Kiva O. v. State, Dept. of Health & Social Services, Office of Children's Services

408 P.3d 1181
CourtAlaska Supreme Court
DecidedJanuary 5, 2018
Docket7215 S-16605
StatusPublished
Cited by11 cases

This text of 408 P.3d 1181 (Kiva O. v. State, Dept. of Health & Social Services, Office of Children's Services) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kiva O. v. State, Dept. of Health & Social Services, Office of Children's Services, 408 P.3d 1181 (Ala. 2018).

Opinions

OPINION

MAASSEN, Justice.

I. INTRODUCTION

An Indian child in the custody of the Office of Children’s Services (OCS) was diagnosed with post-traumatic stress disorder and depression. The child’s psychiatrist recommended treating him with an antidepressant, with the addition of a mood stabilizer if it later became necessary. When the mother rejected the recommendation, OCS asked the superior court for authority to consent to the medications over the mother’s objection. The court granted OCS’s request.

The mother appeals, arguing that the superior court failed to apply the correct standard for determining whether her fundamental constitutional rights as a parent could be overridden. We agree with her in part. We hold that the constitutional framework laid out in Myers v. Alaska Psychiatric Institute 1 applies to a court’s decision whether to authorize medication of a child in OCS custody over the parent’s objection. We conclude that the superior court’s findings in this ease regarding the antidepressant satisfy the Myers standard but that its findings regarding the optional mood stabilizer do not. We therefore affirm in part and reverse in part the superior court’s order authorizing OCS to consent to the recommended medications,

II. FACTS AND PROCEEDINGS

A. Facts

Alee,2 born in October 2007 to Kiva 0., is an Indian child under the Indian Child Welfare Act (IOWA).3 He and his sister Maia are both in OCS custody. Alee was in a therapeutic foster home during the proceedings relevant to this appeal.

Alec had behavioral problems, including being “irritable[] [and] disruptive, having conflicts with peers, struggling academically, and generally [being] despondent and tearful.” His therapist referred him to a psychiatrist, Dr. Richard Brown. “Dr. Brown observed [Alec] to be tearful, frustrated, angry, and deeply disheartened” and reported that Alec “consistently expressed that he misses his mother, that he would like to see his mother, and that he gets frustrated when that [visitation] doesn’t happen.” Dr. Brown diagnosed Alec with post-traumatic stress disorder and adjustment disorder, revising the latter diagnosis later to “[m]ajor [depressive [disorder due to the length and severity of [Alec’s] symptoms.”

1. Medication recommendation

Dr. Brown tried to treat Alec’s behavioral problems without medication. He “first concentrated on giving [Alec] time to establish a consistent therapeutic relationship, develop social strategies, and work on behavioral changes.” But when Alec’s symptoms persisted, Dr. Brown recommended treating him with Lexapro, an antidepressant. “Dr. Brown’s professional expectation [was that] Lexapro would allow [Alec] to engage in his other therapeutic interventions in a more effective manner.” He testified that the medication would probably decrease Alec’s irritability and impulsiveness; he believed that if Alec could be “established] ... in a calmer mental status,” he could learn coping strategies, “make use of those, and ... actually participate actively in the treatment process” through ongoing therapy. Dr. Brown intended “to treat [Alec] without the need of using an inpatient hospitalization if possible.”

Lexapro’s potential side effects were addressed in Dr. Brown’s courtroom testimony. Like other antidepressants of the same type, Lexapro may cause mild tiredness and increased excitation; it may in rare instances decrease libido; and “a small percentage of people (including younger people) experience increased suicidal thoughts within the first month of treatment.” Lexapro has a “black-box” warning about its use with children under the age of 12 based on the associated risk of suicide,4 but Dr. Brown testified that the warning did not necessarily contraindicate the drug’s use in Alec’s case. He emphasized that it is more dangerous not to treat a depressed patient at all: “[W]hen a person is depressed and they’re not treated, they ... have a higher propensity to either hurt themselves, kill themselves, or put themselves in [a] position [where] they could be hurt.”

The “black-box” warning notwithstanding, Dr. Brown testified that prescribing the drug for young people “is the national standard of practice amongst psychiatrists.” He chose Lexapro for Alec because he hoped Alec would respond to it more quickly — the typical response time is within four to six weeks — than he would to an FDA-approved alternative like Prozac, which typically takes six to eight weeks for a response. He was also concerned that Prozac cah cause increased irritability, which would be “anti-therapéutic” given Alec’s symptoms and treatment goals.

Dr. Brown expected Alec to be on Lexapro for nine months to a year. He testified that if Lexapro did not prove effective at a five milligram dosage “within a reasonable period of time,” he would try increasing it to the typical starting dosage of ten milligrams,5 switching to a different antidepressant, or adding a mood stabilizer (an “atypical anti-psychotic”) like Risperdal. He testified that the side effects of these mood stabilizers can be serious.

2. Communication with Kiva

OCS contacted Kiva to discuss Dr. Brown’s recommendations for her son. Kiva looked up Lexapro on the internet and found warnings against prescribing it for children under 12. She “expressed immediate concerns about the possible side effects of Lexapro,” especially given Alec’s age.

OCS asserts that it attempted to set up meetings with Kiva to provide her with more information, including a meeting with OCS’s psychiatric nurse, Kiva claims she attempted to call Dr. Brown’s office directly for more information but her calls were never returned; Dr. Brown’s nurse testified that Kiva never called. It is undisputed that when the OCS case manager Med to visit Kiva at home, Kiva refused to discuss the issue without her-lawyer and a tribal representative present. The superior court found that ÓCS attempted to set up three other informational meetings with Kiva but she “failed to attend.”

B. Proceedings

When it became clear that Kiva would not consent to- the administration of Lexapro, OCS asked the superior court “for authority to consent to psychiatric medication for [Alec], as prescribed by treating physicians.” OCS attached an affidavit from its psychiatric nurse, who gave her professional opinion that “[d]ue to the lack of engagement by mom in this child’s case, and the escalation of the child’s behaviors[,] ... OCS'should be granted the authority to consent to medications for this child.”

Alec’s tribe and his guardian' ád litem both supported OCS’s request. Kiva opposed it, arguing that the request was overbroad because it was not limited to a specific medication; she also argued that OCS had to support its request by reference to a test laid out in Myers6 for the administration of psychotropic drugs to adults who have been involuntarily committed.

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Bluebook (online)
408 P.3d 1181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kiva-o-v-state-dept-of-health-social-services-office-of-childrens-alaska-2018.