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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Adoption of Keith M.W. (10/31/2003) sp-5748

In the Matter of the Adoption of Keith M.W. (10/31/2003) sp-5748

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA
                                

In the Matter of the Adoption of:  )
                              )    Supreme Court No. S-10489
KEITH M. W.                   )
________________________________)  Superior Court No.
                              )    3AN-00-1136 P/A
NATIVE VILLAGE OF             )
NAPAIMUTE TRADITIONAL         )    O P I N I O N
COUNCIL,                      )
                              )    [No. 5748 - October 31, 2003]
              Appellant,      )
                              )
     v.                       )
                              )
TERENCE W. and LUCY W.,       )
                              )
              Appellees.      )
________________________________)



          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:   Scott  Jay  Sidell  and  Patty
          Nieves,   Association  of   Village   Council
          Presidents, Bethel, for Appellant.  Andrew C.
          Mitton  and Robert B. Flint, Hartig,  Rhodes,
          Hoge & Lekisch, PC, Anchorage, for Appellees.
          Michael   G.  Hotchkin,  Assistant   Attorney
          General,  Anchorage,  and  Gregg  D.  Renkes,
          Attorney  General, Juneau, for Amicus  Curiae
          State of Alaska.

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

          FABE, Chief Justice.
          MATTHEWS, Justice, concurring.


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.1

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."

           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  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.2

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.3  The act is
intended "to protect the best interests of Indian children and to
promote the stability and security of Indian tribes and
families."4  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."5
           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,6

  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  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."7

           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."8  ICWA does not define good

cause,  however, leaving it to the states to determine when  good

cause  exists to deviate from the ICWA preferences.9  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.10 Although the guidelines are only persuasive and are

neither exclusive nor binding, "this court has looked to them for

guidance."11    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.12

Accordingly,  we  have  held that courts  may  consider  parental

preference  when  determining whether  there  is  good  cause  to

deviate from ICWA preferences.13

           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."14  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.

     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."15  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

occur "in or before an adoption proceeding."16  It "obviously  is

permissible  in some cases" for relinquishments to occur  in  the

absence  of pending adoption cases.17  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."18

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,19 and  there

is  no provision allowing a parent to withdraw the relinquishment

after those deadlines if certain conditions have not been met.

          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."20

           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.21   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."22  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."23

            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.24   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.25  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."26 The court  held  that  it  was

apparent  from the petition and the testimony "that  the  parents

were attempting a `partial' or `conditional relinquishment.'  "27

The  court found that such a conditional relinquishment  was  not

authorized by the Colorado relinquishment statute which, like the

Alaska  Statute, mandated that "relinquishment shall  divest  the

relinquishing  parent  or  parents  of  all  legal   rights   and

obligations."28

           The  concurrence argues that Alaska case law "reflects

the  use  of  conditional relinquishments."29   Specifically  the

concurrence refers to two cases, In re Adoption of F.H.30 and  In

re  J.L.F.31  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.32  F.H.'s tribe requested that

the court not deviate from the ICWA placement preferences.33   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.34   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.35   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.36  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."37  J.L.F., then, does not directly support the proposition

that conditional relinquishments are permissible in Alaska.38

           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."39  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."40  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."41   Because  Andrea placed  Keith  directly  with  the

Wilsons,  her  parental consent was needed and her relinquishment

was improper.42

           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."43   A

parent  may  consent  to adoption by specific  adoptive  parents,

whose  identities  may  or  may not be known  to  the  biological

parents.44   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."45

          While Andrea signed a document purporting to relinquish

her  parental  rights on condition that the Wilsons  successfully

adopt  Keith,46 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.47  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.48  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.49  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.50  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.51  Unpersuaded by this argument, we stated  that

"we  think  it abundantly clear that S.O. did in fact  intend  to

consent to her son's adoption.  That the document purports to  be

a  relinquishment is not controlling."52  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.

          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."53  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.

           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."54   Permitting

circumvention of these protections by pre-adoption relinquishment

in private party adoption cases would eliminate these protections

of  parental  rights.55  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.

          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.,56

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.

           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  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."57  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."58  And although a pivotal factor in this  case,  it

was not the only factor that the superior court took into account

in   its  finding  of  good  cause  to  deviate  from  the   ICWA

preferences.

           After  the  tribe's intervention into  the  case,  the

superior court supplemented its findings of good cause by relying

on  factors  other than the mother's preference.  These  included

the  open  nature  of  the adoption.  As we recognized  in  F.H.,

reliance  on an adoption structure that will "ensure  access"  by

the  biological parent to the child is "a proper factor  for  the

superior  court  to  consider."59  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."60

           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."61

           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.

           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.62

(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.   This  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 1971.63  Section .180's counterpart in

the  1969 Uniform Adoption Act is section 19.64  The 1969 Uniform

Act  should not be confused with the very different 1994  Uniform

Adoption Act which Alaska has not adopted.65

            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.66   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."67   The  same  admonition  must  also  apply  to

relinquishments.

           The  damage that can be done to children by disrupting

psychological ties between adoptive parents and children is  well

recognized.   As  we stated in Hernandez v. Lambert,  "[a]doptive

custody  results in the rapid development of lasting and powerful

psychological   ties  between  adoptive  parents  and   children,

especially  young children.  Once formed, these bonds can  seldom

be severed without irreparable damage to the child's well being."68

I.   The Condition Is Irrelevant Because it Will Not Occur.
     
           We know that the condition that the relinquishment may

be  voided  if  the  Wilsons do not adopt Keith  will  not  occur

because  the  superior court has entered a decree of adoption  in

favor  of the Wilsons.  Under this circumstance the condition  is

moot   and   can  properly  be  ignored.   The  natural  mother's

expectations have been satisfied.  There is no need to  speculate

as  to  what a proper judicial response would be if the condition

had occurred, because we know that it will not occur.

