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@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

EMMA D., 

Appellant, 

v. 

STATE OF ALASKA, 

DEPARTMENT OF HEALTH & 

SOCIAL SERVICES, OFFICE OF 

CHILDREN’S SERVICES, 

Appellee. 

) 

) Supreme Court No. S-15207 

Superior Court No. 3AN-12-00035 CN 

O P I N I O N 

No. 6893 – April 11, 2014 

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

Judicial District, Anchorage, Patrick J. McKay, Judge. 

Appearances: Dianne Olsen, Law Office of Dianne Olsen, 

Anchorage, for Appellant. David A. Wilkinson, Assistant 

Attorney General, Fairbanks, and Michael C. Geraghty, 

Attorney General, Juneau, for Appellee State of Alaska. 

Lisa M. Wilson, Assistant Public Advocate, and Richard 

Allen, Public Advocate, Anchorage, for Guardian Ad Litem. 

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

Bolger, Justices. 

FABE, Chief Justice. 
 

 

 

 

 

 

 

 

I. INTRODUCTION 

Emma D.1 has a history of mental health issues, particularly bipolar 

disorder, dating back to her early childhood. The Office of Children’s Services (OCS) 

became involved with Emma and her newborn son, Joey, following reports from 

Covenant House expressing concern about Emma’s homelessness, inability to care for 

an infant, and feelings of depression and aggression toward Joey. OCS took the thensix-month-old Joey into emergency custody during Joey’s hospitalization for respiratory 

syncytial virus and dehydration, during which he was also diagnosed with 

supraventricular tachycardia, a heart disorder that required regular attention and 

treatment. 

OCS staff subsequently made attempts to assist Emma in obtaining regular 

mental health treatment in order to reunite her with Joey. OCS staff had difficulty 

communicating and meeting with Emma; she failed to engage in regular treatment, 

maintain consistent visitation with Joey, or attend her appointments with case workers 

and service providers. 

The superior court terminated Emma’s parental rights 14 months after OCS 

assumed emergency custody. The superior court made the required statutory findings, 

including the findings by clear and convincing evidence that OCS had made reasonable 

efforts toward family reunification and that Emma had failed to remedy her conduct in 

a reasonable time. Emma argues that OCS failed to consider adequately her mental 

health issues and therefore its efforts were not reasonable. She also appeals the superior 

court’s finding that she had failed to remedy her conduct in a reasonable time. 

After reviewing the record, we conclude that OCS was aware of Emma’s 

mental health issues and made reasonable efforts to engage her but was hampered by her 

1 Pseudonyms are used to protect the privacy of the family. 

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refusal to communicate and her lack of consistent attendance at meetings, visitations, or 

treatment appointments. We also conclude that the superior court did not err in finding 

that Emma had failed to remedy her conduct in a reasonable time. Therefore, we affirm 

the superior court’s decision terminating Emma’s parental rights. 

II. FACTS AND PROCEEDINGS 

A. Emma’s Background 

Emma is the 21-year-old mother of Joey. Emma suffered sexual, 

emotional, and physical abuse as a child and was in foster care between ages five and 

seven. She testified at her parental rights termination hearing that she was first 

diagnosed with bipolar disorder when she was seven, spent time in hospitals as a child, 

and between the ages of 13 and 17 was in an out-of-state residential treatment program. 

She has also been diagnosed with post-traumatic stress disorder “stemming from multiple 

sexual assaults as a child.” 

The record indicates that even before Joey’s birth and Emma’s involvement 

with OCS, Emma had difficulty finding an effective treatment regime for her bipolar 

disorder. While she was in the residential treatment program, Emma was treated with 

therapy and extensive mood-stabilizing and anti-depressant medication for her bipolar 

disorder. When asked whether the therapy was helpful, Emma testified “[a]s far as 

emotionally, yes. As far as my behaviors and my actions and my thought process, no.” 

She also detailed her persistent problems finding an effective and sustainable medication 

regime: 

I was released at 17, but . . . over the years, trying to give me 

therapy kind of got frustrating because I would get better 

over six to eight months and then I would . . . slide right back 

down the hill. . . . I would get to a therapeutic level [of 

medication] and I’d do good, good, good, but then I’d have 

a medical issue with the medication as far as Depakote made 

me stop the production of my white blood cells, Seroquel 

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made me gain too much weight, Lithium dried me out too 

much and then I would ask to switch something, but when I 

would switch it, I would just start going back downhill. 

