Opinion
Supreme Court No. S-13182.
August 5, 2009.
Appeal from the Superior Court of the State of Alaska, Second Judicial District, Nome, Ben Esch, Judge, Superior Court No. 2NO-08-36 PR.
Kenneth C. Kirk, Kenneth Kirk Associates, Anchorage, for Appellant. Mary Ellen Ashton, Ashton Dewey, Lawyers, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Eastaugh, Carpeneti, Winfree, and Christen, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
A father appeals a superior court order waiving the father's consent to his son's adoption by the child's stepfather. Because the superior court did not clearly err in finding that the father unjustifiably failed to communicate with the child for at least one year, we affirm the order waiving the father's consent under authority of AS 25.23.050(a)(2)(A).
II. FACTS AND PROCEEDINGS
Calvin J. was born in July 1999 to Tina J. and Marvin O. Tina and Marvin had married in February 1998; they lived together in Nome until they separated in October 2002. Marvin's last visit with Calvin was in September or October 2003. In October 2003 Marvin was incarcerated on charges of first-degree murder, felony evidence tampering, and official misconduct.
We use pseudonyms to protect the identities of the family members.
AS 11.41.100(a)(1)(A).
AS 11.56.610(a)(2) (b).
AS 11.56.850.
In December 2003 the superior court granted Tina and Marvin a divorce; issues of child custody, support, and property division were reserved for later resolution. Tina and Calvin moved in with Mike J., who began helping Tina financially support Calvin.
Marvin was released on bail in January 2004. He lived in Anchorage following his release; Tina, Calvin, and Mike continued to live in Nome. Tina testified that Marvin did not contact her or Calvin while he was living in Anchorage on bail.
Marvin's criminal case went to trial in January 2005. He lived in Nome during the trial. In February 2005 Tina filed for a domestic violence protective order against Marvin. The district court granted a one-year order on March 11, 2005, after finding that Marvin had committed a crime of domestic violence against Tina and represented a credible threat to the physical safety of both Tina and Calvin.
Marvin's criminal trial ended in a mistrial in March 2005. From March to June 2005 Marvin lived in Nome. He did not attempt to contact Calvin or Tina during that period. In June 2005 Marvin was arrested for violating his bail conditions. He has remained in custody since that time.
Tina married Mike in June 2005.
In November 2005 Marvin was retried and convicted of first-degree murder and tampering with evidence. He was sentenced to 101 years in prison in April 2006 and at the time of the superior court proceedings in this case was incarcerated outside Alaska. Around the time Marvin was sentenced, the superior court awarded sole legal and primary physical custody of Calvin to Tina.
In October 2006 Mike, with Tina's consent, petitioned to adopt Calvin. Mike moved to waive Marvin's consent. Marvin, through counsel, objected to the adoption.
In January 2008 the superior court held a one-day evidentiary hearing on consent. Tina, Mike, and Marvin testified. In a May 2008 order, the court concluded that Marvin had waived consent by unjustifiably failing to communicate with Calvin for a period of at least one year.
In July 2008 the superior court denied Marvin's motion for reconsideration, held a hearing on the adoption, and entered a final decree of adoption. Marvin appeals. Appellate briefing ended in March 2009.
III. DISCUSSION
A. Standard of Review
We review the superior court's findings of fact for clear error. A finding is clearly erroneous if a review of the entire record, taken in the light most favorable to the prevailing party, leaves us with a definite and firm conviction that a mistake has been made. We will overturn a superior court's adoption consent waiver "only if there has been an abuse of discretion or if the controlling findings of fact are clearly erroneous." B. Whether Marvin Waived His Right To Consent to the Adoption
In re Adoption of A.F.M. ( A.F.M. II), 15 P.3d 258, 262 (Alaska 2001) (citing Todd v. Todd, 989 P.2d 141, 142-43 (Alaska 1999), overruled in part and on other grounds, Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004)); R.F. v. S.S., 928 P.2d 1194, 1196 n. 2 (Alaska 1996) (quoting E.J.S. v. State, Dep't of Health Soc. Servs., 754 P.2d 749, 750 n. 2 (Alaska 1988)).
Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 502 (Alaska 2009) (citing Brynna B. v. State, Dep't of Health Soc. Servs., 88 P.3d 527, 529 (Alaska 2004)); In re Adoption of A.F.M. ( A.F.M. I), 960 P.2d 602, 604 (Alaska 1998) (citing E.A. v. State, 623 P.2d 1210, 1212 (Alaska 1981)); R.F., 928 P.2d at 1196 n. 2 (citing E.J.S., 754 P.2d at 750 n. 2).
A.F.M. II, 15 P.3d at 261 (quoting Todd, 989 P.2d at 142-43).
Both parents of a minor child must ordinarily consent to the child's adoption. But AS 25.23.050(a)(2)(A) states that 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." We strictly construe AS 25.23.050(a) in favor of the natural parent and against deciding that the failure to communicate was without justifiable cause. The petitioner must prove, by clear and convincing evidence, that the parent failed to communicate meaningfully with the child for at least one year. If the petitioner meets that burden, the parent must produce evidence of a justifiable cause for the failure to communicate.
AS 25.23.040(a). The father's consent is required "if the father was married to the mother at the time the minor was conceived or at any time after the conception, the minor is the father's child by adoption, or the father has otherwise legitimated the minor under the laws of the state." AS 25.23.040(a)(2).
AS 25.23.050(a) provides eight grounds for waiving a parent's consent to adoption (in addition to grounds for waiving the consent of other persons). AS 25.23.050(a) states in part:
(a) Consent to adoption is not required of
(1) for purposes of this section, a parent who has abandoned a child for a period of at least six months;
(2) 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,
(A) to communicate meaningfully with the child, or
(B) to provide for the care and support of the child as required by law or judicial decree;
(3) the father of a minor if the father's consent is not required by AS 25.23.040(a)(2);
(4) a parent who has relinquished the right to consent under AS 25.23.180;
(5) a parent whose parental rights have been terminated by order of the court under AS 25.23.180(c)(3) or AS 47.10.080(c)(3);
(6) a parent judicially declared incompetent or mentally defective if the court dispenses with the parent's consent;
(7) a parent of the person to be adopted, if the person is 18 or more years of age. . . .
In re Adoption of B.S.L., 779 P.2d 1222, 1224 (Alaska 1989) (citing In re Adoption of K.M.M., 611 P.2d 84, 88 (Alaska 1980)).
In re D.J.A., 793 P.2d 1033, 1037 (Alaska 1990) (citing D.J.L. v. W.D.R., 635 P.2d 834 (Alaska 1981)); see also S.M.K. v. R.G.G., 702 P.2d 620, 624 n. 11 (Alaska 1985).
D.J.A., 793 P.2d at 1037.
The superior court found that Marvin had failed to communicate with Calvin for at least one year. That finding was not clearly erroneous. Mike filed his adoption petition in October 2006, and Marvin admitted that he had not attempted to contact Calvin after January 2005.
The burden then shifted to Marvin, and the superior court concluded that Marvin had not shown by a preponderance of the evidence that he had justifiable cause for his failure to communicate. Marvin argues here that the superior court erred in so concluding.
First, Marvin argues that he made several attempts to contact Calvin between October 2003 and January 2005, but stopped trying because Tina denied his attempts and he had believed any additional attempts would be futile. Marvin testified that before his arrest in October 2003 he called Tina several times, attempting to arrange visitation with Calvin. But Tina testified that Marvin last visited Calvin in October 2003 and did not attempt to contact his son again that month. There is no evidence Marvin directly attempted to contact Calvin after October 2003. Third parties attempted to contact Calvin on Marvin's behalf on five occasions, the last of which was in January or February 2005. It is unclear whether Marvin was aware of these five attempts when they occurred, and there is no evidence Marvin initiated any of them.