          I know of no case that suggests that an adoption should

be  invalidated because it is based on a relinquishment  that  is

subject to an impermissible condition where it is known that  the

condition will not be realized.  To the contrary, in In re J.R.S.

we held that the defeasing condition expressed in AS 25.23.180(g)

(authorizing the withdrawal of a relinquishment with the  consent

of  the person having custody of the child where the child is not

placed  for  adoption)  did  not  destroy  the  finality   of   a

termination  decree for ICWA purposes because the  condition  had

not occurred and the condition was thus "not relevant."69

          This is not a case in which a parent attempts
          to  revoke a relinquishment before her  child
          has    been   placed   for   adoption.     AS
          25.23.180(g),  which provides that  a  decree
          terminating parental rights may be vacated if
          the  child  has not been placed for  adoption
          and  the person having custody agrees to  the
          decree's  vacation,  is  not  relevant  here.
          Nothing     in    the    statute    governing
          relinquishments suggests that the decree  the
          superior court entered was anything less than
          final.[70]
          
The teaching of J.R.S. is that where a condition that could cause

the  avoidance of a relinquishment will not occur, the fact  that

at  the  time of the termination decree the possibility that  the

condition  might occur was still open is not relevant.   Once  we

know that the condition will not occur it may be ignored.

           Such  a rule makes eminent good sense.  No conceivable

purpose is served by vacating an adoption based on a hypothetical

possibility  that we know will not occur.  In such circumstances,

the best response is simply to treat the condition as irrelevant.

Consistent  with the statutory and case law rule of  construction

noted  earlier,  this  is  the response that  promotes  the  best

interests  of  adopted  children and  avoids  the  disruption  of

familial  ties and relationships that have developed as a  result

of an adoptive placement.

II.  Relinquishments  May be Terminable upon  the  Failure  of  a
     Contemplated Adoption.
     
           The point that the condition is irrelevant because  it

will  not occur is, in my opinion, a sufficient response  to  the

majority's   position  that  the  conditional   nature   of   the

relinquishment  would  require the present  adoption  to  be  set

aside.  But I also believe that properly understood the condition

is permissible for the reasons that follow.

           An  opinion of the Massachusetts Supreme Court, In  re

Adoption of a Minor,71 contains a useful analysis of a questioned

condition  in  an  adoption context.  In that  case  the  natural

mother  consented to the adoption of her child  by  the  adoptive

parents  "on  condition that they will give me visitation  rights

. . . ."72  Although the adoptive parents allowed visitation, the

natural mother attempted to withdraw her consent to adoption  and

petitioned  for  return  of the child.  She  contended  that  her

consent   was  unenforceable  because  it  was  conditional   and

therefore  did not satisfy the requirements of Massachusetts  law

and was against public policy.73  The Massachusetts court, in  an

opinion  authored by the distinguished jurist and law  professor,

Robert  Braucher,  held  that the questioned  condition  did  not

invalidate  the  consent.   The court  first  observed  that  the

condition  must  be  given  a practical  construction  making  it

subject  to the overriding interest in the welfare of the  child.

Justice Braucher wrote:

          We think that the mother in this case sought,
          not  a  legal assurance of visitation  rights
          overriding all requirements of the welfare of
          the  child, but a practical assurance of  the
          cooperation  of the petitioners  so  long  as
          visitation  rights were not contrary  to  the
          interests  of  the child.  She got  what  she
          sought.  If she had not tried to withdraw her
          consent, a decree of adoption might have been
          entered incorporating the agreement.  Such  a
          decree  would not be void.  But it would  not
          prevent  "the  supreme  inquiry  as  to   the
          requirements of the welfare of the child."[74]
          
As  so construed, the court found the condition not to be against

public  policy.   But the court went on to observe  that  if  the

condition  were found to be against public policy, the  condition

would  be unenforceable, but the consent to adoption would  still

be valid:

          If  the  agreement had provided for  a  legal
          right overriding the welfare of the child, it
          would  at  least  to that extent  be  against
          public  policy, but the result would be  that
          the    offending    provision    would     be
          unenforceable, not the consent  to  adoption.
          Otherwise, the overriding policy serving  the
          welfare of the child would be frustrated.[75]
          
           I  believe  that the condition in this  case  must  be

construed  at all times to be subject to the overriding  interest

in  the welfare of the child.  It should also, in my judgment, be

given  a practical construction similar to that employed  by  the

Massachusetts  court  in In re Adoption  of  a  Minor.   What  it

contemplated  was  that the Wilsons would  go  forward  with  the

adoption, but if the adoption failed it was understood that  they

would  not stand in the way of the resumption of custody  by  the

natural  mother.   As  so  construed,  the  condition  is   fully

consistent  with  existing remedies that are available  following

the failure of a contemplated adoption.