Since returning to Alaska, Emma has not engaged in regular mental health 

treatment and has been unable to find regular employment or housing, periodically 

staying at Covenant House or at the Brother Francis Shelter. 

B. Joey’s Birth And Subsequent Hospitalization 

Emma gave birth to Joey in August 2011. 2 She used Covenant House 

services throughout her pregnancy. Ten days after Joey’s birth, Emma came to the 

Covenant House shelter in distress. She told staff members that he wouldn’t stop crying 

and hadn’t eaten since the previous night; she also described feelings of being 

“overwhelmed” and suffering from “post-partum psychosis.” Emma stated that she had 

felt like hurting Joey “three different times today” and that “sometimes I think about 

throwing him against the wall just to get him to shut up.” She described feeling like she 

couldn’t take care of him and didn’t “even want to touch him.” She had been using maxi 

pads and garbage bags as diapers, and Joey had developed a persistent rash. Covenant 

House staff filed a report with OCS and called the police. 

An OCS specialist attempted to contact Emma and after two days was able 

to meet with her. Emma denied all the allegations in the Covenant House report but 

admitted having bipolar disorder for which she was not receiving any treatment or 

services. The OCS specialist offered Emma mental health services, but Emma declined 

the services and indicated that she did not want to be medicated. The specialist thought 

2 OCS attempted to identify and make contact with men that Emma listed as 

Joey’s possible father. A paternity test with the man listed on Joey’s birth certificate was 

negative. Another possible father was ruled out by a paternity test. A third possible 

father was notified by OCS of Emma’s termination proceedings; this possible father was 

incarcerated, opposed to a paternity test, and refused to participate in any proceedings. 

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that Joey appeared healthy and that Emma “was able to articulate how to care for a 

child”; OCS took no further action at that time. 

In September 2011 OCS received another report from Covenant House 

indicating concern about Joey’s health due to Emma’s homelessness, inability to care for 

an infant, and unrealistic expectations of an infant. After speaking with Joey’s primary 

care physician, the OCS specialist again determined that no further action was necessary 

at that time. OCS received an additional report in October 2011indicating that a medical 

professional had seen Joey and that Joey had smelled of body odor and urine. Another 

report in January 2012 detailed an incident at the Brother Francis Shelter where Emma 

appeared at the shelter screaming, temporarily left Joey unattended, and left in an angry 

and unstable state. 

On January 28, 2012, Joey was admitted to Providence Hospital with 

respiratory syncytial virus and dehydration. The hospital record reports that Emma “has 

had very poor visitation since the date of admission” and that she provided staff with 

inoperable phone numbers. On several occasions, Emma was aggressive and abusive 

toward the hospital staff. Hospital staff also reported “aggressive speech towards the 

infant as well as aggressive touch.” Joey was diagnosed with a heart rhythm disorder 

called supraventricular tachycardia, meaning that his heart beat could accelerate up to 

300 beats per minute. This condition could be life threatening if left untreated or treated 

improperly. The prescribed treatment was monitoring and medication every eight hours, 

as well as the application of a cold compress when necessary. 

C. OCS’s Emergency Custody Of Joey In February 2012 

Providence Hospital filed a report of suspected harm with OCS. The OCS 

specialist was eventually able to get Emma to attend a team decision meeting with OCS 

staff, nursing staff, and the social worker at Providence on February 8, 2012. They 

discussed Joey’s medical condition and Emma’s ability to provide care for him as well 

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as her mental health issues, homelessness, and unpredictable behavior. At the end of the 

meeting, Emma agreed that Joey should go into a foster home. OCS took emergency 

custody of Joey, and he was discharged to a foster family able to meet his medical needs. 

When Joey was discharged on February 9, 2012, the OCS specialist 

facilitated a meeting between Emma and the foster parent and asked Emma to participate 

in developing a case plan. Emma indicated that she was receiving treatment through 

Anchorage Community Mental Health Services (ACMHS), but she declined to sign a 

release of information for ACMHS. She did sign a release of information for the Brother 

Francis Shelter. Emma also declined the specialist’s offer to make a referral for mental 

health assessment, treatment, or medication. The specialist arranged for Emma’s 

visitation with Joey twice a week. OCS filed an emergency petition for adjudication of 

Joey as a child in need of aid and for temporary custody on February 9, 2012. 

