as: 79 P.3d 623)
Court of Alaska.
the Matter of the ADOPTION OF KEITH M.W.
Village of Napaimute Traditional Council, Appellant,
W. and Lucy W., Appellees.
Oct. 31, 2003.
legal validity of a parental relinquishment or termination order is a
question of law.
questions of law, the standard of review is de novo, and the Supreme Court
applies the rule of law that is most persuasive in light of precedent,
reason, and policy.
factors to consider when determining whether good cause exists to deviate
the Indian Child Welfare Act's (ICWA) placement preferences include: (1)
the extraordinary physical and emotional needs of the child as established
by testimony of a qualified expert witness; (2) the unavailability of
suitable families for placement after a diligent search has been completed
for families meeting the preferences requirements; and (3) parental preferences
in favor of deviation. Indian Child Welfare Act of 1978, § 105(a),
25 U.S.C.A. § 1915(a).
mother's conditional relinquishment of her parental rights was invalid,
for purpose of adoption action involving mother's child; relinquishment
was conditioned upon a successful adoption of child by specified adoptive
parents, and statutes did not recognize a relinquishment of parental rights
that was less that absolute and permanent. AS 25.23.180(a, b).
consent lies at the foundation of the adoption process.
supported finding that the trial court had good cause to deviate from
the Indian Child Welfare Act's (ICWA) placement preferences, in adoption
proceeding involving Indian child placed with non-Indian couple; Indian
mother expressed a preference that child be placed with non-Indian couple
for adoption, child had resided with non-Indian couple for over two years
and was bonded to couple, proposed adoption was "open" and allowed
Indian mother visitation with child, and during appeal Indian mother provided
consent to non-Indian couple's adoption of child.
Scott Jay Sidell and Patty Nieves, Association of Village Council Presidents,
Bethel, for Appellant.
Andrew C. Mitton and Robert B.
Flint, Hartig, Rhodes, Hoge & Lekisch, PC, Anchorage, for Appellees.
Michael G. Hotchkin, Assistant
Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau,
for Amicus Curiae State of Alaska.
Before: FABE, Chief Justice,
MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
FABE, Chief Justice.
This appeal presents issues arising
from an Indian mother's decision to give up her baby and place him with
a non-Indian adoptive couple and her later change of heart before entry
of the adoption decree. After the mother purportedly relinquished
her parental rights, the trial court issued a parental termination order.
Despite the decision of the mother's tribe to intervene in this matter,
and the fact that the mother subsequently changed her mind about giving
up her child for adoption, the trial court found good cause to deviate
from the placement preferences detailed in the Indian Child Welfare Act
(ICWA) and finalized the adoption by the non-Indian couple. We conclude
that the court's termination of the mother's parental rights based on
her conditional relinquishment of rights was invalid. And although
the mother's relinquishment functioned as a consent to adoption, under
ICWA a parent may withdraw consent to adoption for any reason prior to
entry of the final decree. But because during the pendency of this
appeal the Indian mother reaffirmed her consent to the adoption of her
child by the same non-Indian couple, we affirm the superior court's finding
of good cause to deviate from ICWA's placement preferences and its
issuance of a final decree of adoption.
FACTS AND PROCEEDINGS
On May 19, 1999, eighteen-year-old
Andrea, a member of the Native Village of Napaimute, gave birth to a son,
[FN1] Because of financial concerns, post-partum depression, and
a diagnosis of cervical cancer, Andrea considered putting Keith up for
adoption. In early September 2000 Lucy and Terence Wilson, the non-Indian
sister and brother-in-law of a friend of Andrea's mother, Jenna, met with
Andrea and her extended family to discuss the possibility of adoption.
The parties agreed to an "open" adoption, whereby the
Wilsons would allow Andrea and Jenna visitation rights. On September
19, 2000, Andrea signed a document in which she claimed to "voluntarily
and unconditionally" relinquish her parental rights. But Andrea's
relinquishment of parental rights was not "unconditional," as
it contained the following statement: "If the adoption is not
completed, I understand that this relinquishment will be voided."
Thus, Andrea's relinquishment was conditioned on the Wilsons successfully
adopting Keith. On October 3, 2000, the superior court issued a
"final decree of termination of parental rights."
Pseudonyms are used to protect the privacy of those involved.
The Wilsons filed a petition
for adoption on October 11, 2000. In mid-December
2000 the Native Village of Napaimute Traditional Council ("the tribe")
was permitted to intervene in the adoption proceedings. Prior to
the tribe's intervention, Andrea changed her *625
mind and voiced her wish to have Keith returned to her.
After the tribe's intervention,
Superior Court Judge John Reese, in an opinion issued in January 2002,
found that good cause existed for deviating from the ICWA placement preferences
and placing Keith with the Wilsons. The primary basis for the superior
court's decision was Andrea's earlier-expressed desire to deviate from
the ICWA preferences when she relinquished her parental rights and placed
Keith with the Wilsons. The superior court did not account for Andrea's
change of preference:
most obvious [reasons to deviate from ICWA] are, of course, first of all,
the mother's preference in the relinquishment and the termination. There's
solid legal basis for this in the Indian Child Welfare Act, in the guidelines,
as well as in the cases interpreting the act and the guidelines, so that
probably is sufficient by itself, but there is more.... [Andrea] gave
up [Keith]. That's it. That gets us past the preferences.
We asked for supplemental briefing
on a number of issues, including the validity of the relinquishment and
the termination order. After supplemental briefing was completed,
the Wilsons supplemented the record with a notarized letter from Andrea
stating her request that the Wilsons "be able to fully adopt
[Keith] without any further interference from myself or any other outside
party." We then remanded this matter to the superior court
for an expedited hearing and determination of the mother's consent to
the adoption of Keith by the Wilsons. At the supplemental hearing
on September 9, 2003, Andrea again consented to the adoption. On
September 24 the superior court forwarded its report on remand, finding
that Andrea voluntarily signed the consent to adoption in open court,
that the terms and consequences were fully explained to and understood
by her, and that the time for withdrawal of the consent had elapsed.
STANDARD OF REVIEW
legal validity of a parental relinquishment or termination order is a
question of law. For questions of law, the standard of review is
de novo, and this court applies the rule of law that is most persuasive
in light of precedent, reason, and policy.
Bennett v. Bennett,
6 P.3d 724, 726 (Alaska 2000).
Relevant ICWA Provisions
Reacting to a disturbing history
of states placing Indian children in non-Indian parental care, Congress
passed ICWA with the intention of discouraging this
[FN3] The act is intended "to protect the best interests of
Indian children and to promote the stability and security of Indian tribes
and families." [FN4]
It attempts to achieve this objective by establishing "minimum
Federal standards for the removal of Indian children from their families
and the placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture." [FN5]
25 U.S.C. § 1901(4), (5) (1978); In
re Adoption of F.H.,
851 P.2d 1361, 1364 (Alaska 1993).
25 U.S.C. § 1902 (1978).
One way that ICWA promotes these
goals is through § 1913's requirement that courts return Indian
children to their biological parents if those parents withdraw consent
to adopt before issuance of a final adoption decree. While § 1913(a)
recognizes that a parent may voluntarily consent to termination of parental
rights in favor of foster care placement or adoption,
[FN6] § 1913(c) provides that "[i]n any voluntary proceeding
for termination of parental rights to, or adoptive placement of, an Indian
child, the consent of the
parent may be withdrawn for any reason *626
at any time prior to the entry of a final decree of termination or adoption,
as the case may be, and the child shall be returned to the parent."
25 U.S.C. § 1913(a) (1978) states:
any parent or Indian custodian voluntarily consents to a foster care placement
or to termination of parental rights, such consent shall not be valid
unless executed in writing and recorded before a judge of a court of competent
jurisdiction and accompanied by the presiding judge's certificate that
the terms and consequences of the consent were fully explained in detail
and were fully understood by the parent or Indian custodian.
In contrast, courts apply a non-preferential, best-interests test outside
the ICWA context when determining whether to return a child to a parent
who has withdrawn consent to adopt; the child is not returned automatically
to the parent. S.O.
v. W.S., 643 P.2d 997,
1005 (Alaska 1982).
ICWA further advances its goals
by preferring Indian adoptive parents over non-Indian adoptive parents.
In determining the appropriate adoptive placement of an Indian child,
ICWA requires that, in the absence of good
cause, preference be given to placement with "(1) a member of the
child's extended family; (2) other members of the Indian child's
tribe; or (3) other Indian families." [FN8]
ICWA does not define good cause, however, leaving it to the states
to determine when good cause exists to deviate from the ICWA preferences.
