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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 S.K.L.H. (03/27/2009) sp-6348

In the Matter of the Adoption of S.K.L.H. (03/27/2009) sp-6348, 204 P3d 320

     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,


ADOPTION OF: ) Supreme Court No. S- 12960
S.K.L.H., ) Superior Court No. 1KE-06-144 PR
A Minor Child. ) O P I N I O N
) No. 6348 - March 27, 2009
Appeal    from     the
          Superior Court of the State of Alaska,  First
          Judicial  District,  Ketchikan,  Michael   A.
          Thompson, Judge.

          Appearances:  H. Clay Keene, Blake M. Chupka,
          Keene   &   Currall,  P.C.,  Ketchikan,   for
          Appellants.   Michael P.  Heiser,  Ketchikan,
          for Appellee.

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

          WINFREE, Justice.

          Biological  parents consented to their  babys  adoption
and  the  superior  court entered a final adoption  decree.   Six
months  later the biological mother petitioned to set  aside  the
adoption  decree,  alleging that her consent  was  invalid.   The
superior court granted her petition, finding first that there had
not   been   a  meeting  of  the  minds  (which  the   court   on
reconsideration  later  characterized  as  mistake)   about   the
biological mothers relationship with the child after the adoption
decree, and second that it was in the childs best interests to be
with her biological mother.
          Because  we  do not recognize mere mistake about  post-
adoption visitation as a ground to invalidate adoption consent or
an  adoption decree, we reverse the superior courts decision  and
reinstate  the adoption decree.  But because:  (1)  the  adoption
consent  form  prepared by the attorney for the adoptive  parents
and  signed by the biological mother provided that the biological
mother understood she would have the right to visitation with the
child   after  the  adoption;  (2)  the  findings  of  fact   and
conclusions  of  law prepared by the attorney  for  the  adoptive
parents  and  entered  by  the court  with  the  adoption  decree
confirmed  the  parties contemplated visitation  rights  for  the
biological  mother following the adoption; and (3)  the  superior
court has the authority to enforce a visitation framework in  the
best interests of the child, we remand with direction to consider
appropriate  visitation for the biological mother  in  this  open
          Donna2   was  barely eighteen years old when  she  gave
birth  to  a  baby  girl in October 2006.  The childs  biological
father was seventeen years old and resided in Iowa with no intent
to move to Alaska.  He is not a party to this litigation.
          During her pregnancy Donna expressed an intent to  give
up  her  child for adoption.  About one week before giving birth,
she  approached  her  father and stepmother  (the  Smiths)  about
adopting the child.  Donna changed her mind about adoption  after
the  child  was born, and she and the child moved in with  Donnas
stepsister.   About  three weeks later  Donna  changed  her  mind
again.   Donna asked her stepsister and her stepsisters boyfriend
to  adopt  the child, but they declined.  Donna again  approached
the Smiths about adopting the child.  The Smiths agreed.
          The child was placed in the Smiths care and custody  on
November  9,  2006.   Both Donna and the biological  father  were
required to give consent before the adoption could be completed,3
and  on  November  13 Donna and the Smiths met  with  the  Smiths
attorney  for Donna to review and sign her consent  form.   Donna
was  not  represented by an attorney at this meeting, but  before
she  signed  her  consent  form  the  Smiths  attorney  read  and
discussed each paragraph of the document with her.4
          Paragraph six of Donnas consent form provided:
          I understand that, by signing this consent, I
          am  giving  up all of my rights to the  care,
          custody  and control of the minor child,  and
          that I am giving up these rights permanently.
          I  will  also be permanently relieved of  all
          responsibility for the child.   I  will  have
          legal  relationships to the  child  including
          for  purposes of inheritance; and I will have
          full right to visitation with the child after
          the adoption.
          Donnas  consent  form also provided  that  her  consent
could be withdrawn up to ten days after signing the consent form,
but  thereafter  could be withdrawn only upon a  finding  by  the
Court,  after a hearing[,] that withdrawal of the consent  is  in
the  childs  best  interests.5  It also provided  that  once  the
adoption decree was entered, consent no longer could be withdrawn
at  all.6   Donna signed the consent form that day,  and  it  was
          filed with the court.  Donna later contacted the childs
biological  father  to solicit his consent to the  adoption;  his
written  consent, which was not conditioned upon  maintenance  of
any legal relationships or visitation rights, was also filed with
the court.
          The  Smiths attorney lodged proposed findings  of  fact
and  conclusions of law and a proposed decree.  Relevant findings
and  conclusions  were that:  (1) Mr. Smith (Donnas  father)  was
forty-nine  years  old  and Mrs. Smith  (Donnas  stepmother)  was
nearly  forty years old; (2) the Smiths had seven children  other
than  Donna;  (3)  Donna  voluntarily  consented  to  the  Smiths
adoption  of her child; (4) Donna shall retain visitation  rights
with  the  minor child following the adoption; (5)  all  required
consents  had  been filed or excused and all appropriate  notices
had been given; and (6) the adoption was in the best interests of
the  child.  The findings and conclusions and the adoption decree
were  entered as presented after a brief hearing on December  18,
          Donna  visited the child freely in the weeks  following
the adoption, but the Smiths then began imposing restrictions and
limitations  that  Donna characterizes as  preventing  meaningful
contact with the child.  In late June 2007 Donna filed a verified
petition  to  set  aside the adoption, alleging  that:   (1)  her
consent  had  been  obtained  by misrepresentation  and/or  undue
influence,  specifically  that the  Smiths  falsely  stated  that
[Donna]  could  have her child back when she was ready;  (2)  the
Smiths had failed to obtain [Donnas] proper consent and failed to
give required notice of the [adoption] petition; (3) she had  not
signed  the  consent voluntarily, knowingly or intelligently  and
had not received a copy of it as required by statute; and (4)  it
was  in the best interests and welfare of the minor child to have
the parental relationship with [Donna] restored.
          An  evidentiary hearing was held on December 5  and  6,
2007.   The  superior court orally entered its  decision  to  set
aside the adoption on December 6.  The court first noted that  it
had  jurisdiction because the petition was filed within one  year
of the decree.8  The court found that Donnas consent had not been
obtained  by  fraud or misrepresentation because there  [was]  no
question  that the Smiths attorney did his job making  sure  that
Donna understood what was going on and that he did it well.   The
court made no specific note or findings either of duress or undue
influence   affecting  Donnas  consent,  or  of  any   procedural
infirmities during the adoption process.  While not finding  that
Donna  lacked  capacity when she signed the  consent,  the  court
stated  that considering her age, immaturity, lack of  education,
and mental situation that she found herself in Donna was not in a
state  of  mind  to  be buying a car, and certainly  not  signing
consents  for  adoption of her child.  The court  concluded  that
even  if  Donnas assumptions about the adoption were unreasonable
and  foolish,  these factors fatally undermined the  strength  of
Donnas consent.
          The  superior  court stated that the legislature  is  a
little  coy,  and so is the supreme court in telling  me  exactly
what  sort  of  grounds I could . . . rely upon to  invalidate  a
          consent, but that [i]t generally seems to be done in the same
fashion  as  an analysis of a contract . . . because weve  talked
about  misrepresentations, and fraud and duress, and  I  guess  a
mistake.   The court then applied a contract analysis  and  found
that  there  had not been a meeting of the minds with respect  to
the  post-decree relationship among the Smiths,  Donna,  and  the
          [Donna]  and  her parents were  on  different
          tracks  entirely.   They really  intended  to
          become this childs parents and I really think
          that  [Donna had] some vague concept  whereby
          they  were  going to be the grandparents  who
          raised  her  kid for a while  at  least,  and
          maybe for the full 18 years.
          The superior court stated that it needed to reopen this
and  have a look and see what [was] in the best interest of  this
child.   The court applied the best interests analysis set  forth
in   AS   25.24.150(c),9  generally  applicable  in  divorce-like
proceedings,10  to determine whether Donna or the  Smiths  should
raise  the  child.  In Donnas favor, the court found  that:   (1)
there  was a natural bond between Donna and her child; Donna  had
matured in the year since giving up the child for adoption; Donna
was the one more willing to allow the other to play a role in the
childs  life; and Donna was the more age-appropriate parent.   In
the  Smiths  favor, the court found that because the  couple  had
custody  of the child for more than a year, they had bonded  with
her   and  she  with  them,  and  that  they  clearly  were  more
experienced as parents.  The court ultimately concluded  that  it
was in the childs best interests to be raised by Donna.
          A  written order setting aside the adoption was  issued
shortly after the hearing; the child was removed from the  Smiths
custody  and  given  to  Donna that day.  The  Smiths  moved  for
reconsideration,   a   stay  pending  reconsideration,   and   if
necessary, a stay pending appeal.  The motion was denied.  In its
order  denying  reconsideration the superior court clarified  the
basis  for its earlier ruling:  the court has the power to vacate
the  adoption decree upon the ground of mistake, [Donna] met  her
burden  of  proof  showing mistake, and . . . setting  aside  the
adoption is in the best interests of the child.
          The  Smiths appealed.  Pending resolution of the appeal
we  ordered that in lieu of a stay of the superior courts  order,
the superior court establish a visitation schedule for the Smiths
and the child.
          Although we review the superior courts factual findings
in  adoption proceedings for clear error,11 we review de novo  as
matters   of  law  whether  (1)  factual  findings  satisfy   the
requirements for application of a statute,12 or (2)  an  adoption
decree  is void for lack of consent,13 adopting the rule  of  law
that  is  most  persuasive  in light of  precedent,  reason,  and
          As we recently stated:
          When reviewing factual findings we ordinarily
          will  not  overturn  a trial  courts  finding
          based  on conflicting evidence, and  we  will
          not   re-weigh  evidence  when   the   record
          provides  clear support for the trial  courts
          ruling;  it  is  the function  of  the  trial
          court,  not of this court, to judge witnesses
          credibility    and   to   weigh   conflicting

