Opinion
Supreme Court No. S-13706.
November 3, 2010.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sharon L. Gleason, Judge, Superior Court No. 3AN-09-00469 PR, Superior Court No. 3AN-06-11599 CI.
Gayle J. Brown, Anchorage, for Petitioner.
Lisa B. Nelson, Anchorage, for Respondent.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
A grandmother filed a petition to adopt her granddaughter. The superior court concluded that the consent of the child's mother was not required for the adoption pursuant to AS 25.23.050(a). The mother seeks appellate review. We affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
Allison was born on June 28, 2004, to Jeremy B. and Anne K. Allison's paternal grandmother Betty and her husband Clark have been involved with Allison since she was four months old.
We use pseudonyms to protect the privacy of the individuals involved in this case.
In April 2006 Anne's boyfriend injured Allison by throwing her across a room. Anne was present, but did not protect Allison. Betty was later granted shared legal custody of Allison and also obtained, on behalf of Allison, a long-term domestic violence order against Anne. The domestic violence order granted Betty custody of Allison for one year beginning September 12, 2006, and Allison lived with Betty during that time. In September 2007 Betty obtained a one-year protective order prohibiting Anne from contacting Betty.
Betty filed a petition for custody, and in October 2007 the superior court awarded her sole legal and physical custody of Allison. The court awarded Jeremy "open and free visitation" rights. It further stated that Anne "shall have third party supervised visitation at least once a week" and "Booth Memorial [Youth Family Services] will coordinate and supervise visitation of [Anne] providing constant supervision at all times." The court ordered both Jeremy and Anne to pay child support.
Anne completed seven visits with Allison between August 30, 2007, and April 10, 2008. A family services caseworker at Booth Memorial commented favorably on Anne's conduct during the visits. The caseworker also noted that, as of April 2008, "the bond between [Allison] and [Anne] appears to be intact." By contrast, according to Betty, after the visits Allison "would . . . bolt out of the room" toward Betty and "never asked to see [Anne] after these visits." Betty also stated Allison often awoke in the morning calling out for Betty and experienced night terrors after some of the visits at Booth Memorial.
During the year following the April 10, 2008 visit Anne did not contact Betty to arrange another visit, stop by Betty's house to attempt to visit Allison, telephone Betty's house to speak with Allison, or write to Allison. In March 2009 Anne moved for a change in visitation. She admitted that she had not contacted Allison since March 2008 and requested weekly visits supervised by Booth Memorial. Betty did not oppose the motion but recommended, among other conditions, that the court require Anne to meet with Allison's therapist prior to visiting Allison. Anne objected, though she again acknowledged that she had not "been in contact with [Allison] for a year." In April 2009 the superior court rejected Betty's conditions and ordered Anne to arrange visitation services, but it is unclear whether she did so within the time specified by the court.
This statement conflicts with assertions made by the caseworker, Allison's therapist, and Betty that Anne visited Allison on April 10, 2008.
In April 2009 Betty and Clark filed a petition to adopt Allison. They asserted Anne's consent to the adoption was "not required as she has abandoned [Allison] by fail[ing] to communicate with, or tender financial support for, [Allison] for a period greater than one year." Anne opposed the petition.
The superior court held an adoption hearing in September 2009. In her testimony, Betty admitted she had not reached out to Anne to set up communication with Allison, even though Allison sometimes stated that she "miss[es] [her] mom." In her testimony, Anne conceded she had no contact with Allison from April 2008 to April 2009. She claimed she did not call Betty's house or have in-person contact with Allison because she believed she was prohibited from doing so.
Citing AS 25.23.050(a)(1) and AS 25.23.050(a)(2)(A), the superior court concluded that Anne's consent to the adoption was not required. First, the court found by clear and convincing evidence that Anne abandoned Allison: "there was a conscious disregard of the parent/child relationship" for at least six months beginning in May 2008 and "the relationship between [Anne] and [Allison] has been destroyed as a result of [Anne's] disregard of that relationship or failure to take active steps to maintain the relationship." Second, the court found Betty "established by clear and convincing evidence that [Anne] failed to significantly, without justifiable cause . . . communicate meaningfully with [Allison] for a period in excess of one year" from April 2008 through the September 2009 adoption hearing. But the court also found Anne was justified in not paying child support, in part because she was indigent.
AS 25.23.050(a)(1) provides a parent's consent to adoption is not required if that parent "has abandoned a child for a period of at least six months."
AS 25.23.050(a)(2)(A) provides consent is not required of "a parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause, including but not limited to indigency, . . . to communicate meaningfully with the child."
It seems the superior court did not issue a final adoption decree by the time Anne filed her appeal. Rather than conclude that this case is not ripe for appellate review, we treat Anne's appeal as a petition for review in the interest of justice because (1) the final adoption decree will not change the legal issues at stake, (2) briefing has been completed, and (3) there is no reason to prolong this litigation. See Susan V. v. Angela T., Mem. Op. J. No. 1353, 2009 WL 5154263, at *3 (Alaska, Dec. 30, 2009) (citing Leege v. Strand, 384 P.2d 665, 666-67 (Alaska 1963) (treating premature appeal as petition for review in adoption matter)).
III. DISCUSSION
A. Standard Of Review
"We apply our independent judgment when interpreting a statute." We review factual findings made by a superior court for clear error when determining whether consent to adoption is required. We will conclude a factual finding is clearly erroneous "when we are left with a definite and firm conviction on the entire record that a mistake has been made." B. It Was Not Error To Conclude That Anne Abandoned Allison Under AS 25.23.050(a)(1).
In re Adoption of A.F.M., 960 P.2d 602, 604 (Alaska 1998) (citing In re Adoption of J.B.K., 865 P.2d 737, 739 n. 7 (Alaska 1993)).
