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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. In the Matter of the Adoption of A.F.M. v. D.M. (1/5/01) sp-5355

In the Matter of the Adoption of A.F.M. v. D.M. (1/5/01) sp-5355

     Notice:  This opinion is subject to 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, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA


IN THE MATTER OF THE          )
ADOPTION OF A.F.M.            )    Supreme Court No. S-9308
                              )
B.F.,                         )    Superior Court No.
                              )    3AN-96-122 P/A 
               Appellant,     )
                              )    
          v.                  )    O P I N I O N  
                              )
D.M.,                         )    [No. 5355 - January 5, 2001]
                              )
               Appellee.      )   
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.


          Appearances: Ernest M. Schlereth, Anchorage,
for Appellant.  Elizabeth Page Kennedy, Anchorage, for Appellee.


          Before: Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.


          BRYNER, Justice.


I.   INTRODUCTION
          The superior court allowed David Muntz to adopt his
wife's daughter, A.F.M., without the consent of A.F.M.'s biological
father, Bruce Farley.  In granting the adoption, the court relied
on AS 25.23.180, which authorized it to dispense with Farley's
consent if A.F.M.'s conception resulted from a sexual assault.  We
affirm this ruling, concluding: (1) substantial evidence supports
the finding that A.F.M.'s conception resulted from a sexual assault
by Farley; (2) AS 25.23.180 did not require a conviction of sexual
assault as a prerequisite to waiving Farley's consent; (3)
terminating Farley's paternal rights in the adoption proceeding did
not trigger the constitutional guarantees that attach to a criminal
prosecution; and (4) collateral estoppel did not bar the court from
deciding whether A.F.M. was conceived as a result of Farley's
sexual assault, since that issue had not been properly raised or
litigated before. 
II.  FACTS AND PROCEEDINGS
          The underlying facts are largely undisputed and can be
summarized briefly. [Fn. 1]  Laura and David Muntz [Fn. 2] married
in 1966 and divorced in 1990.  After divorcing, Laura became
involved in a brief relationship with Bruce Farley and became
pregnant.  She gave birth to a daughter, A.F.M., in Washington in
November 1992.  In a 1993 paternity action, a Washington court
found Farley to be A.F.M.'s father, ordered him to pay child
support, and granted limited visitation. [Fn. 3]
          Meanwhile, Laura had reunited with David; she remarried
him in December 1994 and moved to Alaska with A.F.M. in 1995.  The
following year David petitioned for adoption of A.F.M. in the
superior court in Anchorage.  In support of his petition, David
contended that Farley's consent to the adoption was unnecessary for
two reasons: because Farley had failed to pay child support for
more than a year and because A.F.M.'s conception had resulted from
a sexual assault by Farley.  Relying on David's allegation of non-
support, the superior court waived Farley's consent and granted the
adoption.  Farley appealed.  We reversed the superior court's
decision, concluding that the court had miscalculated the period of
Farley's non-support. [Fn. 4]
          On remand, David advanced his alternative ground for
waiving Farley's consent to adoption: his claim that A.F.M.'s
conception resulted from a sexual assault by Farley.  In response,
Farley claimed that David was collaterally estopped from raising
this issue by the Washington court's express finding, during the
prior paternity action, that Farley had not sexually assaulted
Laura.  The superior court rejected Farley's claim of estoppel,
however, reasoning that the question of whether A.F.M. had been
conceived as a result of sexual assault was not necessary to the
Washington court's decision.  After hearing Farley's live testimony
and Laura's video-taped deposition, [Fn. 5] the superior court
found that A.F.M. was conceived by sexual assault; on that basis,
the court terminated Farley's parental rights, waived his consent,
and granted David's petition to adopt A.F.M.
          Farley appeals.
III. DISCUSSION
     A.   Standard of Review
          We will overturn a "trial court's resolution of child
custody issues 'only if there has been an abuse of discretion or if
the controlling findings of fact are clearly erroneous.'" [Fn. 6] 
We review issues of statutory and constitutional interpretation de
novo, [Fn. 7] and likewise apply our independent judgment to
determine if collateral estoppel applies to a particular set of
facts. [Fn. 8]  
     B.   The Superior Court Did Not Err as a Matter of Fact or Law
in Dispensing with Farley's Consent to Adoption.
          Under Alaska law, a parent must ordinarily consent to
adoption. [Fn. 9]  But consent is not required if the parent's
relationship with the child has been terminated by court order in
an adoption or child in need of aid proceeding. [Fn. 10]  Alaska
Statute 25.23.180(c)(3) expressly authorizes a court to terminate
a biological father's parental rights in an adoption proceeding if
it finds that his child's conception resulted from an act of sexual
assault and that termination is in the child's best interests: 
               (c) The relationship of parent and child
may be terminated by a court order issued in connection with a[n]
[adoption] proceeding under this chapter or a [child in need of
aid] proceeding under AS 47.10 on the grounds