D. OCS’s Case Plan And Efforts To Engage Emma 

On February 24, 2012, Emma and Joey’s case was assigned to OCS child 

service specialist William James. Prior to joining OCS, James was a school teacher for 

22 years with experience in special education, including work with bipolar youth. James 

attempted to reach out to Emma with phone calls and offers to meet with her at “her 

comfort and availability.” He found her “reticent to engage with OCS.” He scheduled 

meetings with her on March 1, 9, and 15, but Emma failed to attend the meetings, despite 

James’s calls to remind her and emphasis on his “interest in engaging with her and 

assisting her in her reunification.” They were finally able to meet on March 20, and they 

developed a case plan. 

The case plan noted Emma’s “self-proclaimed mental health concerns that 

prevent her from behaving responsibly, or predictably on a day to day basis. Aggressive 

moo[d] swings and anger management [problems] create an unsafe environment for her 

child who has specific medical needs.” The case plan listed reunification as the initial 

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goal and stated OCS’s “desire . . . to assist [Emma] in obtaining the help she requires in 

stabilizing her observed and self-proclaimed depression and mood swings, as well as 

helping her to learn to care for her son’s medical needs.” Throughout the case plan, 

reference was made to Emma’s observed and self-reported mental health issues and 

strategies for addressing them. The case plan detailed OCS’s plan to refer Emma to the 

service providers that she identified as acceptable: ACMHS and CHOICES for mental 

health services, and Safe Harbor for housing services. The OCS caseworker was to 

maintain regular contact with the service providers, to provide a bus pass, and to support 

Emma by scheduling planning meetings with her. The case plan also described Emma’s 

resistance to receiving services, noting that “[Emma] did not believe she needed any 

support. She stated she just needed to straighten out her housing situation. [Emma] 

declined assistance with obtaining an assessment at [ACMHS], and she chose not to sign 

a release of information for ACMHS.” She also refused James’s help in communicating 

with Safe Harbor about the possibility of obtaining housing there. 

James scheduled additional meetings with Emma, but she failed to attend 

most of them. James was able to speak with her by telephone on April 5, 2012, and he 

asked her if she had followed her case plan; she said no. He offered to assist her with the 

services, including by providing transportation, and she declined his assistance. She also 

continued to decline to release any information from the mental health service providers 

to OCS. 

Emma received a screening survey from CHOICES on March 19, 2012, 

which was not sent to OCS at the time because she had not yet signed a release. Under 

the survey question “Does Client need [fetal alcohol spectrum disorder] assessment?” the 

staff member wrote “Yes” but for follow-up steps indicated “inappropriate for 

intervention.” On March 30, 2012, CHOICES conducted a behavior health assessment, 

which recommended case management and psychopharmacology management. 

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James continued to try to establish regular contact with Emma through 

March and April with limited success, mostly by telephone but also once by looking for 

her at the Brother Francis Shelter. Emma attended a court hearing on April 20, 2012, 

and James was able to speak with her at the court. He asked her to sign the OCS case 

plan as well as releases of information from her mental health service providers; she 

again refused. Emma missed the next scheduled meeting but called James on April 25. 

She was angry because a visit with Joey had been canceled due to his illness, and she 

accused James of being a liar. James continued to try to meet with Emma through May, 

but she continued to not attend the scheduled meetings. Emma also missed several 

appointments at CHOICES. There were also incidents at Brother Francis Shelter that 

resulted in Emma being barred from the shelter until she attended a grievance meeting; 

she failed to attend a grievance meeting. 

On May 14, 2012, James called Emma to inform her that due to the number 

of missed visits with Joey, they needed to reevaluate the visitation schedule. OCS 

visitation supervisors had removed Emma from the visitation schedule, but James had 

intervened to put her back on the schedule and continued to try to get her to attend the 

visits. She responded to James’s call by again calling him a liar and declaring that she 

would not be coming to OCS. 

