as: 881 P.2d 1116)
Court of Alaska.
the Matter of ADOPTION OF J.M.F.
and R.F., Appellants,
Couple, who had raised relative's child for more than three
years, filed petition to adopt child without natural parent's consent.
The Superior Court, Third Judicial District, Anchorage, John Reese, J.,
entered judgment for natural parent, and the couple appealed. The
Supreme Court, Rabinowitz, J., held that natural parent's failure to
support child was with justifiable cause and thus, natural parent's
right to consent to adoption had not been terminated.
seeking to terminate parental rights in connection with adoption proceeding
bears high burden of proof.
petitioner for adoption, who is seeking to terminate parental rights,
proves by clear and convincing evidence that natural parent failed
to support child, natural parent bears burden of producing evidence
of justifiable cause for
his or her failure to support child; upon natural parent's
introduction of such evidence, petitioner must show by clear and
convincing evidence that natural parent's failure to support was without
element of willfulness, parent does not lose right to consent
to adoption of his or her child. AS 25.23.050(a)(2).
of both natural parent and couple, with whom natural parent
had placed child two days after birth, in hearing to
terminate parental rights in connection with adoption that it was
not anticipated that natural parent would support child because couple
believed that they would formally adopt child, and testimony
of natural parent that she would have been more than
willing to provide support for child had the couple asked
her to do so, was sufficient to establish that natural
parent's failure to support child was not willful and thus
that her failure to support was justifiable; thus natural parent's
right to consent to adoption was not terminated. AS 25.23.050(a)(2).
*1116 Allison E. Mendel, Mendel & Huntington, Anchorage, for appellants.
James F. Vollintine, Anchorage, for appellee.
Before MOORE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and EASTAUGH, JJ.
J.F. and R.F. (the F.s) appeal the superior court's determination
that C.H.'s failure to support her child, J.M.F., was with
justifiable cause, and that C.H.'s right to consent to the
adoption had therefore not been terminated.
C.H. placed her child, J.M.F., with her brother J.F. and
sister-in-law R.F. two days after J.M.F.'s birth on June 1,
1988. At the time of placement both C.H.
and the F.s contemplated that the F.s would adopt the
In November 1991, when J.M.F. was 3 1/2 years old,
C.H. demanded that the child be returned to her. During
the time between J.M.F.'s placement with the F.s and C.H.'s
demand for return of the child, the F.s had not
instituted a formal adoption. In January 1992, after the F.s
refused to return J.M.F., C.H. filed a suit seeking custody
of J.M.F. At the conclusion of the custody action the
superior court awarded C.H. and the F.s joint custody, with
C.H. to receive sole custody of J.M.F. in the autumn
of 1994. In regard to this custody judgment the F.s
appealed only from the award of attorney's fees to C.H. [FN1]
This court recently upheld the fee award.
While the parties were litigating C.H.'s custody action, the F.s,
in a separate proceeding, filed a formal petition to adopt
J.M.F. In their petition the F.s asserted that C.H.'s consent
to their adoption of J.M.F. was not required, because she
had failed, without justifiable cause, to support J.M.F. while the
child was in the care of the F.s. See AS 25.23.050(a)(2)(B). [FN2]
C.H. subsequently filed two motions to dismiss the F.'s adoption petitions,
contending that the Indian Child Welfare Act (ICWA) preempted AS
25.23.050(a)(2)(B), and that because the F.s could have raised the
adoption petition during the custody proceeding, the doctrines of res
judicata and collateral estoppel barred the petition. The superior court
denied both motions.
C.H. is Yupik, J.M.F. is an Indian child subject to
ICWA. See 25 U.S.C. §§ 1901-1963.
At the adoption hearing the F.s argued that C.H. lacked
justifiable cause for failing to support J.M.F. Although she had
purchased food, clothing, and toys for J.M.F. while her child
was with the F.s, C.H. did not provide regular financial
support for the child, because the F.s did not ask
for it, and because she assumed that the F.s would
adopt the child and expect no support. The record establishes
that the F.s never asked her for support on the
same assumption. C.H. testified that she would have provided support
had the F.s requested it.
The F.s also argued that C.H. had relied upon Yupik
customs, under which parents may turn their children over to
relatives for adoption with the understanding that the biological parents
cannot later reclaim the children. The F.s contended that C.H.
should not be able to use the law to force
J.M.F.'s return while simultaneously relying on cultural practices to establish justifiable
excuse for failure to support the child. [FN3] C.H. had knowledge of such "cultural adoptions," but the
record does not indicate that she relied upon this custom.
Instead, she testified that at all times that the F.s
had J.M.F., she understood that they would "legally in court
adopt" the child, and that "that was the ... adoption
term we were using." J.F. also testified that the F.s
had intended to seek a decree of adoption from the
Alaska courts, but had never followed through on this plan.
The F.'s expressly declined to argue that any "cultural adoption"
in accordance with Yupik custom had the effect of a
formal adoption. The superior court admitted testimony on cultural adoption
because it could have been relevant to a determination of
the parties' intent and to the issue of consent.
Applying the law for a formal statutory adoption, the superior
court ruled that C.H. had justifiable cause for not providing
one on the [F.] side asked for or expected support
from [C.H.], nor did [C.H.] feel obligated to pay support.
