Delgado v. Fawcett

515 P.2d 710, 1973 Alas. LEXIS 343

• Court: Alaska Supreme Court
• Decided: October 29, 1973
• Docket: 1594
• Status: Published

Opinions

OPINION

RABINOWITZ, Chief Justice.

This is an appeal from adoptive decrees. On May 17, 1968, Rogelio Delgado and his wife, Barbara Jean, separated. Barbara Jean left California, where she and her husband had been living, and returned with the three Delgado children to her former home in Metlakatla, Alaska. Rogelio and Barbara Jean Delgado were divorced on November 18, 1969, by a California court. The court awarded Barbara Jean custody of the three children, but reserved to Rogelio reasonable visitation rights. The court also directed Rogelio to pay $150 per month for the support of the children.

Following her divorce from Rogelio Delgado, Barbara Jean married appellee, John M. Fawcett. After their marriage, Faw-cett filed petitions with the Superior Court of the First Judicial District in Ketchikan, Alaska, to adopt the three children. Although Rogelio Delgado received notice of the proceedings, he neither consented to the adoptions nor participated in the hearings. After holding hearings, the superior court granted the petitions for adoption. Delgado appeals from separate decrees of adoption entered by the superior court, arguing that the superior court had no authority to grant the adoptions without his prior consent.

The effect of an adoption is to permanently terminate the legal relationship of parent and child, except when the natural parent is the spouse of the adopting parent.¹ Under our adoption statutes,

Written consent to adoption shall be filed before a hearing on the petition . if the person to be adopted is a minor of legitimate birth or a minor whose birth has been subsequently legitimatized, then by each of his living parents, except as otherwise provided; ...²

However,

Consent for adoption of a minor is not required . . . from a divorced parent who was not awarded full or part-time custody of the child; . . . ³ (Emphasis added.)

One of the questions presented by this appeal is whether the rights granted appellant under the California divorce decree amounted to “full or part-time custody” within the meaning of AS 20.10.040.

The requirement of parental consent as a prerequisite to adoption is hardly unique to Alaska. It is a part of the adoption law of nearly all jurisdictions.⁴ In this regard, the Supreme Court of Minnesota said in construing a consent statute similar ro Alaska’s :

The correlative rights and duties inherent in the parent-child relationship are natural rights of such fundamental importance that it is generally held that parents should not be deprived of them “except for grave and weighty reasons.” In an adoption proceeding, where an absolute severance of this relationship is sought, the consent provisions are designed .to protect the natural rights of a parent to the custody, society, comfort, and services of the child.⁵

We are of a like opinion.

Nonetheless, the Alaska Legislature did not make"the right of parental consent absolute and unqualified. Under AS 20.10.040, a parent is denied the right to peremptorily veto the adoption of his child if the parent a) has been adjudged insane; b) is imprisoned; c) has abandoned his child; d) is divorced and has not been awarded full or part-time custody of the child; e) has been adjudged unfit to have the care and custody of the child; or f) is the natural father and the child is a minor of illegitimate birth who has not been legitimatized.⁶

“Custody” has no fixed legal signification. It involves a variety of parental rights and duties which vary according to the circumstances of the relationship of the child to the parent.⁷ “Custody” pertains not only to the parental control of the child, but is inseparably linked to the parent’s rights of access and companionship with his offspring. There are, of course, no precise contours to the complex of rights denoted by “custody,” and similarly there can be no fixed catalogue of the parental rights and responsibilities to which “part-time custody” relates.

It may be argued that whenever one parent is awarded full custody of a child and the other visitation rights, under our statute, the consent of the parent possessing visitation rights is not necessary for adoption. We think that such a reading of AS 20.10.040(5) is excessively literal and inconsistent with the legislative intent evident from the statute as a whole.⁸ We think that by reserving the right to veto an adoption to parents with “full or part-time custody,” the legislature intended to include within that class persons who retain reasonable visitation rights to their children.

Implicit in AS 20.10.040 is the legislative judgment that a parent who has manifested an inability or unwillingness to discharge the rights and duties of a parent shall be considered to have forfeited his right to obstruct an adoption. By contrast, the fact that a divorce decree awards custody to one parent, and “visitation rights” to the other may in no way reflect upon the non-custodial parent’s fitness. The courts of this state are to be guided by the best interests of the child in determining the custody and visitation rights of the parents.⁹ The same rule controls in California, the state where the Delgados were divorced and the custody of the children awarded.¹⁰ Presumably, the California court decided that the best interests of the Delgado children would be served by awarding visitation rights to the appellant. The fact that the mother received “custody” and the father visitation rights does not indicate that the father has been adjudged an unfit parent, or that he has forfeited his parental rights.

A number of other jurisdictions have adoption statutes which, like Alaska’s, dispense with the necessity of consent from a parent who does not have “custody.” The Supreme Court of Minnesota has construed its statute to mean that the natural parent must consent to an adoption unless it appears that his unfitness as a parent has been adjudicated in the divorce proceedings, and that his right to custody has been extinguished.¹¹ In Nelson v. Bye¹² The same court observed that:

In the absence of evidence of unfitness which would warrant severance of the parent-child relationship in the interest of the child’s welfare, the right of the natural parent who initially loses custody of a child as a result of a divorce decree should not be extinguished so as to prevent such parent from seeking custody in the event of death, subsequent divorce, or other changes in circumstances of the prevailing party.¹³

The court in Nelson held that visitation rights were sufficient to reserve to a parent the right to veto a proposed adoption. Similar positions have been taken by other courts in construing their consent statutes.¹⁴

In Hammer v. Hammer,¹⁵ however, the District Court of the Territory of Alaska, concluded that under the territorial precursor to AS 20.10.040,¹⁶ the right of visitation under a decree of divorce is not the equivalent of actual or part-time custody. We decline to follow that holding. Our reading of AS 20.10.040 leads us to the conclusion that the legislature intended that there should not be a conclusive termination of parental rights by adoption without either parental consent or a prior forfeiture of parental rights. The failure of a divorce decree to declare precisely that a parent has “custody” or “part-time custody” should not be dispositive of the question of whether consent of the parent must be had. We hold that a parent who has the right to visit his children must consent to the adoption of his children.