            There   are  three  principal  remedies  for   failed

adoptions.   The  first is contained in AS 25.23.180(g).76   This

subsection contains a provision that permits a parent to withdraw

her  relinquishment  if  the  child  "is  not  on  placement  for

adoption"  with  the consent of the party having custody  of  the

child.  The second remedy is contained in AS 25.23.120(d).   This

subsection requires the court, upon determining that an  adoption

petition must be denied, to decide who should have custody of the

child,  considering the child's best interests.77  A  voluntarily

terminated  parent  is not excluded from the group  of  potential

custodians  under this section.78  The third remedy is  found  in

Civil  Rule  60(b) (permitting relief from judgments  in  defined

circumstances).  A relinquishing parent, like any other litigant,

may avail herself of the remedies provided by Civil Rule 60(b).79

Relief  is sometimes afforded under this rule's catch-all clause,

60(b)(6)  ("any other reason justifying relief from the operation

of   the   judgment"),  when  in  important  ways  a  fundamental

assumption underlying the basis for consenting to a judgment  has

been destroyed.80

           Construed reasonably and practically, the condition in

question fits readily within these remedies.  If the Wilsons were

to have a change of heart after accepting custody of the child or

if  their adoption efforts failed and the child was therefore  no

longer  on  placement for adoption, subsection .180(g)  would  be

applicable.   Subject to considerations of the best interests  of

the child, the understanding reflected in the relinquishment that

the  natural  mother would resume custody could be realized.   If

the  adoption  was  actually denied, AS 25.23.120(d)  would  also

apply and the court would have to determine, considering the best

interests of the minor, who would have custody of the minor.   In

such  a  proceeding the Wilsons' cooperation with the efforts  of

the  natural  mother would be expected, though  it  might  be  of

little importance given that their adoptive efforts would already

have  been  refused.   As  to  the potential  60(b)  remedy,  the

condition reflects a fundamental assumption that exists  in  most

private party adoption cases, namely that the parties to whom the

child  is relinquished for adoption would adopt the child.   Even

when  not  made a condition, one would expect that this would  be

the assumption of the relinquishing parent.  Upon the failure  of

such  an  assumption, Rule 60(b)(6) relief should  be  available.

Since  this  could  be the case even if the assumption  were  not

expressed  as  a  condition,  the  fact  that  the  condition  is

expressed  should not make a difference.  The same relief  should

be available either way.

           In  short,  I  believe  that  the  expression  of  the

understanding  that if the Wilsons did not adopt  the  child  the

relinquishment  would  be voided, when  given  a  reasonable  and

practical  construction,  is  consistent  with  and,   at   most,

facilitates the remedies that would be available in any event  to

the natural mother.  It is therefore unobjectionable.

           It is undisputed that relinquishments that are subject

to  withdrawal upon the failure of specified parties to  adopt  a

particular child have long been used in Alaska adoption practice.

The  State of Alaska acknowledges that the Division of Family and

Youth  Services "has allowed conditional relinquishments  in  the

past."  Currently the policy and procedure manual of the division

still  contemplates  that parents may relinquish  their  parental

rights  "with the understanding that their child will be  adopted

by a specific person."  The division treats this understanding as

subject to the welfare of the child.81

            Our   case   law  reflects  the  use  of  conditional

relinquishments.   In  In  re  J.L.F.  the  state  negotiated   a

conditional  relinquishment  with the  biological  mother  which,

eventually, the biological mother refused to sign.82  This refusal

was  found by the superior court to be a reason in support of the

superior  court's  finding  under  AS  25.23.180(c)(2)  that  the

biological  mother  had  unreasonably  withheld  her  consent  to

adoption.83    In   In  re  Adoption  of  F.H.  a  relinquishment

conditioned  on  adoption  by  particular  prospective   adoptive

parents was employed.84  An adoption in favor of these prospective

parents  would  have  amounted  to  a  deviation  from  the  ICWA

preferences.85   The  superior court held  that  the  conditional

nature  of  the  relinquishment was one  reason  why  good  cause

existed   for  deviation  from  the  ICWA  preferences,   because

otherwise there would be much uncertainty concerning the  child's

future.86   We  upheld the court's reliance  on  the  conditional

nature of the relinquishment.87

           The  historic  use  of conditioned relinquishments  in

Alaska  is  relevant in considering whether the  Alaska  Statutes

should  be  construed as prohibiting the practice.  "The  meaning

attached  by  people  affected by an act may  have  an  important

bearing on how it is construed."88  In addition, adopting parties

and  their  counsel have relied on this practice, its recognition

by the courts, and the fact that it has never been questioned, in

structuring adoptions.  This reliance is also a reason favoring a

permissive construction:  "One of the soundest reasons sustaining

contemporaneous interpretations of long standing is the fact that

the  public  has  relied  on  the  interpretation."89   Such   an

interpretation  is  also  called for by the  applicable  rule  of

construction that Alaska's adoption statutes should be  construed

to  promote  the  best interests of adopted  children  and  avoid

disrupting adoptive placements.90

           I  also believe that the law of contracts provides  an

applicable  analogy that should guide our decision as to  whether

the current relinquishment is unenforceable.  Under contract law,

whether  a  contract  or  a part of a contract  is  unenforceable

entails a balancing of the interests for and against enforcement.91

In weighing the interest in enforcement, account must be taken of

the  justified  expectations of the parties, any forfeiture  that

would  result if enforcement were denied, and any special  public

interest  in enforcement.  In weighing the public policy  against

enforcement, account must be taken of the strength of the  policy

against  enforcement, the likelihood that a  refusal  to  enforce

will further that policy, the seriousness of any misconduct,  and

the  directness of the connection between any misconduct and  the

questioned provision.

           Viewing the relinquishment as a whole, the interest in

its  enforcement readily outweighs any public policy against  its

enforcement.   First, all parties justifiably expected  that  the

relinquishment  would  be enforceable.   Second,  the  forfeiture

involved  is the severance of the bonded parent/child  ties  that

have  developed between the child and the Wilsons.   This  is  an

extraordinarily strong interest.  Relatedly, the  special  public

interest  involved  is the public interest in  the  stability  of

adoptive  placements.   This  too is  an  extraordinarily  strong

interest.

           I am at a loss to express what the public policy might

be  against  enforcement  of  the  relinquishment.   No  judicial

decision  of  this  court  has ever expressed  a  policy  against

conditional relinquishments.  The two cases on which the majority

opinion  relies from other jurisdictions92 express the view  that

there can be no conditional relinquishment under the statutes  in

their respective states, but they express that conclusion without

giving  reasons.  The only public policy reason  offered  by  the

majority  is that relinquishments have shorter periods for  their

withdrawal than do consents,93 but this reason challenges the use

of  relinquishments in all adoptions, and has nothing to do  with

the conditionality of relinquishments.94  I had assumed, at least

provisionally, that a defeasing condition such as  we  have  here

might be felt to be undesirable because it potentially interferes

with  the  stability of an adoptive placement.  But this  is  not

likely  to  be the case because the relinquishment would  not  be

revoked  until  and  unless  the  placement  failed  to  lead  to

adoption.  It is the failure, not the condition, that would cause

the instability.