               . . . .

               (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.

A finding under this provision must be made by clear and convincing
evidence [Fn. 11] and, when made, allows the court to dispense with
the father's consent to adoption. [Fn. 12]  
          In the present case, Farley contends that the superior
court erred as a matter of fact and law in relying on this
provision as a basis for allowing A.F.M. to be adopted without his
consent.
          1.   The court did not err as a matter of fact in
finding sufficient evidence to establish that A.F.M.'s conception
resulted from a sexual assault by Farley.
     
          Farley contends that there was insufficient evidence for
the court to conclude that A.F.M. was conceived as a result of a
sexual assault by Farley.  He insists that evidence of sexual
assault was "shaky" and that, even if a sexual assault occurred,
there was insufficient basis to find that it resulted in A.F.M.'s
conception.  
          But these arguments are unpersuasive.  When we review a
trial court's factual findings, we consider only whether the
findings were clearly erroneous. [Fn. 13]  Moreover, we give
particular deference to those findings when, as here, "most of the
trial evidence consists of oral testimony"; [Fn. 14] for we
recognize that in such cases, "[i]t is the function of the trial
court, not of this court, to judge witnesses' credibility and to
weigh conflicting evidence." [Fn. 15]    
          Because A.F.M. was conceived in the State of Washington,
AS 25.23.180(c)(3) required the superior court to determine whether
an act of sexual assault occurred under Washington law -- "the
state where the act occurred." [Fn. 16]  Under Washington law, rape
in the third degree occurs when a person engages in sexual
intercourse with another person who is not a spouse and who has
clearly expressed the lack of consent. [Fn. 17]  Here, the evidence
supports a finding that A.F.M.'s conception resulted from Farley's
commission of third-degree rape. 
          The evidence presented to the superior court on this
issue included a transcript of testimony in the January 1994
Washington custody proceedings, a December 1995 affidavit that
Laura submitted in support of David's adoption petition, and
testimony that she gave in a May 1996 video deposition.  Laura's
Washington testimony described an on-and-off again relationship
with Farley that was punctuated by bouts of violence, followed by
Farley crying and Laura forgiving him.  Laura testified that she
had not wanted to get pregnant but that Farley had repeatedly
forced her to have sex with him after she tried to break off their
relationship in January 1992.  According to Laura, Farley would
"back me into a corner or back me on down to the bed and, if he
wanted sex, and hold me down."  Eventually, a month before A.F.M.'s
birth, Laura obtained an anti-harassment order against Farley.  
          Laura's December 1995 affidavit described the act of rape
that allegedly resulted in her daughter's conception:
          5.  In February of 1992, Mr. [Farley] came to
my door, and when I opened it, he pushed open the door.  He
cornered me and took off my clothes, and then pushed me into the
bedroom.

          6.  I kept insisting to him that I did not
want to have sex with him but he persisted, forcing me.  I had told
Mr. [Farley] several times that I had a serious medical condition
which might result in my death or the death of a child if I became
pregnant.  When I had my last child I had internal tearing which
required reconstructive surgery.  Mr. [Farley] used a condom during
his forcible sex with me.

          7.  After that night I told him again I did
          not want to see Mr. [Farley].  I did not
report him to the police because I did not want to get him in
trouble.

          8.  I found out I was pregnant, and confronted
Mr. [Farley], who told me that he had poked holes in the condom he
used in order to get me pregnant and force me to marry him.