     A.   Donnas Consent and the Adoption Decree Should Not  Have
          Been  Set  Aside  Based on Mistake About  Post-Adoption
          Relationships or the Best Interests of the Child.
          The superior court may set aside an adoption decree  if
it  is  challenged  within the first  year.16   But  there  is  a
presumption  favoring the validity and regularity of an  adoption
decree,17 and the burden is on the challenging party to show by a
preponderance  of  the  evidence that the  decree  is  invalid.18
Ambiguities in an adoption decree are to be construed in favor of
validity  of  the  decree.19  In this case the  validity  of  the
adoption decree turns on the validity of Donnas consent,  because
withdrawal  of  her consent was prohibited once  the  decree  was
          We first note that an adoption decree should not be set
aside  lightly.  The clear policy of the adoption statutes is  to
hold a biological parent to the terms of a signed consent and  to
the adoption decree, except under limited circumstances.  This is
evidenced  by  the  fact that after a year has elapsed  from  the
entry  of a decree, it cannot be challenged for any reason,  even
one as egregious as fraud or misrepresentation:21
          Adoptive   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
          childs well-being. . . . As we said in In  re
          T.N.F.,  781  P.2d  973,  980  (1989),  cert.
          denied  sub nom.  Jasso v. Finney,  494  U.S.
          1030,  110  S. Ct. 1480, 108 L.  Ed.  2d  616
               To   allow  collateral  attacks  on
               final adoption decrees at any  time
               threatens  to unreasonably  disrupt
               the   upbringing  of  the   adopted
               child.   AS 25.23.140 is  a  strong
               policy   statement  by  the  Alaska
               Legislature that an adoption decree
               should  not  be challenged  on  any
               ground after one year.[22]
          In response to Donnas collateral attack on the adoption
decree  in  this  case, the superior court found mistake  in  the
          adoption process, specifically the lack of a meeting of the minds
about  the post-decree relationship among Donna, the Smiths,  and
the child.  The court thought Donna maybe foolishly misunderstood
what  was  happening, and she may have unreasonably assumed  that
. . . she would come and go as mom, with grandparents raising the
children;  while  the  Smiths felt the  need  to  maintain  [the]
fiction  that  theyre  the parents and [Donnas]  not  the  parent
anymore.23   After implying that this mistake invalidated  Donnas
consent, the court went on to apply a best interests analysis  to
determine  whether the adoption decree should be set aside.   The
court  concluded  that the best interest of the  child  would  be
served by returning [her to Donna].
          The  Smiths  argue  that invalidation  of  an  adoption
decree  is  limited to the grounds mentioned in AS  25.23.140(b),
namely fraud, misrepresentation, failure to give required notice,
and lack of jurisdiction.  None of these grounds was found by the
superior  court.  But that provision states only  that  upon  the
expiration  of one year after an adoption decree is  issued,  the
decree may not be questioned . . . in any manner upon any ground,
including fraud, misrepresentation, failure to give any  required
notice,  or  lack of [personal or subject matter] jurisdiction.24
This  does not necessarily preclude other grounds for a challenge
brought before the one-year period expires.25  That interpretation
would  be  inconsistent  with  our  view  that  adoption  consent
provisions  should  be  construed  to  protect  the   rights   of
biological parents.26
          But  we note that confusion, mistake about the finality
of   the   agreement,  and  a  change  of  heart  are   generally
insufficient grounds to invalidate consent to an adoption.27   We
also  note  that the most recent version of the Uniform  Adoption
Act  provides that the validity of an adoption decree may not  be
challenged for failure to comply with an open adoption agreement.28
          The  legislature  took specific action  to  allow  open
adoptions in Alaska by enacting AS 25.23.130(c) after a  decision
by  this court that Alaskas adoption statutes did not allow  open
adoption agreements.29  That provision states that nothing in the
adoption  statutes  prohibits an adoption that allows  visitation
between  the adopted person and that persons natural  parents  or
other  relatives.30   We subsequently noted  that  although  this
statute  does  not give biological parents an inherent  right  to
post-adoption  visitation, it does authorize  courts  to  fashion
open  adoption decrees securing visitation rights to a biological
parent  if it is in the childs best interests to do so,  with  or
without an agreement between the biological and adopting parents.31
          The  superior  court  found that  there  was  not  much
strength  in  Donnas consent because of her lack of maturity  and
that   her   foolish  misunderstanding  about  her  post-adoption
relationship with the child was a mistake.  But even if Donna was
laboring  under  a  mistake (and not simply having  a  change  of
heart),  this  mistake  is  insufficient  to  invalidate   Donnas
          First,  if  the adoption decrees underlying  conclusion
that Donna shall retain visitation rights is ambiguous because of
a  lack of detail, ambiguities are construed in favor of validity
          of the adoption decree.32  Second, the contours of an open
adoption  are  subject  to  the  best  interests  of  the  child,
regardless  of  the  detail and content of an  agreement  by  the
parties.33  We therefore agree with the current Uniform  Adoption
Act  that  post-decree disputes about details of an open adoption
cannot  be  grounds  to  set aside an adoption  decree.   If  the
parties  cannot resolve post-decree disputes about the boundaries
of a biological parents relationship with an adopted child, these
boundaries can be determined by the court.
          The Smiths also argue that it was error to apply a best
interests  analysis to set aside the adoption decree.  We  agree.
While  it  is  true that adoption statutes generally  are  to  be
liberally construed to the end that the best interests of adopted
children  are promoted,34 those statutes also are to be construed
with  due  regard for the rights of all persons affected  by  the
adoption.35  Nowhere do the adoption statutes suggest that a valid
adoption decree can be set aside on the ground that it is in  the
childs best interests to do so.36  It is unfortunate but true that
the  best  interests  of  a child alone  do  not  always  control
placement determinations.  There are times when it may be in  the
best  interests of a child to be adopted, but in the  absence  of
parental  consent  that may be impossible.37  Just  as  the  best
interests of a child cannot alone overcome a lack of consent, the