This does not mean, however, that a parent who has been awarded visitation may forever obstruct adoption, regardless of his conduct and the best interests of the child. A divorce decree may be modified. If it is shown that since the entry of judgment, circumstances have changed so as to require a modification of the decree in the best interests of the children, a court may terminate parental rights of visitation.¹⁷

We therefore conclude that the trial court erred in holding that written consent of the father was not required.¹⁸ Accordingly, we reverse the judgment of the superior court and direct it to vacate the decrees of adoption which it entered.

1 . AS 20.10.120.

2 . AS 20.10.020(2).

3 . AS 20.10.040(5).

4 . H. Clark, The Law of Domestic Relations in the United States § 18.4, at 620 (1968). See, e. g., Cal.Civ.Code Ann. § 224 (Deering 1971) ; Minn. Stat.Ann. § 259.24 (1971) ; N.M.Stat.Ann. § 22-2-25 (1953). But see Md.Code Ann. art. 16 § 74 (1973) (parental consent to adopt not required where court finds consent is withheld contrary to the best interest of the child).

5 . In re Parks’ Petition, 267 Minn. 468, 127 N.W.2d 548, 553 (1964) (footnote omitted).

6 . AS 20.10.040 provides :

Consent for adoption of a minor is not required (1) from a parent who was more than one year prior to the filing of a petition for adoption adjudged to be insane, and not thereafter legally declared sane;

(2) from a parent who is imprisoned in the penitentiary at the time of the filing of the petition under sentence for a term of three years or more;

(3) from a parent whose wilful abandonment of the child has been established in a judicial proceeding;

(4) from a parent whose wilful abandonment for a period of not less than SO days preceding the filing of the petition is established in the adoption proceeding; but the parent shall be personally served with a copy of the petition and notice of hearing inside or outside the state not less than 20 days before the date of the hearing;

(5) from a divorced parent who was not awarded full or parttime custody of the child; but the parent shall be personally served with a copy of the petition and notice of hearing inside or outside the state not less than 20 days before the date of the hearing;

(6) from a parent adjudged by the court to be unfit to have the care and custody of the child, but a copy of the petition and notice of ■ hearing shall be served upon the parent by personal service inside or outside the state at least 20 days before the hearing;

(7) from the natural father if the person to be adopted is a minor of illegitimate birth, not subsequently legitimitieed, and notice need not be given him. (Emphasis added.)

7 . P. Sayre, Awarding Custody of Children, 9 U.Chi.L.Rev. 672 (1942).

8 . “A statute is to be construed with reference to its manifest object, and if the language is susceptible of two constructions, one of which will carry out, and the other will defeat, such manifest object, it should receive the former construction.” In re National Guard, 71 Vt. 493, 45 A. 1051 (1899), quoted in 2 J. G. Sutherland Statutory Construction § 4704, at 338 (3d ed. 1943). Accord, State v. American Can Co., 362 P.2d 291, 296 (Alaska 1961).

9 . Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962.) Accord, King v. King, 477 P.2d 356 (Alaska 1970) ; Bass v. Bass, 437 P.2d 324 (Alaska 1968).

In Rhodes we sustained an award of custody to the mother of a child where both parents were found to be fit, but where the trial court determined that the best interests of the child would be served by giving custody to the mother.

10 . Cal.Civ.Code Ann. § 4600(a) (Deering 1971).

11 . In re Parks’ Petition, 267 Minn. 468, 127 N.W.2d 548 (1964).

12 . 271 Minn. 194, 135 N.W.2d 700 (1965).

13 . Id., at 703. Accord, Eggert v. Van De Weglie, 279 Minn. 31, 155 N.W.2d 454 (1967).

14 . Onsrud v. Lehman, 56 N.M. 289, 243 P. 2d 600 (1952) ; Marston v. Marston, 389 P.2d 510 (Okl.1964) ; In re Lease, 99 Wash. 413, 169 P. 816 (1918). See also Burrell v. Burrell, 256 Iowa 490, 127 N.W.2d 78 (1964) (consent required of parent with one month custody per year plus reasonable visitation rights).

15 . 16 Alaska 203 (D.C.Alaska 1956).

16 . A.C.L.A. § 21-3-13 (1949).

17 . AS 09.55.205. That section provides:

In an action for divorce or for legal separation the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any child of the marriage, malee an order /or the custody of or visitation with the minor child which may seem necessary or proper and may at any time modify or vacate the order. In awarding custody the court is to be guided by the following considerations :

(1) by what appears to be for the best interests of the child and if the child is of a sufficient age and intelligence to form a preference, the court may consider that preference in determining the question;

(2) as between parents adversely claiming the custody neither parent is entitled to it as of right. (Emphasis added.)

18 .Our disposition of this issue makes unnecessary any consideration of appellant’s other specifications of error.