Emma’s attorney eventually intervened and arranged for a meeting on 

May 21. Emma did attend this meeting, and she signed releases for ACMHS and 

CHOICES. James contacted those providers; CHOICES confirmed that Emma had 

received their services. CHOICES told James that they were helping Emma with 

managing her calender, seeing other people’s perspectives, not speaking violently, 

maintaining contact, and seeking housing. ACMHS told James that they had no record 

of Emma. James sent referrals for her to both agencies. 

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E.	 Child In Need Of Aid Adjudication 

In July 2012 the superior court held an adjudication hearing to determine 

if Joey was a child in need of aid. Emma failed to attend the hearing. She also failed to 

attend her scheduled visits with Joey; out of the 29 visits that were scheduled as of 

July 11, three were canceled due to weather; one due to illness; and 17 were missed by 

Emma. At the hearing, James reported that at the end of June and beginning of July he 

had seen some progress with Emma in her willingness to work with him and in her visits 

with Joey. He indicated, however, that he wanted to see her maintain that level of 

positive engagement for several more months before considering a return of custody. At 

the hearing, Emma’s lawyer commented briefly on OCS’s efforts, including the lack of 

a parenting class, and argued that OCS’s case plan “needs to be sort of blunt and 

concrete so that my client clearly understands what needs to be done and what happens 

if it doesn’t need to be done.” The court acknowledged that Emma’s “mental health 

issues are the crux of the matter” but found that OCS had made reasonable efforts toward 

family reunification “because everybody here has offered and she has rejected. We can’t 

make her do things, but they have to be offered to her.” The superior court adjudicated 

Joey to be a child in need of aid, particularly due to Joey’s medical need for careful and 

consistent attention. 

F.	 OCS’s Efforts Between The Adjudication Hearing And The 

Termination Of Parental Rights 

In August 2012 Emma underwent a behavioral health assessment at 

ACMHS, and James received the results. The assessment indicated that she had a serious 

and persistent mental illness but that she was able to express her feelings and make 

decisions. ACMHS’s case management plan included a psychiatric evaluation, 

individual therapy, medication management, communication with OCS, and help with 

establishing safe housing. James attempted to maintain monthly contact with both 

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ACMHS and CHOICES. However, sometimes his messages with ACMHS went 

unreturned. He also attempted to maintain “near weekly” contact with Emma although 

she responded only once a month on average. When James had an opportunity to speak 

with Emma, he would ask her if “she was getting the services she felt she needed, if 

ACMHS was following through on . . . their promises to her and if she needed other 

services and she typically would respond that she was following her case plan.” In 

September and October 2012, James spoke with Emma’s case manager at ACMHS who 

reported difficulty in contacting or meeting with Emma. When James contacted 

CHOICES in November 2012, he was informed that Emma had not been in contact with 

CHOICES since early June and that she had been discharged due to a lack of 

participation. James attempted to communicate with Emma about her case plan and her 

need to engage in services through multiple phone calls and letters mailed to Covenant 

House and to her mother’s address. 

In November 2012 James was able to meet with Emma, and she responded 

to his concerns by saying that she was following her case plan and actively engaged with 

ACMHS. She also told him that she did not need to participate in a case plan, would not 

work with CHOICES, had no contact with her attorney, and did not want to visit her son 

or respond to her case worker because she was afraid of being arrested. Because Emma 

reported greater engagement with ACMHS than the ACMHS case worker reported, 

James attempted to communicate with ACMHS while Emma was in his office, but they 

were unable to speak with her ACMHS case worker. When James was able to contact 

ACMHS in December, the case worker informed him that Emma had missed her recent 

appointments, including an appointment with a psychiatrist, and had not followed their 

plan since August. In January 2013 James was informed that Emma was making 

“sporadic contact” with ACMHS though she appeared to be “disengaged and had been 

missing recent appointments.” 

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On January 28, 2013, James filed a petition for the termination of Emma’s 

parental rights. The petition detailed Emma’s failure to engage with mental health 

services, work her case plan, establish safe housing, and consistently attend her 

scheduled visits with Joey. On February 4, 2013, James met with Emma and her 

attorney. Prior to this meeting, Emma had told James that she was taking the medication 

prescribed to her by ACMHS. At this meeting, Emma denied taking medication and said 

that she had not taken medication for several years. Emma told James that she had been 

assigned a new psychiatrist at ACMHS who refused to prescribe her medication; when 

James contacted ACMHS, he was informed that she had missed her appointment with 

her psychiatrist. 

