This is an expedited appeal from an adoption decree whereby a 7-year-old boy was adopted by his stepfather over the objections of the boy's biological father. Because of the biological father's history of nonsupport, his consent was deemed unnecessary.
The primary issue in this case is whether the master erred in finding that for at least a 12-month period, the biological father failed significantly without justifiable cause to provide support required by judicial decree.
We conclude that the superior court correctly affirmed the master's finding with respect to support and correctly reversed her best interests determination. However, the superior court erred in allowing for post-adoption visitation rights.
I. BACKGROUND SUMMARY
On May 25, 1982 the boy's biological parents were divorced. B.J., the biological mother, was awarded custody of the boy and J.B., the biological father, was ordered to pay $200 per month as child support. J.B. made no payments until August 1982, when he made a single $200 payment after being contacted by the Child Support Enforcement Agency (C.S.E.A.).
Thereafter, from September 1982 through March 1983, J.B. made no payments toward the support of the boy. In April and May of 1983 the C.S.E.A. garnished a total of $1,000 of J.B.'s wages to apply toward his child support arrearages. Thereafter, from May through October 1983, J.B. continued to pay nothing toward the boy's support.
In August 1983 the boy's mother and his stepfather, S.J., decided that S.J. should seek to adopt the boy and so advised J.B.. In November 1983, shortly before the filing of the adoption petition, J.B. and his new wife paid $1,800 against part of his child support arrearages, after again being contacted by the C.S.E.A.
From December 1981 until the filing of the adoption petition, on December 19, 1983, J.B. had almost no contact with the boy.
During the period since his marriage to B.J., the boy's stepfather evidently established a close parental relationship with the boy.
In December 1983 the boy's stepfather, S.J., filed the petition to adopt him. The biological father, J.B., refused to consent to the adoption. The stepfather contended that J.B.'s consent was unnecessary pursuant to AS 25.23.050(a)(2)(B), because J.B. had "failed significantly, without justifiable cause ... to provide for the care and support of the child as required by law or judicial decree."
The probate master found that J.B. had, for at least a year, significantly and unjustifiably failed to provide court-ordered support and had lost his right to withhold consent to the adoption. However, the master also found that the adoption decree would not be in the boy's best interests because he was curious about his biological father and seemed interested in knowing him (notwithstanding the boy's attachment to his stepfather). By law an adoption decree would terminate J.B.'s parental rights regarding the boy.
A. STEPPARENT ADOPTION IN ALASKA
As commentators have noted,
Well-known commentators have proposed "incomplete adoption" as a middle approach that would better accommodate the interests of both the stepparent and the noncustodial natural parent by giving equal custody rights to each.
Alaska has adopted a modified version of the Uniform Adoption Act.
In this court's prior decisions in this area
R.N.T. v. J.R.G., 666 P.2d at 1041-42 (Compton, J., dissenting).
We take this opportunity to clarify that, in order for a noncustodial parent to block a stepparent adoption, he or she must have maintained meaningful contact with a child, and must have provided regular payments of child support, unless prevented from doing so by circumstances beyond the noncustodial parent's control. Circumstances resulting from the noncustodial parent's own conduct cannot excuse such a parent's significant failure to provide support or maintain meaningful communication. Moreover, failure to support or to maintain contact with a child should not be excused by the emotional antagonism or awkwardness that may exist between former spouses. As the dissent stated in Adoption of K.M.M.: "In distinguishing between meaningful and non-meaningful communications it is evident that the legislature intended that the mere symbolic observation of birthdays and holidays would not be enough to maintain the rights of parenthood." K.M.M., 611 P.2d at 89 (Matthews, J., dissenting). Speaking of the noncustodial parent in K.M.M., Justice Matthews observed that "his duty to his children required him to overcome his personal sensibilities." Id. This observation applies as well to J.B.'s prolonged noninvolvement with his son, which cannot be justified by J.B.'s and B.J.'s personality differences.
B. J.B.'s SIGNIFICANT FAILURE TO SUPPORT
AS 25.23.050(a) specifies: "Persons as to whom consent and notice not required" in adoption cases. This provision provides that consent is not required of
J.B. contends that the "period of at least one year" of significant nonsupport must immediately precede the adoption petition. We disagree, as do other courts.