best  interests of a child cannot alone overcome a valid  consent
and previously entered adoption decree.38
     B.   Donnas  Consent and the Adoption Decree Cannot  Be
          Set  Aside  on  an  Alternative Ground  of  Fraud,
          Misrepresentation, Duress, or Undue Influence.
          Donna   argues  that  her  consent  should  have   been
invalidated  because  of:  (1) actual or  constructive  fraud  or
misrepresentation;39 (2) duress;40 or (3) undue influence;41 and she
asks   that  we  affirm  the  superior  court  on  one  of  these
alternative grounds.42  The court specifically found  that  there
had been no fraud or misrepresentation by the Smiths and may also
have   found   there   was  no  duress:   [W]eve   talked   about
misrepresentations, and fraud and duress, and I guess  a  mistake
.   .   .   I  dont  find  any  fraud  here,  I  dont  find   any
misrepresentation.  I dont think there was a meeting of the minds
though with respect to what was going to happen.  The court  made
no  specific mention of undue influence, but, as with duress, may
have implicitly found no undue influence given its ruling.
          The  superior courts actual findings of fact can be set
aside only if clearly erroneous, i.e., only if after a review  of
the record we are left with the firm and definite conviction that
the court made a mistake.43  When we are asked to consider factual
determinations not made by the superior court, we are limited  to
reviewing   the  record  to  see  if  the  factual  issues   were
nonetheless established as a matter of law.44  We therefore  must
examine  the  testimony presented at the evidentiary hearing,  as
          Donna lived with her mother in Iowa for the first  four
or  five months of her pregnancy and then moved to Alaska to live
with  the Smiths.  Donna testified that not at any time  did  she
          want to give up her child for adoption.  But there was other
testimony that before the child was born, Donna told Mr. and Mrs.
Smith,  her  physician, her prenatal home  visitor,  two  of  her
stepsisters,  one  of  Mr.  Smiths  co-workers,  and  the  childs
biological  father  that she wanted to  give  up  the  child  for
adoption.  She told some of them that she was not ready to  be  a
mother and others that she was going to move to California.
          Donna  testified  that  she  had  no  recollection   of
discussing  adoption with the Smiths prior to the  childs  birth.
When  directed to her previous deposition testimony that she  had
conversations with the Smiths about adoption prior to the  childs
birth,  Donna agreed this refreshed her recollection  that  there
had been some discussions.  Mr. Smith testified that prior to the
childs  birth Donna discussed options of abortion, adoption,  and
keeping  the child.  Donnas stepsister testified that  she  first
offered  to  adopt the child, but because she was  expecting  her
first  child  at about the same time, later declined  to  do  so.
Mrs. Smith testified that a week or so before the child was born,
Donna  asked her if the Smiths would adopt the child.  Mr.  Smith
then  began  looking  into  the  adoption  process.   Mrs.  Smith
testified  that while still in the hospital and in her  presence,
Donna  told a doctor that she was going to give up the child  for
adoption by the Smiths and move to California.
          Donna  and the child lived with the Smiths for about  a
week  after  coming home from the hospital.  Mr. Smith  testified
that  despite  Donnas early talk about giving up  the  child  for
adoption, he expected her to change her mind, and he was  anxious
to   see  her  make  a go of it.  According to Mrs.  Smith  Donna
changed  her mind about adoption within two or three  days  after
the child was born.
          Donna and the child moved in with Donnas stepsister and
her stepsisters boyfriend to get out on [her] own, but, according
to both Donnas stepsister and the childs biological father, Donna
concluded  that  she was unable to deal with the responsibilities
of raising the child.  Donna testified:  I was very stressed out.
I  was  doing it all alone and I had no help from nobody.  I  was
very  stressed out.  I wasnt eating and I wasnt sleeping at  all.
Donnas  stepsisters boyfriend testified that Donna asked them  to
adopt  the child, but he believed it would be too much  for  them
along  with their own newborn.  Donnas stepsister testified  that
she  suggested  Donna  go back and talk to the  Smiths  about  an
adoption, and that she let Donna know it would be a final  thing;
it  wasnt  something that they were just going  to  babysit  [the
child]  for a few months, and then [the child] was going to  come
back [to Donna].
          According to Mrs. Smith, Donna called on November 8  or
9,  2006,  to  again  request that the Smiths  adopt  the  child,
telling  Mrs. Smith that raising the child was too much for  her,
that there were other things she wanted to do with her life,  and
that she was not ready to be a mother.  Mrs. Smith testified that
the  Smiths talked with Donna about other possible candidates  to
adopt  the child, but Donna wanted the Smiths to adopt the  child
because  she  did  not want the child to be adopted  outside  the
family  or to lose contact with the child.  Donna testified  only
that she recalled having a conversation with her stepsister about
her  situation and that on November 8 or 9 Mrs. Smith called  her
and they talked about . . . having her take the baby.
          Donna  testified that she gave the child to the  Smiths
on  November 9, 2006, but she understood the Smiths were going to
take  her to help me and then I could  when I was ready that they
were  going  to  give  her back.  Mrs. Smith testified  that  the
Smiths  took  the  child  only after Donna  agreed  to  a  formal
adoption.   Mr. Smith testified that it was clear from  the  very
first  discussions about adoption that they would only  take  the
child  if  there  was a legal adoption.  The Smiths  denied  ever
suggesting that if they adopted the child, Donna could  have  the
child back when she was ready.
          Mr. Smith testified that it was a difficult decision to
agree to adopt Donnas child:
          I  mean, if  like I say, I was pushing 50 and
          personal  daycare was the last  thing  I  was
          thinking  about when I was 49 years old,  but
          its family, and its what we  she asked us  to
          do,  its  what we volunteered to  her  to  do
          because  thats what families do  for  family.
          You  know, we werent going to have it nor did
          [Donna]  want  it  to  go  to  strangers  and
          disappear out of our lives.
Mr.  Smith also testified about his discussions with Donna  about
post-adoption relationships and the open adoption:
          Q.   [W]hat, if any discussions do you recall
          where  you  told [Donna] the  baby  would  be
          there  for  her when she wanted  to  come  to
          become a mom?  In other words, she could  ask