... The reason no support was paid was that everyone
thought that [J.M.F.] was being adopted. That is the reason,
and it is a justifiable reason.
*1118 Beyond being merely justifiable, it would have been unusual, unexpected
and probably contrary to the anticipated adoption if she had
paid support. [C.H.] said that she would have been more
than willing to pay support if asked. [R.F.] said it
never came up because they were adopting and never expected
[C.H.] to pay support. This justifies the lack of support
as contemplated by Alaska Statute 25.23.050(a)(2)(B).
Accordingly, the superior court dismissed the F.s' petition for adoption.
The superior court expressly declined to reach the issue of
whether ICWA preempted AS 25.23.050(a)(2)(B). The F.s appeal from the
superior court's dismissal of their petition for adoption of J.M.F.
EFFECT OF AS 25.23.050(a)(2)(B)
Consent to adoption 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 ... to provide for the care
and support of the child as required by law or
judicial decree." AS 25.23.050(a)(2)(B); see
also In re J.J.J., 718 P.2d 948, 953-54 (Alaska 1986).
The party seeking to terminate
parental rights in connection with an adoption proceeding bears a high
burden of proof. We have held that the petitioner for adoption
must prove by clear and convincing evidence that the natural parent failed
to support the child. D.L.J.
v. W.D.R., 635 P.2d
834, 838 (Alaska 1981). Once the petitioner has made this
showing, the natural parent
bears the burden of producing evidence of justifiable cause for his or
her failure to support the child. Upon the natural parent's
introduction of such evidence, the petitioner must show by clear and convincing
evidence that the natural parent's failure to support was without justifiable
long-established and continuing rule in Alaska is that absent the element
of willfulness, a parent does not lose the right to consent under AS 25.23.050(a)(2).
In re K.L.J., 813 P.2d
276, 281 & n. 5 (Alaska 1991). Here, the superior court
relied upon the testimony of both C.H. and the F.s that the F.s did not
expect support because they anticipated that they would formally adopt
the child. Additionally, the superior court relied upon C.H.'s
uncontroverted testimony that she would have been more than willing to
provide support had the F.s asked her to do so. This testimony
is sufficient to establish that C.H.'s failure to support J.M.F. was not
willful and thus that her failure to support J.M.F. was justifiable. [FN4] It is the underlying agreement between C.H. and the F.s, to
the effect that it was not anticipated that C.H. would support J.M.F.
given the contemplated adoption, which negates any element of willfulness
on C.H.'s part and demonstrates that her failure to support the child
was not without justifiable cause. [FN5] Thus we hold that none of the superior *1119 court's controlling findings of fact are clearly erroneous and that the
superior court did not err in its determination that absent C.H.'s consent
to the petition for adoption, the petition
should be dismissed. [FN6]
re Adoption of Female Child X, 537 P.2d 719 (Wyo.1975), presents a factual situation similar to
the one in the case at bar. The natural mother
X left her child with her parents. Id. at 721. The mother's parents neither requested nor expected support,
and neither the mother nor her husband offered any. Id. The mother's parents petitioned to adopt the child, relying upon
a Wyoming statute that made the natural parent's consent unnecessary
in cases of abandonment or in cases where the parent
willfully failed to support the child for one year or
more. Id. at 720; see
also Wyo.Stat. § 1-22-110
(formerly § 1-
710.2). The Wyoming Supreme Court affirmed the lower court's dismissal
of the petition, in part on the following grounds:
fact is that petitioners were clearly volunteers and that no
request or suggestion was ever made that respondents contributed to
the support of this child.... To now claim advantage for
what was never intended would be unfair. It would appear
obvious that such a holding would be dangerous, and if
we were to hold otherwise a natural parent might be
lulled into security and lose the right to a child
under such circumstances without warning of the intention of those
with whom the child is left.
Id. at 722.
For purposes of this appeal, we assume without deciding the
question that despite the others' agreement that it was not
anticipated that C.H. would support J.M.F., C.H. was required "by
law," for purposes of AS 25.23.050(a)(2)(B), to provide for the
care and support of J.M.F.
re J.J.J., 718 P.2d 948, 955 (Alaska 1986), this court considered the
natural father's argument that because he allegedly had an agreement
with the mother not to provide support as long as
she received public assistance for their son's care, his failure
to support the child was excused. We upheld the superior
court's determination that the claim was meritless.
case at bar presents a situation that is far different
from J.J.J. In J.J.J., a considerable amount of evidence indicated that the father willfully
refused to provide support. His attempt to link the failure
to support with his ex-wife's reluctance to allow visitation clearly
indicated that the failure was the product of a conscious
id. at 955. The Child Support Enforcement Agency had to garnish
his wages in order to obtain support payments. Id. at 950. No such elements are present in C.H.'s case.
The F.s assert that injustice would result from C.H.'s alleged reliance
on "cultural adoption" practices to establish justifiable cause. It is
evident that all parties in this litigation contemplated that the
F.s would obtain a formal decree of adoption. Therefore, the
superior court's finding that J.M.F. was placed for adoption with
C.H.'s brother and sister-in-law "for statutory formal adoption" is not
We deem it unnecessary to address any of the remaining
contentions of the parties given our conclusion that the superior
court's holding--that the F.s failed to show by clear and
convincing evidence that C.H.'s failure to support J.M.F. was without
justifiable cause--was not clearly erroneous.
881 P.2d 1116