The statute does not say that the period of "at least one year" must immediately precede the filing of an adoption petition.
Sporadic partial payments do not preclude a finding of significant failure to provide child support. See Henson v. Money, 1 Ark.App. 97, 613 S.W.2d 123, 124 (1981). Child support payments should be substantial or "regular" and constitute a "material factor" in the support of a child. See Adoption of CCT and CDT, 640 P.2d 73, 75-76 (Wyo. 1982); Adoption of Leistikow, 37 Or.App. 539, 588 P.2d 53, 56 (1978). Other courts also look askance at delinquent noncustodial parents who make only occasional gestures of support or make irregular payments that "appear to have been attributable to some form of compulsion" or the impending initiation of adoption proceedings. See Pender v. McKee, 582 S.W.2d at 935-36.
The dissent insists that "no rule of law or principle of logic" requires that child support must be "uncompelled". However, the purpose of the waiver-of-consent statute was to provide an objective measure (at least one year) of when a parent has, in the practical sense, forsaken a child. It would make no sense at all to infer parental concern from payments that a government agency has to garnish from the income of a parent who has refused to provide support. Nevertheless, the dissent suggests that payments garnished from a recalcitrant parent's income should signify the same parental concern that voluntary support payments signify, because all court-ordered child support is "compelled" and "there is no certainty what the terms `compulsion' or `voluntary' mean" in this context. Actually, at common law all parents have a duty (not a "voluntary" option) to support their children. Court orders for child support set forth the amount of the parent's obligation. Most parents choose to abide by what the courts determine to be the child's financial needs. Garnishment occurs only as a last resort, when a parent has refused to meet this important obligation. Common sense tells us that a person who chooses to meet his obligations shows more responsibility than a person who forces the C.S.E.A. to garnish his income or attach his assets. The existence of an obligation does not mean that an individual's
As for J.B.'s 11th-hour (or 19th-month) payment to partially pay off his arrearages a few weeks before the adoption petition was filed, it would be absurd to believe that the legislature meant for a last-minute balloon payment to cancel out the import of a substantial period of nonsupport and noninvolvement. Other courts have expressed similar views:
Pender v. McKee, 582 S.W.2d at 935 (emphasis added).
In re Daigle, 232 So.2d 548, 554 (La. App. 1970).
We hold that courts shall consider a parent's entire history of support or non-support to determine whether that parent has waived his or her right to block a child's adoption by a stepparent.
J.B. also contends that his significant failure to support should be excused because he allegedly had an agreement with the boy's mother that he would not have to make support payments as long as she received public assistance for the care of the boy. As the master found, this claim is meritless.
J.B. also argues that his significant failure to support the boy was the excusable result of his ex-wife's resistance to his belated interest in having the boy visit him, in August 1983, after more than a year of no communication at all with him.
C. THE CHILD'S BEST INTERESTS
The probate master found that although J.B.'s consent to the boy's adoption was unnecessary because of his significant failure to provide support, the adoption should nonetheless be denied because the boy might benefit from renewed contact with J.B. We conclude that the superior court correctly overruled the probate master on this issue. The master's finding that the boy's adoption would not be in his best interest was clearly erroneous.
In AS 25.24.150(c) the legislature has set forth statutory standards to guide the trial courts in the difficult determination of a child's best interests in custody disputes. The statute directs the courts to consider:
Although the probate master correctly considered the boy's curiosity about his long-absent biological father, this single factor is far outweighed by other significant factors and thus does not justify the master's finding that the adoption would not be in the boy's best interests. We have repeatedly stated that in analyzing the best interests of a child, no single factor should be allowed to outweigh all others. S.O. v. W.S., 643 P.2d 997, 1006 (Alaska 1982); Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S.Ct. 896, 54 L.Ed.2d 800 (1978); King v. King, 477 P.2d 356 (Alaska 1970); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970). Most of the factors listed above greatly favor the strong relationship between the boy and his stepfather. The evidence demonstrated that J.B. was a virtual stranger to the boy. In contrast to J.B.'s extended period of noninvolvement with the boy, the record shows that the stepfather has been an exceptionally involved and devoted parent.