          for it and get it back?
          A.  Well, that never happened.  I mean, thats
          why  we were going through the adoption.   An
          adoption  is  for real, its not  babysitting,
          its not just for a while, its not healthy for
          the child, you know, were not going to bounce
          [her]  back  and forth.  And she  needed  the
          stability of the family and if we were  going
          to  do  this, that [we] were going  to  adopt
          her, you will always be a part of the family,
          [Donna],   youre my daughter, you know,  this
          will  give  you  a chance to   to  develop  a
          relationship  with [her] like a  big  sister,
          youll be, you know, able to have fun and  and
          this    kind    of   approach   versus    the
          disciplinary, everything that you  dont  want
          about it, [she] will still be there and  some
          day in the future, thats why moms keeping two
          baby  books,  you know, the truth  will  come
          out,  just  like the truth with  all  of  our
          kids,   my  step-kids,  my  wifes  step-kids,
          everybody knows who their biological  parents
          are.   And theres no reason that [this] would
          be any different, but we werent going to keep
          her  for  a  couple of weeks or a  couple  of
          months  . . . . Thats [what] we committed  to
          do  and  thats what were doing,  and  it  was
          understood with all parties that, yes,  youre
          going  to  raise [her], youre going to  adopt
          [her],  and  it  was easy for [Donna]  to  do
          because  [Donna] knows the kind of home  that
          [she]  was coming into and going to be raised
          Donna  testified that she went with the Smiths to their
attorneys office to sign some papers on November 13 but  did  not
know  what she was signing  she thought it was help so they could
take  [the child] to the doctor and if something happened .  .  .
make  sure  she  was okay.  She testified that her  mental  state
really  wasnt  there, I mean, I was restless, . . .  I  was  very
upset.   She  testified that she had no recollection of  anything
the attorney told her.  Donna testified that she thought that  if
she did not go with the Smiths to the attorneys office they would
not  help  her, although she had no idea what would have happened
if she had not signed the paperwork.
          According  to the Smiths attorney:   (1)  he  read  and
discussed  the  consent form with Donna; (2)  he  believed  Donna
understood the terms of the adoption and of the consent,  as  did
the  Smiths;  (3)  he gave Donna the chance  to  reflect  on  her
consent  before  she  signed it.  Mrs.  Smith  and  the  attorney
testified  that Donna was not restless and upset, but rather  was
normal,  pleasant, and even eager and happy to sign the  consent.
Donna admitted she was not forced to sign anything.
          The attorney testified that during the meeting he noted
that  the adoption required the consent of the biological father,
and  that Donna provided the name and contact information.   Mrs.
Smith  testified that Donna was very willing to call him and  get
all  the  needed information.  Donna testified that she contacted
the  biological father and that she understood he was permanently
giving  up his parental rights by signing the paperwork; she  did
not  know exactly what he signed, but guessed he signed the  same
thing  she  did.   Donna claimed she never once,  to  [her]  best
recollection, used the word adoption, but just told  him  he  was
giving  his  right, you know, I told him that [the  Smiths]  were
taking [the child] in.
          The  biological father testified that Donna  told  him:
(1)  she  was not able to handle the responsibility of  parenting
the  child; (2) the best thing to do was to give up the child for
adoption; and (3) the Smiths had offered to adopt the child.   He
testified that he thought it was in the childs best interests  to
be  adopted  by the Smiths and that he relinquished his  parental
rights so the Smiths could adopt the child.
          Donna  continued  to live with her stepsister  and  her
stepsisters  boyfriend for two or three months  after  the  child
went  to live with the Smiths.  Donnas stepsister testified  that
Donna  told  her about going to the attorneys office and  signing
the  adoption  consent  papers.  Donna  did  not  complain  about
signing  the consent and never indicated that she wanted to  undo
the  adoption  or get the child back.  According to  Mrs.  Smith,
after Donna signed her consent but before the adoption decree was
entered,   Donna  called  Mrs.  Smith  to  talk   about   feeling
uncomfortable when people asked about the child and said she  was
telling  people  that  the Smiths were babysitting.   Mrs.  Smith
encouraged her to be honest and accept the situation.  At no time
prior  to the adoption decree did Donna tell the Smiths that  she
did not want to go through with the adoption.
          Donnas prenatal home care visitor testified that  Donna
said  she intended to give up the child for adoption and move  to
California; Donna denied recollection of the conversation.  Donna
admitted  that  she had plans to go to California  to  visit  her
mother  and  admitted that her mother told her not to  come,  but
denied  that  it  had  anything to do with adoption.   But  Donna
acknowledged previous deposition testimony that when she told her
mother she would not be bringing the child because she was giving
it  up for adoption, her mother told her not to come without  the
          Donna also testified that until March 2007, she did not
actually  realize the child had been adopted by the Smiths.   But
Donnas  prenatal  home  care  visitor  testified  that  she   was
concerned  about  Donna being depressed, and  that  she  provided
Donna with a handout about grief over the loss of a child through
death  or adoption within one month of Donna giving the child  to
the  Smiths.  Donnas stepsister testified that Donna told her she
had  gone to a lawyers office and signed papers consenting to the
adoption within a week of it happening.
          The  foregoing testimony provides substantial  evidence
to  support the superior courts explicit finding that the  Smiths
had  not  engaged in fraud or misrepresentation, and that finding
is  not clearly erroneous.  We glean from this finding and  other
comments  by the superior court, including its emphasis that  the
Smiths  attorney  did  an excellent job explaining  the  adoption
consent  to  Donna, that the court did not believe Donna  had  no
idea  she  was giving up her child for adoption when  she  signed
paperwork  in  the attorneys office.  Even if,  as  the  superior
court  suggested while giving Donna some benefit  of  the  doubt,
Donna was probably foolish and may have unreasonably assumed .  .
. she could come and go as mom, on this record we cannot overturn