          Turning to the second relevant factor of section 178(3)

of  the  Restatement, we can ask whether refusal to  enforce  the

relinquishment will further the policy of stability  of  adoptive

placements.   The  answer  to  that question  is  that  just  the

opposite will occur where, as here (and as will commonly  be  the

case), the contemplated adoption actually occurs.  The policy  of

stability  in  adoptive placements is furthered by enforcing  the

relinquishment.    Ironically,   refusing    to    enforce    the

relinquishment causes instability.  As to the third factor, there

is no misconduct in this case.  It is therefore apparent that the

balance  of  relevant factors clearly favors the conclusion  that

the  relinquishment  is not unenforceable on  grounds  of  public

policy.

           Another  point should also be made.  In light  of  the

clear  preponderance  of  interests favoring  upholding  adoptive

placements,  if  the  condition in this case  were  found  to  be

against public policy, the condition should not be enforced,  but

this  should  not affect the validity of the relinquishment.   As

the  Massachusetts court stated, if the agreement  were  "against

public  policy,  .  .  . the result would be that  the  offending

provision  would be unenforceable, not the consent  to  adoption.

Otherwise the overriding policy serving the welfare of the  child

would be frustrated."95

            In   summary,  the  understanding  expressed  in  the

relinquishment  in  this case did not render  the  relinquishment

invalid.  Properly construed, it is consistent with remedies that

the law provides to a relinquishing parent upon the failure of  a

contemplated adoption and is therefore unobjectionable.  Further,

similar  provisions have long been used and recognized in  Alaska

without  critical  comment,  and  parties  have  relied  on  this

practice.  The practice does not violate public policy  when  one

considers  the  relevant  factors that should  be  considered  in

determining  whether a provision is unenforceable on  grounds  of

public policy.  This interpretation satisfies the applicable rule

of   construction  that  Alaska's  adoption  statutes  should  be

construed  to promote the best interests of adopted children  and

to  avoid disrupting adoptive placements.  Finally, even  if  the

questioned  condition were against public policy, the appropriate

remedy would be to declare the condition to be unenforceable  but

not the relinquishment.

III. Alaska   Law   Provides  Two  Methods  for   the   Voluntary
     Termination of Parental Rights and the Adoption of  Children
     - Either Method May Be Used in Private Party Adoptions.
     
            Today's  opinion  holds  that  the  final  order   of

termination  is  invalid because it is based on a  relinquishment

which  might  be voided if the Wilsons did not adopt  the  child.

But the opinion also makes a second point, namely that relinquish

ments in private party adoption cases are simply impermissible.96

As  this point has nothing to do with the conditionality  of  any

particular  relinquishment,  it  would  serve  as  a  basis   for

invalidating the decree of termination in this case even  if  the

relinquishment  were  not  found to be  invalid  because  of  its

conditional nature.

           The  majority  makes the point that private  placement

adoptions   cannot   be  accomplished  by  a   method   involving

relinquishments without any analysis or discussion of  the  terms

of  the  Alaska  Statutes.  Instead, the majority relies  on  the

commentary  to  the  Uniform Adoption Act of 1994.97   While  the

Uniform  Adoption Act of 1994 does contain a number of provisions

making  it  clear  that  relinquishments  can  only  be  made  to

agencies,98  the  1994 act has not been adopted  in  Alaska.   As

already stated, Alaska's laws pertaining to adoption were  mostly

passed  in  1974  and were patterned on the 1969 Revised  Uniform

Adoption  Act.   Neither Alaska's statutes nor the  1969  Uniform

Adoption  Act  contain provisions similar  to  the  1994  Uniform

Adoption Act specifying that a relinquishment of parental  rights

may  only  be made to an agency.99  To the contrary,  Alaska  law

contains  provisions  that suggest that a relinquishment  may  be

made in the context of a private party adoption.

            One   very   strong  suggestion  is   found   in   AS

25.23.180(e)(2).   This  subsection  permits  a  petitioner   for

adoption,  necessarily a private individual, to file "a  petition

for  termination"  of  parental rights  "in  connection  with  an

adoption  proceeding."  Adoption Rule 6(b) makes  it  clear  that

such  a  petition  for termination may be based  on  a  voluntary

relinquishment  of parental rights pursuant to  AS  25.23.180(b).

Thus a private individual may petition for termination based on a

voluntary  relinquishment  given  under  subsection  .180(b)   in

combination with the private individual's petition for  adoption.

This  strongly  implies  that  the relinquishment  on  which  the

private  individual bases the combined petition  for  termination

and  adoption  may permissibly have been given in  favor  of  the

private individual.

           Further  support is found in subsection .180(a)  which

provides  that  parental  rights "may  be  relinquished  and  the

relationship  of  parent and child terminated  in  or  before  an

adoption proceeding as provided in this section."100  Again, since

adoption proceedings are only brought by private individuals this

suggests  that relinquishments may be used by private individuals

in  connection with adoption proceedings.  Added support is found

in  subsection  .180(b)(1) which provides that  a  relinquishment

must either be signed in the presence of the representative of an

agency  or  "in  the presence and with the approval  of  a  court

.  .  .  ."   This suggests that relinquishments may be given  in

favor  of  private individuals, because signing  before  a  court

would  not  be  necessary  in the case  of  an  agency  taking  a

relinquishment.

