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R.F. v. S.S. and J.S. (12/6/96), 928 P 2d 1194
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, telephone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-7296
) Superior Court No.
) 3AN-94-203 PA
) O P I N I O N
S.S. and J.S., )
) [No. 4442 - December 6, 1996]
In the Matter of the )
Adoption of: )
a minor child. )
S.S. and J.S., )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Larry D. Card, Judge.
Appearances: William T. Ford, Anchorage, for
Appellant. Mary Ellen Ashton, Ashton & Dewey,
Anchorage, for Appellees.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
R.F. appeals the superior court's decision to terminate
his parental rights under AS 25.23.180(c)(2) and waive his consent
to the adoption of his son, R.S. We affirm.
II. FACTS AND PROCEEDINGS
R.S. was born June 22, 1991, in Olympia, Washington. His
mother, B.F., and his father, R.F., were not married or living
together when R.S. was born. B.F.'s parents, S.S. and J.S., helped
her to care for R.S. and her daughter from a previous marriage,
The record suggests that R.F. was violent and assaultive
toward B.F. In May 1992 B.F. petitioned for a protective order
against R.F., claiming that he punched her in the face when she was
pregnant with R.S. In January 1993 B.F. and R.F. married. On June
14, 1993, B.F. again filed for a protective order, alleging that
R.F. had threatened her life and assaulted her and the children.
On July 19, 1993, B.F. was murdered. In November 1993 a
Washington State court convicted R.F. of the murder and sentenced
him to serve a term of sixteen years and eight months with no
parole eligibility. (EN1) R.F. is scheduled to be released from
prison in the year 2010, at which time R.S. will be an adult. At
his sentencing, the court also ordered that R.F. have no contact
with R.S. unless permitted by a future court order.
R.F. appealed both his conviction and the enhanced
sentence he received. On May 1, 1995, the Washington Court of
Appeals affirmed the judgment and sentence of the trial court.
R.F. then filed a motion for a new trial, alleging ineffective
assistance of counsel at his first trial. The King County Superior
Court denied this motion on June 9, 1995. R.F. has filed notice of
appeal of this decision to the Washington Court of Appeals.
R.S. has both physical and emotional problems and will
require significant medical treatment throughout his minority. He
is of low average intelligence and needs remedial teaching due to
neurological and emotional difficulties. R.S. also has hearing
loss and speech delays due to ear damage and attends speech therapy
four to five times a week. R.S. needs stability in his life to
help him to overcome his medical difficulties.
After R.F. was convicted and sentenced for B.F.'s murder,
B.F.'s parents, S.S. and J.S., traveled to Washington and brought
R.S. and N.B. to Anchorage. They filed guardianship cases for the
children in September 1993. When they learned, however, that
J.S.'s retirement benefits from the U.S. Air Force would not
provide medical coverage for the children unless S.S. and J.S.
adopted them, they filed adoption petitions for both children on
February 28, 1994. S.S. and J.S. were granted custody of both
children on March 3, 1994, and N.B.'s adoption was finalized in
April 1994. However, R.F. opposed R.S.'s adoption, alleging that
he had not exhausted his post-conviction remedies and that the
adoption was not in the best interests of the child. S.S. and J.S.
filed a motion to waive R.F.'s consent on August 12, 1994, and a
petition to terminate his parental rights on September 13, 1994.
A trial was held before Superior Court Judge Larry D.
Card on July 10 and 11, 1995. The court reviewed the Washington
trial court's denial of R.F.'s motion for a new trial and found
that "he has . . . a very slight, if any -- a minimal chance of
prevailing on any further appeals and therefore, this court is not
willing to withhold the rights of [S.S. and J.S.] to adopt this
child and for the child to have all the rights associated with
being adopted." Relying on AS 25.23.180(c)(2), which provides for
termination of parental rights "on the grounds that a parent who
does not have custody is unreasonably withholding consent to
adoption, contrary to the best interests of the child,"the trial
court made the following findings:
15. The evidence is clear and convincing that
[R.F.] does not have custody of [R.S.] and
will be incarcerated until [R.S.] is an adult.
16. The evidence is clear and convincing that
it is in the child's best interest to be
adopted by [S.S. and J.S.].