          9.  When I was pregnant, I became very ill.  I
was unable to get to the courthouse, but finally, in the eighth
month I got a restraining order preventing Mr. [Farley] from
contacting me.
          Laura described this assault again in her 1996
deposition, [Fn. 18] but said that Farley had not used a condom. 
Laura also testified in her deposition that she learned of her
pregnancy "probably about a month and a half later." [Fn. 19]
          Farley provided a very different version of events.  He
denied that he had ever sexually assaulted Laura and insisted that
in January 1992 Laura was "willing and wanting to get pregnant."
          After considering the evidence, the superior court
accepted Laura's version of events, finding that Farley had
sexually assaulted Laura and that A.F.M.'s conception had resulted
from his commission of this offense:
          I find that based on the testimony of the late
mother of this child, I find her believable, credible.  And I find
the testimony of Mr. [Farley] to be incredible and I find him to
not be telling the truth on these issues.
          Farley vigorously disputes this finding.  Pointing to
various discrepancies in Laura's account of their relationship, he
insists that her version of events "should have left the trier of
fact with a reasonable doubt as to whether the particular incident
resulting in conception, was indeed a rape."  But Farley fails to
recognize that his own testimony gave the trial court ample basis
for disbelief.  While insisting that his relations with Laura had
always been consensual and that she had wanted to become pregnant,
Farley acknowledged that he had used condoms when having sex with
Laura and had "pinched" one of those condoms.  He conceded that
Laura had not agreed to marry him.  He admitted knowing that, even
before becoming pregnant, Laura was trying to reunite with David.
And he offered an implausible account of his separation from Laura:
according to Farley, after Laura got pregnant "she just stopped
seeing me.  She just said it's done, it's over with and went
running back to [David Muntz]."
          Farley also emphasizes that Laura acknowledged having
consensual relations with him on a number of occasions.  Pointing
to the conclusory and uncorroborated nature of Laura's assertion
that she became pregnant as a result of an incident of sexual
assault, rather than an incident involving consensual sex, he
criticizes her for failing to explain "how she knew this."  But in
advancing this argument, Farley overlooks that he failed to ask
Laura for an explanation, that Laura's testimony on this point was
unequivocal, and that it stands uncontradicted except by his own
conflicting assertions.  
          Our review of the record convinces us that the superior
court was not clearly erroneous in finding that A.F.M.'s conception
resulted from a sexual assault by Farley.
          2.   The court correctly determined as a matter of law
that AS 25.23.180(c)(3) does not require a prior sexual assault
conviction. 