            Finally,   AS  25.23.180(b)(2)  applies   to   signed

relinquishments  that  do  not meet the  formal  requirements  of

(b)(1) where "the petitioner has had custody of the minor for two

years  .  .  .   and  the  court  finds,  after  considering  the

circumstances  of  the  relinquishment  and  the  long  continued

custody  by the petitioner, that the best interest of  the  child

requires  the  granting  of adoption."   One  would  expect  that

relinquishments granted in favor of professional  agencies  would

meet  the  formal requirements of (b)(1), whereas relinquishments

in  favor  of  private  individuals are far  more  likely  to  be

defective.101  This savings clause thus seems squarely  aimed  at

private party relinquishments.

           Alaska  law clearly provides for two parallel  methods

that  lead  to  the  same end result of termination  of  parental

rights   and  adoption.   That  these  dual  methods   exist   is

uncontested.   What  is  at issue is whether  the  relinquishment

method  may  be  used in private party adoptions.   I  will  here

briefly describe each method.

           The first method, the consent track, entails execution

of a consent to adoption by the natural parent, filing a petition

for  adoption,  and entry of an adoption decree.102   The  second

method,  the relinquishment track, does not require a consent  to

adoption,  but  entails  execution by the  natural  parent  of  a

relinquishment of parental rights, entry of a decree  terminating

parental rights, filing a petition for adoption, and entry  of  a

decree of adoption.103

           There  are  different safeguards that apply  depending

upon  which track is used.  The "change-of-mind" period  for  the

consent  track  is,  as a matter of right,  ten  days  after  the

consent  is  given  and, by leave of court upon  a  showing  that

withdrawal  of consent is in the best interest of the child,  any

time  before entry of a decree of adoption.104  By contrast,  the

withdrawal  period as a matter of right under the  relinquishment

track is ten days after execution of the relinquishment without a

provision  for  subsequent withdrawal by leave of court.105   But

consents  to  adoption need only be signed  before  a  notary,106

whereas  a  relinquishment must be signed in the presence  of  an

agency or the court, and if the latter, must also be approved  by

the  court  after an inquiry as to the parent's understanding  of

the  consequences of the relinquishment and the voluntariness  of

her assent.107  Alternatively, written relinquishments that do not

meet  the formal requirements of AS 25.23.180(b)(1) may still  be

valid but only if the private party petitioning for adoption  has

had  custody  of  the child for two years and  the  court,  after

considering  the  circumstances of  the  relinquishment  and  the

period of custody by the petitioner finds that the best interests

of the child requires granting the adoption.108

           That  the relinquishment track may be used in  private

adoptions  is supported by evidence of actual practice in  Alaska

over  several  decades.   The  record  before  us  contains   the

unrefuted  affidavits of two experienced adoption  attorneys  who

state  that the use of the relinquishment track has long  been  a

normal and accepted practice in private adoptions in Alaska.109

           And two of our published cases confirm the use of  the

relinquishment track in private adoptions.  In In re Adoption  of

F.H.  the  mother appeared before the probate master and executed

documents "relinquishing her parental rights to the Hartleys."110

Over  the opposition of both the state and the child's tribe,  an

adoption decree in accordance with the private relinquishment was

entered  and affirmed by this court.111  S.O. v. W.S. is  another

case in which the relinquishment method was employed in a private

adoption context.112

           As  this case illustrates, parties have relied on  the

established and recognized practice described above.  Further, as

also  noted,  this  practice finds much  support  in  the  Alaska

adoption act.  Because of these factors, the applicable  rule  of

construction  promoting the interest of children and  disfavoring

the   disruption  of  bonded  relationships  based  on   adoptive

placements also counsels in favor of an interpretation validating

the existing practice.

            Today's  majority  opinion  views  the  use  of   the

relinquishment track in private party adoption cases as  an  "end

run"  around the "relatively lengthy parental withdrawal  period"

built  into the consent track.113  But one could say by the  same

logic  that  use  of  the consent track circumvents  the  greater

protection  inherent in the more demanding execution requirements

pertaining to relinquishments.114  In truth, it is not appropriate

to  regard  the  use  of one track rather than  the  other  as  a

circumvention  of protections built into the other  because  both

tracks are legislatively permitted methods of achieving the  same

end.

           The  only  public  policy reason  offered  by  today's

opinion  for  setting aside the relinquishment  is  in  order  to

"disallow  the  circumvention  of  procedures"  inherent  in  the

"relatively  lengthy  parental  withdrawal  period"  allowed  for

adoptions  under  the  consent  track.115   Since  the  time  for

withdrawal  as a matter of right is exactly the same under  state

law  for  relinquishments and consents, what the majority appears

to   be  saying  is  that  the  longer  periods  for  withdrawing

relinquishments  as  a  matter of  right  provided  by  ICWA  are

desirable as a matter of public policy.

           My  response  to  this is that the primary  source  of

public  policy  employed  by  this court  should  be  the  Alaska

Statutes.  ICWA must be followed where it applies.  But I do  not

think  that ICWA should be regarded as a source for public policy

based  rulings  where the periods it mandates do  not  apply  and

differ from the express provisions of Alaska law.

           Alternatively,  or in addition, the  majority  may  be

saying  that a period for withdrawing relinquishments  not  as  a

matter of right but by leave of court is desirable as a matter of

public policy.  Such a period is provided by state law in consent

track  cases but not in relinquishment track cases.  My  response

to  this  is that the majority's policy judgment is at  bottom  a

quarrel  with  the dual track system provided under  Alaska  law.