the  superior  courts finding that her foolish  and  unreasonable
assumption  was  not the result of any material  misstatement  of
fact or similar wrongful conduct by the Smiths.
          Donnas  claims of duress and undue influence also  must
     fail on this record.
A fair reading of the superior courts oral decision reflects that
the  court implicitly found no duress or undue influence  by  the
Smiths,  and these findings are supported by substantial evidence
and  are  not  clearly erroneous.  There is no  evidence  in  the
record  to suggest that the Smiths somehow threatened and aroused
such  fear  in Donna that she could no longer exercise  her  free
will  to refuse her consent to the adoption.  Similarly there  is
no  evidence  in  the record to suggest that the  Smiths  assumed
control of Donnas free will, precluded Donna from exercising  her
own  free  and  deliberate judgment about her options  and  about
consenting  to the Smiths adoption of the child, or  coerced  her
into  an  adoption  to which she otherwise would  have  not  have
agreed.   Even  if the superior court did not implicitly  address
undue  influence or duress, as a matter of law this record cannot
support such claims.
          Testimony showed that Donna considered and made up  her
own  mind about adoption prior to the childs birth, then  changed
her  own mind and decided to keep the child, and then changed her
own mind again after unsuccessfully trying to live on her own and
be  a  mother to the child.  The evidence in the record  reflects
that:   (1)  the Smiths supported Donnas decisions, but  did  not
make  them for her; (2) Donna asked the Smiths to adopt the child
after  discussing other placement options; (3) Donna specifically
wanted the Smiths to adopt the child to keep the child within the
family;  (4)  Donna  personally contacted the  childs  biological
father  and  persuaded  him to relinquish  his  parental  rights,
telling him it was in the best interests of the child to have the
Smiths adopt her; and (5) the Smiths were reluctant to adopt  the
child  because of their age, but agreed to do so to  help  Donna,
their daughter.
          We  accept Donnas  arguments that:  (1) she  was  in  a
difficult  situation;  (2)  she  was  young,  inexperienced,  and
immature; (3) she was stressed-out trying to be a mother  to  her
child;  and (4) she needed help.  We also accept Donnas  argument
that the Smiths were in a position to influence Donnas decisions.
But  these  arguments  overlook a critical component  for  Donnas
claims  of duress and undue influence  Donna must show  that  the
Smiths  did something wrongful.  The Smiths certainly did nothing
to  put  Donna in her difficult situation; the evidence  actually
reflects that the Smiths tried as best they could to help her  in
her  time  of need.  Donna did not present any evidence that  the
Smiths threatened her or tried to force her to give up her  child
for adoption.  Nor has Donna suggested a motive for the Smiths to
do  anything  wrongful  the only evidence  in  the  record  about
motive  is Mr. Smiths testimony that the Smiths agreed  to  adopt
the  child  because it was what Donna wanted,  because  it  would
avoid  Donna  and  the  family losing the child  completely,  and
because it was what families do for family.
          We  therefore reject Donnas argument that the  superior
courts  decision can be affirmed on alternative grounds of actual
or  constructive  fraud or misrepresentation,  duress,  or  undue
     C.   We  Reverse the Order Invalidating the Adoption  Decree
          and  Remand for Consideration of a Visitation Framework
          in the Best Interests of the Child.
          The  decision to invalidate the adoption decree  cannot
be  sustained.  The adoption decree must be reinstated,  and  the
child  must  be returned to the Smiths.  If Donna and the  Smiths
cannot agree on post-adoption visitation, the superior court must
consider an appropriate visitation framework for Donna.45
          We  note that the childs living situation will tend  to
foster   the   kind  of  open  adoption  that  must   have   been
          contemplated:  (1) the parties live in a small community; (2) the
child  will be raised by her biological grandparents;  (3)  Donna
has  seven  siblings who will be the childs biological aunts  and
uncles  as  well as adoptive brothers and sisters; and (4)  Donna
will  be the childs adoptive sister as well as biological mother.
Under these circumstances it is very likely the child will become
aware  of  her natural place in her extended family at  an  early
age.   The  Smiths  expected this and were  planning  for  it  by
keeping  two  baby  books, one reflecting the  childs  biological
parents and their families.  If the parties leave it to the court
to  fashion a visitation framework, these circumstances  will  no
doubt play a significant role in its determination.
          We  also note that in fashioning a visitation framework
the   superior   court  must  be  mindful  of  addressing   three
potentially  competing  interests:   (1)  Donna  is  entitled  to
reasonable  visitation with the child; (2)  the  Smiths  are  the
childs  legal  parents and Donnas visitation may not unreasonably
interfere with the Smiths parental rights; and (3) the visitation
framework must reasonably reflect the best interests of the child
in   light  of  the  adoption  and  all  other  relevant   family
circumstances.   Because the superior court did  not  attempt  to
fashion a visitation framework and the parties therefore have not
discussed  visitation in their briefing to us, we do not  address
legal   issues   that  may  be  implicated  in  recognizing   and
accommodating  these  interests.   If  the  superior  court  must
fashion  a  visitation  framework  over  the  objection   of   an
interested  party,  the courts decision should  be  supported  by
appropriate  findings of fact and conclusions  of  law  to  allow
appellate review.
          We  REVERSE the courts order setting aside the adoption
decree  and  REMAND with directions to return the  child  to  the
Smiths  custody and to consider a visitation framework for  Donna
that  takes into account the Smiths parental rights, Donnas right
to visitation, and the best interests of the child.
     1    The  term  open adoption is used to  describe
          the    situation   where    there    is    no
          confidentiality  between the natural  parents
          (or  siblings)  and the adoptive  parents  or
          where there is some degree of contact between
          the  child  and  birth family  following  the
          adoption.   While  the adoptive  parents  are
          still  the  sole legal parents,  the  natural
          parents  and/or  siblings  may  have  ongoing
          contact  with  the  child,  ranging  from  an
          exchange  of  photographs and letters  up  to
          visitation rights.
Ann  M.  Haralambie, Handling Child Custody, Abuse  and  Adoption
Cases 14.21 (McGraw-Hill 1993).