In December 2003 a friend of Marvin's, with whom Calvin had no relationship, took Calvin a gift; Tina gave the gift to Calvin. During a telephone conversation with Tina that month, Marvin's friend asked if she could take Calvin to visit Marvin; Tina did not allow the visit. In January 2004 Marvin's sister sent Calvin a card; she did not contact Tina, and it appears neither Tina nor Calvin responded. It appears that sometime before October 2006 someone gave Tina telephone calling cards for the purpose of assisting Calvin to contact Marvin. In January or February 2005 a person who said he was an investigator for Marvin's attorney called Tina. The investigator asked if he could take Calvin to visit Marvin; Tina refused.
Although the superior court found that Marvin made some efforts to communicate with Calvin, there was a factual dispute about whether Tina's refusals to allow third persons to take Calvin to see Marvin rendered any future attempts at contact futile. The superior court resolved that dispute against Marvin, concluding that the evidentiary support for Marvin's position was limited to his own "supposition."
The following evidence supports the superior court's finding that there was limited support for Marvin's futility argument: (1) it appears that after October 2003 Marvin did not attempt to contact Calvin by trying to arrange visitation directly or through someone with whom Calvin did have a relationship, by calling Calvin, or by sending letters, cards, or gifts to Calvin; (2) although Tina testified that she would have denied other requests for Calvin to be taken by a third person to visit Marvin in prison, there was no evidence she would have denied all requests for contact; and (3) Tina testified that Calvin was available for phone contact with Marvin between October 2006 and October 2007and that Marvin had their phone number. The superior court's finding that there was limited support for Marvin's position that future attempts would have been futile is not clearly erroneous. The superior court therefore did not err in concluding that Marvin's failure to communicate was not justified on this basis.
See B.S.L., 779 P.2d at 1224-26 (holding that superior court did not clearly err in finding that mother's assumption that father would block communication with child was not justifiable cause because mother never tested assumption). But see D.J.A., 793 P.2d at 1039 (holding that superior court clearly erred in finding mother lacked justifiable cause given mother's mental health issues, denial of visitation for six months, and ambiguity about what mother had to do to regain visitation); D.A. v. D.R.L., 727 P.2d 768, 770 (Alaska 1986) (holding that superior court did not clearly err in finding father's lack of communication justified because child was very young and mother postponed visitations and limited child's availability); S.M.K., 702 P.2d at 624 (holding that superior court did not clearly err in finding justifiable cause for mother's lack of communication because child was unlawfully taken from mother, mother was indigent and unable to regain physical custody or litigate, and mother did not have contact information for child for most of the time).
We express no opinion about Marvin's implicit contention that his lack of success in making contact with Calvin through Tina excused any duty to make additional or different types of efforts through Tina or other private or public intermediaries.
Second, Marvin argues that visitation was nearly impossible "as a practical matter . . . given the strictures of the domestic violence order" that was in effect from February 2005 to March 2006. It appears that Marvin did not directly attempt to communicate with Calvin during the sixteen months before the protective order was in place. Marvin admitted that he did not, directly or indirectly, attempt to communicate with Calvin during the thirteen months the protective order was in effect or during the seven months after the protective order expired and before Mike filed for adoption.
The protective order undoubtedly made visitation difficult to arrange. The order prohibited Marvin from communicating directly with Tina, coming within 300 feet of Tina's residence, contacting Tina at her home or Mike's office, contacting Calvin at his school or babysitter's home, and entering or following vehicles Tina or Calvin were in.
But the order also stated that "visitation will not be allowedexcept as may be ordered in the [divorce case]." (Emphasis added.) Marvin admits that the protective order "did not specifically prohibit visitation" and "said that the divorce case would govern that issue." Marvin did not attempt to make contact with Calvin in any way arguably allowed by the protective order (for example, by mail), and does not appear to have attempted to secure visitation or contact in the divorce case.
