as: 710 P.2d 410)
Court of Alaska.
the Matter of: W.E.G. and J.R.G., Minor Children Under the
Age of Eighteen
S-777, S-778 and S-803.
Dec. 6, 1985.
Foster parents and maternal grandparents
filed adoption petitions, and proceedings were consolidated. The
Superior Court, Fourth Judicial District, Fairbanks, Jay Hodges, J., granted
foster parents' petition but also granted postadoption visitation rights
to grandparents, and appeals were taken. The Supreme Court,
Moore, J., held that: (1) grandparents were not entitled to preference
over foster parents in adoptive placement of the children; (2) adoption
statute did not violate equal protection as applied to deny the children
postadoption visitation with grandparents; (3) grandparents should
have been allowed to participate as parties in the adoption hearing; and
(4) on remand, superior court should consider the time that the children
had spent with their foster parents.
Vacated and remanded.
of Division of Family and Youth Services was necessary for adoption of
children who had been placed in foster home. AS 25.23.040(a)(3).
grandparents were not entitled to preference over foster parents in adoptive
placement of children. AS 47.10.230(e, f).
statute, AS 25.23.130(a), did not violate equal protection as applied
to deny adopted children visitation with maternal grandparents. U.S.C.A.
that adoption statute, AS 25.23.130(a), does not prescribe preference
for adoptive placement with biological relatives, unlike provisions of
the federal Indian Child Welfare Act, § 105(a), 25 U.S.C.A.
§ 1915(a), does not render the adoption statute violative of
the equal protection clause.
statute, AS 25.23.130(a), precludes granting postadoption visitation to
any blood relative, regardless of that relative's bond with the adopted
child; "grandparents' visitation" statute applicable to
divorce-related custody cases, AS 25.24.150(a), was not intended to indirectly
liberalize the strictly worded adoption statute.
grandparents should have been allowed to participate as parties in hearing
on foster parents' adoption petition, even though, while grandparents
had also submitted adoption petition, only the foster parents had obtained
requisite consent of the biological parents; superior court had
already recognized that the grandparents had demonstrated a significant
interest in the children's foster placement and legal status. AS
25.23.130; Rules Civ.Proc., Rule 24(b).
of maternal grandparents from participating in foster parents' adoption
hearing was harmful error; state did not adequately represent interests
of the grandparents, who contended they would have presented further evidence
of their importance to the children, which evidence might have persuaded
superior court that adoption by the foster parents would not be in the
children's best interest, given a strong bond with their grandparents.
making adoption determination after remand, superior court should consider
length and quality of time that the children had spent with their foster
parents, despite contention of grandparents, who also sought adoption,
that the lengthy period that the children had spent with the foster parents
should not be considered upon remand because the Division of Family and
Youth Services violated AS 47.10.230(e) by not placing the children in
the grandparents' foster care. AS 25.23.130(a).
Bonnie J. Coghlan, Fairbanks, for Grandparents.
J. John Franich, Fairbanks, for Foster Parents.
Gail M. Ballou, Hughes, Thorsness,
Gantz, Powell & Brundin, Fairbanks, for Biological Father.
Richard D. Savell, Fairbanks,
for Adoptive Parents.
G.R. Eschbacher, Anchorage, for
D. Rebecca Snow, Asst. Atty.
Gen., Fairbanks, Norman C. Gorsuch, Atty. Gen., Juneau, for the State.
Daniel L. Callahan, Schendel
& Callahan, Fairbanks, for Guardian Ad Litem.
Before RABINOWITZ, C.J., and
BURKE, MATTHEWS, COMPTON and MOORE, JJ.
This difficult case concerns
the adoption of two young boys. Their foster parents seek
to adopt them, with the consent of the boys' biological parents. However,
the boys' maternal grandparents oppose the foster parents' adoption petition;
they, too, have filed an adoption petition, without the consent
of the boys' biological parents. The superior court consolidated
all actions concerning the boys, then excluded the grandparents from participating
as parties in the hearing on the foster parents' petition. Ultimately,
court granted the foster parents' petition but also granted post-adoption
visitation rights to the grandparents, contrary to the adoption statute.