[FN9] The Bureau of Indian Affairs publication "Guidelines
for State Courts; Indian Child Custody Proceedings" lists factors
that may convince state courts that good cause does exist to deviate from
the ICWA preferences.
[FN10] Although the guidelines are only persuasive and are neither
exclusive nor binding, "this court has looked to them for guidance."
These factors include: (1) the extraordinary physical and
emotional needs of the child as established by testimony of a qualified
expert witness; (2) the unavailability of suitable families for
placement after a diligent search has been completed for families meeting
the preferences requirements; and (3) parental preferences in favor
[FN12] Accordingly, we have held that courts may consider parental preference
when determining whether there is good cause to deviate from ICWA preferences.
In re Adoption of F.H.,
851 P.2d at 1364 (quoting 25 U.S.C. § 1915(a) (1978)).
44 Fed.Reg. 67583, 67594 (1979); C.L.
v. P.C.S., 17 P.3d
769, 773 (Alaska 2001).
In re Adoption of F.H.,
851 P.2d at 1364. We also have held that "[w]hether there is
good cause to deviate [from ICWA preferences] in a particular case depends
on many factors including, but not necessarily limited to, the best interests
of the child, the wishes of the biological parents, the suitability of
persons preferred for placement and the child's ties to the tribe."
The superior court found that
Andrea's initial desire to deviate from the ICWA placement preferences
at the time she signed a document purporting to relinquish her parental
rights was the primary factor establishing good cause to deviate from
the ICWA preferences. The court did not consider the mother's subsequent
changed wishes when ruling that good cause existed to deviate from the
ICWA preferences. And once the mother's rights were terminated,
it is questionable whether she would have standing to state a "parental
But the question remains whether there was a valid final decree
of parental termination in this case that would prevent Andrea from withdrawing
her consent to adoption pursuant to § 1913(c) of ICWA. The answer
to this question hinges on the validity of Andrea's relinquishment of
Through § 1903(1)(ii), ICWA applies to termination of parental
rights. Arguably, a post-termination parental change in placement
preference is meaningless as the parent's rights have been terminated.
Nevertheless, we have relied on a parent's consistent preference, even
after termination, for ICWA deviation. In
re Adoption of F.H.,
851 P.2d at 1365 ("Since signing [documents relinquishing parental
rights], E.P.D. has consistently supported an adoption by the Hartleys.").
Relinquishments Must Be Unconditional.
have recognized that "[p]arental termination proceedings were unknown
at common law. This means that in the absence of statutory authorization
there can be no termination of parental rights and obligations."
One way that a parent's rights may be terminated is through a voluntary
relinquishment. Relinquishments are regulated by AS 25.23.180(a)
(b) and may *627
occur "in or before an adoption proceeding." [FN16]
It "obviously is permissible in some cases" for relinquishments
to occur in the absence of pending adoption cases.
[FN17] As we have explained, the relinquishment procedure established
by AS 25.23.180(b) "does not contemplate involuntary termination
actions, but rather refers to cases in which parents choose to give up
their parental rights." [FN18]
However, the statute makes no provision for relinquishment of less
than all rights. Moreover, the time frames for a parental change of mind
are expressly set out in the statute,
[FN19] and there is no provision allowing a parent to withdraw the relinquishment
after those deadlines if certain conditions have not been met.
Perry v. Newkirk,
871 P.2d 1150, 1153 (Alaska 1994) (citation omitted).
S.J. v. L.T.,
727 P.2d 789, 796 (Alaska 1986).
AS 25.23.180(b)(1), (g).
Despite its caption as a "relinquishment,"
the document that Andrea signed in this case was not an unconditional
relinquishment; instead, it functioned as a consent to adopt. Andrea
did not unconditionally relinquish her parental rights in this case. Indeed,
her relinquishment was expressly conditioned on the successful completion
of adoption by specified adoptive parents, the Wilsons. Andrea's
relinquishment contained the statement: "If the adoption [by
the Wilsons] is not completed, I understand that this relinquishment will
be voided." Yet Alaska's adoption statute does not recognize
a relinquishment of parental rights that is less than an absolute and
permanent surrender of rights. Alaska's adoption statute provides
that "[a]ll rights
of a parent with reference to a child ... may be relinquished and the
relationship of parent and child terminated by a writing, signed by the
AS 25.23.180(b) (emphasis added).
Courts in other jurisdictions
have concluded that parents may not relinquish their parental rights on
condition that specified adoptive parents be granted the child. The
South Dakota Supreme Court held in In
re Termination of Parental
Rights Over J.M.J.
that a mother, who relinquished her parental rights and requested that
the child be placed with her sister and brother-in-law in Arizona, could
not withdraw her relinquishment even though her sister and brother-in-law
subsequently requested that J.M.J be removed from their home because of
the couple's marital problems.
[FN21] The court concluded that the mother understood the termination
to be irrevocable and noted that "there can be no conditional relinquishment
of parental rights under [South Dakota] statutes." [FN22]
As a result, "[i]t follows ... that D.J.'s request to have
J.M.J. placed for adoption with the Filipeks cannot in any way be characterized
as a condition, the nonfulfillment of which[ ] is fatal to D.J.'s consent
to termination of her parental rights." [FN23]
379 N.W.2d 816, 817-18 (S.D.1985).
A Colorado Court of Appeals decision
similarly concluded that a nineteen-year-old father and seventeen-year-old
mother attempted an impermissible "partial" or "conditional"
[FN24] In the relinquishment petition, the parents
changed the official, generic Colorado relinquishment form and added that
possession of the child would be with the child's grandparents.
[FN25] Furthermore, testimony made it clear that "the child had been
in the care of the grandparents for approximately one year" and "that
the relinquishment proceedings were instituted as part of a family plan
that the child would be adopted by the grandparents." [FN26]
The court held that it was apparent from the petition and the testimony
"that the parents were attempting a 'partial' or 'conditional relinquishment.'
The court found that such a conditional relinquishment was not authorized
by the Colorado relinquishment statute which, like the Alaska Statute,
mandated that *628
"relinquishment shall divest the relinquishing parent or parents
of all legal rights and obligations." [FN28]
K.W.E. v. People of
the State of Colorado,
31 Colo.App. 219, 500 P.2d 167, 168 (1972).
The concurrence argues that Alaska
case law "reflects the use of conditional relinquishments." [FN29]
Specifically the concurrence refers to two cases, In
re Adoption of F.H.
[FN30] and In re J.L.F.
[FN31] In F.H.,
the mother of an Indian child consistently expressed a parental preference
for the superior court to deviate from the ICWA parental preferences.
[FN32] F.H.'s tribe requested that the court not deviate from the
ICWA placement preferences.
[FN33] In ruling that the superior court did not err in finding
good cause to deviate from the preferences, we noted that the mother exhibited
a consistent preference for deviation.
[FN34] While the mother did sign a purported relinquishment conditioned
on a specified couple adopting F.H., the mother never changed her mind
about the adoption. [FN35]
Consequently, whether the purported relinquishment was a relinquishment
or a consent was immaterial, as either way the adoption would have gone
forward. Therefore, our ruling in F.H.
did not sanction the use of conditional relinquishments. And J.L.F.
does not deal with relinquishments; rather, it is a termination
[FN36] There, we held that "the trial court erred in concluding
that unreasonable withholding of consent to adoption as provided in AS
25.23.180(c)(2) was a ground for termination
of parental rights applicable in this case." [FN37]
then, does not directly support the proposition that conditional relinquishments
are permissible in Alaska.
Concurrence at 636.
851 P.2d 1361 (Alaska 1993).
912 P.2d 1255, 1260 (Alaska 1996); concurrence at 636-637.
851 P.2d at 1365.
at 1362 & 1365.
912 P.2d at 1260.
at 1263 (italics and capitalization removed from section heading).
The concurrence contends that conditional relinquishments are permissible
because they are not expressly prohibited by our statutes. Concurrence
at 632. Such reasoning contradicts our holding in S.J.
v. L.T. that "in
the absence of statutory authorization there can be no termination of
parental rights and obligations." 727 P.2d 789, 796 (Alaska
1986). And there is no general statutory acknowledgment of conditional
relinquishments. All of the concurrence's cited examples of when
parents may withdraw a relinquishment or maintain some contact with the
child despite a relinquishment are expressly established by statute.
