez-Robaina v. State, we cited with approval the Black’s Law Dictionary 

definition of “mental incompetency,” which defined the term as “incapable of 

understanding and acting with discretion in the ordinary affairs of life.”19 

However, both Hikita and Hernandez-Robaina reaffirm that Adkins 

provides the appropriate test. In Hikita, we began our discussion of Hikita’s mental 

competency by citing to the Adkins test.20 It is clear from the context that the language 

upon which Timothy relies was simply a paraphrase of the Adkins test and did not 

announce a separate test.21 Similarly, in Hernandez-Robaina, the discussion of 

Hernandez’s mental incompetency centered on the application of the Adkins test.22 The 

supposedly different test quoted by Timothy was immediately followed in the opinion 

by our conclusion: “For these reasons, we reaffirm our commitment to the Adkins test 

as interpreted in this opinion.”23 

Here, we likewise reaffirm our commitment to the Adkins test. Timothy 

presents no authority that would justify a departure from this established test. 

2.	 The superior court’s factual finding of competence was not 

clearly erroneous. 

Timothy also argues that thesuperiorcourt“abused its discretion by finding 

19 849 P.2d 783, 785 (Alaska 1993) (emphasis omitted) (quoting Mental 

Incompetence; Mental Incompetency, BLACK’S LAW DICTIONARY (6th ed. 1990)). 

20 Hikita, 713 P.2d at 1202 n.13. 

21 See id. at 1202-03. 

22 Hernandez-Robaina, 849 P.2d at 784-85. 

23 Id. at 785. In Hernandez-Robaina, this court interpreted the Adkins test as 

asking not whether a party actually did understand his or her rights, but whether a party 

could “comprehend the concepts and ideas of which his or her rights consist if those 

matters were adequately communicated.” Id. 

-10-	 7099
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

that ‘[Timothy] ha[d] not shown he was unable to understand his legal rights following 

the removal of his disability of minority.’ ” But there was considerable evidence 

presented at thehearing to support that finding. Timothy consistently acknowledged that 

he understood his legal rights in previous court proceedings, and he testified that he was 

telling the truth when he did so. He testified that he had discussed filing a lawsuit with 

Sarah as early as 2008, when they first met. He confirmed that he had successfully 

represented himself in his divorce litigation, and he specifically testified that he 

understood that if his ex-wife’s child had been born while they were still married, he 

could be liable for child support, even though the child was not his. Although he also 

testified that he relied heavily on Sarah’s help in his divorce and in his other legal 

proceedings, requiring assistance to pursue one’s legal rights does not necessarily mean 

that one is incapable of understanding them. 

Timothy himself acknowledged in his brief that “an inference may be 

drawn that [his] pro se divorce litigation demonstrated an understanding of matters 

legal.” Although he went on to argue that this evidence “falls short of conclusively 

proving that [he] met the Adkins test for competency,” OCS did not have to conclusively 

prove anything; rather, Timothy had the burden to prove his own incompetency.24 We 

see no clear error in the superior court’s conclusion that Timothy was capable of 

understanding his rights and was thus not mentally incompetent under the Adkins test. 

V. CONCLUSION 

We AFFIRM the superior court’s order dismissing Timothy’s claims 

against OCS. 

24 See Adkins v. Nabors Alaska Drilling, Inc., 609 P.2d 15, 22 (Alaska 1980). 

-11- 7099