17. The evidence is clear and convincing that
[R.F.'s] withholding of his consent to the . .
. adoption is unreasonable in these
Based upon these findings, the court terminated R.F.'s parental
rights to R.S.
As an alternative ground for waiving R.F.'s consent to
the adoption, the trial court found that R.F. had constructively
abandoned R.S. by murdering R.S.'s mother. Alaska Statute
25.23.050(a)(1) provides that consent to adoption is not required
of a parent who has abandoned a child for a period of at least six
months. The court reasoned that R.F.'s willful act deprived R.S.
of his mother and made any meaningful relationship with his father
during his minority impossible. The court also noted that despite
his many criminal appeals supported by a $75,000 legal defense
fund, R.F. had neither paid child support nor petitioned the court
to be allowed contact with R.S. The trial court terminated R.F.'s
parental rights and granted the petition of S.S. and J.S. to adopt.
This appeal followed.
III. DISCUSSION (EN2)
The Superior Court Relied on AS 25.23.180(c)(2) to Terminate
R.F.'s Parental Rights.
Alaska Statute 25.23.180(c)(2) provides:
(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:
. . . .
(2) on the grounds that a parent who
does not have custody is unreasonably
withholding consent to adoption, contrary to
the best interest of the minor child . . . .
R.F. disputes the superior court's finding that he did not have
custody of R.S. at the time he withheld consent to the adoption
petition. He contends that as R.S.'s natural father he was
automatically entitled to custody of R.S. upon his wife's death in
July 1993. He claims that he retained custody of R.S. until the
superior court terminated his parental rights and granted the
petition for adoption of R.S. in July 1995. R.F. concludes that
because he had legal custody of R.S. when he withheld consent to
the adoption petition in April 1994, the superior court erred in
terminating his parental rights under AS 25.23.180(c)(2).
The term "custody"does not have a fixed legal meaning.
Delgado v. Fawcett, 515 P.2d 710, 712 (Alaska 1973). "'Custody'
pertains not only to the parental control of the child, but is
inseparably linked to the parent's rights of access and
companionship with his offspring." Id. at 713. Custody embraces
the sum of parental rights respecting the rearing of the child,
including its care, the right to direct the child's activities, and
to make decisions concerning the education, health, and religion of
the child. Homer H. Clark, Jr., The Law of Domestic Relations in
the United States 20.2, at 481 (2d ed. 1987).
The trial court found that R.S.'s grandparents, S.S. and
J.S., have had physical custody of R.S. since the murder of his
mother in July 1993. They have cared for him and made all of the
significant decisions affecting his life. The trial court further
found that on March 3, 1994, S.S. and J.S. were granted custody
pending adoption of R.S. The superior court's determination that
R.F. was "a parent who does not have custody"under AS
25.23.180(c)(2) was not clearly erroneous.
R.F. also argues that he has not unreasonably withheld
his consent to the adoption. R.F. maintains that he is innocent of
B.F.'s murder and was convicted only because he received inadequate
representation during his trial. Despite the fact that R.F.'s
conviction and sentence have been upheld by the Washington Court of
Appeals, and his subsequent motion for a new trial has been denied
by the trial court, he contends that his refusal to consent to the
adoption of his son is not unreasonable. He argues that the court
should not consider terminating his parental rights until after the
Washington Court of Appeals decides his appeal of the denial of his
motion for a new trial. However, R.F. also raises the possibility
of appealing the denial of his motion for a new trial to the
Washington Supreme Court.
In determining whether termination of parental rights and
waiver of consent to adoption are proper, the best interests of the
child are paramount. The Alaska adoption statute states that it
"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." AS
25.23.005. Alaska Statute 25.23.180(c)(2) permits termination of
parental rights if a parent who does not have custody unreasonably
withholds consent to the adoption of his child "contrary to the
best interests of the child."
Although we have not previously addressed the issue,
other courts have held that where one parent kills another, the
best interests of the child outweigh the parent's right to prevent
adoption after the parent's conviction has been affirmed in a merit
appeal. See, e.g., In re Abdullah, 423 N.E.2d 915, 919 (Ill.
1981); In re C.M.J., 663 N.E.2d 498, 503 (Ill. App. 1996).