The Uniform Adoption Act's commentary
supports our conclusion: "A parent or guardian who makes a
direct placement of a minor for adoption must execute a consent for the
adoption to go forward." [FN39]
Whereas, "[i]f the parent or guardian prefers, instead, to
have an agency place the minor and consent to the minor's adoption, the
parent or guardian has to relinquish all rights with respect to the minor
to the agency." [FN40]
After a parent relinquishes her rights and places a child with an
agency, then "the agency acts in lieu of the parent or guardian:
it acquires custody of the minor and the authority to place the
child for adoption." [FN41]
Because Andrea placed Keith directly with
the Wilsons, her parental consent was needed and her relinquishment was
Unif. Adoption Act § 2-403 cmt., 9 U.L.A. 53 (1999).
The concurrence argues that our two conclusions--that a parent may not
conditionally relinquish parental rights and that relinquishments may
not be used in a private party adoption context--are unrelated. Concurrence
at 638-639. However, the second point naturally follows the first.
Relinquishments may, as a matter of practice, only be viable in
private party adoption contexts if they allow the natural parent to condition
the relinquishment on a particular person or couple adopting the child.
In holding that relinquishments in private party adoption contexts
are not viable, we are informed by the 1994 Uniform Adoption Act and its
commentary. The concurrence takes issue with our reliance on the
1994 Act because Alaska's adoption law is based on the 1969 Uniform Adoption
Act. But the relevant section and commentary from the 1994 Act do not
change the substance
of the 1969 Act, but simply clarify it: "This section helps
clarify the distinction between consents and relinquishments and between
direct and agency placements." Unif. Adoption Act § 2-403
cmt., 9 U.L.A. 53 (1999).
In summary, a biological parent may not relinquish parental rights conditioned
upon successful completion of adoption by specified adoptive parents.
Relinquishment requires a permanent and unconditional surrender
of parental rights. Consequently, Andrea's initial conditional relinquishment
of parental rights was not permitted by statute and was invalid.
Andrea's Invalid Relinquishment Functioned as a Consent To Adopt.
Although Andrea's conditional
relinquishment of parental rights was invalid in that it was contingent
on the successful adoption of Keith by the Wilsons, the document that
she filed did function as a consent to adoption. Parental consent "lies
at the foundation of the adoption process." [FN43]
A parent may consent to adoption by specific adoptive parents, whose identities
may or may not be known to the biological parents.
[FN44] Under AS 25.23.060, a parent's consent ordinarily delegates
to the adoptive parents all powers permitted under AS 13.26.020, including
the "powers regarding care, custody, or property of the minor child
or ward." [FN45]
2 AM.JUR.2D Adoption
§ 60 (1994).
Unlike this consent to adoption provision, the relinquishment statute
makes no such provision for transfer of rights pending an adoption, an
omission that compounds the problems with Andrea's purported conditional
relinquishment. As the State points out in its amicus brief:
a parent to terminate his or her relationship with a child through a relinquishment
to a prospective adoptive parent, or through a decree issued pursuant
to a relinquishment, could result in termination of the biological parent's
responsibilities toward the child, without the concomitant assumption
of those responsibilities by the adoptive parent. That such a child would
have no responsible parent or agency during the pendency of the adoption
proceeding, or perhaps longer if the adoption were to fail, would contradict
the state's policy to promote the best interests of its children.
While Andrea signed a document
purporting to relinquish her parental rights on condition that the Wilsons
successfully adopt Keith,
[FN46] and while a proper relinquishment eliminates the need for parental
consent in an adoption
proceeding, we look at the function and not the title of documents to
determine their purpose. In S.O.
v. W.S., we examined
a similar document purporting to relinquish parental rights and held that
regardless of its caption, the "relinquishment" in question
was actually an attempt to consent to adoption.
[FN47] S.O. was a pregnant woman expecting to take a job on the
North Slope and desiring to locate adoptive parents for her unborn child.
With the help of the paternal grandmother and the grandmother's
spouse, S.O. located a prospective couple but requested that the couple's
identity not be disclosed to her.
[FN49] The day after the child's birth, S.O. signed a document entitled
"Relinquishment of Parental Rights," which purported to relinquish
her rights and granted custody to her attorney, who was to take all steps
necessary for the child's adoption by the prospective adoptive couple.
[FN50] About a week after giving birth, S.O. changed her mind about
going to the North Slope and giving up her child for adoption. She
argued that any adoption proceeding would be invalid because she never
consented to an adoption.
[FN51] Unpersuaded by this argument, we stated that "we think
it abundantly clear that S.O. did in fact intend to consent to her son's
adoption. That the document purports to be a relinquishment is not
The document signed in this case, like that in S.O.,
was an attempt to consent to a particular adoption. Thus, the superior
court's reliance upon it in terminating the mother's parental rights was
The concurrence correctly notes that we have disapproved of "permitting
mere technical defects in consents to adoption to serve as a basis for
disrupting familial ties and relationships that have developed in reliance
on the validity of consents." S.O.
v. W.S., 643 P.2d 997,
1002 n. 7 (Alaska 1982). Concurrence at 633. But we examine
the function of the purported relinquishment precisely because we do not
want technical defects to disrupt the child adoption process. And
here, the defective relinquishment of parental rights functions as a consent
643 P.2d 997, 1002 n. 6 (Alaska 1982).
at 1002 n. 6.
Under ICWA, Andrea Should Have Been Permitted To Withdraw Her Initial
Consent to Adoption Prior to Entry of the Final Adoption Decree.
Under ICWA, a biological parent
may withdraw consent to adoption "for any reason at any time prior
to the entry of final decree of ... adoption ... and the child shall be
returned to the parent." [FN53]
Because Andrea changed her mind prior to the final decree of adoption
and wanted Keith back despite her earlier consent to adoption by the Wilsons,
Keith should have been returned to Andrea at the time she withdrew her
consent. However, this point is now moot, given that Andrea has
reaffirmed her consent to the adoption during the pendency of this appeal.
25 U.S.C. § 1913(c).
If we did not treat Andrea's
initial conditional relinquishment of parental rights in favor of adoption
by a specific couple as a consent to adoption, we would eviscerate a key
ICWA provision. The statutory consent provisions provide for a relatively
lengthy parental withdrawal period and "are designed to protect the
natural rights of a parent to the custody, society, comfort, and services
of the child." [FN54]
Permitting circumvention of these protections
by pre-adoption relinquishment in private party adoption cases would eliminate
these protections of parental rights.
[FN55] And if allowing such an end run would impair the rights of
parents in non-ICWA cases, it would do even greater injury to the rights
granted by ICWA to Indian families and the parents of Indian children.
Because Andrea has ratified the adoption by reaffirming her consent
to have Keith adopted by the Wilsons, we must now turn to the question
whether the superior court properly deviated from ICWA's placement preferences.
Delgado v. Fawcett,
515 P.2d 710, 712 (Alaska 1973) (citing In
re Parks' Petition,
267 Minn. 468, 127 N.W.2d 548, 553 (1964)).
The concurrence finds no public policy reason for prohibiting conditional
relinquishments. But in D.M.
v. State, Division of Family & Youth Services,
we recognized that "parental rights are of the highest order."
995 P.2d 205, 212 (Alaska 2000) (internal quotation omitted). Our
decision to disallow the circumvention of procedures in place to protect
these rights promotes an important public policy.
Because Andrea Renewed Her Consent to Adoption by the Wilsons, the Superior
Court's Deviation from the ICWA Placement Preferences Was Not Error.
In its initial January 2002 decision
approving Keith's adoption by the Wilsons, the superior court found that
good cause existed for deviating from ICWA placement preferences and that
the adoption was in the best interests of the child. Judge Reese
relied on several factors for deviating from the ICWA placement preferences,
including Andrea's preference expressed when she purportedly relinquished
her parental rights; the open nature of the adoption, which would
allow Andrea to visit with Keith and assist the Wilsons in attending to
Keith's cultural identity; and the emotional bonding of Keith to
the Wilsons. Thus, the findings of the trial court in this case
mirror those in F.H.,
[FN56] where we affirmed the superior court's finding of good cause to
deviate from the ICWA placement preferences based on, among other factors,
the biological mother's preference for the placement, the bond between
the adoptive parent and the child, and the "openness" of the
proposed adoption. All of these factors are present in the case
now before us.
