Dlj v. Wdr

635 P.2d 834, 1981 Alas. LEXIS 557
CourtAlaska Supreme Court
DecidedNovember 6, 1981
Docket5411
StatusPublished

This text of 635 P.2d 834 (Dlj v. Wdr) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dlj v. Wdr, 635 P.2d 834, 1981 Alas. LEXIS 557 (Ala. 1981).

Opinion

635 P.2d 834 (1981)

D.L.J., Appellant,
v.
W.D.R., Appellee.

No. 5411.

Supreme Court of Alaska.

November 6, 1981.

*835 Sandra K. Saville, Kay Christie, Fuld, Saville & Coffey, Anchorage, for appellant.

George E. Weiss, George E. Weiss & Associates, Anchorage, for appellee.

Before RABINOWITZ, C.J., CONNOR, BURKE, MATTHEWS and COMPTON, JJ.

OPINION

COMPTON, Justice.

This is an appeal by D.L.J. (stepfather) from a superior court order stating that his petition to adopt his wife's daughter would not be granted without the consent of the natural father, W.D.R. Under AS 20.15.050(a)(2), the absent parent's consent is not required "if the parent for a period of at least one year has failed significantly without justifiable cause ... (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." There is no question that the natural father failed to send support payments and to communicate with his daughter for two and a half years prior to the adoption proceedings. After a hearing, the probate master found the natural father's consent could not be dispensed with, however, because there was "justifiable cause" for his conduct.

*836 The stepfather filed objections to the Master's Report and asked the superior court to reject the findings or, in the alternative, to grant a hearing "to determine whether ... it is in the best interests of this child to require the natural father's consent to the adoption." After a brief hearing, the superior court affirmed the master's findings.[1] The Master's Report was adopted in full as to its findings, conclusions and recommendations.[2]

The child's mother and natural father were married in Anchorage in 1966 while the natural father was in the military. They moved several times and in 1971 they settled in Colorado, where the child was born on October 26, 1973. When the child was three months old, the couple separated and the mother moved with the child to Anchorage, the mother's family home. The natural father remained in Colorado. During divorce proceedings in August 1974, the couple agreed that the mother would have custody of the child and the natural father would pay $125.00 per month child support.[3]

The natural father visited the child in Anchorage in August 1974, and in September 1975. The mother remarried in December 1976. The natural father's last visit prior to the adoption proceedings was in August 1977, when the child was three years old. At the adoption proceedings, the natural father testified that his child support payments were current through September 1977. After the August 1977 visit, however, he stopped sending child support payments and visiting his daughter until April 1980, when he traveled to Anchorage to oppose the adoption.

The natural father testified that during his August 1977 visit to Anchorage he was "briefed" by friends and the child's mother that his daughter thought her stepfather was her "real" father and he should not tell her otherwise. The child called herself by her stepfather's last name. The mother told the natural father that she thought it would confuse the child unnecessarily to try to explain the truth because the child was too young to understand and the natural father was visiting for only one week. The natural father cooperated with this request because he was concerned that he might harm the child emotionally if he did not go along with the mother's suggestions. The mother felt it was her position to tell the child the truth when she thought the child was ready. At the hearing, the mother testified that the child had just recently reached the ability "to even halfway understand the concept."

During the natural father's August 1977 visit, he was told by the stepfather that the stepfather wanted to adopt the child. When the natural father said he would not consent to this, the stepfather said that he was taking very good care of the child financially and the natural father's money and presence in Alaska were not welcome. After the visit, the natural father did not communicate with the child's mother directly, but he called mutual friends in Anchorage to obtain information about his daughter. He testified that he set aside funds monthly for the child in his Denver bank account. He talked with friends who lived in Anchorage about setting up a local trust fund for the child's benefit, but he had not set up such a fund at the time of the adoption proceedings.

*837 On appeal, the stepfather argues that the superior court's order was clearly erroneous because while the master's findings accepted by the superior court support a finding of justifiable cause for the natural father's failure to communicate, they fail to support any justifiable cause for his failure to pay child support. The stepfather further argues that the master incorrectly relied on evidence of the natural father's subjective intent rather than on evidence of his conduct. He urges us to narrowly construe AS 20.15.050(a)(2) to limit the absent parent's power to prevent an adoption that may be in the best interests of the child.

In her report, the master noted that the natural father's three annual trips to Anchorage had been a financial burden to him. The mother had received most of the couple's property in the divorce settlement. The proceeds from one parcel of realty which she retained were to be divided between her and the natural father and, if sold, his support payments were to be excused for a year. The master noted that the natural father was "overwhelmed with" the mother's request that he not tell his daughter that she was his child. Further, he was told by the stepfather that they did not want him to return to Anchorage and that they did not need the support payments. The master concluded:

[T]aking into consideration the location of the father and the adoptee, the age of the adoptee, the request of the mother to the father not to reveal his true identity appears to me to be justifiable cause for his failure to maintain a meaningful contact and communication with his daughter. It is understandable that in view of her tender age, natural father would not wish to upset her with this knowledge and left it to the judgment of the mother to reveal the true facts. Written communication would not have meant a great deal between an almost "stranger" and a young child.

The master found the natural father's conduct justified when he failed to "communicate and/or pay support."

We address first the stepfather's arguments concerning the construction of the statutory provision. AS 20.15.050(a)(2) permits adoption without a natural parent's consent when he or she has abandoned the child within the meaning of the statutory provision.[4]

The stepfather argues that we should not construe this statute to allow a defaulting parent, by merely withholding consent, to prevent an adoption that might be in the best interests of the child. He urges that, wherever possible, petitions based on AS 20.15.050(a)(2) should be allowed to progress to a determination by the court "of what arrangement would best serve the interests of the child." This construction of the statutory provision is inconsistent with our previous decisions.

In interpreting AS 20.15.050(a)(2), we have required that it be strictly construed in favor of a natural parent. In re Adoption of K.M.M., 611 P.2d 84

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Bluebook (online)
635 P.2d 834, 1981 Alas. LEXIS 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dlj-v-wdr-alaska-1981.