          Farley argues that even if the evidence supported a
factual finding that A.F.M.'s conception resulted from a sexual
assault, the superior court erred as a matter of law by dispensing
with his consent on this basis.  Specifically, Farley contends that
AS 25.23.180(c)(3) must be construed to dispense with parental
consent to adoption based on sexual assault only when a parent has
been formally convicted of the offense.  
          This contention cuts against the grain of
AS 25.23.180(c)(3)'s plain language, which does not require a
conviction for sexual assault.  The statute permits the court to
terminate parental rights and waive consent to adoption if 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." [Fn. 20]  
          Alaska does not follow the plain meaning rule of
statutory interpretation, applying, instead, a sliding scale
approach that allows us to depart even from plainly worded
statutory language if its history convincingly shows a legislative
intent to adopt a different meaning. [Fn. 21]  But the legislative
history of AS 25.23.180(c)(3) establishes that the legislature
intended to adopt the statute's plain meaning.  The statute was
enacted in 1987 in response to this court's decision in S.J. v.
L.T. [Fn. 22]  S.J. began sexually abusing his stepdaughter when
she was eight years old, fathered a child by her when she was
fifteen, and was convicted of sexually abusing her for an incident
that occurred two years later. [Fn. 23]  In a custody action
between S.J. and his stepdaughter, the superior court terminated
S.J.'s parental rights, concluding that the termination was
warranted on public policy grounds because S.J. had "father[ed] a
child by means of a criminal relationship." [Fn. 24]  
          In reversing this termination order, we ruled that 
"[i]nvoluntary termination of parental rights may not be
accomplished absent some statutorily mandated procedure." [Fn. 25] 
But we expressly invited the legislature to "consider issues such
as those raised in this case in order to provide courts with
necessary guidance in resolving sensitive questions." [Fn. 26]  
          The legislature answered this invitation the following
year by enacting the current version AS 25.23.180(c)(3). [Fn. 27] 
Since the legislature acted specifically to cover the situation of
S.J., whose sexual assault conviction was not for the assault that
resulted in the birth of his child, [Fn. 28] it seems obvious that
the legislature did not intend the provision to require a formal
conviction for sexual assault as a prerequisite to a finding of
conception by sexual assault. [Fn. 29]
          Despite this apparent unity of plain meaning and
legislative intent, Farley maintains that AS 25.23.180(c)(3) would
be unconstitutional if it permitted parental rights to be
terminated based on a finding of sexual assault in the absence of
a formal conviction.  Emphasizing that "statutes should be
construed where possible to avoid unconstitutionality," [Fn. 30] he
urges us to avoid an unconstitutional result by interpreting the
statute to require a criminal conviction.  As we explain below in
Part III.C., however, Farley's constitutional argument lacks merit. 
Accordingly, it provides no occasion to alter AS 25.23.180's plain
meaning.  Given the plain meaning of the statute and its
legislative history, we conclude that the superior court properly
interpreted AS 25.23.180(c)(3) as not requiring a prior conviction. 
     C.   Alaska Statute 25.23.180 Is Constitutional.
          Farley next argues that AS 25.23.180 violates the due
process and equal protection clauses of the state and federal
constitutions. [Fn. 31]  Relying on Baker v. City of Fairbanks,
where we held that criminal prosecutions "include offenses which,
even if incarceration is not a possible punishment, connote
criminal conduct in the traditional sense of the term," [Fn. 32]
Farley reasons that AS 25.23.180 amounts to a criminal provision. 
He emphasizes that the statute "requires the trial court to render
a judgment against the non-custodial birth parent . . . that that
parent is guilty of a heinous criminal act, and prescribes a
punishment far greater than any prison term; namely the loss of
one's child."  Farley thus proposes that "[t]he facts of this case
call for the same constitutional protection[s]" that apply in
criminal proceedings, namely, the right to a jury trial and the
requirement of proof beyond a reasonable doubt. 
          But this reasoning is faulty for several reasons. 
Because adoption hearings are not proceedings brought by the state
to punish offenders for acts of misconduct, an adoption order that
terminates parental rights under AS 25.23.180 does not,
realistically speaking, amount to an "offense"; neither does it
"connote criminal conduct in the traditional sense of the term."
[Fn. 33]  And since adoption proceedings are confidential, a father
whose parental rights are terminated faces neither the "moral
opprobrium" [Fn. 34] that normally accompanies a sexual assault
conviction nor the "collateral consequences of a formally
'criminal' conviction -- i.e., the stigma of being labeled a
'criminal.'" [Fn. 35] 
          As we recently observed, "punishment for past misconduct"
is the "implicit sine qua non of a 'criminal prosecution.'" [Fn.
36]  Yet even when questions of conception by sexual assault arise
under AS 25.23.180(c)(3), punitive purpose plays no role in
adoption proceedings.  The purpose of A.F.M.'s adoption hearing was
not to punish Farley for his past misconduct; it was to determine
A.F.M.'s future custody in accordance with her best interests. 
Thus, in the analogous procedural setting of an appeal arising from
child-in-need-of-aid adjudication, we have refused to characterize
termination of parental rights as a criminal proceeding, relying on
the termination's non-punitive purpose. [Fn. 37]  Despite the
state's participation as the prosecuting party in such cases, we
have reasoned that a termination order is non-criminal because "the
parent is neither charged with criminal behavior nor subject to
incarceration as a direct consequence of the proceeding." [Fn. 38] 
          Farley attempts to distinguish his case from a
termination occurring in a CINA proceeding.  He argues that under
AS 25.23.180(c)(3), "the birth father is charged with very serious
criminal behavior," that "the court is called upon to . . . [make]
a determination that he is guilty," and that "[t]he direct result
of such a judgment is the loss of the cherished constitutional
right to bear and raise children."  This argument is unpersuasive.
          The "right to direct the upbringing of one's child" is
undeniably "one of the most basic of all civil liberties." [Fn. 39] 
As we noted in extending the right to court-appointed counsel to a
biological parent who faced termination of parental rights in an
adoption proceeding, "loss of custody is often recognized as
'punishment more severe than many criminal sanctions.'" [Fn. 40] 
But neither the fundamental nature of the rights at stake nor the
criminal nature of the conduct that place those rights in jeopardy
alters an adoption proceeding's essentially non-punitive purpose. 
And because the proceeding's basic purpose remains unchanged, a
claim of conception by sexual assault does not convert the adoption
into a criminal trial.  
          Admittedly, an order terminating parental rights in such
a case is, in Farley's words, a "direct result" of the father's
sexual misconduct.  Yet the termination is not an automatic
consequence of the misconduct, and, more importantly, the father's
rights are not the only rights at issue.  By asserting his parental
right to resist A.F.M.'s adoption, Farley necessarily implicated
the equally vital rights of A.F.M. and her mother. [Fn. 41]  Alaska
Statute 25.23.180(c)(3) implicitly recognizes the need to balance
these competing rights by authorizing termination only upon a
finding that sexual assault "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." [Fn. 42]  
          Thus, while Farley's sexual assault of Laura was
unquestionably important, it by no means was the only, or even the
determining, factor in the court's decision to terminate his
rights.  Because AS 25.23.180(c)(3) required the court to evaluate
Farley's sexual assault in relation to A.F.M.'s best interests, the
statute gave his illegal actions significance not as past conduct
that deserved punitive sanction, but as a present circumstance that
promised lasting damage to A.F.M.'s ability to form a healthy bond
with Farley.  In so doing, the statute simply recognized the
practical reality that "[i]t is not the brute biological fact of
parentage, but the existence of an actual or potential relationship
that society recognizes as worthy of respect and protection, that
activates the constitutional claim." [Fn. 43] 
          In short, because proceedings under AS 25.23.180(c)(3)
serve important non-punitive ends, we uphold the statute's
constitutionality as a non-criminal measure. [Fn. 44]
     D.   Collateral Estoppel Did Not Bar Reliance on AS 25.23.180.