851 P.2d at 1364.
Andrea's preference to have her
son adopted by the Wilsons was reaffirmed during the pendency of this
appeal. Upon receiving from the Wilsons a request to supplement
the record with a notarized letter from Andrea in which she withdrew her
demand for custody of Keith and requested that the Wilsons be able to
adopt Keith "without any *631
further interference," we remanded this case to the superior court
for a hearing and determination of whether Andrea wished to consent to
the adoption of Keith by the Wilsons. On September 9, 2003, Andrea
executed a consent to adoption in open court before a superior court master.
The superior court waited ten days, the time limit for withdrawal
of consent in a non-ICWA case, before reporting to us that Andrea's consent
was voluntary, that the terms and conditions of the consent had been explained
to Andrea in detail, and that Andrea fully understood this explanation.
Thus, Andrea has reaffirmed her initial position in this case, expressed
during her purported relinquishment of parental rights: She consents
to Keith's adoption by the Wilsons and it is her preference to deviate
from ICWA by placing Keith with the Wilsons, a non-Indian family.
The superior court's reliance
on Andrea's preference to have Keith adopted by the Wilsons was central
to its decision and "was an appropriate factor for the superior court
to consider in its finding of good cause." [FN57]
As we noted in F.H.,
"ICWA and the Guidelines indicate that courts may consider parental
preference when determining whether there is good cause to deviate from
ICWA preferences." [FN58]
And although a pivotal factor in this case, it was not the only
factor that the superior court took into account in its finding of good
cause to deviate from the ICWA preferences.
After the tribe's intervention
into the case, the superior court supplemented its findings of good cause
by relying on factors other than the mother's preference. These
included the open nature of the adoption. As we recognized in F.H.,
reliance on an adoption structure that will "ensure access"
by the biological parent to the child is "a proper factor for the
superior court to consider." [FN59]
In its consideration of the importance of sensitivity by the adoptive
parents in this case to cultural issues, the superior court characterized
the open adoption as "a life raft." Although recognizing
that the Wilsons "do not understand much about native culture,"
the court found that "[t]he open adoption offers relief," and
that "[r]easonable contact with the birth family can take care of
that." The court left open until a future hearing the specifics
of the contact schedule, acknowledging that while weekly or even monthly
contact was not contemplated, there was a need for "contact that's
sufficient and appropriate for [Keith] to know the people who are his
birth family as well as ... [have] enough of an exposure to them and enough
time with them so that he can come to learn and experience those parts
of his culture as well as the parts that the [Wilsons] can provide to
Thus, while the latest consent to adoption drafted by the Wilsons and
executed by Andrea on September 9, 2003 contained new language indicating
that "[v]isitation rights are not allowed, except as agreed by the
[Wilsons]," addition of new terms to the adoption was beyond the
scope of our limited remand to the superior court to allow Andrea to reaffirm
her consent to the adoption. The January 17, 2002 adoption decree
entered by Judge Reese, which we now affirm, expressly ordered that "the
biological mother retains visitation rights which shall be set out in
a separate order." Thus, the new language drafted by the Wilsons
purporting to restrict Andrea's visitation rights has no effect on the
open nature of the adoption previously approved by Judge Reese. Indeed,
the open nature of the adoption provided one of the bases for Judge Reese's
finding of good cause, as it did for the trial court in F.H.
Judge Reese left open to a future hearing the actual nature of the contact
between Keith and Andrea, and the scheduling of this contact should be
addressed on remand.
Finally, the superior court relied
on the bonding between Keith and the Wilsons to find good cause to deviate
from ICWA's placement preferences. The trial
court found that it was "clear" and "not contested"
that "[Keith] ha[d] closely bonded to the [Wilsons]" at the
time of the October 10, 2001 hearing on the adoption. Two years
have elapsed, and that bond has undoubtedly strengthened with time. As
we noted in F.H.,
bonding between the adoptive mother and the child was "a proper factor
for the superior court to consider." [FN61]
851 P.2d at 1365.
In sum, the superior court based its determination of good cause to deviate
from ICWA's placement preferences on appropriate factors, and we affirm
its decision on this issue.
Andrea's conditional relinquishment
of parental rights was invalid. Instead, it functioned as a consent
to the Wilsons' adoption of Keith. Although ICWA enables a biological
parent to withdraw consent at any time before the finalization of an adoption,
in this case, Andrea has reaffirmed on the record her consent to the adoption
of Keith by the Wilsons previously ordered by the trial court. Because
the trial court did not err in determining that good cause exists to deviate
from ICWA's placement preferences, we AFFIRM the court's entry of the
decree of adoption and REMAND for a determination of the nature
and schedule of contact and visitation as provided in the adoption decree.
MATTHEWS, Justice, concurring.
MATTHEWS, Justice, concurring.
I agree that the decree of adoption
should be affirmed and that it is appropriate for the superior court on
remand to address the subject of visitation. I therefore concur
in the result of today's opinion. But I disagree with the opinion's
conclusion that the final decree of termination is invalid. The
natural mother's recent reaffirmation of her desire to have the Wilsons
adopt the child has mooted this point in this case. But in future
cases the dicta in today's opinion may have the effect of disturbing existing
adoptions and adoptive placements and will change Alaska adoption practice.
I therefore write separately to express my disagreement. In
my view, the adoption decree should have been affirmed even if the natural
mother had not, in the eleventh hour of the appeal, ratified the adoption.
The discussion that follows is written without taking her ratification
Today's opinion states that the
final order of termination is invalid because the relinquishment on which
it is based is invalid. The opinion argues that the
relinquishment is invalid for two reasons. First,
because it expresses an understanding (the "condition") that
if the child is not adopted by the Wilsons the relinquishment will be
voided. This provision is invalid, according to the opinion, because
it is a condition, and our statutes do not permit conditional relinquishments.
It follows, the opinion concludes, that the relinquishment as a
whole is invalid. Second,
the opinion argues that the relinquishment is invalid because use of relinquishments,
rather than consents to adoption, is impermissible in private party adoption
I disagree. For two independent
reasons I do not believe that the expressed understanding that the relinquishment
can be withdrawn if the Wilsons do not adopt the child makes the relinquishment
regardless of its validity, the condition is irrelevant because we know
that it will not occur. The Wilsons have adopted the child. Second,
properly construed the condition is not prohibited by the Alaska Statutes,
mainly because it is consistent with remedies that are available under
current law to a relinquishing parent upon the failure of a contemplated
adoption. As to the issue of whether relinquishments rather than
consents may be used in private party adoptions, the Alaska Statutes suggest
that relinquishments may be used in such cases.
The paragraphs that follow explain
my position in more detail. Before discussing
each issue separately, I make a number of points that are common to each.
The statutory section concerning
relinquishments is AS 25.23.180. I set out its relevant subsections
in the margin.
[FN1] This *633
section and most of the rest of Alaska's adoption act were enacted in
1974 based on the 1969 Uniform Adoption Act as revised in 1971.
[FN2] Section .180's counterpart in the 1969 Uniform Adoption Act
is section 19.
[FN3] The 1969 Uniform Act should not be confused with the very
different 1994 Uniform Adoption Act which Alaska has not adopted.
AS 25.23.180 provides in relevant part:
The rights of a parent with reference to a child, including parental right
to control the child or to withhold consent to an adoption, may be relinquished
and the relationship of parent and child terminated in or before an adoption
proceeding as provided in this section.
All rights of a parent with reference to a child, including the right
to receive notice of a hearing on a petition for adoption, may be relinquished
and the relationship of parent and child terminated by a writing, signed
by the parent, regardless of the age of the parent, a copy of which shall
be given to the parent, (1)
in the presence of a representative of an agency taking custody of the
child, whether the agency is within or outside of the state or in the
presence and with the approval of a court within or outside of this state
in which the minor was present or in which the parent resided at the time
it was signed, which relinquishment may be withdrawn within 10 days after
it is signed or the child is born, whichever is later; and the relinquishment
is invalid unless it states that the parent has this right of withdrawal;
in any other situation if the petitioner has had custody of the minor
for two years, but only if notice of the adoption proceeding has been
given to the parent and the court finds, after considering the circumstances
of the relinquishment and the long continued custody by the petitioner,
that the best interest of the child requires the granting of adoption.
The relationship of parent and child may be terminated by a court order
issued in connection with a proceeding under this chapter or a proceeding
under AS 47.10 on the grounds
specified in AS 47.10.080(o)
that a parent who does not have custody is unreasonably withholding consent
to adoption, contrary to the best interest of the minor child; or
that the parent committed an act constituting sexual assault or sexual
of a minor under the laws of this state or a comparable offense under
the laws of the state where the act occurred that resulted in conception
of the child and that termination of the parental rights of the biological
parent is in the best interests of the child.
