Opinion
Supreme Court No. S-13444.
December 30, 2009.
Petition for Review from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge, Superior Court No. 3AN-07-700 PR.
Appearances: Kenneth C. Kirk, Kenneth Kirk Associates, Anchorage, for Petitioner. Heather L. Gardner, Shortell Gardner, LLC, Anchorage, for Respondent.
Before: Fabe, Winfree, and Christen, Justices. [Carpeneti, Chief Justice, and Eastaugh, Justice, not participating.]
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 mother contests the superior court's finding that her right to withhold consent to the adoption of her daughter by the child's stepmother was waived under AS 25.23.050(a)(2). The superior court based its decision on two findings, each of which would have been independently sufficient to support the court's legal conclusion that the mother's right to withhold consent had been waived. The mother challenges both of these findings. She argues that the superior court erred in finding (1) that she failed significantly without justifiable cause to communicate meaningfully with her daughter for a period of at least one year and (2) that she failed significantly without justifiable cause to provide support for her daughter as required by law. We affirm the superior court's first finding. Because this holding is adequate to sustain the resulting waiver of the mother's right to consent, we do not review the second finding.
II. FACTS AND PROCEEDINGS
Marcus T. and Susan V. were married in June 1996. Their only child, Theresa T., was born in January 1997. Marcus and Susan divorced in Florida in August 2000. The marital settlement agreement named Susan the "primary residential parent"; provided Marcus with visitation every other weekend, on Wednesday evenings, and on select holidays; and ordered him to pay child support.
Pseudonyms have been used to protect the privacy of the parties.
This custody arrangement was subsequently modified in April 2002 by emergency order after Susan was charged with several offenses, including an assault on her father and possession of an illegal substance. In the order, the court decided that these developments constituted a substantial change in circumstances and that it was in Theresa's best interest for Marcus to take primary custody. Susan retained only supervised visitation rights, which she never exercised. While the emergency order modified custody, it did not explicitly modify the support arrangement originally set forth by the divorce decree.
Seven months after Marcus was awarded custody, he was transferred to Elmendorf Air Base in Anchorage and moved to Alaska with Theresa. After the move, Susan made a series of phone calls to Marcus's cell and home phone in which she threatened Marcus and his then-fiancée, Angela T. Marcus testified that he took these threats seriously in light of Susan's violent history, which included assaults against him. When Susan spoke with Theresa on the phone, the content of these conversations would frequently leave Theresa upset, leading Marcus to closely monitor the phone calls and intervene when he felt necessary. While Marcus acknowledged that Susan "sporadically" sent letters to Theresa following the 2002 move, he testified that "they were basically all upsetting letters" and that "the majority of the letters were written while [Susan] was incarcerated."
In August 2004 Marcus married Angela. In October Marcus, Angela, and Theresa temporarily moved out of their residence and in with Angela's family. While Marcus did not give Susan his in-laws' phone number or home address, she continued to have his cell phone number, and Marcus established a post office box especially for her use.
Marcus, Angela, and Theresa moved into a new home in May 2005. In light of Susan's violent behavior toward him and continuing threats, Marcus did not provide her with their new address or unlisted phone number, but instead maintained the post office box. Marcus and Susan also agreed to set up regular twice-weekly times when Theresa would call Susan. However, Susan was unavailable for the first scheduled call, and her phone number was out of service for the following two months because of an unpaid balance on the account. In October 2005 Marcus discontinued the post office box.
In 2006 Susan made several attempts to find Marcus's home address through Internet searches but received no response to the letters she sent to the addresses that the searches uncovered. Her sister also emailed Marcus unsuccessfully. In May 2006 Susan called Marcus at work, but the phone conversation became hostile and ended abruptly. Susan's husband called back and arranged for Susan to call Marcus the next day to exchange contact information and schedule regular times for conversations with Theresa, but Susan failed to follow through with the promise to call. Marcus was available at the same work number until November 2007, but Susan never contacted him again. After May 2006, the only piece of communication that Theresa received from Susan was a letter that arrived at Marcus and Angela's home some time in the fall of that year.
Susan's husband testified that he called Marcus's office multiple times after the initial phone call but was always told that Marcus was unavailable. There was no evidence, however, that Susan ever tried to call Marcus at his office after her first call in May 2006.