The legislature has chosen to provide no period for withdrawal by

leave  of court after the ten day withdrawal as a matter of right

period  in relinquishment track cases, while providing  a  period

for withdrawal by leave of court in consent cases.  It is not for

this  court to say which choice is better.  I note, for  example,

that  the  1994 Uniform Adoption Act does not contain any  period

during  which  an  effort can be mounted  to  withdraw  either  a

consent or a relinquishment on general best interests grounds.116

Thus  although the majority seems to endorse the view that a long

period  for  withdrawal by leave of court is  best,  the  current

thinking of the commissioners on uniform state laws is consistent

with the procedures in Alaska's relinquishment track, namely that

there should be no such period.

           Natural  parents  must be treated fairly.   But  their

interests  are  subordinate to the goal  of  promoting  the  best

interests of adopted children.117  There is no question  but that

the   procedures   under  either  the  consent   track   or   the

relinquishment track are fair to natural parents.  The procedures

under  both  tracks  are designed to ensure  that  parents  fully

understand  the consequences of their assent and that  they  have

given  it  freely and voluntarily.  Further, they are afforded  a

ten-day  period  during  which, as  matter  of  right,  they  may

withdraw their consents or relinquishments.118

           In  summary, the majority reaches its conclusion  that

the relinquishment method for termination and adoption may not be

used in private party adoption cases without any analysis of  the

text  of  our adoption act.  A textual analysis strongly suggests

that the relinquishment track is intended for private as well  as

agency  use.   Alaska  adoption practice  over  the  years  lends

support  to this view as does the applicable rule of construction

favoring  the  interests  of  children  and  the  maintenance  of

adoptive  relationships.   The  policy  reasons  offered  by  the

majority  for  its conclusion - basically that longer  withdrawal

periods  are better than shorter ones - conflict with the choices

made  by  the  Alaska  Legislature  and  express  the  majority's

preference  for  the  procedures  afforded  in  one  of  the  two

available methods in the Alaska Statutes.  Since both methods are

permitted, it is not for this court to say that one is inherently

superior to the other.

IV.  Conclusion

           For  the  reasons expressed above, I believe that  the

relinquishment used in this case is valid and therefore that  the

final  order  of  termination is also valid.   The  majority  has

reached a contrary conclusion, but the natural mother's unselfish

act  of ratifying the adoption has resulted in the adoption being

affirmed, a result that I warmly endorse.

_______________________________
1     Pseudonyms  are  used  to  protect  the  privacy  of  those
involved.
2         Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).
3     Id.25 US.C. 5 1913(a) (1978) states:Where any parent  or  I
ndian custodian voluntarily co
4    ents to a f»ster care pla
5    Id.
6    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.
          
7    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).
8     In re Adoption of F.H., 851 P.2d at 1364 (quoting 25 U.S.C.
 1915(a) (1978)).
9    Id.
10    Id.
11    Id.
12     44 Fed. Reg. 67583, 67594 (1979); C.L. v. P.C.S., 17  P.3d
769, 773 (Alaska 2001).
13    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.
14     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.").
15     Perry  v.  Newkirk,  871  P.2d 1150,  1153  (Alaska  1994)
(citation omitted).
16    AS 25.23.180(a).
17         S.J. v. L.T., 727 P. 2d 789, 796 (Alaska 1986).
18    Id.
19    AS 25.23.180(b)(1), (g).
20    AS 25.23.180(b) (emphasis added).
21         379 N.W.2d 816, 817-18 (S.D. 1985).
22    Id. at 818.
23         Id.
24    K.W.E. v. People of the State of Colorado, 500 P.2d 167, 168
(Colo. App. 1972).
25         Id.
26         Id.
27         Id.
28         Id.
29    Concurrence at 32.
30    851 P.2d 1361 (Alaska 1993).
31    912 P.2d 1255, 1260 (Alaska 1996); concurrence at 32-33.
32    851 P.2d at 1365.
33    Id. at 1364.
34    Id. at 1365.
35    Id. at 1362 & 1365.
36    912 P.2d at 1260.
37    Id. at 1263 (italics and capitalization removed from section
heading).
38     The  concurrence contends that conditional relinquishments
are  permissible because they are not expressly prohibited by our
statutes.  Concurrence at 21-22.  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.
39    Unif. Adoption Act  2-403 cmt., 9 U.L.A. 53 (1999).
40    Id.
41    Id.
42     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 37-38.   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).
43    2 Am. Jur. 2d Adoption  60 (1994).
44    AS 25.23.040 - .060.
45      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.
          
46    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   25.    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.
47         643 P.2d 997, 1002 n.6 (Alaska 1982).
48    Id at  999.
49         Id at 999-1000.
50         Id. at 1000.
51         Id. at 1000-01.
52         Id. at 1002 n.6.
53                             25 U.S.C.  1913(c).
54    Delgado v. Fawcett, 515 P.2d 710, 712 (Alaska 1973) (citing
In re Parks' Petition, 127 N.W.2d 548, 553 (Minn. 1964)).
55      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.
56    851 P.2d at 1364.
57    Id.
58    Id.
59    Id. at 1365.
60     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.
61    851 P.2d at 1365.
62         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.
          
               . . . .
          
63    Unif. Adoption Act, 9 U.L.A. 133 (1999).
64     Compare AS 25.23.180 with Unif. Adoption Act  19, 9 U.L.A.
216-18 (1999).
65    See supra note 3 at  11.
66    643 P.2d 997, 1002 n.7 (Alaska 1982).
67    Id.
68    951 P.2d 436, 441-42 (Alaska 1998).
69    690 P.2d 10, 14 (Alaska 1984).
70    Id.
71    291 N.E.2d 729 (Mass. 1973).
72    Id. at 730.
73    Id. at 730-31.
74    Id. at 731 (internal citations omitted).
75    Id. (internal citations omitted).
76    See supra note 1.
77    AS 25.23.120(c)&(d) provide:

                (c) If at the conclusion of the hearing
          the   court  determines  that  the   required
          consents  have been obtained or  excused  and
          that the adoption is in the best interest  of
          the  person  to be adopted, it  may  issue  a
          final decree of adoption.
          