For the purpose of an adoption proceeding under this chapter, a decree
issued by a court of competent jurisdiction in this or another state terminating
all rights of a parent with reference to a child or the relationship of
parent and child dispenses with the required
consent by that parent to an adoption of that child; and
notice of a proceeding to that parent unless otherwise required by this
A petition for termination of the relationship of parent and child made
in connection with an adoption proceeding or in an independent proceeding
for the termination of parental rights on grounds set out in (c)(3) of
this section may be made by
either parent if termination of the relationship is sought with respect
to the other parent;
the petitioner for adoption, the guardian of the person, the legal custodian
of the child, or the individual standing in parental relationship to the
an agency; or
another person having a legitimate interest in the matter.
Notwithstanding the provisions of (b) of this section, a relinquishment
of parental rights with respect to a child, executed under this section,
may be withdrawn by the parent, and a decree of a court terminating the
parent and child relationship on grounds set out in (c)(1) and (2) of
this section may be vacated by the court upon motion of the parent, if
the child is not on placement for adoption and the person having custody
of the child consents in writing to the withdrawal or vacation of the
UNIF. ADOPTION ACT, 9 U.L.A. 133 (1999).
AS 25.23.180 with
Unif. Adoption Act § 19, 9 U.L.A. 216-18 (1999).
note 3 at § 11.
Alaska's adoption act contains
its own rule of construction. Alaska Statute 25.23.005 provides:
"This chapter shall be liberally construed to the end
that the best interests of adopted children are promoted. Due regard
shall be given to the rights of all persons affected by a child's adoption."
Although section .005 was enacted in 1990, it is consistent with the rule
of construction that we had previously adopted. In S.O.
v. W.S. we rejected
a rule of strict construction for our adoption act.
[FN5] Instead we stated that the act should be construed in a manner
that best accomplishes the overriding purpose of the act, promoting the
welfare of children. We warned against "permitting mere technical
defects in consents to adoption to serve as a basis for disrupting familial
ties and relationships that have developed in reliance on the validity
of such consents." [FN6]
The same admonition must also apply to relinquishments.
643 P.2d 997, 1002 n. 7 (Alaska 1982).
The damage that can be done to
children by disrupting psychological ties between adoptive parents and
children is well recognized. *634
As we stated in Hernandez
v. Lambert, "[a]doptive
custody results in the rapid development of lasting and powerful psychological
ties between adoptive parents and children,
especially young children. Once formed, these bonds can seldom be
severed without irreparable damage to the child's well being." [FN7]
951 P.2d 436, 441-42 (Alaska 1998).
The Condition Is Irrelevant Because it Will Not Occur.
We know that the condition that
the relinquishment may be voided if the Wilsons do not adopt Keith will
not occur because the superior court has entered a decree of adoption
in favor of the Wilsons. Under this circumstance the condition is
moot and can properly be ignored. The natural mother's expectations
have been satisfied. There is no need to speculate as to what a
proper judicial response would be if the condition had occurred, because
we know that it will not occur.
I know of no case that suggests
that an adoption should be invalidated because it is based on a relinquishment
that is subject to an impermissible condition where it is known that the
condition will not be realized. To the contrary, in In
re J.R.S. we held that
the defeasing condition expressed in AS 25.23.180(g) (authorizing the
withdrawal of a relinquishment with the consent of the person having custody
of the child where the child is not placed for adoption) did not destroy
the finality of a termination decree for ICWA purposes
because the condition had not occurred and the condition was thus "not
690 P.2d 10, 14 (Alaska 1984).
This is not a case in which a
parent attempts to revoke a relinquishment before her child has been placed
for adoption. AS 25.23.180(g), which provides that a decree terminating
parental rights may be vacated if the child has not been placed for adoption
and the person having custody agrees to the decree's vacation, is not
relevant here. Nothing in the statute governing relinquishments
suggests that the decree the superior court entered was anything less
The teaching of J.R.S.
is that where a condition that could cause the avoidance of a relinquishment
will not occur, the fact that at the time of the termination decree the
possibility that the condition might occur was still open is not relevant.
Once we know that the condition will not occur it may be ignored.
Such a rule makes eminent good sense. No conceivable purpose is
served by vacating an adoption based on a hypothetical possibility that
we know will not occur. In such circumstances, the best response
is simply to treat the condition as irrelevant. Consistent with
the statutory and case law rule of construction noted earlier, this is
the response that promotes the best interests of adopted children and
avoids the disruption of familial ties and relationships that have developed
as a result of an adoptive placement.
Relinquishments May be Terminable upon the Failure of a Contemplated Adoption.
The point that the condition
is irrelevant because it will not occur is, in my opinion, a sufficient
response to the majority's position that the conditional nature of the
relinquishment would require the present adoption to be set aside. But
I also believe that properly understood the condition is permissible for
the reasons that follow.
An opinion of the Massachusetts
Supreme Court, In re
Adoption of a Minor,
contains a useful analysis of a questioned condition in an adoption context.
In that case the natural mother consented to the adoption of her
child by the adoptive parents "on condition that they will give me
visitation rights...." [FN11]
Although the adoptive parents allowed visitation, the natural mother attempted
to withdraw her consent to adoption and petitioned for return
of the child. She contended that her consent was unenforceable because
it was conditional and therefore did not satisfy *635
the requirements of Massachusetts law and was against public policy.
[FN12] The Massachusetts court, in an opinion authored by the distinguished
jurist and law professor, Robert Braucher, held that the questioned condition
did not invalidate the consent. The court first observed that the
condition must be given a practical construction making it subject to
the overriding interest in the welfare of the child. Justice Braucher
362 Mass. 842, 291 N.E.2d 729 (1973).
We think that the mother in this
case sought, not a legal assurance of visitation rights overriding all
requirements of the welfare of the child, but a practical assurance of
the cooperation of the petitioners so long as visitation rights were not
contrary to the interests of the child. She got what she sought.
If she had not tried to withdraw her consent, a decree of adoption
might have been entered incorporating the agreement. Such a decree
would not be void. But it would not prevent "the supreme inquiry
as to the requirements of the welfare of the child." [
at 731 (internal citations omitted).
As so construed, the court
found the condition not to be against public policy. But the court
went on to observe that if the condition were found to be against public
policy, the condition would be unenforceable, but the consent to adoption
would still be valid:
the agreement had provided for a legal right overriding the welfare of
the child, it would at least to that extent be against public policy,
but the result would be that the offending provision would be unenforceable,
not the consent to adoption. Otherwise, the overriding policy serving
the welfare of the child would be frustrated.[
(internal citations omitted).
I believe that the condition
in this case must be construed at all times to be subject to the overriding
interest in the welfare of the child. It should also,
in my judgment, be given a practical construction similar to that employed
by the Massachusetts court in In
re Adoption of a Minor.
What it contemplated was that the Wilsons would go forward with
the adoption, but if the adoption failed it was understood that they would
not stand in the way of the resumption of custody by the natural mother.
As so construed, the condition is fully consistent with existing
remedies that are available following the failure of a contemplated adoption.
There are three principal remedies
for failed adoptions. The first is contained in AS 25.23.180(g).
[FN15] This subsection contains a provision that permits a parent
to withdraw her relinquishment if the child "is not on placement
for adoption" with the consent of the party having custody of the
child. The second remedy is contained in AS 25.23.120(d). This
subsection requires the court, upon determining that an adoption petition
must be denied, to decide who should have custody of the child, considering
the child's best interests.
[FN16] A voluntarily terminated parent is not excluded from the
group of potential custodians under this section.
[FN17] The third remedy is found in Civil Rule 60(b) (permitting relief
from judgments in defined circumstances). A relinquishing parent,
like any other litigant, may avail herself of the remedies provided by
Civil Rule 60(b). [FN18]
Relief is sometimes afforded under this rule's catch-all clause,
("any other reason justifying relief from the operation of the judgment"),
when in important ways a fundamental assumption underlying the basis for
consenting to a judgment has been destroyed.