The parties disagree about whether or not Susan provided small monetary gifts to Theresa during the period when Marcus was the primary custodian. Susan's income was limited throughout this period; she held a number of short-term jobs and was incarcerated more than once. Susan testified that she spent this income on mortgage payments, utility bills, food, medication for her bipolar disorder, and cigarettes. Susan also claimed that Marcus explicitly told her that he did not want her financial assistance.
In June 2007 Angela filed a petition to adopt Theresa. Such a petition normally requires written consent from the child's parent, unless the parent's consent is not required under AS 25.23.050. Angela argued that Susan's consent for the adoption was not necessary because Susan had "failed significantly without justifiable cause . . . to communicate meaningfully" with Theresa for a period of more than one year. Susan was appointed counsel, and Master John E. Duggan conducted evidentiary hearings to determine whether Susan had waived her right to withhold consent. Angela later amended her petition to argue that Susan had also waived her right to withhold consent by failing without justification "to provide any financial support for the minor child for a period of at least one year."
AS 25.23.040.
AS 25.23.050(a)(2)(A).
AS 25.23.050(a)(2)(B).
In October 2008 Master Duggan issued his report, finding that Susan failed without justifiable cause to maintain meaningful contact with Theresa for a period in excess of one year following May 2006. Master Duggan also found that, from 2002 through 2007, Susan failed to provide child support without justifiable cause. On the basis of these findings, Master Duggan recommended a finding that Susan had waived her right to withhold consent.
In January 2009 Susan's attorney filed objections to Master Duggan's recommendations. In accordance with Alaska Rule of Civil Procedure 53(d)(2)(B), the case was referred to the superior court, where Superior Court Judge Mark Rindner reviewed an electronic recording of the entire evidentiary hearing de novo. Finding Marcus and Angela more credible witnesses than Susan, Judge Rindner issued an order adopting Master Duggan's recommendation in its entirety. The court issued further findings, addressing the four-year period of time before May 2006: "[T]he sporadic nature of the contact between [Susan] and her daughter during this period was due to [Susan's] unstable lifestyle and was not the fault of [Marcus and Angela]." Judge Rindner also elaborated on the issue of child support, noting that the law requires non-custodial parents to provide some support to their children.
Susan appeals, arguing that the superior court erred in finding that she had waived her right to withhold consent under AS 25.23.050(a).
III. STANDARD OF REVIEW
We review the superior court's finding of waiver of a parent's right to withhold consent to adoption 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. However, we apply independent judgment when interpreting a statute and reviewing questions of law.
See, e.g., In re Adoption of J.M.F., 881 P.2d 1116, 1118-19 (Alaska 1994) (reviewing for clear error the superior court's finding that there was justifiable cause for mother's failure to provide support); In re Adoption of B.S.L., 779 P.2d 1222, 1224 (Alaska 1989) ("In concluding that [the mother's] failure to communicate was without justifiable cause, the trial court made a finding of fact. We will disturb a trial court's findings of fact only when we are convinced that they are clearly erroneous. . . ."); 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").
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., 960 P.2d 602, 604 (Alaska 1998).
Jacob v. State, Dep't of Health Soc. Servs., 177 P.3d 1181, 1184 (Alaska 2008).
IV. DISCUSSION
A. We Review the Superior Court's Findings Even Though the Adoption Decree Had Not Been Finalized When the Appeal Was Filed.
At the time this appeal was filed, the superior court had not yet issued a final adoption decree. While this adoption proceeding was therefore not ripe for appellate review under Alaska Adoption Rule 15(a), we opt to treat this appeal as a petition for review. To prevent hardship and injustice, we "may, sua sponte, treat a purported appeal as a petition for review" and accordingly decide the relevant issues to the same extent and effect as we would onappeal. In this situation, the final adoption decree will not change the legal issues at stake. Because Angela first filed her petition to adopt Theresa more than two years ago, and the parties have provided full briefing on the relevant issues, we see no reason to prolong this litigation. Justice and the best interests of the parties will be served by addressing the merits at this time and resolving this sensitive issue.
Adoption Rule 15(a) provides for appeals from final judgments or orders in adoption proceedings.
Leege v. Strand, 384 P.2d 665, 666-67 (Alaska 1963).
B. The Superior Court Did Not Clearly Err in Finding that Susan Failed Without Justifiable Cause To Meaningfully Communicate with Theresa for a Period of at Least One Year.
1. The superior court did not clearly err in finding that Susan failed to communicate with Theresa for at least one year.