In March 2013 the ACMHS case worker told James that Emma had moved 

into Safe Harbor, which provides housing for “individuals with mental health 

assessments and recommendations.” The case worker told James that the case worker 

had taken Emma shopping for food and clothes but that Emma remained inconsistent in 

her interactions and was in danger of losing her housing at Safe Harbor due to her lack 

of attendance at meetings. The case worker told James that when she was able to meet 

with Emma, the case worker found that Emma was “belligerent and demanding” and not 

making progress. 

G. Termination Of Emma’s Parental Rights 

The trial on OCS’s petition to terminate Emma’s parental rights was held 

on April 29, 2013. Between the time of Joey’s removal in February 2012 until the 

termination trial in April 2013, Emma was scheduled for 64 visits with Joey; she 

attended 17. She had 33 scheduled meetings with James; she attended 13. In response 

to Emma’s expressed sleep problems, James asked her to choose a time and location 

comfortable for her for scheduling meetings and visits. When he scheduled afternoon 

visits with Joey, she failed to attend. Emma agreed with James’s testimony that she had 

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missed two-thirds of her scheduled visits with Joey. She testified that she missed visits 

because of family issues and “legal issues with an assault charge and a [domestic 

violence] order against me.” 

The superior court found that Joey continued to be a child in need of aid 

due to Emma’s neglect and mental illness and that termination of the parental rights of 

Emma and any possible father was in Joey’s best interests. The superior court also found 

that OCS’s reunification efforts were reasonable, noting James’s difficulty in 

communicating with Emma as well as her misleading statements to James. The superior 

court terminated Emma’s parental rights. She now appeals the superior court’s finding 

that OCS’s reunification efforts were reasonable and that she failed to remedy her 

conduct in a reasonable time. 

III. STANDARD OF REVIEW 

In child in need of aid cases, “we review the trial court’s factual findings 

for clear error and its legal determinations de novo.”3 “Factual findings are clearly 

erroneous if, after reviewing the record in the light most favorable to the prevailing party, 

we are left with a definite and firm conviction that the trial court’s decision was 

mistaken.”4 “Conflicting evidence is generally not sufficient to overturn a trial court’s 

factual findings, and we will not reweigh evidence when the record provides clear 

support for a trial court’s ruling.”5 

3 Chloe O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 309 P.3d 850, 855 (Alaska 2013) (citing Sherman B. v. State, Dep’t of Health & 

Soc. Servs., Office of Children’s Servs., 290 P.3d 421, 427-28 (Alaska 2012)). 

4 Id. at 855-56 (citation omitted). 

5 Id. at 856 (citation omitted). 

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Whether the parent failed to remedy the conduct or the conditions that 

placed the child at substantial risk of harm is a factual finding that we review for clear 

error.6

 “Whether OCS made reasonable efforts to reunify the family is a mixed question 

of law and fact,” and “[w]e review questions of law de novo.”7 

IV. DISCUSSION 

To terminate parental rights under AS 47.10.088, the superior court must 

make three findings by clear and convincing evidence. 8 “First, the court must find that 

the child has been subjected to conduct or conditions that have caused the child to be in 

need of aid.”9 “Second, there must be a finding that the parent has failed, within a 

reasonable time, to remedy the conduct or conditions that placed the child at substantial 

risk of harm.”10 “Third, the court must find that OCS made reasonable efforts to promote 

reunification.” 11 “The court must also find by a preponderance of the evidence that 

termination is in the child’s best interests.” 12 Emma does not challenge the superior 

court’s findings under AS 47.10.011 that Joey was a child in need of aid. She challenges 

only the superior court’s findings that OCS made reasonable efforts and that Emma 

failed to remedy her conduct in a reasonable time. 

6 Sherman B., 290 P.3d at 428 (citation omitted).
 

7 Id. (citations omitted).
 

8 Id.
 

9 Id. (citing AS 47.10.088(a)(1); AS 47.10.011).
 

10 Id. (citing AS 47.10.088(a)(2)(A)-(B)). 

11 Id. (citing AS 47.10.088(a)(3); AS 47.10.086 (describing department’s duty 

to make reasonable efforts)). 