Cf. In re J.J.J., 718 P.2d 948, 955 n. 23 (Alaska 1986) (recognizing that parent's duty to communicate meaningfully is not excused by conduct of others unless conduct actually prevents performance).
We do not mean to imply that people should have to choose between violating protective orders and exercising their parental rights. But no such difficult choice is needed for parents who may safely exercise their rights by seeking contact through legal means, such as, in this case, pursuing visitation in the divorce case. The protective order made visitation difficult, but not impossible, and expressly explained how visitation could be sought. Marvin appears to have failed to pursue visitation or contact by allowable means. The superior court did not clearly err in finding that the protective order did not prevent all contact, and therefore did not abuse its discretion in implicitly concluding that the protective order did not justify Marvin's failure to communicate with Calvin.
Even assuming that the protective order justified Marvin's failure to communicate with Calvin between February 2005 and March 2006, the order could not have justified his failure to communicate during the sixteen months before the order was issued or during the seven months after it expired. Alaska Statute 25.23.050(a) requires a parent to maintainmeaningful contact with the child, and does not require the one-year period of noncommunication to immediately precede the filing of an adoption petition. The superior court permissibly considered the sixteen months before the order was issued and the seven months after it expired to be twenty-three months of unjustified noncommunication. The superior court did not abuse its discretion in implicitly concluding that the third-person attempts at contact were not sufficient for meaningful communication, especially given the uncertainty about whether Marvin was aware of these attempts when they occurred. The superior court therefore did not abuse its discretion in implicitly concluding that the protective order did not justify Marvin's failure to communicate with Calvin.
Id. at 953.
Cf. id. at 954 nn. 17-18 (holding that superior court properly considered entire seventeen months of nonsupport, not just one-year minimum).
Finally, Marvin argues that his incarceration justified his failure to communicate with Calvin. In In re J.J.J. we held that "[c]ircumstances resulting from the noncustodial parent's own conduct cannot excuse such a parent's significant failure to . . . maintain meaningful communication." Such circumstances include incarceration. Under this standard, Marvin's incarceration cannot justify his failure to communicate because that failure was due to Marvin's own conduct and resulting incarceration. The superior court therefore did not abuse its discretion in concluding that Marvin could not use his incarceration "to excuse his admitted complete failure to try to contact his son."
Id. at 953.
Id. at 952-53.
See id.
Marvin argues that we should overrule our holding in J.J.J. and revert to the rule in R.N.T. v. J.R.G., 666 P.2d 1036, 1038-39 (Alaska 1983), abandoned by J.J.J., 718 P.2d at 952-53. In R.N.T. we held that incarceration could justify failure to communicate if the terms of the incarceration necessarily precluded the parent from communicating with his or her children. Id. at 1039. In this case Marvin concedes that "it was not that [Marvin's] incarceration made it impossible to communicate with the child; it simply made it a bit more difficult." In so conceding, Marvin fails to satisfy even the more lenient R.N.T. standard. It is therefore unnecessary for us to reconsider our holding in J.J.J.
We therefore hold that the superior court did not abuse its discretion in concluding that Marvin did not meet his burden of justifying his failure to contact Calvin. It consequently did not err in waiving Marvin's consent to Mike's adoption of Calvin.
Mike also argued in the superior court that Marvin waived his consent based on Marvin's failure to support under AS 25.23.050(a)(2)(B), and on Marvin's unreasonable withholding of consent under AS 25.23.180(c)(2). The superior court expressly declined to waive consent on either of those grounds. Mike does not appeal those conclusions. Mike does argue here that we can affirm waiver of Marvin's consent on the alternative ground of abandonment under AS 25.23.050(a)(1). Because we affirm the superior court's waiver of Marvin's consent based on his failure to communicate, we do not need to consider alternative grounds for affirming.
IV. CONCLUSION
The superior court's order waiving Marvin's consent is AFFIRMED.