The relevant time period for the purposes of AS 25.23.050(a)(2) is the year immediately following May 2006. Although the superior court commented that communication between Susan and Theresa from 2002 until May 2006 was "sporadic, not very meaningful and often inappropriate," the waiver is legally based on the complete cessation of contact that occurred post-May 2006. Therefore, Susan's examples of contact or attempted contact that took place prior to May 2006 are not legally relevant.
Master Duggan found that "[Susan] failed without justifiable cause to maintain meaningful contact and communication with [Theresa] for a period in excess of one year following May 6, 2006." Upon review of the record, the only possible contact between Susan and Theresa that occurred within the relevant time period was a letter that Susan sent in the fall of 2006. Susan did not present this letter as a possible form of contact before either Master Duggan or the superior court — it was only mentioned incidentally during Angela's testimony.
On appeal, there appears to be no material dispute between the parties as to whether meaningful contact between Susan and Theresa took place during this period. Both of Susan's briefs focus attention on whether the lack of contact was justified and seem to concede that meaningful contact did not occur. Susan's opening brief acknowledges that "[t]here is no question that during [the] approximately 2-year period from May 2005 through June 2007, there was no contact between mother and child." Her reply confirms her focus on the question of justification rather than meaningful contact: "The part of that statute which is being contested is not whether there was meaningful communication (there is no question there was not), but rather whether there was justifiable cause for that lack of communication."
In Susan's response to Angela's petition for adoption, she also appeared to concede that she had failed to meaningfully communicate within the one-year time period, stating: "[T]he lack of meaningful communication cited is due to the Petitioner's actions and not to Respondent's lack of action. . . ."
We accept Susan's own characterization of the situation and affirm the superior court's finding that Susan did not meaningfully communicate with her daughter for the one-year period beginning in May 2006. Therefore, we turn to Susan's arguments that her failure to communicate was justified by Marcus and Angela's interference, which made her unable to reach Theresa. 2. The superior court did not clearly err in finding that there was not justifiable cause for Susan's failure to communicate meaningfully with Theresa.
Consistent with AS 25.23.050(a)(2)(A), this court uses a two-pronged analysis which determines first whether the parent failed to communicate meaningfully for at least one year, and then moves on to consider whether there was justifiable cause for this failure. See, e.g., In re Adoption of B.S.L., 779 P.2d 1222, 1225 (Alaska 1989) (considering mother's unsuccessful attempts to get custody in the context of determining whether lack of meaningful communication was justified); In re J.J.J., 718 P.2d 948, 957 n. 1 (Alaska 1986) (Matthews, J. and Rabinowitz, C.J., dissenting) (noting that a father's unsuccessful attempts at contact — which had been blocked by the mother's interference — were grounds for the superior court's finding that his failure to communicate was justified).
The crux of Susan's argument is that her failure to communicate meaningfully with her daughter after May 2006 was justified. Susan contends that the lack of meaningful communication was the result of interference from Marcus and Angela, not the result of Susan's willful conduct. We agree with Susan that "[t]he long-established and continuing rule in Alaska is that absent the element of willfulness, a parent does not lose the right to [withhold] consent under AS 25.23.050(a)(2)." However, the record lacks evidence demonstrating that Susan's ability to contact Theresa was foreclosed by the actions taken by Marcus and Angela.
In re Adoption of J.M.F., 881 P.2d 1116, 1118 (Alaska 1994).
Susan argues that she made significant efforts to communicate with Theresa but that these efforts were unsuccessful due to Marcus and Angela's actions, which denied her any possibility of making contact. Susan's brief points to her Internet searches, unanswered letters, her sister's email to Marcus, and her call to Marcus at work as examples of her attempts to make contact. Again, all of these efforts, except for the single letter sent in fall of 2006, occurred during or before May 2006. While there was testimony that Susan's mother sent Marcus a letter in the summer of 2006 and that Susan's husband attempted to call Marcus at work after May 2006, there was no evidence that Susan personally attempted to contact Theresa during the relevant time period. Because Susan did not attempt to make contact, aside from the single letter in the fall of 2006, the record does not support Susan's claim that her efforts would have been futile during the relevant year-long period.