This court has previously stated that in such cases as this the test 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, leading to the destruction of the parent-child relationship." In re D.M. v. State, 515 P.2d 1234, 1237 (Alaska 1973) (footnote omitted). As we later explained in Adoption of A.J.N., 525 P.2d 520, 523 (Alaska 1974):
In A.J.N. this court decided that the noncustodial natural parent's conduct did not evidence a disregard of his parental obligations to his daughter. R.N., the noncustodial parent, unlike J.B., had consistently tried to exercise his visitation rights. He had sought the aid of the courts, with the result that his ex-wife was held in contempt for keeping R.N. from visiting their daughter. We also noted that R.N. had established a trust account for his daughter's benefit. We concluded that R.N.'s "inability to establish a close relationship with his daughter [was] not of his doing or choice, but in spite of his wishes." A.J.N., 525 P.2d at 523. In the case before us, we cannot conclude that J.B.'s significant nonsupport, or his prolonged failure to have meaningful contact with his son, was "not of his doing or choice." Even though we have liberally construed the controlling
The superior court's findings in an adoption case are subject to the "clearly erroneous" standard generally used for review of questions of fact. D.L.J., 635 P.2d at 838. We have previously stated that the trier of fact properly could evaluate a noncustodial parent's verbal expressions of intent. Adoption of V.M.C., 528 P.2d 788, 794 (Alaska 1974). We have taken a similar stance regarding whether a noncustodial parent has had sufficient cause for significantly failing to support or meaningfully communicate with a child. D.L.J., 635 P.2d at 839. However, we again emphasize that it is up to the superior court to determine what grounds are objectively acceptable as a justification. Id.
The superior court properly determined that J.B. had not sufficiently countered the clear and convincing evidence of his significant nonsupport. The superior court was not clearly erroneous in determining that J.B.'s explanations were not objectively acceptable justifications.
THEREFORE, except for the superior court's order as to the possibility of granting post-adoption visitation to J.B., the superior court's decree of adoption is AFFIRMED.
MATTHEWS, Justice, joined by RABINOWITZ, Chief Justice, dissenting.
This case involves the meaning of our forfeiture of consent statute, AS 25.23.050(a)(2), which provides:
The issue presented is whether the superior court erred in concluding that subpart (B) of this statute applied, thus making unnecessary the consent of the father.
The facts are as follows. The dissolution decree required the payment of $200 in child support for each month beginning June 1, 1982. Nineteen installments of $200 each, a total of $3,800, should have been paid between the date of the decree
Two questions of statutory interpretation concerning the meaning of AS 25.23.050(a)(2)(B) are presented. They are:
(1) Does the period of at least one year referred to in the statute mean any period of one year or that period which immediately precedes the filing of the petition for adoption?
(2) Should the amounts obtained by the Child Support Enforcement Agency from the father's employer be taken into account as part of the provision of support by the father?
Only if one concludes that the statute refers to any year rather than the year which precedes the filing of the petition for adoption and that the withheld wages cannot be counted as the provision of support, can the conclusion be drawn that the father in this case has waived his right to withhold consent to the adoption of his son.
A. The One Year Period
I would construe AS 25.23.050(a)(2) to refer to the year immediately preceding the filing of the petition for adoption. This interpretation is reasonable, in accordance with the decisions of courts in other jurisdictions construing similar statutes, and required under the rule of construction favoring the rights of the parent which we have adopted concerning this statute. Further, interpreting the statute to refer to the year immediately preceding the filing of the petition for adoption avoids the harsh and unjust results which are distinctly possible under the majority's interpretation of the statute.