The court ruled the statute as applied to be unconstitutional
as a denial of equal protection.
As discussed below, we conclude
that: (1) AS 47.10.230(e) does not entitle the grandparents to an
adoption preference; (2) the adoption statute as applied does not
violate equal protection; (3) the inescapable language of the adoption
statute precludes granting post-adoption visitation rights to an adopted
child's biological relatives; (4) the superior court's post-consolidation
exclusion of the grandparents was harmful error; and (5) on remand
the superior court, in determining the boys' best interests, should consider
the duration and quality of the time that the boys have spent in the foster
I. FACTS AND PROCEEDINGS
In February 1984 the Division
of Family and Youth Services (the Division) was granted custody of the
young sons (now ages 3 and 5) of M.B. and W.I. in a children-in-need-of-aid
proceeding pursuant to AS 47.10.080. The Division placed the
boys in the foster home of R.G. and C.G., who have had physical custody
of the boys since that time.
On April 13, 1984, a stipulation
was filed with the court, reflecting an agreement among all parties that
it would be in the boys' best interest to be adopted
by their foster parents. The boys' parents signed consents
to such adoption. Later, however, the foster parents discontinued
their initial adoption application; consequently, a series of other
couples considered adopting the boys. The maternal grandparents
also filed a petition to adopt the boys.
Within a month the Division concluded
that the best alternative placement for the boys would be with their grandparents.
This conclusion was contested by the boys' biological mother.
A hearing was then held to determine whether the Division's
decision to move the boys from the foster parents' home to that of the
grandparents was an abuse of discretion. The court continued
the hearing to allow the Division to "investigate the new alternatives."
On June 18 the hearing was reconvened. The foster parents
then informed the Division's social worker that they again wished to adopt
the boys. At the close of testimony the court recessed the
proceedings again to allow the Division to evaluate the foster parents'
renewed request to adopt the boys.
On July 18 the foster parents
filed their petition to adopt the boys. The biological parents
again gave their consents to the foster parents. A hearing
on the foster parents' adoption petition was scheduled for August 16,
but the grandparents obtained a temporary restraining order staying that
proceeding. At the TRO hearing on August 23, Judge Van Hoomissen consolidated
pertaining to the boys.
On October 11 the superior court
held a pretrial conference on the consolidated cases and ruled: (1)
that the foster parents' adoption petition was the primary matter to be
decided; (2) that their petition would be heard first; and
(3) that the grandparents would not be allowed to participate as parties.
The court further ruled that if the foster parents' adoption
petition were granted, the matter of the boys' adoption placement would
On October 15-16 the superior
court held an adoption hearing and decided that the boys should be adopted
by the foster parents. The court also determined that continued
contact between the boys and their grandparents would be in the boys'
best interests, and that AS 25.23.130(a) is unconstitutional as applied
to this case. Judge Hodges deemed the statute a violation
of equal protection because it "does not provide for the maintenance
of familial relationships that are in the best interests" of the
Subsequently, the boys' biological
mother filed a motion to withdraw her consent to the foster parents' adoption
petition. The court did not grant her motion. Ultimately,
the court signed a revised order that set forth the grandparents' post-adoption
visitation rights. Multiple appeals and cross-appeals followed.
The foster parents have appealed the superior court's decision that their
adoption decree would not terminate the boys' relationship with their
biological grandparents, arguing that the adoption statute precludes an
order of enforceable post-adoption visitation rights.
The grandparents challenge the
superior court's decision to consider the foster parents' adoption petition
first, instead of their own petition. They argue that, as
natural relatives, they should have been entitled to a preference, and
that the superior court erred in precluding them from participating as
parties in the hearing on the foster parents' adoption petition. They
also contend that the adoption statute, AS 25.23.130, violates equal protection.
The boys' biological father argues
in favor of the foster parents and against the grandparents.
[FN1] The boys' biological mother argues that the superior court
did not err in entering an adoption decree that also preserved the boys'
legal relationship with their biological grandparents.
The boys' biological father also argues that the consent of the Division
of Family and Youth Services is not necessary for the adoption of the
boys. This argument is meritless. AS 25.23.040(a)(3)
provides that a petition to adopt a minor may be granted only if written
consent is given by every person listed in the statute, including "any
person lawfully entitled
to custody of the minor or empowered to consent." This
provision certainly includes the Division.