We recognize that Marcus and Angela did limit Susan's channels for making contact with Theresa — by no means did Susan have unfettered access to her daughter after May 2006. But as the superior court concluded, the communication between Susan and Theresa that occurred during the period before Marcus and Angela's interference was "sporadic, not very meaningful and often inappropriate." Given the problematic nature of Susan's communications with Marcus and Angela, as well as with Theresa directly, it is understandable that Marcus and Angela felt compelled to intervene to limit communication that would be negative or harmful to the child. Even after Marcus and Angela began curtailing Susan's ability to reach Theresa directly, they were still willing to allow Susan to communicate with the child. For example, Marcus and Angela established a post office box for Susan's use and made several attempts to schedule and implement regular times for Theresa to speak to Susan.
We recognize that the post office box was closed by Marcus in October 2005, which made it unavailable during the relevant time period. Even though the existence of the post office box is not legally relevant, we think that setting up the post office box as an alternative to having the family's home address demonstrates a willingness to find ways for Susan to contact Theresa while avoiding harmful interactions — a willingness which likely continued into the relevant time period. The post office box was closed after a year, but it was never used by Susan during the time that it existed, so we do not believe its closure was indicative of a refusal to allow Susan to contact Theresa.
The fact that Marcus and Angela discouraged some forms of communication to protect Theresa is not dispositive because they offered Susan reasonable alternatives that would give them the ability to protect the child but still allow Susan to communicate with her. The reasonable limitations imposed by Marcus and Angela did not justify Susan's failure to exercise the options that remained available to her. There is no question that Marcus and Angela's actions required Susan to expend more effort in order to contact her daughter, but these actions were reasonable under the circumstances and were flexible enough to allow appropriate communication to take place.
Susan, like all parents, had a duty to make reasonable efforts to locate and communicate with her child. In this case, for Susan to have made a reasonable effort, she could have personally called Marcus back on his work number at the arranged time to exchange contact information and establish regular times to speak with Theresa. Marcus testified that Susan did not call back at the time her husband indicated that she would, nor did she call Marcus again during the ensuing eighteen months that he was available at the same number. Susan's failure to follow up with Marcus was willful and provided an adequate basis for the superior court's decision that she lost the right to consent under AS25.23.050(a)(2). Because Susan did not take this action or others reasonably available to her, we affirm the superior court's ruling that there was not justifiable cause for Susan's failure to communicate with Theresa for the one-year period beginning in May 2006. C. We Do Not Review the Superior Court's Finding that Susan Failed, Without Justification, To Provide for the Care and Support of the Child as Required by Law or Judicial Decree for a Period of More than One Year.
In re Adoption of B.S.L., 779 P.2d at 1224.
See In re Adoption of J.M.F., 881 P.2d at 1118.
Because we hold that Susan lost the right to withhold consent by failing significantly without justifiable cause to meaningfully communicate with her daughter for a period of at least one year, we need not consider the alternative ground for waiver raised by Angela in her amended petition for adoption. Only one of the statutory grounds for waiver listed in AS 25.23.050(a)(2) must be met in order to abrogate the need for consent. Although we find troubling the superior court's determination with respect to the question of whether Susan failed to provide for Theresa's care and support as required by law or judicial decree for the one-year period following May 2006, we need not resolve the issues raised by the trial court's finding.
The relevant portion of AS 25.23.050 provides:
(a) Consent to adoption is not required of
. . .
(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. . . .
(Emphasis added.)
The use of the word "or" as the coordinating conjunction between subparts AS 25.23.050(a)(2)(A) and (B) demonstrates that the fulfillment of the conditions expressed in either subpart (A) or (B) amounts to a statutory exclusion from the consent requirement described in AS 25.23.040.
Several aspects of the superior court's ruling on this question concern us. First, there was no court order requiring Susan to pay child support. The original marital settlement agreement ordered Marcus to pay child support and was never modified on the issue of child support after Marcus gained primary custody. Second, the divorce and original child support order were granted by a court in Florida, rather than Alaska, raising a question about the common law support requirements that apply in this case. Third, Susan's lack of financial support may have been justified by her indigency, especially if small monetary gifts she claims to have sent are taken into account as a form of support that she provided within her limited ability to do so. Finally, Susan testified that Marcus explicitly told her that he did not want financial support from her, but no factual findings addressing this assertion were made. Although we do not review this ruling, the above-mentioned factors call into question the viability of the superior court's legal conclusion regarding AS 25.23.050(a)(2)(B).
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court's holding that the natural mother's consent to adoption of her child is not required because of the application of AS 25.23.050(a)(2)(A).