          Farley's last contention is that the doctrine of
collateral estoppel barred the court from considering whether
A.F.M. was conceived by rape.  This argument calls for a brief
explanation.        
          When Farley filed the Washington action to establish that
he had fathered A.F.M., Laura resisted his request for visitation
and custody by contending that Farley had a manipulative and
abusive personality, and that he had selfishly duped her into
becoming pregnant.  Laura further asserted that visitation would be
detrimental to A.F.M.  The record in this case does not demonstrate
that Laura's pleadings in Washington claimed that she had been
sexually assaulted by Farley or that she asked the court to deny
visitation for this reason.  The Washington transcript contained in
the record makes clear that Laura did not report any incidents of
sexual assault to the guardian ad litem.  
          The first mention of sexual assault in the Washington
proceedings evidently occurred when Laura testified before a court
commissioner at the custody hearing.  During her testimony, in
describing Farley's manipulative behavior, Laura disclosed that at
times he had physically coerced her into having sexual relations: 
          I felt threatened. . . .  [W]hat he would do,
instead of hitting, he's so big, that he would prevent me from
moving.  He would put his body in front of mine and back me into a
corner or back me on down to the bed and, if he wanted sex, and
hold me down.

          It was Farley's attorney who, while cross-examining
Laura, first labeled this allegation "rape":
          To be perfectly honest, I'm stunned hearing
you say that Mr. [Farley] was very, very violent, very threatening,
he intimidated you, he raped you by holding you down, pushing you
down.  When did all this start?