The guardian ad
litem implicitly acknowledges
that the court erred in excluding the grandparents from participating
as parties in the hearing on the foster parents' adoption petition. The
guardian ad litem
contends, however, that such exclusion should be deemed harmless because
the state adequately represented their interests during those proceedings.
The Division argues that the
adoption statute should be construed to allow the granting of post-adoption
visitation with biological relatives. However, the guardian
argues that, even if this court were to stretch the adoption statute to
allow post-adoption visitation rights, in this case it would not be in
the boys' best interests for a court to order such visitation. [FN2]
Since we uphold the constitutionality of AS 25.23.130(a), and we decide
that the statute precludes granting post-adoption visitation rights to
biological relatives, we do not address the claim that such a visitation
order would be against the boys' best interests.
The Division also contends that
the foster parents' adoption petition was deficient
because the biological parents' consents were invalid. However,
the Division did not appeal the superior court's adverse ruling on this
point. Although the grandparents included the alleged invalidity in their
points on appeal, they have not briefed that point. Thus the
issue has been abandoned. Union
Oil Co. v. State, 677
P.2d 1256 (Alaska 1984); Joseph
v. Jones, 639 P.2d
1014 (Alaska 1982).
Finally, the parties dispute
whether the superior court should, upon remand, consider the period that
the boys have been in the foster parents' care in determining which placement
would be in the boys' best interests.
A. AS 47.10.230(e) DOES NOT ENTITLE
NATURAL RELATIVES TO A PREFERENCE IN THE ADOPTIVE
PLACEMENT OF CHILDREN.
In this case the grandparents
appeal an adoption order by the superior court. They argue
that they are entitled to a preference over the foster parents because
AS 47.10.230(e) provides in part: "A child may not be placed
in a foster home or in the care of an agency or institution providing
care for children if a blood relative exists who requests custody of the
However, there is no such blood-relative
preference in adoption
cases. AS 47.10.230(f) is clear in stating: "Nothing
in this subsection or in (e) of this section applies to child placement
for adoptive purposes."
Moreover, as for subsection (e),
the grandparents never initiated an action in superior
court for de novo
review of the Division's foster
care decision to place
the boys with the foster parents instead of with the grandparents. It
seems that the Division did not make a formal determination to deny the
grandparents' request to be the boys' foster parents. The
Division characterized its decision on the grandparents' request as "pending"
when all the parties initially stipulated to the foster parents' adoption
of the boys. Later, after the foster parents indicated that they had changed
their minds about the adoption, the Division did favor placing the boys
with their grandparents. It is uncertain whether the Division
intended such placement to be for foster care or adoption. Nevertheless,
the grandparents did not request de
novo review of the
Division's original inaction on their request to become the boys' foster
parents. That issue is therefore not before us.
B. AS 25.23.130 IS CONSTITUTIONAL
superior court concluded that the adoption statute, AS 25.23.130(a), is
"unconstitutional as applied in this case" because it "does
not provide adopted children with the equal protection of the laws,"
i.e., it does not allow the court to fashion a decree that would provide
for post-adoption visitation with biological relatives. However,
the superior court did not indicate a discriminatory classification, nor
explain what protected right might be discriminatorily infringed, nor
present any analytical basis for the ruling of unconstitutionality.
We therefore reverse the superior
court on this issue.
The grandparents contend that the adoption statute somehow violates equal
protection because it does not prescribe a preference for adoptive placement
with biological relatives, unlike provisions of the federal Indian Child
Welfare Act. 25 U.S.C. § 1915(a) provides that in any
adoptive placement of an Indian child, a preference shall be given to
placement with "a member of the child's extended family." They
emphasize that they would be entitled to an adoptive placement preference
if they and the boys were Native Americans. Thus, since they
are not Natives, the grandparents contend that they are being denied equal
protection because AS 25.23.130 does not provide a preference for adoptive
placement with blood relatives. However, no authority supports
the proposition that a general state statute, applicable to Natives and
non-Natives alike, must mirror a federal statute specifically applicable
only to Native Americans. We reject this frivolous argument.