In First National Bank of Fairbanks v. Taylor, 488 P.2d 1026, 1032 (Alaska 1971), we were faced with a problem of interpretation like that which is presented here. At issue was Civil Rule 41(e) which provided that cases "which have been pending in a court for more than one year without any proceedings having been taken therein" may be dismissed "at any time on motion of any party... ." The plaintiff had let more than a year lapse between answering interrogatories and moving for a pre-trial conference. Subsequently, defendant moved to dismiss and his motion was granted. Id. at 1027-28. On appeal defendant sought to justify the dismissal on the basis that it was authorized under Rule 41(e) because of the one year lapse. We rejected this argument, holding that the one year period referred to in the rule was the period immediately preceding the motion to dismiss. Id. at 1031-32. First National Bank thus demonstrates that it is reasonable to construe language which refers to a period of delinquency without specifying when it takes place to mean a current period of delinquency rather than one which has been ended by intervening affirmative action.
Statutes similar to our forfeiture of consent statute have been construed by courts in several jurisdictions. As noted in the majority opinion, some courts have concluded that the one year period, or its analog, should be read to mean any such period rather than the period which comes just before the petition for adoption.
Like the authorities which have construed similar statutes to refer to the period immediately preceding the petition for adoption, we have adopted a strict rule of construction in favor of parental rights with reference to AS 25.23.050(a)(2)(B). We stated in D.L.J. v. W.D.R., 635 P.2d 834, 837 (Alaska 1981):
This policy of strict construction means that where two interpretations of the statute are reasonably possible, that interpretation which is most protective of the rights of the natural parent is to be selected. Since interpreting this statute to refer to the one year period immediately preceding the petition is reasonable, and since that interpretation is more protective of the rights of the natural parent than construing the statute to refer to any one year period, the former interpretation should be adopted.
B. Provision of Support
The majority concludes that only payments which are made without compulsion should count as provision of support by the parent. There are several reasons why this construction should not be adopted.
First, the requirement of non-compulsion is not expressed in the statute, nor may it reasonably be implied. We have construed the statute to require that non-compliance be willful, R.N.T. v. J.R.G., 666 P.2d 1036, 1038 (Alaska 1983), but no rule of law or principle of logic requires that compliance be uncompelled. All that the statute calls for is support. It is neutral on the question of the providing parent's state of mind when this is accomplished. "Whatever his motive, the not insignificant payment operate[s] to bar application of the statute." Haynes v. Mangham, 375 So.2d 103, 106 (La. 1979).
Second, the rule of construction that the statute be interpreted in the manner most protective of the rights of parents indicates that a requirement of non-compulsion should not be read into the statute.
Third, there is no certainty what the terms "compulsion" or "voluntary" mean in the context of court ordered child support. All payments of support under such an order are compelled. Indeed, one of the cases relied on by the majority suggests that no payment made under an order of support can be considered voluntary. Mortenson v. Tangedahl, 317 N.W.2d 107, 114 (N.D. 1982) quoting with approval Lambertus v. Santino, 608 S.W.2d 502, 506 (Mo. App. 1981).
The majority tells us that "the purpose of the waiver of consent statute was to
Because I would hold that the father did not forfeit his right to withhold consent to the adoption of his son, I would not reach the question of whether the adoption was in the best interest of the son. D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981). I thus express no view as to whether the best interest determination made by the trial court is clearly erroneous.
I will, however, observe that the majority opinion's discussion of this issue is unbalanced. It does not mention the fact that the mother in this case for nearly a year prevented communication between the father and his son and the fact that the father in this case, like the father in Adoption of A.J.N., 525 P.2d 520 (Alaska 1974), sought the aid of the courts in an effort to enforce his visitation rights. I quote from the decision of the Master which was adopted by the superior court:
The majority opinion contains statements which do not bear on the approach I would use in deciding this case, but with which I disagree. I will note them here.
A. At footnote 19 the majority opinion states:
(Emphasis in original).
Setting aside as a mere quibble the fact that the obligation of support under the decree did not begin until June of 1982, the substance of this statement is that payment of $1,200 when $3,600 is owed is not the significant provision of support. This is in conflict with the view taken by the courts of other jurisdictions concerning similar statutes. Some jurisdictions hold that payment of even one installment over the relevant period is enough to avoid forfeiture.
B. On pages 952 through 953 the majority opinion disapproves of four of our decisions, R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983); D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981); Matter of Adoption of K.M.M., 611 P.2d 84 (Alaska 1980); and Matter of Adoption of A.J.N., 525 P.2d 520 (Alaska 1974). In my view this discussion is in large part wrong and completely unnecessary.