12 Id. (citing CINA Rule 18(c)(3) (comporting with AS 47.10.088(c))). 

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A.	 The Superior Court Did Not Err In Finding That OCS Made 

Reasonable Efforts To Reunify Emma With Joey. 

Alaska Statute 47.10.088 requires the superior court to find by clear and 

convincing evidence that the State has made timely and reasonable efforts to provide 

services to the family for the purpose of reunification before terminating parental rights. 

Alaska Statute 47.10.086(a) elaborates on the reasonable efforts requirement by requiring 

the State to 

(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; the department shall refer the parent or guardian 

to community-based family support services whenever 

community-based services are available and desired by the 

parent or guardian; and 

(3) document the department’s actions . . . . 

In considering the reasonableness of the State’s efforts, “[w]e have acknowledged that 

the State has some discretion both in determining what efforts to pursue and when to 

pursue them.”13 “A parent’s willingness to participate in services is relevant to the scope 

of the efforts OCS must provide. The efforts that OCS makes must be reasonable but 

need not be perfect.”14 

Emma’s primary argument on appeal is that OCS’s efforts were not 

reasonable because they failed to adequately take into account her disability, which her 

brief identifies as her diagnosed bipolar disorder and the potential of undiagnosed fetal 

alcohol spectrum disorder (FASD). She relies heavily on our decision in Lucy J. v. State, 

13 Id. at 432 (citations omitted). 

14 Id. (internal quotation marks omitted) (citations omitted). 

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Department of Health & Social Services, Office of Children’s Services15 for her argument 

that her disability mandated additional or different efforts from OCS. She also makes 

passing reference to the Americans with Disabilities Act (ADA).16 

In Lucy J., we addressed a mother’s arguments that OCS failed to 

reasonably accommodate her disability under the ADA because her case plan did not 

incorporate her disability diagnosis and because OCS had difficulty communicating with 

her disability services provider. 17 In response to the mother’s arguments, we noted that 

“[o]ur case law and the internal policies of OCS suggest that family reunification services 

should be provided in a manner that takes a parent’s disability into account.”18 We 

concluded that “the ‘requirement that [OCS] make reasonable efforts to provide [a 

parent] with family support services appears to be essentially identical to the ADA’s 

reasonable accommodation requirement.’ ”19 We determined that an independent 

analysis under the ADA was unnecessary because “the question whether reunification 

services reasonably accommodated a parent’s disability is already included within the 

question whether active or reasonable efforts were made to reunite the family. . . . OCS 

must reasonably tailor those [reunification plan] steps to the client’s individual 

capabilities.” 20 We also noted that in determining whether OCS met its burden, “a court 

15 244 P.3d 1099 (Alaska 2010).
 

16 42 U.S.C. §§ 12101-12213 (2012).
 

17 244 P.3d at 1115.
 

18 Id.
 

19 Id. at 1116 (alterations in the original) (quoting J.H. v. State, Dep’t of 

Health & Soc. Servs., 30 P.3d 79, 86 n.11 (Alaska 2001)). 

20 Id. (footnote omitted). 

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may consider ‘a parent’s demonstrated lack of willingness to participate in treatment.’ ”21 

The mother argued in Lucy J. that OCS should have referred her to a 

different treatment program and that “with proper supports, explanation, and lead time 

[she] would have been better able to process the plan.”22 We concluded that OCS had 

made “remarkable and exemplary efforts” at reunification based on a record that showed 

that OCS made disability services referrals, assisted with housing, and made numerous 

phone calls and other attempts to remind the mother of meetings and appointments.23 In 

upholding the superior court’s termination of parental rights, we concluded that “Lucy’s 

repeated failures to complete the elements of her case plan, engage in meaningful . . . 

treatment, and show up for meetings that OCS had arranged for her provided the trial 

court with evidence that she was more hindered by her unwillingness to participate in the 

plan than she was by a lack of capacity to do so.”24 Based on OCS’s repeated referrals 

to treatment programs and the mother’s refusal to participate in treatment or engage with 

OCS, we concluded that “[a]ny argument that OCS failed to refer Lucy to a particular 

plan or to offer her more explanation or lead time is simply not persuasive.”25 

We have held that “ ‘the requirement that the state offer reunification 

services is fulfilled by setting out the types of services that a parent should avail himself 

21 Id. at 1114 (quoting Maisy W. v. State, Dep’t of Health & Soc. Servs., Office 

of Children’s Servs., 175 P.3d 1263, 1268 (Alaska 2008)). 