     2    Pseudonyms are used for all family members.

     3     See AS 25.23.040(a)(1)-(2) (consent generally required
from  biological  mother and father of  a  minor  child);  In  re
Adoption  of  A.F.M., 15 P.3d 258, 262 (Alaska 2001)  (ordinarily
parental consent is required for adoption, but not if the parents
relationship with the child has been terminated in an adoption or
child in need of aid proceeding).

     4      Paragraph   three  of  Donnas  consent  provides   an
acknowledgment that Donna had the right to consult with  her  own

     5     See AS 25.23.070(b) (setting conditions for withdrawal
of  consent  after   ten  days but prior  to  entry  of  adoption

     6    See AS 25.23.070(a) (consent may not be withdrawn after
entry of adoption decree).

     7     The  decree  itself  made no  mention  of  visitation.
Because:   (1)  the  Smiths attorney prepared  the  findings  and
conclusions  and the decree; (2) the court entered  the  findings
and  conclusions and the decree at the same time and  appears  to
have  treated  the  findings and conclusions as  a  part  of  the
decree;   and (3) the parties likewise have treated the  findings
and conclusions as a part of the decree, we follow the courts and
the  parties convention.  But we note for future application that
the  existence (but not the details) of post-adoption  visitation
rights  must  be  set forth in the adoption decree.   See,  e.g.,
Alden H. v. State, Office of Childrens Servs., 108 P.3d 224,  229
n.19  (Alaska  2005)  (a natural parent is  entitled  to  request
inclusion  of  visitation  rights in a  future  decree.);  In  re
Adoption  of  Keith  M.W.,  79 P.3d  623,  630-32  (Alaska  2003)
(holding  deviation from ICWA placement preferences was justified
because  parent  consented to open adoption by non-native  couple
and  remanding  case  to trial court for a determination  of  the
nature and schedule of contact and visitation as provided in  the
adoption  decree).   Doing  so will  avoid  later  disputes  over
whether  visitation was to be allowed despite the decrees silence
on  the matter.  See Haralambie, supra note 1,  14.21 (Where both
the  natural  and  adoptive parents agree, and  where  state  law
permits  private adoption, the parties may draft an open adoption
agreement.   If the court is unwilling to incorporate  the  terms
into  the  adoption decree, the parties may nonetheless  maintain
their  agreement  in  the form of a collateral  writing.   It  is
doubtful, however, that such an agreement would be enforceable in
the  event  that the adoptive parents refused to allow  continued

     8     See AS 25.23.140(b) (adoption decree generally may not
be questioned by any person for any reason after one year).

     9    AS 25.24.150(c) provides:

          (c)  The  court  shall determine  custody  in
          accordance  with  the best interests  of  the
          child  under  AS  25.20.060 -  25.20.130.  In
          determining the best interests of  the  child
          the court shall consider
          (1)    the   physical,   emotional,   mental,
          religious, and social needs of the child;
          (2)  the capability and desire of each parent
          to meet these needs;
          (3) the child's preference if the child is of
          sufficient  age  and  capacity  to   form   a
          (4)  the  love and affection existing between
          the child and each parent;
          (5) the length of time the child has lived in
          a  stable, satisfactory environment  and  the
          desirability of maintaining continuity;
          (6)  the  willingness  and  ability  of  each
          parent  to facilitate and encourage  a  close
          and continuing relationship between the other
          parent  and the child, except that the  court
          may not consider this willingness and ability
          if one parent shows that the other parent has
          sexually  assaulted  or engaged  in  domestic
          violence  against the parent or a child,  and
          that a continuing relationship with the other
          parent will endanger the health or safety  of
          either the parent or the child;
          (7)  any evidence of domestic violence, child
          abuse,  or  child  neglect  in  the  proposed
          custodial household or a history of  violence
          between the parents;
          (8)  evidence that substance abuse by  either
          parent  or  other  members of  the  household
          directly  affects the emotional  or  physical
          well-being of the child;
          (9)  other  factors that the court  considers
     10    See AS 25.24.150(a).

     11     See  In  re Adoption of Missy M., 133 P.3d  645,  648
(Alaska 2006) (we reverse controlling factual findings if clearly
erroneous)  (citing In re Adoption of Bernard A., 77  P.3d  4,  7
(Alaska  2003)).  A factual finding is clearly erroneous  when  a
review of the record leaves us with the definite impression  that
a mistake has been made. Id. (citing Fardig v. Fardig, 56 P.3d 9,
11 (Alaska 2002)).