                (d)  If  the requirements for a  decree
          under (c) of this section have not been  met,
          the  court  shall  dismiss the  petition  and
          determine,  in  the  best  interests  of  the
          minor, the person including the petitioner to
          have custody of the minor.
          
78    Id.
79    See In re J.R.S., 690 P.2d 10, 14 (Alaska 1984).
80     See Lacher v. Lacher, 993 P.2d 413 (Alaska 1999); Williams
v. Crawford, 982 P.2d 250 (Alaska 1999); McGee v. McGee, 974 P.2d
983  (Alaska  1999);  Lowe v. Lowe, 817 P.2d 453  (Alaska  1991);
Schofield  v.  Schofield, 777 P.2d 197 (Alaska 1989);  Foster  v.
Foster, 684 P.2d 869 (Alaska 1984).
81    See State of Alaska, Dep't of Health & Social Servs, Div. of
Family  & Youth Servs. Policy & Procedure Manual  3.9.1.h.   This
subsection provides:

                When  parents  have relinquished  their
          parental  rights with the understanding  that
          their  child  will be adopted by  a  specific
          person,  the worker will notify them  if  the
          proposed placement fails.  The requirement to
          notify  the parents applies from the time  of
          the  relinquishment  until  the  adoption  is
          finalized, even after termination of parental
          rights.   After  receiving  notice  that  the
          proposed  placement has failed, a parent  may
          notify  the division, in writing, of a desire
          to   withdraw  the  relinquishment.   If  the
          parent  does  not submit such notice  to  the
          division within 30 days of being notified  of
          the  failed  placement, the division  is  not
          required to have any further contact with the
          parent.  The parent's request to withdraw the
          relinquishment is not automatically  granted.
          The  Division decides whether to  consent  to
          the   withdrawal  or  not,   based   on   the
          circumstances  of  the  case.   Consents  for
          withdrawal must be approved and signed by the
          Children's Services Manager.
          
82    912 P.2d 1255, 1260 (Alaska 1996).
83    Id. at 1259.
84    851 P.2d 1361, 1362 (Alaska 1993).
85    See 25 U.S.C.  1915(a).
86    In re Adoption of F.H., 851 P.2d at 1365.
87    We stated:

                Master  Duggan recognized  that  F.H.'s
          situation would be uncertain if the Hartleys'
          adoption  petition were dismissed and  E.P.D.
          withdrew   her   conditional  relinquishment.
          E.P.D.'s  relinquishment was  conditioned  on
          the  Hartleys' adoption of F.H. .  .  .   The
          superior  court  properly  considered  F.H.'s
          situation  if  the  adoption  petition   were
          dismissed.  It was not clearly erroneous  for
          the   superior  court  to  find  that  F.H.'s
          uncertain  situation would have continued  if
          the Hartleys were not allowed to adopt F.H.
          
Id. at 1365.

88     2B  Norman  J. Singer, Statutes and Statutory Construction
49:06 at 94 (6th ed. 2000).
89    Id.,  49-07 at 99-100.
90    AS 28.23.005.
91     See  Restatement (Second) of Contracts  178 & 179  (1981).
Section 178  of the Restatement provides:

                (1)  A  promise  or other  term  of  an
          agreement  is  unenforceable  on  grounds  of
          public policy if legislation provides that it
          is  unenforceable  or  the  interest  in  its
          enforcement  is  clearly  outweighed  in  the
          circumstances by a public policy against  the
          enforcement of such terms.
          
                (2)  In  weighing the interest  in  the
          enforcement of a term, account is taken of
          
                       (a)   the   parties'   justified
          expectations,
          
                      (b)  any  forfeiture  that  would
          result if enforcement were denied, and
          
                     (c) any special public interest in
          the enforcement of the particular term.
          
                (3) In weighing a public policy against
          enforcement of a term, account is taken of
          
                     (a) the strength of that policy as
          manifested   by   legislation   or   judicial
          decisions,
          
                     (b)  the likelihood that a refusal
          to enforce the term will further that policy,
          
                      (c)   the  seriousness   of   any
          misconduct involved and the extent  to  which
          it was deliberate, and
          
                      (d)   the   directness   of   the
          connection  between that misconduct  and  the
          term.
          
           In Brown v. Baker, 688 P.2d 943, 948 (Alaska 1984), we
employed  these factors in order to determine whether a  security
agreement in a limited entry fishing permit was unenforceable.

92    In re Termination of Parental Right Over J.M.J., 379 N.W.2d
816  (S. D. 1985); and K.W.E. v. People, 500 P.2d 167 (Colo. App.
1972).
93    Slip Op. at 16.
94    I discuss this reason below on pages 44-46.
95     In  re  Adoption of a Minor, 291 N.E.2d  729,  731  (1973)
(citations omitted).
96    Slip Op. at 12 & n.42.
97    Id.
98     See  1994  Uniform  Adoption Act  2-402(a)(1);  2-403;  2-
406(a)(5), Unif. Adoption Act, 9 U.L.A. 51, 53, 55 (1999).
99     The  1994 Uniform Adoption Act "aims to be a comprehensive
and  uniform  state  adoption code" that  "goes  beyond  existing
statutory  laws  to create a coherent framework for  legitimizing
and   regulating   both  direct-placement  and  agency-supervised
adoptions."  Prefatory Note to 1994 Uniform Adoption  Act.  Unif.
Adoption  Act, 9 U.L.A. 12, 14 (1999).  Notwithstanding  footnote
42  in  today's opinion,  2-403 of the 1994 act does not  purport
to  clarify  the  1969  Uniform  Act.   That  section,  in  full,
provides:  "A parent or guardian whose consent to the adoption of
a  minor is required by Section 2-401 may relinquish to an agency
all  rights  with  respect  to  the minor,  including  legal  and
physical  custody  and  the  right  to  consent  to  the  minor's
adoption."   Instead,  this section  is  simply  a  part  of  the
comprehensive  new  act.   Likewise,  the  commentary  to   2-403
neither  addresses nor purports to clarify the 1969 Uniform  Act.
Instead, it explains the objectives and operation of the new act.
It states, in full:

                 This   section   helps   clarify   the
          distinction     between     consents      and
          relinquishments and between direct and agency
          placements.  A parent or guardian who makes a
          direct placement of a minor for adoption must
          execute  a  consent for the  adoption  to  go
          forward.   If the parent or guardian prefers,
          instead,  to have an agency place  the  minor
          and  consent  to  the minor's  adoption,  the
          parent  or  guardian has  to  relinquish  all
          rights  with  respect to  the  minor  to  the
          agency.   From  then on, the agency  acts  in
          lieu  of the parent or guardian:  it acquires
          custody  of  the minor and the  authority  to
          place the child for adoption pursuant to  the
          procedures in Sections 2-103 and  2-104.   An
          agency  may also acquire the right  to  place
          the  minor for adoption pursuant to  a  court
          order.
          
Unif Adoption Act, 9 U.L.A. 53 (1999).

100    (Emphasis added.)
101     An  example of a defective relinquishment in favor  of  a
private  individual can be seen in S.O. v. W.S.,  643  P.2d  997,
1000 (Alaska 1982).
102     AS 25.23.040-.130; AS 25.23.130(a)(1) (effect of adoption
decree  is  to  terminate  "all legal relationships  between  the
adopted person and the natural parents").
103     AS 25.23.180; AS 25.23.050(a)(4) (consent to adoption not
required of parent who has relinquished right to consent under AS
25.23.180); AS 25.23.050(b) (notice of hearing on a petition  for
adoption  not required to a person whose relinquishment has  been
filed with the petition).
104    AS 25.23.070(b).  ICWA changes the period of withdrawal as a
matter  of  right in consent track cases to the final  decree  of
adoption.  25 U.S.C.  1913(c).
105    AS 25.23.180(b)(1).  ICWA changes the period under which a
relinquishment may be withdrawn as a matter of right to the final
decree of termination.  25 U.S.C.  1913(c).
106    AS 25.23.060(a).
107    AS 25.23.180(b)(1); see Adoption Rule 9(d).
108    AS 25.23.180(b)(2).
109    The Affidavit of Robert B. Flint, a member of the American
Academy  of Adoption Lawyers, who has practiced adoption  law  in
Alaska for the better part of three decades, states in part:

                I  have  routinely obtained decrees  of
          termination  of  parental rights  in  private
          adoptions  over  the  years  of  my  adoption
          practice.   Such  decrees  have  always  been
          obtained under AS 25.23.180(b).  No court has
          ever  questioned the statute's  applicability
          to  private  adoptions nor has  the  Adoption
          Rules Committee.
          
               Based on my actual experience and belief
          the  use  of AS 25.23.180(b) is a normal  and
          accepted practice in private adoptions.
          
The Affidavit of Mary Ellen Ashton, former Probate Master for the
Third  Judicial District, and currently an attorney  specializing
in adoptions, states:

          As  Probate  Master  I approved  [decrees  of
          termination] under AS 25.23.180(b) in private
          adoptions where the petitioners were  private
          parties.
          
                I have practiced law since 1991 largely
          in  the  field  of adoption.  I have  handled
          over  1000  adoption cases  since  that  time
          including  private adoptions.  As appropriate
          I  have  used  AS  25.[23].180(b)  to  obtain
          decrees of termination of parental rights  in
          private adoption.
          
                I  am  a  member of the Adoption  Rules
          Committee  appointed by  the  Court.   At  no
          session   of  the  Committee  has   it   been
          suggested that AS 25.23.180(b) is limited  to
          agency adoptions.
          
                It  is  my  belief that the use  of  AS
          25.23.180(b)  for  termination   in   private
          adoptions is acceptable practice and has been
          for many years.
          
110    851 P.2d 1361, 1362 (Alaska 1993).
111    Id. at 1362, 1365.
112     643 P.2d 997, 1000 (Alaska 1982).  But the relinquishment
used  in  that  case was ineffective because it  was  not  signed
before an agency or with the approval of a judge.  Id.
113     Slip Op. at 16.  Actually the period of withdrawal  as  a
matter of right is identical under both tracks provided by  state
law:    ten  days  after  signature.   The  difference  lies   in
withdrawal by leave of court upon a finding that withdrawal is in
the  best  interest  of the child.  This type  of  withdrawal  is
specifically  provided under the consent track, AS  25.23.070(b),
but  not under the relinquishment track.  But in either case  the
court must still, before approving an adoption, find it to be  in
the  best  interest of the child, AS 25.23.120(c), and when  this
requirement  is not met, the court must dismiss the adoption  and
proceed to determine based on the best interest of the child  who
should have custody of the child.  AS 25.23.120(d).
114    Compare AS 25.23.180(b)(1)&(2) with AS 25.23.060.
115    Slip Op. at 16 & n.55.
116     See  1994  Uniform  Adoption  Act   2-408,  2-409,  Unif.
Adoption Act, 9 U.L.A. 60-63 (1999).
117    See, e.g., AS 25.23.005.
118     By  contrast  the 1994 Uniform Adoption Act  only  allows
revocation  as  a matter of right within 192 hours  after  birth.
See supra note 55.  Thus although the majority seems to be saying
in  part that a longer period than ten days for the withdrawal of
consents  or  relinquishments is good public policy, the  current
thinking of the commissioners on uniform state laws appears to be
that  a  shorter period, or no period if the child is  more  than
eight days old, is appropriate.