22 Id. at 1115. 

23 Id. at 1117. 

24 Id. 

25 Id. at 1115. 

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or herself of in a manner that allows the parent to utilize the services.’ ”26 Another recent 

decision from this court reviewing the termination of parental rights involved the 

adequacy of OCS’s reunification efforts with a parent unwilling to engage with services 

or follow a case plan.27 The mother in that case argued that OCS cannot “passively 

accept a parent’s reluctance to participate in a mental health evaluation,” but we 

concluded that “her argument is contradicted by the social worker’s testimony that it is 

not possible to force an unwilling client to participate in mental health treatment.”28 We 

acknowledged the difficulty of dealing with uncooperative parents and reiterated our 

conclusion that “requiring OCS to seek court orders for every uncooperative parent 

would put a huge and pointless burden on the department and the court system.”29 We 

concluded that OCS had made sufficient efforts to provide mental health services when 

OCS referred the mother to a mental health assessment and offered to help her reengage 

with mental health services after she had stopped participating.30 In upholding the 

superior court’s finding, we noted the mother’s refusal of OCS’s help in reengaging in 

26 Audrey H. v. State, Office of Children’s Servs., 188 P.3d 668, 679 (Alaska 

2008) (quoting Frank E. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth 

Servs., 77 P.3d 715, 720 (Alaska 2003)). 

27 Chloe O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 309 P.3d 850 (Alaska 2013). 

28 Id. at 857. 

29 Id. (quoting Wilson W. v. State, Office of Children’s Servs., 185 P.3d 94, 

102 (Alaska 2008)). 

30 Id. 

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services and her discharge from a treatment program due to her “inappropriate 

behaviors.”31 

The State does not dispute that OCS must take a parent’s disability into 

account in its case plan but argues that the record shows that OCS took Emma’s 

disability into account and its efforts were reasonable. In support of this argument, the 

State cites to numerous places in the record to show OCS’s awareness of Emma’s mental 

health issues and James’s testimony that he attempted to “wrap services around her with 

people she could communicate with [and] interact with.” James testified that he 

“coordinated with those services providers, encouraged [Emma] to engage with them, 

sought out her input as to how [he] could assist her with that engagement.” 

The case plan prepared by James included numerous references to Emma’s 

mental health issues and her need for mental health treatment. The case plan also set out 

a plan for Emma to receive mental health treatment at ACMHS and CHOICES and 

housing assistance from Safe Harbor with OCS maintaining contact with her and her 

service providers and providing her with transportation assistance. 

Emma does not dispute James’s testimony about his numerous attempts to 

contact her and meet with her and maintain contact with the service providers. Nor does 

she dispute the fact that she missed the majority of her meetings with James as well as 

the majority of her visits with Joey. Instead Emma offers extended argument about 

additional steps that she feels OCS should have taken, including a FASD evaluation and 

individual counseling. While there is some evidence in the record of initial concern by 

both OCS and CHOICES over the possibility of FASD, CHOICES’s subsequent 

behavior health assessment did not identify FASD as a concern. Emma did not present 

31 Id. 

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evidence or claim to the superior court that she in fact suffers from FASD or that she was 

unable to understand her case plan. 

Emma also argues that OCS should have ensured that she received 

medication and individual counseling; arranged for a more proactive agency than 

CHOICES; and made her case plan “more concrete.” Emma does not explain how OCS 

could have ensured treatment given the fact that she failed to consistently respond to 

attempts at communication or attend scheduled meetings and appointments with OCS or 

with her service providers. 

Contrary to Emma’s arguments, we conclude that not only were OCS’s 

efforts reasonable, but that James made commendable efforts to reunify Emma with Joey. 

He consistently made efforts to communicate with Emma, despite her unresponsiveness, 

even going so far as to personally seek her out at Brother Francis Shelter. He also 

intervened to keep Emma on the visitation schedule after she missed the majority of her 

scheduled visits with Joey, and he attempted to maintain contact with Emma’s mental 

health service providers despite receiving contradictory and misleading information from 

Emma. 

Based on Emma’s unwillingness to engage in treatment or services, we 

conclude that the superior court did not err in its finding of reasonable efforts. 