Laura testified that she and Farley had an on-and-off again
relationship:  "When he forced me it was rape.  When I consented I
don't feel it was rape." 
          In closing argument to the Washington court, Laura's
attorney never mentioned rape.  Neither did Farley's attorney, who
argued that "conception was not the issue in [the Washington]
case."  Nevertheless, in addressing Laura's request to prohibit all
contact between Farley and A.F.M., the court commissioner addressed
the issue of rape, commenting, "We don't have a rape here.  You
know, we really don't.  We might have a different situation
altogether if we did."  Although the commissioner found Farley's
manipulative conduct deplorable and selfish, the commissioner
declined to bar Farley from seeing his daughter altogether.
          When David later raised the issue of A.F.M.'s conception
by sexual assault in the Alaska adoption proceeding, Farley
responded by moving for summary judgment on the ground of
collateral estoppel, asserting that the issue had been fully
litigated in Washington and was decided in Farley's favor.  The
superior court rejected this assertion, describing the Washington
court's references to the absence of rape as "musings."  The
superior court further concluded that the question of A.F.M.'s
conception by sexual assault "was not litigated and judgment did
not issue on the question" in the Washington case.  Accordingly,
the court denied Farley's summary judgment motion.
          We agree that Farley's reliance on collateral estoppel
must fail because the question of sexual assault was not actually
litigated in the Washington proceeding.  Restatement (Second) of
Judgments sec. 27 requires an issue to be "actually litigated"
before
a ruling on it becomes conclusive in subsequent actions:
          When an issue of fact or law is actually
litigated and determined by a valid and final judgment, and the
determination is essential to the judgment, the determination is
conclusive in a subsequent action between the parties, whether on
the same or a different claim.[ [Fn. 45]]
Our cases have adopted this Restatement standard:  "The doctrine of
collateral estoppel 'bars relitigation, even in an action on a
different claim, of all issues of fact or law that were actually
litigated and necessarily decided in [a] prior proceeding.'" [Fn.
46]  And in applying the standard, we have said that an issue is
"actually litigated" when it "is properly raised by the pleadings
or otherwise, is submitted for determination, and is determined."
[Fn. 47]
          As is apparent from our summary of the Washington
proceedings, the issue of sexual assault was not "actually
litigated" in this sense.  While the issue undeniably cropped up in
Laura's Washington testimony and was decided by the commissioner,
the parties never "properly raised" it, "by the pleadings or
otherwise"; nor did they "submit[] [it] for determination." 
Because the issue was not "actually litigated," the Washington
court's finding on sexual assault did not preclude David from
litigating the issue in the Alaska adoption proceeding. 
IV.  CONCLUSION
          The superior court properly construed and applied
AS 25.23.180(c)(3); the evidence supports the court's findings
under this statute; the statute is not unconstitutional; and the
court's findings are not barred by collateral estoppel.  For these
reasons, we AFFIRM the decree of adoption.


                            FOOTNOTES


Footnote 1:

     We covered the facts in greater detail in In re Adoption of
A.F.M., 960 P.2d 602, 603-04 (Alaska 1998).


Footnote 2:

     We use the same pseudonyms here that we used in In re Adoption
of A.F.M., 960 P.2d at 602.


Footnote 3:

     See id. at 603.


Footnote 4:

     See id. at 603-04.


Footnote 5:

     Laura died of cancer in August 1996, several months after the
adoption proceeding was filed.


Footnote 6:

     Todd v. Todd, 989 P.2d 141, 142-43 (Alaska 1999) (quoting J.W.
v. R.J., 951 P.2d 1206, 1209 (Alaska 1998)). 


Footnote 7:

     See Turney v. State, 936 P.2d 533, 538 (Alaska 1997).


Footnote 8:

     See Wilson v. Municipality of Anchorage, 977 P.2d 713, 726
(Alaska 1999).


Footnote 9:

     See AS 25.23.040(a)(1) and (2). 


Footnote 10:

     See AS 25.23.050(a)(5).


Footnote 11:

     Adoption Rule 11(f); cf. D.L.J. v. W.D.R., 635 P.2d 834, 838
(Alaska 1981) (applying clear and convincing standard to finding
that natural parent's consent to adoption proceeding was not
required because the parent failed to communicate with or support
child); In re Adoption of K.S., 543 P.2d 1191, 1195 (Alaska 1975)
(upholding trial court's application of clear and convincing
standard of proof to finding that natural mother was unfit and that
her consent to adoption was not required).


Footnote 12:

     AS 25.23.180(d)(1) provides:

               (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[.]


Footnote 13:

     See Todd v. Todd, 989 P.2d 141, 142-43 (Alaska 1999). 


Footnote 14:

     Silvers v. Silvers, 999 P.2d 786, 792-93 (Alaska 2000) (citing
Martens v. Metzgar, 591 P.2d 541, 544 (Alaska 1979)).