C. THE STATUTORY PRECLUSION OF
AS 25.23.130(a) provides that
a final decree of adoption has the effect of terminating "all legal
relationships between the adopted person and the natural parents and other
relatives of the adopted person." [FN4]
This statute clearly
provides, however harshly, that the final decree has the effect of making
an adopted child a "stranger" to former relatives. The
exception set forth by the legislature is a provision allowing the court
to provide for continuation of inheritance rights.
AS 25.23.130(a) provides that:
final decree of adoption, whether issued by a court of this state or of
any other state, has the following effect as to matters within the jurisidiction
or before a court of this state:
except with respect to a spouse of the petitioner and relatives of the
spouse, to relieve the natural parents of the adopted person of all parental
rights and responsibilities, and to terminate all legal relationships
between the adopted person and the natural parents and other relatives
of the adopted person, so that the adopted person thereafter is a stranger
to the former relatives for all purposes including inheritance, unless
the decree of adoption specifically provides for continuation of inheritance
rights ...; and
to create the relationship of parent and child between petitioner and
the adopted person, as if the adopted person were a legitimate blood descendant
of the petitioner, for all purposes including inheritance and applicability
of statutes, documents, and instruments, whether executed before
or after the adoption is decreed, which do not expressly exclude an adopted
person from their operation or effect.
Some courts have decided that
adoption does not necessarily preclude granting biological relatives a
right to continued visitation. Futral
v. Henry, 45 Ala.App.
214, 228 So.2d 827 (1969); Mimkon
v. Ford, 66 N.J. 426,
332 A.2d 199 (1975); People
ex rel. Sibley v. Sheppard,
54 N.Y.2d 320, 445 N.Y.S.2d 420, 429 N.E.2d 1049 (1981); Graziano
v. Davis, 50 Ohio App.2d
83, 361 N.E.2d 525 (1976). However, other courts find, as
we do today, that the clear language of the applicable adoption statute
precludes granting post-adoption visitation to any blood relative, regardless
of that relative's bond with the adopted child. Poe
v. Case, 263 Ark. 488,
565 S.W.2d 612 (Ark.1978); Matter
of Adoption of Gardiner,
287 N.W.2d 555 (Iowa 1980); Browning
v. Tarwater, 215 Kan.
501, 524 P.2d 1135 (1974); Bikos
v. Nobliski, 88 Mich.App.
157, 276 N.W.2d 541 (1979); Acker
v. Barnes, 33 N.C.App.
750, 236 S.E.2d 715 (1977) cert.
denied, 293 N.C. 360,
238 S.E.2d 149 (1977).
A representative decision rejecting
post-adoption visitation for biological relatives is Browning
v. Tarwater, 215 Kan.
501, 524 P.2d 1135 (1974). In that case an adopted child's
natural paternal grandmother sought visitation rights after the child
was adopted by his stepfather.
[FN5] She argued that she
should be allowed post-adoption visitation because Kansas law does provide
for grandparental visitation in custody
[FN6] The Kansas Supreme Court ruled *415
against the grandmother explaining as follows:
The Kansas adoption statute is similar to the Alaska adoption statute
now before us. The Kansas statute provided in part that:
adopted, said child shall be entitled to the same rights of person and
property as a natural child of the person thus adopting the child. The
person so adopting such child shall be entitled to exercise all the rights
of a natural parent and be subject to all the liabilities of that relation.
Upon such adoption all the rights of natural parents to the
adopted child, including their right to inherit from such child, shall
cease, except the rights of a natural parent who is the spouse of the
524 P.2d at 1139 (quoting Kan.Stat.Ann. § 59-2103 (1973)).
AS 25.24.150(a) (the "Grandparents' Visitation" statute) provides
for such visitation in custody cases:
an action for divorce or for legal separation or for placement of a child
when one or both parents have died, the court may, if it has jurisdiction
under AS 25.30.020, and is an appropriate forum under AS 25.30.050
and 25.30.060, during the pendency of the action, or at the final hearing
or at any time thereafter during the minority of a child of the marriage,
make, modify, or vacate an order for the custody of or visitation with
the minor child that may seem necessary or proper, including an order
that provides for visitation by a grandparent or other person if that
is in the best interests of the child.
visitation statutes vary with respect to the categories of persons granted
rights, and courts differ widely on the effect of a third-party adoption
on a grandparent's right to visitation. See
Note, Visitation Rights
for Natural Parents After Stepparent Adoption,
1 Alaska L.Rev. 319, 325-26 (1984).
The adoption of a child creates
a status--the domestic relation of parent and child.... It is elementary
law that the aim and end of adoption statutes is the welfare of children.