     12     Missy  M., 133 P.3d at 648 (reviewing application  of
facts to adoption statute).

     13     C.T. v. J.S., 951 P.2d 1199, 1199-1200 (Alaska  1998)
(reviewing  whether adoption was void for lack of  consent);  see
also  In  re  Keith M.W., 79 P.3d at 624-25 (stating  that  [t]he
legal  validity of a parental relinquishment or termination order
is  a  question  of  law to which a de novo  standard  of  review
applies and that relinquishment of parental rights could function
as consent to adoption).

     14    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     15     Tessa M. v. State, Dept of Health & Soc. Servs.,  182
P.3d 1110, 1114 (Alaska 2008) (internal citations omitted).

     16     Alaska  Adoption R. 17(a) (A person may move  to  set
aside  the  decree  by filing a motion stating  the  grounds  for
challenging the validity of the decree . . . .);  AS 25.23.140(b)
(decree  may not be questioned on any ground after expiration  of
one year).

     17     Holt  v.  Powell,  420 P.2d 468,  470  (Alaska  1966)
(existence  of  decree raises a presumption of its  validity  and
regularity   and   implies  court  found  facts   necessary   for

     18    Alaska Adoption R. 17(a) ([T]he burden is on the party
challenging the decree to show by a preponderance of the evidence
that the decree is not valid.).

     19    Holt, 420 P.2d at 470.

     20     AS  25.23.070(a) (A consent to adoption  may  not  be
withdrawn after the entry of a decree of adoption.).

     21    AS 25.23.140(b).

     22     Hernandez  v. Lambert, 951 P.2d 436,  441-42  (Alaska

     23    That an adoptive parent is in fact the childs parent to
the  exclusion of the biological parent is hardly a fiction under
the law.  We already have acknowledged that the mere execution of
a  consent  to  adoption  ordinarily delegates  to  the  adoptive
parents all powers permitted under AS 13.26.020 [governing powers
of  attorney], including the powers regarding care,  custody,  or
property of the minor child or ward.   In re Keith M.W., 79  P.3d
at  629  (citing  AS 25.23.060(c)).  When an adoption  decree  is
final  the  former parents legal relationship with the  child  is
terminated,   rendering  the  former  parent  a  non-parent    AS
25.23.130(a)(1)-(2)  provides that  the  effect  of  an  adoption
decree is to relieve the natural parents of the adopted person of
all  parental rights and responsibilities; to terminate all legal
relationships between the adopted person and the natural parents;
and  to  create  the  relationship of parent  and  child  between
petitioner and the adopted person, as if the adopted person  were
a   legitimate  blood  descendant  of  the  petitioner,  for  all
purposes.   Prior to the legislative enactment of AS 25.23.130(c)
to allow biological-relative visitation rights with a child given
up for adoption, we stated that AS 25.23.130(a) clearly provides,
however  harshly, that the final decree has the effect of  making
an  adopted child a stranger to the former relatives.  Matter  of
W.E.G., 710 P.2d 410, 414 (Alaska 1985) (declining to find blood-
relative  visitation  rights with adopted  child).   Although  AS
25.23.130 now does not preclude an ongoing relationship between a
biological  parent  and a child given up for adoption,  it  still
clearly  envisions that the adoptive parents in fact  become  the
childs parents.

     24    AS 25.23.140(b) (emphasis added).

     25     For  example Wyoming expressly includes duress  as  a
ground  for invalidating an otherwise irrevocable consent  to  an
adoption.   Wyo.  Stat.  Ann.  1-22-109(d).   Some  jurisdictions
recognize  force of circumstances or undue influence  as  grounds
for  invalidating  consent to an adoption,  but  others  do  not.
Compare  Morrow  v.  Family & Cmty. Serv. of Catholic  Charities,
Inc.,  504  N.E.2d  2,  5  (Ohio 1986) (describing  standard  for
determining  validity of consent and how that  consent  may  have
been affected by duress or undue influence), with In re T.R., 777
P.2d  1106, 1110-11 (Wyo. 1989) ([S]ome courts have expanded  the
meaning  of  duress to include force of circumstances  and  undue
influence. . . . We are not inclined, nevertheless, to expand the
grounds  upon  which a revocation of consent to adoption  may  be

     26     See  In  re Adoption of A.F.M., 960 P.2d 602,  604-05
(Alaska   1998)  (when  AS  25.23.050  is  susceptible   to   two
interpretations, the interpretation most favorable to  biological
parent  is selected); In re Adoption of K.M.M., 611 P.2d  84,  87
(Alaska  1980) (strictly construing former AS 20.15.050,  now  AS
25.23.050,  in  favor  of  biological  parents  when  determining
whether adoption consent is required); but see S.O. v. W.S.,  643
P.2d   997,   1002  n.7  (Alaska  1982)  (construing  former   AS
20.15.060(b),  now  AS  25.23.060(b); stating  that  because  the
paramount  purpose of adoption laws is to provide  for  childrens
welfare,  adoption statutes should be construed to  promote  this
purpose rather than to protect rights of biological parents;  and
holding   that  substantial  compliance  with  technical  consent
requirements  is  sufficient  when  statutory  purpose  has  been
fulfilled),  overruled on other grounds by Rosen v. Bd.  of  Pub.
Accountancy, 689 P.2d 478, 481-83 (Alaska 1984).

     27     See  In re Adoption of Infant Girl Banda, 559  N.E.2d
1373,  1384 nn.10-11 (Ohio App. 1990) (listing cases from various
jurisdictions);  In re Adoption of Jimenez, 736 N.E.2d  477,  479
(Ohio App. 1999).

     28     Unif.  Adoption  Act  3-707(c)  (1994)  (validity  of
adoption decree may not be challenged for failure to comply  with
agreement  for  visitation  or communication  with  an  adoptee).
Alaska  has  adopted  a  modified version  of  the  1969  Uniform
Adoption  Act.   In re J.J.J., 718 P.2d 948, 952  (Alaska  1986);
K.K.M.,  611 P.2d at 87; Unif. Adoption Act  8 (1969).  See  also
Matter  of J.L.F., 912 P.2d 1255, 1264 n.10 (Alaska 1996) (noting
that  the  1969  Act was superseded by the 1994 Uniform  Adoption
Act).  In In re Adoption of Keith M.W., we looked to the 1994 Act
and its commentary for guidance on an adoption issue. 79 P.3d  at
628 & nn.39-42.