AS 25.23.120(c) & (d) provide:
If at the conclusion of the hearing the court determines that the required
consents have been obtained or excused and that the adoption is in the
best interest of the person to be adopted, it may issue a final decree
If the requirements for a decree under (c) of this section have not been
met, the court shall dismiss the petition and determine, in the best interests
of the minor, the person including the petitioner to have custody of the
See In re J.R.S.,
690 P.2d 10, 14 (Alaska 1984).
See Lacher v. Lacher,
993 P.2d 413 (Alaska 1999); Williams
v. Crawford, 982 P.2d
250 (Alaska 1999); McGee
v. McGee, 974 P.2d
983 (Alaska 1999); Lowe
v. Lowe, 817 P.2d 453
(Alaska 1991); Schofield
v. Schofield, 777 P.2d
197 (Alaska 1989); Foster
v. Foster, 684 P.2d
869 (Alaska 1984).
Construed reasonably and practically, the condition in question fits readily
within these remedies. If the Wilsons were to have a change of heart
after accepting custody of the child or if their adoption efforts failed
and the child was therefore no longer on placement for adoption, subsection
. 180(g) would be applicable. Subject to considerations of the best
interests of the child, the understanding reflected in the relinquishment
that the natural mother would resume custody could be realized. If
the adoption was actually denied, AS 25.23.120(d) would also apply and
the court would have to determine, considering the best interests of the
minor, who would have custody of the minor. In such a proceeding
the Wilsons' cooperation with the efforts of the natural mother would
be expected, though it might be of little importance given that their
adoptive efforts would already have been refused. As to the potential
60(b) remedy, the condition reflects a fundamental assumption that exists
in most private party adoption cases, namely that the parties
to whom the child is relinquished for adoption would adopt the child.
Even when not made a condition, one would expect that this would be the
assumption of the relinquishing parent. Upon the failure of such an assumption,
Rule 60(b)(6) relief should be available. Since this could be the
case even if the assumption were not expressed as a condition, the fact
that the condition is expressed should not make a difference. The
same relief should be available either way.
In short, I believe that the
expression of the understanding that if the Wilsons did not adopt the
child the relinquishment would be voided, when given a reasonable and
practical construction, is consistent with and, at most, facilitates the
remedies that would be available in any event to the natural mother. It
is therefore unobjectionable.
It is undisputed that relinquishments
that are subject to withdrawal upon the failure of specified parties to
adopt a particular child have long been used in Alaska adoption practice.
The State of Alaska acknowledges that the Division of Family and
Youth Services "has allowed conditional relinquishments in the past."
Currently the policy and procedure manual of the division still
contemplates that parents may relinquish their parental rights "with
the understanding that their child will be adopted by a specific person."
The division treats this understanding as subject to the welfare
of the child. [FN20]
State of Alaska, Dep't of Health & Social Servs, Div. of Family &
Youth Servs. Policy & Procedure Manual § 3.9.1.h. This subsection
parents have relinquished their parental rights with the understanding
that their child will be adopted by a specific person, the worker will
notify them if the proposed placement fails. The requirement to
notify the parents applies from the time of the relinquishment until the
adoption is finalized, even after termination of parental rights. After
receiving notice that the proposed placement has failed, a parent may
notify the division, in writing, of a desire to withdraw the relinquishment.
If the parent does not submit such notice to the division within
30 days of being notified of the failed placement, the division is not
required to have any further contact with the parent. The parent's
request to withdraw the relinquishment is not automatically granted. The
Division decides whether to consent to the withdrawal or not, based on
the circumstances of the case. Consents for withdrawal must be approved
and signed by the Children's Services Manager.
Our case law reflects the use of conditional relinquishments. In
In re J.L.F.
the state negotiated a conditional relinquishment with the biological
mother which, eventually, the biological mother refused to sign.
[FN21] This refusal was found by the superior court to be a reason
in support of the superior court's finding under AS 25.23.180(c)(2) that
the biological mother had unreasonably withheld her consent to adoption.
[FN22] In In re
Adoption of F.H. a
relinquishment conditioned on adoption by particular prospective adoptive
parents was employed.
[FN23] An adoption in favor of these prospective parents would have
amounted to a deviation from the ICWA preferences.
[FN24] The superior court held that the conditional nature of the
relinquishment was one reason why good cause existed for deviation from
the ICWA preferences, because otherwise there would be much uncertainty
concerning the child's future.
[FN25] We upheld the court's reliance on the conditional nature
of the relinquishment.
912 P.2d 1255, 1260 (Alaska 1996).
851 P.2d 1361, 1362 (Alaska 1993).
25 U.S.C. § 1915(a).
In re Adoption of F.H.,
851 P.2d at 1365.
Duggan recognized that F.H.'s situation would be uncertain if the Hartleys'
adoption petition were dismissed and E.P.D. withdrew her conditional relinquishment.
E.P.D.'s relinquishment was conditioned on the Hartleys' adoption
of F.H.... The superior court properly considered F.H.'s situation if
the adoption petition were dismissed. It was not clearly erroneous
for the superior court to find that F.H.'s uncertain situation would have
continued if the Hartleys were not allowed to adopt F.H.
The historic use of conditioned
relinquishments in Alaska is relevant in considering whether the Alaska
Statutes should be construed as prohibiting the practice. "The
meaning attached by people affected by an act may have an important bearing
on how it is construed." [FN27]
In addition, adopting parties and their counsel have relied on this
practice, its recognition by the courts,
and the fact that it has never been questioned, in structuring adoptions.
This reliance is also a reason favoring a permissive construction:
"One of the soundest reasons sustaining contemporaneous interpretations
of long standing is the fact that the public has relied on the interpretation."
Such an interpretation is also called for by the applicable rule
of construction that Alaska's adoption statutes should be construed to
promote the best interests of adopted children and avoid disrupting adoptive
2B NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 49:06
at 94 (6th ed.2000).
§ 49-07 at 99-100.
I also believe that the law of
contracts provides an applicable analogy that should guide our decision
as to whether the current relinquishment is unenforceable. Under
contract law, whether a contract or a part of a contract is unenforceable
entails a balancing of the interests for and against enforcement.
[FN30] In weighing the interest in enforcement, account must be
taken of the justified expectations of the parties, any forfeiture that
would result if enforcement were denied, and any special public interest
in enforcement. In weighing the public policy against enforcement,
account must be taken of the strength of the policy against enforcement,
the likelihood that a refusal to enforce will further that policy, the
seriousness of any misconduct, and the directness of the connection between
any misconduct and the questioned provision.
Restatement (Second) of Contracts §§ 178 & 179 (1981).
Section 178 of the Restatement provides:
A promise or other term of an agreement is unenforceable on grounds of
public policy if legislation provides that it is unenforceable or the
interest in its enforcement is clearly outweighed in the circumstances
by a public policy against the enforcement of such terms.
In weighing the interest in the enforcement of a term, account is taken
the parties' justified expectations,
any forfeiture that would result if enforcement were denied, and
any special public interest in the enforcement of the particular term.
In weighing a public policy against enforcement of a term, account is
the strength of that policy as manifested by legislation or judicial decisions,
the likelihood that a refusal to enforce the term will further that policy,
the seriousness of any misconduct involved and the extent to which it
was deliberate, and
the directness of the connection between that misconduct and the term.
Brown v. Baker,
688 P.2d 943, 948 (Alaska 1984), we employed these factors in order to
determine whether a security agreement in a limited entry fishing permit
Viewing the relinquishment as
a whole, the interest in its enforcement readily outweighs any public
policy against its enforcement. First, all parties justifiably expected
that the relinquishment would be enforceable. Second, the forfeiture
involved is the severance of the bonded parent/child ties that have *638
developed between the child and the Wilsons. This is an extraordinarily
strong interest. Relatedly, the special public interest involved
is the public interest in the stability of adoptive placements. This
is an extraordinarily strong interest.
I am at a loss to express what
the public policy might be against enforcement of the relinquishment.
No judicial decision of this court has ever expressed a policy against
conditional relinquishments. The two cases on which the majority
opinion relies from other jurisdictions [FN31]
express the view that there can be no conditional relinquishment under
the statutes in their respective states, but they express that conclusion
without giving reasons. The only public policy reason offered by the majority
is that relinquishments have shorter periods for their withdrawal than
[FN32] but this reason challenges the use of relinquishments in all adoptions,
and has nothing to do with the conditionality of relinquishments.
[FN33] I had assumed, at least provisionally, that a defeasing condition
such as we have here might be felt to be undesirable because it potentially
interferes with the stability of an adoptive placement. But this
is not likely to be the case because the relinquishment would not be revoked
until and unless the placement failed to lead to adoption. It is
the failure, not the condition, that would cause the instability.