The theory of the adoption statute is that such welfare will
be best promoted by giving an adopted child the status of a natural child....
policy demands that an adoption carry with it a complete breaking of old
ties.... Where the adoption statute, as here, gives the adopted
child the status of a natural child and frees the natural parents of legal
obligations toward it, a court in granting an adoption decree is without
authority to include
in the adoption decree a grant of visitation privileges to the natural
parent or members of the natural parent's family.
524 P.2d at 1139 (citations omitted; emphasis omitted).
Some courts favor approaching
the issue of post-adoption visitation with biological relatives on a case-by-case
e.g., Mimkon v. Ford,
66 N.J. 426, 332 A.2d 199 (1975). They reason that since the
policy justification for terminating all of an adopted child's ties to
his biological family applies only to certain types of adoption, courts
should have authority to order post-adoption visitation with a "natural"
relative in special cases in which it would be appropriate.
This is also the view of various commentators. See
e.g., Note, Grandparents'
Statutory Visitation Rights and the Rights of Adoptive Parents,
49 Brooklyn L.Rev. 149 (1982); Note, Visitation
After Adoption: In The Best Interests Of The Child,
59 N.Y.U.L.Rev. 633 (1984).
However, in order to allow post-adoption
visitation, we would have to conclude that the more recent "grandparents'
visitation" statute in the divorce/custody area, AS 25.24.150(a),
was intended by the legislature to liberalize the strict adoption statute,
Some courts have taken such an approach. For instance, in
People ex rel. Sibley v. Sheppard, 429 N.E.2d 1049 (N.Y.1981), the New
York Court of Appeals was confronted with a comparable "conflict"
between a standard adoption statute and a "grandparents' visitation
rights" statute. The Sibley
court concluded that no such conflict existed, reasoning that:
Legislature, presumed to know what statutes are in effect when it enacts
new laws, must have been aware of [the adoption statute] when it enacted
[the grandparents' visitation statute] and intended each to have full
445 N.Y.S.2d at 422, 429 N.E.2d at 1051. The court observed
that the language of the grandparents' visitation did not exclude "custody
obtained through adoption." Id.
Both the adoption statute and
the visitation statute applicable to divorce cases are concerned with
the best interests of children. It may well be that in certain
situations post-adoption visitation would be in the best interest of older
children who have developed a demonstrable bond with a biological relative.
In Matter of Adoption
of Gardiner, 287 N.W.2d
555, 558 (Iowa 1980),
the Iowa Supreme Court recognized this possibility: "Because
we are unable to conclude with assurance that a case could not arise in
which visitation with a natural grandparent, although against the wishes
of the adoptive parent, would ever be in the best interest of the child,
we decline to base our decision on that ground."
However, we cannot conclude that
the "grandparents' visitation" statute applicable to divorce-related
custody cases was intended to indirectly liberalize the strictly worded
adoption statute to allow post-adoption visitation rights for biological
relatives. Therefore, despite the possible drawbacks of the
legislature's approach, we decide that the statute precludes the post-adoption
visitation rights granted to the grandparents by the superior court.
Accordingly, we find that the Division may not condition
its consent to the foster parents' adoption on the court's granting such
visitation to the grandparents.
D. THE SUPERIOR COURT ERRED IN EXCLUDING THE GRANDPARENTS FROM PARTICIPATING
IN THE HEARING ON THE FOSTER PARENTS' ADOPTION PETITION.