Footnote 15:

     Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999).


Footnote 16:

     AS 25.23.180(c)(3).


Footnote 17:

     RCW 9A.44.060(1)(a) provides:

               (1) A person is guilty of rape in the
third degree when, under circumstances not constituting rape in the
first or second degrees, such person engages in sexual intercourse
with another person, not married to the perpetrator:

               (a) Where the victim did not consent as
defined in RCW 9A.44.010(7), to sexual intercourse with the
perpetrator and such lack of consent was clearly expressed by the
victim's words or conduct[.]


Footnote 18:

     Laura was deposed in May 1996; she died that August.


Footnote 19:

     At the deposition, Laura further testified regarding charges
that Farley had sexually assaulted young girls in his family.  She
said she had contacted Child Protection Services because she
believed Farley had molested A.F.M.


Footnote 20:

     (Emphasis added.)  Under Washington's criminal code a person
commits rape in the second degree by engaging in sexual intercourse
by forcible compulsion.  See RCW 9A.44.050(1)(a).  A person commits
rape in the third degree by engaging in sexual intercourse with a
non-spouse without consent, where that lack of consent is clearly
expressed by words or conduct.  See RCW 9A.44.060(1)(a).


Footnote 21:

     See Romann v. State, Dep't of Transp. & Pub. Facilities, 991
P.2d 186, 190-91 (Alaska 1999).


Footnote 22:

     727 P.2d 789 (Alaska 1986).


Footnote 23:

     See id. at 791-92.


Footnote 24:

     Id. at 792.


Footnote 25:

     Id. at 795.


Footnote 26:

     Id. at 795 n.8.


Footnote 27:

     House committee testimony indicates that the bill was "written
to address one specific case" "involving people in Fairbanks" "in
which there is wide spread agreement about the answer."  Minutes of
House Health, Education and Social Services Standing Committee
hearing on Senate Bill 30 (May 17, 1987).


Footnote 28:

     See S.J., 727 P.2d at 791-92, 795.


Footnote 29:

     This conclusion is bolstered by the testimony of Senator Paul
Fischer, the bill's prime sponsor, who, when asked if the bill
"relates only to termination of parental rights for persons who
have been convicted and incarcerated," responded: "that was not the
intent."  Minutes of Senate Health, Education & Social Services
Committee Hearing on Senate Bill 30 (March 25, 1987).


Footnote 30:

     State v. Guest, 583 P.2d 836, 839 (Alaska 1978) (citations
omitted).


Footnote 31:

     See U.S. Const. amend. V (due process); Alaska Const. art. I,
sec. 7 (due process); U.S. Const. Amend. XIV, sec. I (due process
and
equal protection); and Alaska Const. art. I, sec. 1 (equal
protection).  Farley also cites state and federal constitutional
provisions guaranteeing a speedy and public trial by an impartial
jury in all criminal prosecutions.  See U.S. Const. amend. VI;
Alaska Const. art. I, sec. 11.


Footnote 32:

     Baker v. City of Fairbanks, 471 P.2d 386, 402 (Alaska 1970);
see also R.L.R. v. State, 487 P.2d 27, 33 (Alaska 1971) (extending
Baker to a juvenile delinquency case involving sale of LSD because
of "the moral opprobrium attached" to the offense).


Footnote 33:

     Baker, 471 P.2d at 402.


Footnote 34:

     R.L.R., 487 P.2d at 33.


Footnote 35:

     State, Dep't of Revenue, Child Support Enforcement Div. v.
Beans, 965 P.2d 725, 730 (Alaska 1998).


Footnote 36:

     Id. at 730 n.8.


Footnote 37:

     See In re C.L.T., 597 P.2d 518, 525 (Alaska 1979) (approving
use of clear and convincing standard in proceedings to terminate
parental rights). 