In re Termination of
Parental Rights Over J.M.J.,
379 N.W.2d 816 (S.D.1985); and K.W.E.
v. People, 31 Colo.App.
219, 500 P.2d 167 (1972).
Op. at 630.
I discuss this reason below on pages 641-642.
Turning to the second relevant
factor of section 178(3) of the Restatement, we can ask whether refusal
to enforce the relinquishment will further the policy of stability of
adoptive placements. The answer to that question is that just the
opposite will occur where, as here (and as will commonly be the case),
the contemplated adoption actually occurs. The policy of stability
in adoptive placements is furthered by enforcing the relinquishment. Ironically,
refusing to enforce the relinquishment causes instability. As to
the third factor, there is no misconduct in this case. It is therefore
apparent that the balance of relevant factors clearly favors the conclusion
that the relinquishment is not unenforceable on grounds of public policy.
Another point should also be
made. In light of the clear preponderance of interests favoring
upholding adoptive placements, if the condition in this case were found
to be against public policy, the condition should not be enforced, but
this should not affect the validity of the relinquishment. As the
Massachusetts court stated, if the agreement were "against public
policy, ... the result would be that the offending provision would be
unenforceable, not the consent to adoption. Otherwise the overriding
policy serving the welfare of the child would be frustrated." [FN34]
In re Adoption of a
Minor, 362 Mass. 842,
291 N.E.2d 729, 731 (1973) (citations omitted).
In summary, the understanding
expressed in the relinquishment in this case did not render the relinquishment
invalid. Properly construed, it is consistent with remedies that
the law provides to a relinquishing parent upon the failure of a contemplated
adoption and is therefore unobjectionable. Further, similar provisions
have long been used and recognized in Alaska without critical comment,
and parties have relied on this practice. The practice does not
violate public policy when one considers the relevant factors that should
be considered in determining whether a provision is unenforceable on grounds
of public policy. This interpretation satisfies the applicable rule
of construction that Alaska's adoption statutes should be construed to
promote the best interests of adopted children and to avoid disrupting
Finally, even if the questioned condition were against public policy,
the appropriate remedy would be to declare the condition to be unenforceable
but not the relinquishment.
Alaska Law Provides Two Methods for the Voluntary Termination of Parental
Rights and the Adoption of Children--Either Method May Be Used in Private
Today's opinion holds that the
final order of termination is invalid because it is based *639
on a relinquishment which might be voided if the Wilsons did not adopt
the child. But the opinion also makes a second point, namely that
relinquishments in private party adoption cases are simply impermissible.
As this point has nothing to do with the conditionality of any particular
relinquishment, it would serve as a basis for invalidating the decree
of termination in this case even if the relinquishment were not found
to be invalid because of its conditional nature.
Op. at 628 & n. 42.
The majority makes the point
that private placement adoptions cannot be accomplished by a method involving
relinquishments without any analysis or discussion of the terms of the
Alaska Statutes. Instead, the majority relies on
the commentary to the Uniform Adoption Act of 1994.
[FN36] While the Uniform Adoption Act of 1994 does contain a number
of provisions making it clear that relinquishments can only be made to
[FN37] the 1994 act has not been adopted in Alaska. As already stated,
Alaska's laws pertaining to adoption were mostly passed in 1974 and were
patterned on the 1969 Revised Uniform Adoption Act. Neither Alaska's statutes
nor the 1969 Uniform Adoption Act contain provisions similar to the 1994
Uniform Adoption Act specifying that a relinquishment of parental rights
may only be made to an agency.
[FN38] To the contrary, Alaska law contains provisions that suggest that
a relinquishment may be made in the context of a private party adoption.
1994 Uniform Adoption Act §§ 2-402(a)(1); 2-403;
2- 406(a)(5), UNIF. ADOPTION ACT, 9 U.L.A. 51, 53, 55 (1999).
The 1994 Uniform Adoption Act "aims to be a comprehensive and uniform
state adoption code" that "goes beyond existing statutory laws
to create a coherent framework for legitimizing and regulating both direct-placement
and agency-supervised adoptions." Prefatory Note to 1994 Uniform
Act. UNIF. ADOPTION ACT, 9 U.L.A. 12, 14 (1999). Notwithstanding footnote
42 in today's opinion, § 2-403 of the 1994 act does not purport
to clarify the 1969 Uniform Act. That section, in full, provides: "A
parent or guardian whose consent to the adoption of a minor is required
by Section 2-401 may relinquish to an agency all rights with respect to
the minor, including legal and physical custody and the right to consent
to the minor's adoption." Instead, this section is simply a
part of the comprehensive new act. Likewise, the commentary to § 2-403
neither addresses nor purports to clarify the 1969 Uniform Act. Instead,
it explains the objectives and operation of the new act. It states,
section helps clarify the distinction between consents and relinquishments
and between direct and agency placements. A parent or guardian who
makes a direct placement of a minor for adoption must execute a consent
for the adoption to go forward. If the parent or guardian prefers,
instead, to have an agency place the minor and consent to the minor's
adoption, the parent or guardian has to relinquish all rights with respect
to the minor to the agency. From then on, the agency acts in lieu
of the parent or guardian: it acquires custody of the minor and
the authority to place the child for adoption pursuant to the procedures
in Sections 2-103 and 2-104. An agency may also acquire the right
to place the
minor for adoption pursuant to a court order.
ADOPTION ACT, 9 U.L.A. 53 (1999).
One very strong suggestion is
found in AS 25.23.180(e)(2). This subsection permits a petitioner
for adoption, necessarily a private individual, to file "a petition
for termination" of parental rights "in connection with an adoption
proceeding." Adoption Rule 6(b) makes it clear that such a
petition for termination may be based on a voluntary relinquishment of
parental rights pursuant to AS 25.23.180(b). Thus a private individual
may petition for termination based on a voluntary relinquishment given
under subsection .180(b) in combination with the private individual's
petition for adoption. This strongly implies that the relinquishment
on which the private individual bases the combined petition for termination
and adoption may permissibly have been given in favor of the private individual.
Further support is found in subsection
.180(a) which provides that parental rights "may be relinquished
and the relationship of parent and child terminated in
or before an adoption
proceeding as provided in this section." [FN39]
Again, since adoption proceedings are only brought by private individuals
this suggests that relinquishments may be used by private individuals
in connection with adoption proceedings. Added support is *640
found in subsection . 180(b)(1)
which provides that a relinquishment must either
be signed in the presence of the representative of an agency or
"in the presence and with the approval of a court...." This
suggests that relinquishments may be given in favor of private individuals,
because signing before a court would not be necessary in the case of an
agency taking a relinquishment.
Finally, AS 25.23.180(b)(2) applies
to signed relinquishments that do not meet the formal requirements of
(b)(1) where "the petitioner has had custody of the minor for two
years ... and the court finds, after considering the circumstances of
the relinquishment and the long continued custody by the petitioner, that
the best interest of the child requires the granting of adoption."
One would expect that relinquishments granted in favor of professional
agencies would meet the formal requirements of (b)(1), whereas relinquishments
in favor of private individuals are far more likely to be defective.
[FN40] This savings clause thus seems squarely aimed at private
An example of a defective relinquishment in favor of a private individual
can be seen in S.O.
v. W.S., 643 P.2d 997,
1000 (Alaska 1982).
Alaska law clearly provides for
two parallel methods that lead to the same end result of termination of
parental rights and adoption. That these dual methods exist is uncontested.
What is at issue is whether the relinquishment method may be used
in private party adoptions. I will here briefly describe each method.
The first method, the consent
track, entails execution of a consent to adoption by the natural parent,
filing a petition for adoption, and entry of an adoption decree.
[FN41] The second method, the relinquishment track, does not require
a consent to adoption, but entails execution by the natural parent of
a relinquishment of parental rights, entry of a decree terminating parental
rights, filing a petition for adoption, and entry of a decree of adoption.
AS 25.23.040-.130; AS 25.23.130(a)(1) (effect of adoption decree
is to terminate "all legal relationships between the adopted person
and the natural parents").
AS 25.23.180; AS 25.23.050(a)(4) (consent to adoption not required
of parent who has relinquished right to consent under AS 25.23.180); AS
25.23.050(b) (notice of hearing on a petition for adoption not required
to a person whose relinquishment has been filed with the petition).
There are different safeguards
that apply depending upon which track is used. The "change-of-mind"
period for the consent track is, as a matter of right, ten days after
the consent is given and, by leave of court upon a showing that withdrawal
of consent is in the best interest of the child, any time before entry
of a decree of adoption.
