|
(Cite
as: 79 P.3d 623)
Supreme
Court of Alaska.
In
the Matter of the ADOPTION OF KEITH M.W.
Native
Village of Napaimute Traditional Council, Appellant,
v.
Terence
W. and Lucy W., Appellees.
No.
S-10489.
Oct. 31, 2003.
The
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 the Supreme Court
applies the rule of law that is most persuasive in light of precedent,
reason, and policy.
The
factors to consider when determining whether good cause exists to deviate
from
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).
Indian
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).
Parental
consent lies at the foundation of the adoption process.
Evidence
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.
*624
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.
OPINION
FABE, Chief Justice.
I.
INTRODUCTION
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.
II.
FACTS AND PROCEEDINGS
On May 19, 1999, eighteen-year-old
Andrea, a member of the Native Village of Napaimute, gave birth to a son,
Keith.
[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."
FN1.
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:
The
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.
III.
STANDARD OF REVIEW
The
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.
[FN2]
FN2.
Bennett v. Bennett,
6 P.3d 724, 726 (Alaska 2000).
IV.
DISCUSSION
A.
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
practice.
[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]
FN3.
25 U.S.C. § 1901(4), (5) (1978); In
re Adoption of F.H.,
851 P.2d 1361, 1364 (Alaska 1993).
FN4.
25 U.S.C. § 1902 (1978).
FN5.
Id.
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."
[FN7]
FN6.
25 U.S.C. § 1913(a) (1978) states:
Where
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.
FN7.
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."
[FN11]
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
of deviation.
[FN12] Accordingly, we have held that courts may consider parental preference
when determining whether there is good cause to deviate from ICWA preferences.
[FN13]
FN8.
In re Adoption of F.H.,
851 P.2d at 1364 (quoting 25 U.S.C. § 1915(a) (1978)).
FN9.
Id.
FN10.
Id.
FN11.
Id.
FN12.
44 Fed.Reg. 67583, 67594 (1979); C.L.
v. P.C.S., 17 P.3d
769, 773 (Alaska 2001).
FN13.
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."
Id.
at 1363-64.
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
preference." [FN14]
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
parental rights.
FN14.
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.").
B.
Relinquishments Must Be Unconditional.
We
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."
[FN15]
One way that a parent's rights may be terminated is through a voluntary
relinquishment. Relinquishments are regulated by AS 25.23.180(a)
and
(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.
FN15.
Perry v. Newkirk,
871 P.2d 1150, 1153 (Alaska 1994) (citation omitted).
FN16.
AS 25.23.180(a).
FN17.
S.J. v. L.T.,
727 P.2d 789, 796 (Alaska 1986).
FN18.
Id.
FN19.
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
parent." [FN20]
FN20.
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]
FN21.
379 N.W.2d 816, 817-18 (S.D.1985).
FN22.
Id.
at 818.
FN23.
Id.
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"
relinquishment.
[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.'
" [FN27]
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]
FN24.
K.W.E. v. People of
the State of Colorado,
31 Colo.App. 219, 500 P.2d 167, 168 (1972).
FN25.
Id.
FN26.
Id.
FN27.
Id.
FN28.
Id.
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
case.
[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]
J.L.F.,
then, does not directly support the proposition that conditional relinquishments
are permissible in Alaska.
[FN38]
FN29.
Concurrence at 636.
FN30.
851 P.2d 1361 (Alaska 1993).
FN31.
912 P.2d 1255, 1260 (Alaska 1996); concurrence at 636-637.
FN32.
851 P.2d at 1365.
FN33.
Id.
at 1364.
FN34.
Id.
at 1365.
FN35.
Id.
at 1362 & 1365.
FN36.
912 P.2d at 1260.
FN37.
Id.
at 1263 (italics and capitalization removed from section heading).
FN38.
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
improper.
[FN42]
FN39.
Unif. Adoption Act § 2-403 cmt., 9 U.L.A. 53 (1999).
FN40.
Id.
FN41.
Id.
FN42.
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).
*629
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.
C.
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]
FN43.
2 AM.JUR.2D Adoption
§ 60 (1994).
FN44.
AS 25.23.040-.060.
FN45.
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:
Allowing
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.
[FN48]
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
*630
adoption. That the document purports to be a relinquishment is not
controlling." [FN52]
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
erroneous.
FN46.
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
to adoption.
FN47.
643 P.2d 997, 1002 n. 6 (Alaska 1982).
FN48.
Id
at 999.
FN49.
Id
at 999-1000.
FN50.
Id.
at 1000.
FN51.
Id.
at 1000-01.
FN52.
Id.
at 1002 n. 6.
D.
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.
FN53.
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.
FN54.
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)).
FN55.
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.
E.
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.
FN56.
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.
FN57.
Id.
FN58.
Id.
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
him." [FN60]
FN59.
Id.
at 1365.
FN60.
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]
FN61.
851 P.2d at 1365.
*632
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.
V.
CONCLUSION
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
into account.
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
cases.
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
invalid. First,
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.
[FN4]
FN1.
AS 25.23.180 provides in relevant part:
(a)
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.
(b)
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;
or
(2)
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.
(c)
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
(1)
specified in AS 47.10.080(o)
or 47.10.088;
(2)
that a parent who does not have custody is unreasonably withholding consent
to adoption, contrary to the best interest of the minor child; or
(3)
that the parent committed an act constituting sexual assault or sexual
abuse
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.
(d)
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
(1)
consent by that parent to an adoption of that child; and
(2)
notice of a proceeding to that parent unless otherwise required by this
section.
(e)
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
(1)
either parent if termination of the relationship is sought with respect
to the other parent;
(2)
the petitioner for adoption, the guardian of the person, the legal custodian
of the child, or the individual standing in parental relationship to the
child; (3)
an agency; or
(4)
another person having a legitimate interest in the matter.
....
(g)
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
decree.
FN2.
UNIF. ADOPTION ACT, 9 U.L.A. 133 (1999).
FN3.
Compare
AS 25.23.180 with
Unif. Adoption Act § 19, 9 U.L.A. 216-18 (1999).
FN4.
See supra
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.
FN5.
643 P.2d 997, 1002 n. 7 (Alaska 1982).
FN6.
Id.
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