Footnote 38:

     Id.; see also A.A. v. State, Dep't of Family and Youth Servs.,
982 P.2d 256, 260 (Alaska 1999) (affirming termination of parental
rights after father's murder conviction was overturned because
termination was not based on conviction but on extensive history of
assaultive behavior); cf. Nelson v. Jones, 781 P.2d 964, 969-70
(Alaska 1989) (affirming decree of divorce establishing conditional
supervised visitation based on clear and convincing evidence that
father had sexually abused daughter).  We note that other courts
have reached similar conclusions in adoption proceedings.  See,
e.g., In re Shane T., 544 A.2d 1295, 1296-98 (Me. 1988) (rejecting
argument that parent whose rights would be terminated was entitled
to a jury trial); In re Colon, 377 N.W.2d 321, 327-28 (Mich. App.
1985).


Footnote 39:

     Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979); see also 
Troxel v. Granville, 120 S. Ct. 2054, 2060 (2000).


Footnote 40:

     In re K.L.J., 813 P.2d 276, 283 (Alaska 1991).


Footnote 41:

     See, e.g., Minutes of House Health, Education and Social
Services Standing Committee hearing on Senate Bill 30 (May 17,
1987) (testimony, without elaboration, that statute serves
interests of mother and child); see also Mullis v. Kinder, 568
N.E.2d 1087, 1091 (Ind. App. 1991) (noting that statute waiving
father's consent to adoption where the child was conceived as a
result of rape was enacted to protect the victims of sex crimes who
bear children); Christian Child Placement Serv. v. Vestal, 962 P.2d
1261, 1266 (N.M. App. 1998) (recognizing that statute waiving
father's consent to adoption where the child was conceived as a
result of rape or incest is rationally related to the state's
interest in protecting children and preventing their exploitation);
In re Termination of Parental Rights to SueAnn A.M., Ann M.M. v.
Rob S., 500 N.W.2d 649, 653 (Wis. 1993) (noting that purpose of
statute denying father of child conceived as a result of rape
standing to contest termination of parental rights was to "relieve
sexual assault victims from having to face their assailants at
termination proceedings," protect victims, and facilitate
adoptions).


Footnote 42:

     AS 25.23.180(c)(3) (emphasis added).


Footnote 43:

     Pena v. Mattox, 84 F.3d 894, 899 (7th Cir. 1996).


Footnote 44:

     Farley also cites the constitutional privilege against self-
incrimination, U.S. Const., amend. V, Alaska Const. art. I, sec. 9,
and suggests that AS 25.23.180 violates this right by exposing him
to future incarceration "because the evidence elicited and his own
testimony may be used as the basis for the later institution of a
criminal prosecution against him."  But on its face,
AS 25.23.180(c)(3) did not prevent Farley from invoking the
privilege or compel him to testify.  Nor do the circumstances of
Farley's case suggest an actual danger of compulsion.  Cf. 
McCracken v. Corey, 612 P.2d 990, 996 (Alaska 1980); In re P.N.,
533 P.2d 13, 18-20 (Alaska 1975); In re Jessica B., 254 Cal. Rptr.
883, 893 (Cal. App. 1989).  The privilege against
self-incrimination is normally lost if it is not asserted.  See 
Williams v. State, 928 P.2d 600, 605 (Alaska App. 1996).  Farley
simply chose not to assert this right.


Footnote 45:

     Restatement (Second) of Judgments sec. 27 (1982).


Footnote 46:

     Wilson v. Municipality of Anchorage, 977 P.2d 713, 726 (Alaska
1999) (quoting Campion v. State, Dep't of Community & Reg'l
Affairs, 876 P.2d 1096, 1098 (Alaska 1994)).  We ordinarily
recognize that four factors must be met for the doctrine to apply: 

          (1) the party against whom the preclusion is
employed was a party to or in privity with a party to the first
action; (2) the issue precluded from relitigation is identical to
the issue decided in the first action; (3) the issue was resolved
in the first action by a final judgment on the merits; and (4) the
determination of the issue was essential to the final judgment. 

Wilson, 977 P.2d at 726 (citing Jackinsky v. Jackinsky, 894 P.2d
650, 654 (Alaska 1995)).  Factor (3) encompasses the requirement
that an issue actually be litigated.  


Footnote 47:

     Bignell v. Wise Mechanical Contractors, 720 P.2d 490, 494
(Alaska 1986) (citing Restatement (Second) of Judgments sec. 27);
see
also Jackinsky, 894 P.2d at 655 (citing Restatement (Second) of
Judgments sec. 27 cmt. d).