B.	 The Superior Court Did Not Err In Finding That Emma Failed To 

Resolve Her Conduct In A Reasonable Time.

 To terminate parental rights, the superior court must find by clear and 

convincing evidence that the parent has “failed, within a reasonable time, to remedy the 

conduct or conditions . . . that place the child in substantial risk so that returning the child 

to the parent would place the child at substantial risk of physical or mental injury.”32 A 

AS 47.10.088(a)(2). 

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32 
 

 

 

 

 

 

 

reasonable time is statutorily defined as “a period of time that serves the best interests of 

the child, taking in[to] account the affected child’s age, emotional and developmental 

needs, and ability to form and maintain lasting attachments.”33 In determining whether 

a parent has remedied his or her conduct in a reasonable time, the superior court “may 

consider any fact relating to the best interests of the child.” 34 “[W]hether the parent 

failed to remedy the ‘conduct or the conditions that placed the child at substantial risk’ 

of harm [is a] factual finding[] reviewed for clear error.”35 

The superior court found by clear and convincing evidence that Emma had 

failed to remedy the conduct and conditions that placed Joey at substantial risk of harm 

and that “it’s clear that the best interest of [Joey] would be to terminate.” 

Joey was placed into foster custody in February 2012, and OCS filed a 

petition for termination of parental rights in January 2013. Emma points to 

AS 47.10.088(d), which requires OCS to file a termination petition if the child has been 

out of the parent’s custody for 15 of the most recent 22 months, and argues that OCS 

pursued termination “much faster than the law mandates.” In Christina J. v. State, 

Department of Health & Social Services, Office of Children’s Services, 

36 we upheld 

termination when the petition was filed nine months after OCS took custody. In rejecting 

an argument similar to Emma’s, we explained our reasoning: 

AS 47.10.088(g) explicitly allows OCS to file a petition for 

termination before the expiration of the mandatory foster care 

period (i.e., 15 out of 22 months) if it “determines that filing 

33 AS 47.10.990(28). 

34 AS 47.10.088(b). 

35 Sherman B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 290 P.3d 421, 428 (Alaska 2012) (citation omitted). 

36 254 P.3d 1095 (Alaska 2011). 

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a petition is in the best interests of the child.” This provision 

suggests that the 22-month period is not intended as a 

minimum time OCS must wait before filing. Rather, OCS 

determines when to file a petition based exclusively on the 

best interests of the child; the statute defines “reasonable 

time” not as a specific number of months or by reference to 

parents’ needs, but as “a period of time that serves the best 

interests of the child, taking in[to] account the affected 

child’s age, emotional and developmental needs, and ability 

to form and maintain lasting attachments.” As the superior 

court noted, this period is likely to be shorter for young 

children; the legislature has recognized, and expert witnesses 

confirmed in this case, that children “undergo a critical 

attachment process before . . . they reach six years of age,” 

and a failure to bond with adult caregivers during this time 

[ ] can result in lasting emotional damage. 37

We cautioned that the determination “must be made on a case-by-case basis and the 

amount of time considered ‘reasonable’ will vary,” but we “emphasize[d] that the statute 

clearly puts the criteria for ‘reasonable time’ in terms of the child’s needs.”38 We upheld 

the superior court’s finding based on the child’s age and the parent’s lack of progress.39 

The guardian ad litem submitted a brief in this appeal to emphasize that the 

superior court considered evidence that “[w]hile [Joey] thrived in foster care, [Emma] 

failed to complete her case plan and failed to comply with service providers.” In addition 

to the evidence discussed above regarding Emma’s failure to attend visitations with Joey 

and lack of cooperation with OCS and mental health service providers, the superior court 

heard testimony about Emma’s long history of mental health issues and her life-long 

difficulties in establishing an effective and sustainable treatment regime. The superior 

37 Id. at 1106-07 (internal footnotes and citations omitted). 

38 Id. at 1108. 

39 Id. 

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court also heard testimony about Joey’s health improvement while in foster care and his 

bonding with his foster family. Based on the record, we conclude that the superior court 

did not err in finding that Emma failed to remedy her conduct in a reasonable time as 

defined by statute and in light of Joey’s best interests. 

V. CONCLUSION 

For the foregoing reasons, we AFFIRM the superior court’s termination of 

Emma’s parental rights. 

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