In In re Abdullah, the Illinois Supreme Court upheld the
termination of appellant's parental rights for "depravity"after
his conviction for murdering his child's mother had been affirmed
on one appeal. 423 N.E.2d at 920. In that case, the appellant
contended that the court should not rely on his conviction for
murdering his wife as evidence in terminating his parental rights
because the conviction might be overturned on appeal. Id. at 919.
However, the appellant's conviction had been affirmed by the
Appellate Court of Illinois and his petition for appeal to the
Illinois Supreme Court had been denied. The Illinois Supreme Court
acknowledged the "dangers of relying on a conviction that is not
yet final"but reasoned that "the interests of finality and
judicial economy require that at some point a line must be drawn,
after which it is proper to use the conviction." Id. The court
held that the most important consideration was the child and that
further delay in the disposition of the case was not in the child's
best interest. Id. at 920.
In a similar case, the Appellate Court of Illinois
reasoned that although the appellant had exhausted only the first
level of the appellate process, the likelihood that his conviction
would be reversed was slight. In re Marriage of T.H., 626 N.E.2d
403, 411 (Ill. App. 1993), cert. denied, 115 S. Ct. 269 (1994).
Based upon the appellant's slim chance of prevailing, the court in
T.H. reasoned that the best interests of the child required a
termination of the father's parental rights prior to exhaustion of
his post-conviction appeals. Id. at 411.
The trial court found that R.S. has serious medical needs
that can be fully addressed only if he has both the support and
stability of a permanent family. The court relied on the opinion
of Dr. Henderson-Dixon, a clinical psychologist who examined R.S.,
that "[a]nything that can be done to facilitate [R.S.'s] stability
and feelings of security should be expedited. This would seem to
include his adoption by his maternal grandparents." The court was
also aware that his grandparents could provide the significant
medical care that R.S. will need throughout his minority. To
postpone R.S.'s opportunity to improve his condition is clearly not
in his interest.
R.F.'s conviction and sentence have been affirmed by the
Washington Court of Appeals. His motion for a new trial has been
denied by the Washington trial court. The Alaska superior court
found that R.F. has only a slight chance of prevailing on any
further appeals. To leave a child in limbo during his formative
years based upon the slim chance that R.F. may prevail on one of
his many possible post-conviction relief measures contravenes the
primary purpose of Alaska's adoption statute: to advance the best
interests of the child. AS 25.23.005.
Based upon the evidence presented at trial, the trial
court concluded that the benefit to R.S. of adoption by his
grandparents, S.S. and J.S., strongly outweighed R.F.'s interest in
waiting until after further post-conviction appeals have been
heard. We hold that the trial court did not err in finding that
R.F.'s refusal to consent to the adoption was unreasonable and
contrary to R.S.'s best interests. (EN3) Termination of R.F.'s
parental rights dispenses with the requirement that he consent to
R.S.'s adoption. AS 25.23.180(d)(1).
We AFFIRM the superior court's decision to terminate
R.F.'s parental rights on the ground that he unreasonably withheld
consent to the adoption and the court's waiver of his consent to
1. R.F. received an enhanced sentence for his conviction of
second degree murder, based on the aggravating factor of "impact to
others." In this regard, the superior court entered the following
written findings and conclusions:
At the time [B.F.] was killed, her 7-year old
daughter [N.B.] was present and watched as her
mother was beaten to death. The defendant
knew his daughter was present in the house at
the time because he was caring for her at the
time. [N.B.] is still traumatized by this
event to a great extent.
The fact that [N.B.] was present at the house
and watched as her mother was beat [sic] to
death is sufficient justification for a
sentence outside the standard range. The
crime was of a destructive nature not normally
associated with the crime of murder 2. The
impact of this crime on [N.B.] and [R.S.] was
foreseeable to the defendant.
2. We review the trial court's underlying factual findings and
decision to terminate parental rights under the "clearly erroneous"
standard and reverse only if "left with the definite and firm
conviction that a mistake has been made." E.J.S. v. State, Dept.
of Health & Social Servs., 754 P.2d 749, 750 n.2 (Alaska 1988)
(quoting E.A. v. State, 623 P.2d 1210, 1212 (Alaska 1981)).
3. Based on our resolution of this issue, we need not reach the
issue of constructive abandonment.