Although the grandparents made
no motion to intervene under Civil Rule 24 in
the foster parents' adoption hearing, they were nonetheless key participants
in placement hearings held in the children-in-need-of-aid proceedings
during May-June 1984. As the guardian ad
litem states, "the
trial court recognized [the grandparents'] interest in the action in subsequent
proceedings where they did appear (through counsel) as parties and it
may have acted in such a fashion as to excuse [the grandparents'] failure
to make an actual motion to intervene" in the post-consolidation
hearing on the foster parents' petition to adopt.
At the August 23, 1984 hearing
on the grandparents' complaint for injunctive relief, Judge Van Hoomissen
consolidated the children's proceeding, the foster parents' adoption action,
the grandparents' adoption action and the grandparents' injunction complaint.
Thus the grandparents became parties to all of the consolidated
The foster parents did not express any objection to the consolidation
at that time. Instead, they later argued that the grandparents
Subsequently, at the pretrial
conference on the adoption hearing, Judge Hodges stated:
Court finds that under the facts of this case, the [foster parents'] adoption
should proceed first. If the [foster parents'] adoption is
matter is concluded.
think that covers all of the issues. If the [foster parents']
adoption is not granted, you know, then we're back to--not totally to
Square One, but we're back, I suppose, with the grandparents' adoption
the position of the Court that it's a private adoption ... but the State's
involved because of the unique circumstances of this case.... [T]he
grandparents can be called to testify as witnesses by the State or anybody
else, but they may not participate in that adoption proceeding.
Since Judge Hodges did not exclude
the grandparents from participation as parties until several days before
the hearing on the foster parents' adoption action, the grandparents did
not have a fair opportunity to file a motion to intervene.
Judge Hodges also stated that he would allow the grandparents' attorney
"to be present at the hearing; not to ask questions unless
the parties' consent to her asking questions...." At the pretrial
conference the judge had stated, with reference to the grandparents: "They're
in this proceeding, at least to this point in time...."
Hodges had previously expressed doubts as to whether he agreed with Judge
Van Hoomissen's consolidation and preliminary determination that the foster
parents' petition was the primary matter before the court.
The superior court precluded
the grandparents' participation as parties in the adoption hearing because
it ruled that the foster parents' action was primary. The court based
its ruling on the fact that only the foster parents had obtained the requisite
consents of the biological parents.
[FN13] Nevertheless, the superior court had already recognized that the
grandparents had demonstrated a significant interest in the boys' foster
placement and legal status. Therefore, we find that the grandparents
should have been allowed to participate as parties. See
The adoption statute does not provide that the court may preliminarily
accord one adoption petition a procedural preference over a competing
petition. However, given that the grandparents lacked the
biological parents' consents, their petition was deficient on its face.
The state, the guardian ad
litem, and the foster
parents argue that the grandparents' *417
interests were adequately represented by the state. They contend that if
the superior court did err in excluding the grandparents, such error was
harmless. We disagree. The grandparents argue that
they would have presented further evidence of their importance to the boys.
might have persuaded the superior court that adoption by the foster parents
would not be in the boys' best interests, given a strong bond with their
grandparents. We therefore conclude that the superior court
harmfully erred in excluding the grandparents from participating in the
foster parents' adoption hearing. For this reason, the decree
of adoption must be vacated. Upon remand, the grandparents are entitled
to participate as parties in any further hearings to determine whether the
foster parents' adoption petition should be granted.
E. ON REMAND THE COURT SHOULD CONSIDER THE TIME THAT
THE BOYS HAVE SPENT WITH THEIR FOSTER PARENTS.
Finally, the grandparents also
contend that the lengthy period that the boys have spent with the foster
parents should not be considered upon remand because the Division violated
AS 47.10.230(e) by not placing the boys in the grandparents' foster care.
We have previously rejected a similar argument. See
S.N.E. v. R.L.B., 699
P.2d 875 (Alaska 1985); Craig
v. McBride, 639 P.2d
303 (Alaska 1982). Thus, in making such a determination after
remand, the court should consider the length and quality of the time that
the boys have spent with their foster parents.
Therefore, we VACATE the superior court's ruling that AS 25.23.130(a)
is unconstitutional, we VACATE the decree of adoption, and we
REMAND this case for further proceedings in accordance with this