     29    In re Adoption of A.F.M., 960 P.2d at 605 n.4.

     30    AS 25.23.130(c).

     31    In re Adoption of A.F.M., 960 P.2d at 605-06.

     32    Holt, 420 P.2d at 470.

     33    See In re Adoption of A.F.M., 960 P.2d at 606.

     34    AS 25.23.005.

     35     Id.;  see  also  In re K.L.J., 813 P.2d  276,  278-80
(Alaska 1991) (accommodating best interest of child to be adopted
with  due process guarantee of court-appointed counsel to contest

     36    A best interests analysis is explicitly warranted only
when a parent wishes to withdraw consent to an adoption after the
ten-day grace period has expired but before an adoption decree is
entered.  See AS 25.23.070(b).  This was the setting in  S.O.  v.
W.S.,  the  case  relied upon by the superior  court  to  justify
looking  at the childs best interests here. 643 P.2d at  1000-01,
1004-06.   Here, the window for withdrawing consent  already  had
closed:   six  months had elapsed after the entry of  the  decree
before Donna filed her petition to set aside the adoption.

     37     See  AS  25.23.050(a) (setting  out  limited  factual
predicates  for adoption without consent); D.L.J. v. W.D.R.,  635
P.2d 834, 838 (Alaska 1981) (best interests of the child are  not
relevant  to  separate determination of whether  natural  parents
consent is required); In re Adoption of L.A.H., 597 P.2d 513, 517
n.14  (Alaska 1979) (former AS 20.15.120(c), now AS 25.23.120(c),
disposes  of  the argument that fathers consent not necessary  if
adoption is in best interests of child).

     38    See, e.g., In re Navajo County Juvenile Action No. JA-
691, 831 P.2d 368, 375 (Ariz. App. 1991) ([T]he best interests of
the  children are simply irrelevant because, under [the statute],
an  adoption is irrevocable unless obtained by fraud,  duress  or
undue influence.).

     39     We recently discussed the difference between tortious
fraud  and  the level of misrepresentation necessary to  avoid  a
contract in Seybert v. Cominco Alaska Exploration, 182 P.3d  1079
(Alaska   2008).   To  sue  in  tort  for  damages   related   to
misrepresentation,  a party must establish a false  statement  of
fact,  scienter, intent to induce reliance, actual reliance,  and
damage.   Id. at 1094 n.48.  To avoid an obligation,  however,  a
party  need  show only material misrepresentation and justifiable
reliance.  Id. at 1094.

          In  Adams  v.  Adams,  89 P.3d 743  (Alaska  2004),  we
described constructive fraud as follows:

          Constructive fraud exists in cases  in  which
          conduct,  although  not actually  fraudulent,
          ought  to  be so treated,  that is, in  which
          such  conduct is a constructive . . .  fraud,
          having  all the actual consequences  and  all
          the  legal  effects of actual fraud.   Stated
          otherwise, constructive fraud is a breach  of
          a   duty,   which   while  not  intentionally
          deceptive  or  actually  dishonest,  the  law
          declares  fraudulent because of its  tendency
          to deceive others.
Id. at 750 (internal citations omitted).

     40     Duress generally requires a threat that arouses  such
fear  as  to  preclude  a  party from exercising  free  will  and
judgment, or it must be such as would induce assent on  the  part
of  a  brave person or a person of ordinary firmness.   Crane  v.
Crane,  986  P.2d 881, 887 (Alaska 1999) (citing 25 Am.  Jur.  2d
Duress and Undue Influence  1 (1996)).

     41     Undue influence is the exercise of sufficient control
over  a  person  that:  (1) deprives that person  of  freedom  of
choice  or  overcomes that persons free will and substitutes  the
will  of  another  in  its  place: (2) precludes  [that  persons]
exercise  of free and deliberate judgment; or (3) coerces  [that]
person  into doing something that would not have been done absent
the  influence.   25 Am. Jur. 2d Duress and Undue  Influence   36
(2004).   The  basic  elements of undue  influence  are:   (1)  a
susceptible  party;  (2) the opportunity  for  another  to  exert
influence;  (3)  the exertion of improper influence;  and  (4)  a
result  showing the effect of the improper influence.   Id.   The
existence of undue influence depends upon the particular facts of
a  case,  and  the  focus  must be on whether  the  influence  is
reasonable  under  the  circumstances.   Id.  at   37   (internal
citations omitted).

          We  have addressed the test for undue influence in  the
context of making wills:

          The  party challenging a will must prove that
          the  testator was virtually compelled to make
          a  will  [that the testator] would  not  have
          made  [if] left to the free exercise of  [the
          testators]  own  judgment  and  wishes.    We
          approach  this  issue  by  asking  whether  a
          person  used coercion and duress which  would
          act  as a dominating power over the mind  and
          act  of a testator.  In other words, was  the
          willpower of the testator so destroyed as  to
          substitute the will of another?
Crittell  v.  Bingo,  36  P.3d 634, 639 (Alaska  2001)  (internal
citations  omitted).   We more recently  relied  on  Crittell  to
establish the same test for inter vivos gifts.  Ware v. Ware, 161
P.3d 1188, 1193-95 (Alaska 2007).

     42    See Atcherian v. State, Dept of Revenue, Child Support
Enforcement  Div.,  14 P.3d 970, 974 n.8 (Alaska  2000)  (We  may
affirm  a  superior  courts decision on  any  legal  ground  that
appears  in  the  record,  even if the  superior  court  did  not
consider  the alternative ground. (citing, among other cases,  N.
Lights Motel, Inc. v. Sweaney, 563 P.2d 256, 257 (Alaska 1977))).

     43    See supra note 10.

     44     See  In re Estate of Brandon, 902 P.2d 1299,  1318-19
(Alaska  1995)  (superior court directed to  consider  previously
unconsidered  claim  of  duress on  remand  because  [g]iven  the
record, we cannot say as a matter of law that the claim of duress
is  without  merit); cf. A & G Constr. Co., Inc.  v.  Reid  Bros.
Logging Co., Inc., 547 P.2d 1207, 1219 (Alaska 1976) (where trial
court  did not make findings and conclusions on issue of economic
duress,  this court [is] unable to determine whether the  [trial]
court  considered this issue [and] it is necessary to remand  the
case for further findings and conclusions).

     45     We  recognize that the superior court considered  and
rejected  this path, stating that forc[ing] that down the  throat
of both parties, I dont think thats the way to resolve this case.
But  in  the  absence of a legitimate basis to invalidate  Donnas
consent  to the adoption, consideration of a visitation framework
is the appropriate action.

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