[FN43] By contrast, the withdrawal period as a matter of right under
the relinquishment track is ten days after execution of the relinquishment
without a provision for subsequent withdrawal by leave of court.
[FN44] But consents to adoption need only be signed before a notary,
whereas a relinquishment must be signed in the presence of an agency or
the court, and if the latter, must also be approved by the court after
an inquiry as to the parent's understanding of the consequences of the
relinquishment and the voluntariness of her assent.
[FN46] Alternatively, written relinquishments that do not meet the
formal requirements of AS 25.23.180(b)(1) may still be valid but only
if the private party petitioning for
adoption has had custody of the child for two years and the court, after
considering the circumstances of the relinquishment and the period of
custody by the petitioner finds that the best interests of the child requires
granting the adoption.
AS 25.23.070(b). ICWA changes the period of withdrawal as a matter
of right in consent track cases to the final decree of adoption. 25 U.S.C.
AS 25.23.180(b)(1). ICWA changes the period under which a relinquishment
may be withdrawn as a matter of right to the final decree of termination.
25 U.S.C. § 1913(c).
AS 25.23.180(b)(1); see
Adoption Rule 9(d).
That the relinquishment track
may be used in private adoptions is supported by evidence
of actual practice in Alaska over several decades. The record before
us contains the *641
unrefuted affidavits of two experienced adoption attorneys who state that
the use of the relinquishment track has long been a normal and accepted
practice in private adoptions in Alaska.
The Affidavit of Robert B. Flint, a member of the American Academy of
Adoption Lawyers, who has practiced adoption law in Alaska for the better
part of three decades, states in part:
have routinely obtained decrees of termination of parental rights in private
adoptions over the years of my adoption practice. Such decrees have
always been obtained under AS 25.23.180(b). No court has ever questioned
the statute's applicability to private adoptions nor has the Adoption
on my actual experience and belief the use of AS 25.23.180(b) is a normal
and accepted practice in private adoptions.
Affidavit of Mary Ellen Ashton, former Probate Master for the Third Judicial
District, and currently an attorney specializing in adoptions, states:
Probate Master I approved [decrees of termination] under AS 25.23.180(b)
in private adoptions where the petitioners were private parties.
have practiced law since 1991 largely in the field of adoption. I have
handled over 1000 adoption cases since that time including private adoptions.
As appropriate I have used AS 25..180(b) to obtain decrees of
termination of parental rights in private adoption.
am a member of the Adoption Rules Committee appointed by the Court. At
no session of the Committee has it been suggested that AS 25.23.180(b)
is limited to agency adoptions.
is my belief that the use of AS 25.23.180(b) for termination in private
adoptions is acceptable practice and has been for many years.
And two of our published cases
confirm the use of the relinquishment track in private adoptions. In In re Adoption of F.H.
the mother appeared before the probate master and executed documents "relinquishing
her parental rights to the Hartleys." [FN49]
Over the opposition of both the state and the child's tribe, an
adoption decree in accordance with the private relinquishment was entered
and affirmed by this court.
[FN50] S.O. v.
W.S. is another case
in which the relinquishment method was employed in a private adoption
851 P.2d 1361, 1362 (Alaska 1993).
at 1362, 1365.
643 P.2d 997, 1000 (Alaska 1982). But the relinquishment used in
that case was ineffective because it was not signed before an agency or
with the approval of a judge. Id.
As this case illustrates, parties
have relied on the established and recognized practice described above.
Further, as also noted, this practice finds much support in the
Alaska adoption act. Because of these factors, the applicable rule
of construction promoting the interest of children and disfavoring the
disruption of bonded relationships based on adoptive placements also counsels
in favor of an interpretation validating the existing practice.
Today's majority opinion views
the use of the relinquishment track in private party adoption cases as
an "end run" around the "relatively lengthy parental withdrawal
period" built into the consent track.
[FN52] But one could say by the same logic that use of the consent
track circumvents the greater protection inherent in the more demanding
execution requirements pertaining to relinquishments.
[FN53] In truth, it is not appropriate to regard the use of
one track rather than the other as a circumvention of protections built
into the other because both tracks are legislatively permitted methods
of achieving the same end.
Op. at 630. Actually the period of withdrawal as a matter of right
is identical under both tracks provided by state law: ten days after
signature. The difference lies in withdrawal by leave of court upon
a finding that withdrawal is in the best interest of the child. This
type of withdrawal is specifically provided under the consent track, AS
25.23.070(b), but not under the relinquishment track. But in either
case the court must still, before approving an adoption, find it to be
in the best interest of the child, AS 25.23.120(c), and when this requirement
is not met, the court must dismiss the adoption and proceed to determine
based on the best interest of the child who should have custody of the
child. AS 25.23.120(d).
AS 25.23.180(b)(1) & (2) with
The only public policy reason
offered by today's opinion for setting aside the relinquishment is in
order to "disallow the circumvention of procedures" inherent
in the "relatively lengthy parental withdrawal period" allowed
for adoptions under the consent *642
[FN54] Since the time for withdrawal as a matter of right is exactly
the same under state law for relinquishments and consents, what the majority
appears to be saying is that the longer periods for withdrawing relinquishments
as a matter of right provided by ICWA are desirable as a matter of public
Op. at 630 & n. 55.
My response to this is that the
primary source of public policy employed by this court should be the Alaska
Statutes. ICWA must be followed where it applies. But I do
not think that ICWA should be regarded as a source for public policy based
rulings where the periods it mandates do not apply and differ from the
express provisions of Alaska law.
Alternatively, or in addition,
the majority may be saying that a period for withdrawing relinquishments
not as a matter of right but by leave of court is desirable as a matter
of public policy. Such a period is provided by state law in consent
track cases but not in relinquishment track cases. My response to
this is that the majority's policy judgment is at bottom a quarrel with
the dual track system provided under Alaska law. The legislature
has chosen to provide
no period for withdrawal by leave of court after the ten day withdrawal
as a matter of right period in relinquishment track cases, while providing
a period for withdrawal by leave of court in consent cases. It is
not for this court to say which choice is better. I note, for example,
that the 1994 Uniform Adoption Act does not contain any period during
which an effort can be mounted to withdraw either a consent or a relinquishment
on general best interests grounds.
[FN55] Thus although the majority seems to endorse the view that
a long period for withdrawal by leave of court is best, the current thinking
of the commissioners on uniform state laws is consistent with the procedures
in Alaska's relinquishment track, namely that there should be no such
1994 Uniform Adoption Act §§ 2-408, 2-409, UNIF. ADOPTION
ACT, 9 U.L.A. 60-63 (1999).
Natural parents must be treated
fairly. But their interests are subordinate to the goal of promoting
the best interests of adopted children. [FN56]
There is no question but that the procedures under either the consent
track or the relinquishment track are fair to natural parents. The
procedures under both tracks are designed to ensure that parents fully
the consequences of their assent and that they have given it freely and
voluntarily. Further, they are afforded a ten-day period during
which, as matter of right, they may withdraw their consents or relinquishments.
By contrast the 1994 Uniform Adoption Act only allows revocation as a
matter of right within 192 hours after birth. See
supra note 55. Thus
although the majority seems to be saying in part that a longer period
than ten days for the withdrawal of consents or relinquishments is good
public policy, the current thinking of the commissioners on uniform state
laws appears to be that a shorter period, or no period if the child is
more than eight days old, is appropriate.
In summary, the majority reaches
its conclusion that the relinquishment method for termination and adoption
may not be used in private party adoption cases without any analysis of
the text of our adoption act. A textual analysis strongly suggests
that the relinquishment track is intended for private as well as agency
use. Alaska adoption practice over the years lends support to this
view as does the applicable rule of construction favoring the interests
and the maintenance of adoptive relationships. The policy reasons
offered by the majority for its conclusion--basically that longer withdrawal
periods are better than shorter ones--conflict with the choices made by
the Alaska Legislature and express the majority's preference for the procedures
afforded in one of the two available methods in the Alaska Statutes. Since
both methods are permitted, it is not for this court to say that one is
inherently superior to the other.
For the reasons expressed above,
I believe that the relinquishment used in this case is valid and therefore
that the final order of termination is also valid. The majority
has reached a contrary conclusion, but the natural*643
mother's unselfish act of ratifying the adoption has resulted in the adoption
being affirmed, a result that I warmly endorse.
79 P.3d 623