See In re Adoption of B.S.L., 779 P.2d 1222, 1224 (Alaska 1989) (citing Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979)); see also In re J.J.J., 718 P.2d 948, 957 (Alaska 1986) ("The superior court's findings in an adoption case are subject to the `clearly erroneous' standard generally used for review of questions of fact." (quoting D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981))).
In re Adoption of B.S.L., 779 P.2d at 1224 ( citing Martens, 591 P.2d at 544).
Although a parent's consent to adoption is generally required, AS 25.23.050(a)(1) provides that a parent's consent is not required if that parent "has abandoned a child for a period of at least six months." We have stated that "courts should `strictly construe AS 25.23.050 in favor of the natural parent.'" Here Anne asserts it was error for the superior court to conclude that she had abandoned Allison.
In re Adoption of A.J.N., 525 P.2d 520, 521 (Alaska 1974); see also D.L.J., 635 P.2d at 837 (quoting In re Adoption of K.M.M., 611 P.2d 84, 87 (Alaska 1980)) ("[P]arents should not be deprived of the fundamental rights and duties inherent in the parent-child relationship except for `grave and weighty reasons.'").
In re Adoption of A.F.M., 960 P.2d at 604 (quoting S.M.K. v. R.G G., 702 P.2d 620, 623 (Alaska 1985)).
We use a two-prong test to determine whether a parent has abandoned a child: (1) there must be parental conduct evidencing a "willful disregard" for parental obligations, (2) leading to the destruction of the parent-child relationship. The first prong objectively tests whether a parent's "actions demonstrate a willful disregard of parental responsibility" without regard to "the parent's subjective intent or `wishful thoughts and hopes for the child'" or "token efforts to communicate with a child." We look for a parent's "continuing interest in the child and . . . a genuine effort to maintain communication and association." The second prong tests whether there is a causal connection between the parent's conduct and the break-down of the relationship. We have noted that "it is indicative of a break-down of the parent-child relationship if the child's best interests are promoted by legal severance of the relation."
Rick P. v. State, OCS, 109 P.3d 950, 957 (Alaska 2005) (citing G.C. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 67 P.3d 648, 651-52 (Alaska 2003)).
Jeff A.C., Jr. v. State, 117 P.3d 697, 704 (Alaska 2005) (citing G.C., 67 P.3d at 651).
Id. (quoting E.J.S. v. State, Dept. of Health Soc. Servs., 754 P.2d 749, 751 (Alaska 1988)).
Id. (citing In re H.C., 956 P.2d 477, 481 (Alaska 1998) (quoting E.J.S., 754 P.2d at 751)).
H.C., 956 P.2d at 483 (quoting E.J.S., 754 P.2d at 750-51).
Id. (quoting In re B.J., 530 P.2d 747, 749 (Alaska 1975)).
Anne first argues that the court failed to apply the correct standard by finding she consciously disregarded "the parent/child relationship" rather than her "parental obligations." This argument is unpersuasive. It is true that "the test for abandonment is whether there is `conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child.'" Although the superior court did not expressly use that terminology, it implicitly found that Anne consciously disregarded her parental obligations: the court found not only "that there was a conscious disregard of the parent/child relationship," but also that Anne failed "to take active steps to maintain the relationship" with Allison. These findings demonstrate that the court properly focused on Anne's conduct in determining that she consciously disregarded her parental role. Therefore given the context of the court's order and specific findings concerning Anne's conduct, we conclude the court did not use an incorrect standard.
In re Adoption of A.J.N., 525 P.2d at 523 (quoting In re D.M., 515 P.2d at 1237) (emphasis added).
See Adoption of V.M.C., 528 P.2d 788, 793 (Alaska 1974) (concluding superior court properly "predicate[d] its determination upon objective evidence of parental conduct indicating a conscious disregard of the parental role").
Cf. id. at 793-94 (rejecting argument that superior court relied too much on party's subjective intent in determining abandonment, given court's "specific findings, considered in conjunction with the language of the court").
Anne also argues that the evidence does not support the superior court's finding that her conduct led to the destruction of her relationship with Allison. She relies primarily on Betty's testimony that "sometimes when [Allison is] upset, [she says] I miss my mom." But after reviewing the record, we are unable to conclude the court's finding was clearly erroneous. In context it is clear that Allison made these statements infrequently, and only when she was angry or upset. Additionally evidence of Anne's actual conduct supports the court's finding. For example Anne conceded that she had not contacted Allison for more than six months after the April 2008 visit and Betty testified that Anne made no attempt to do so through Booth Memorial, in person, by telephone, or by writing. Betty's testimony regarding Allison's conduct further reinforces the court's conclusion that the relationship was destroyed: after visits with Anne at Booth Memorial, Allison "would . . . bolt out of the room" toward Betty and "never asked to see [Anne] after these visits"; Allison experienced night terrors after some of the visits at Booth Memorial; when Allison would wake up, she would call out for Betty; and after the visits ended, Allison's night terrors ceased.
See id. at 793 (concluding that superior court's findings regarding abandonment properly "relate[d] to the actual conduct of [father] with respect to the pursuit of his parental role").
Because our review of the record does not give rise to "a definite and firm conviction . . . that a mistake has been made," the superior court's finding that Anne abandoned Allison is not clearly erroneous.
In re Adoption of B.S.L., 779 P.2d at 1224 (citing Martens, 591 P.2d at 544).
Although Anne also argues it was error for the superior court to conclude she had unjustifiably failed to communicate meaningfully with Allison for one year under AS 25.23.050(a)(2)(A), in light of our decision we decline to reach this issue.
IV. CONCLUSION
We AFFIRM the superior court's decision that Anne's consent was not necessary for Betty and Clark's adoption of Allison.