In reference to these four cases, the majority says they stand for the proposition that so long as the noncustodial parent has "made a few perfunctory communications or an occasional gesture of support" his consent will not be dispensed with. Majority Op. at 952. This is demonstrably wrong because in three of the cases the issue was not whether the parent had complied with the statutory requirements, but whether his non-compliance was excused. Only in K.M.M. was the question one of compliance.
The support question in K.M.M. was whether regular payments to a trust established for the children was a permissible method of discharging the parent's support obligation. K.M.M., 611 P.2d at 85-86. There was no question of "an occasional gesture of support." There was a legitimate question in K.M.M. as to whether the father's communications were meaningful or, as today's majority would have it, perfunctory. The resolution of that factual question has no bearing on this case because the issue here is not the sufficiency of communication, but support.
The majority takes special pains to disapprove of R.N.T. Majority Op. at 952-953. In that case one issue was whether imprisonment of the father which resulted in his inability to maintain meaningful communication with his children was a justifiable cause for failing to communicate. R.N.T., 666 P.2d at 1038-39. We noted that not all imprisonment would preclude a parent from communicating with his children, but where it did it would be justifiable cause under the statute. We further concluded that as a factual matter the circumstances of the father's incarceration and parole had prevented him from communicating with his children. Id. at 1039. Justice Compton dissented on the basis that it was not the imprisonment and parole as such which had precluded the father from communicating, but special restraints which had properly been imposed because of his abusive conduct. Id. at 1041. Thus, the difference between the majority in R.N.T. and the dissenting opinion of Justice Compton was based on the weight to be given to certain facts unique to that case. There are no similar facts in the present case. Further, the issue here is as to the sufficiency of support rather than whether lack of communication was justified. For the present majority to adopt the dissenting opinion in R.N.T. is thus wholly gratuitous.
Moreover, the notion that a child should have a right to remain with adults with whom he has formed strong emotional bonds is not new. Over a century ago the Massachusetts Supreme Judicial Court stated:
In re Jerremiah O'Neal, 3 Am.L.Rev. 578, 580 (1868-69), quoted in Statutory Standards for the Involuntary Termination of Parental Rights, 29 Rutgers L.Rev. 530, 537 n. 47.
Alaska is not among those states whose approach to allowing stepparent adoptions without the noncustodial natural parent's consent emphasizes the best interest of the child. Indeed, this court has repeatedly ruled that a child's best interest is not relevant to a determination of whether a noncustodial natural parent's consent is unnecessary. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981); Adoption of L.A.H., 597 P.2d 513 (Alaska 1979); Adoption of K.S., 543 P.2d 1191 (Alaska 1975). Many other states, however, have taken a different position and favor considering the child's best interests. See, e.g., Ariz. Rev. Stat. Ann. § 8-106 (West Supp. 1980-81); Conn. Gen. Stat. Ann. § 45-61F(d) (West Supp. 1980); D.C. Code Ann. § 16-304 (1973); Idaho Code §§ 16-1504, 16-2005 (1979); Md. Ann. Code art. 16, § 74 (1981); and Mass. Gen. Laws Ann. ch. 210, § 3 (West Supp. 1981). See also Comment, A Survey Of State Law Authorizing Stepparent Adoptions Without The Non-Custodial Parent's Consent, 15 Akron L.Rev. 567, 577-79 (1982).
The trial court's finding is amply supported by the testimony of the mother that she refused visitation between father and son when it was requested in January of 1983 and suggested instead that the father write letters to the son. The father did so, but to no avail because the mother did not read the letters to the son or let him know that they had been sent. After a series of further visitation refusals the father in September of 1983 filed a motion to enforce his visitation rights. Specific visitation was ordered by the court on November 23, 1983, but the mother refused to comply with the order. She did not permit visitation until after the petition for adoption was filed.
Sale v. Leachman, 131 S.E.2d at 188.
Sale v. Leachman, 131 S.E.2d at 188 (citations omitted).
In re Adoption of Sharp, 419 P.2d at 814-15 (citations omitted) (emphasis in original).