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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 Xavier K., a Minor (1/13/2012) sp-6634

In the Matter of the Adoption of Xavier K., a Minor (1/13/2012) sp-6634

        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, 
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In the Matter of the Adoption of                )       Supreme Court No. S-13838 
XAVIER K., a Minor.                             ) 
                                                )       Superior Court No. 3KN-09-00179 PR 
                                                )       O P I N I O N 
                                                )       No. 6634 - January 13, 2012 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Kenai, Carl Bauman, Judge. 

                Appearances:      Phil N. Nash, Law Offices of Phil N. Nash, 
                Kenai, for Appellant.      No appearance by Appellee. 

                Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
                and Stowers, Justices. 

                CARPENETI, Chief Justice. 


                A mother petitioned the superior court to adopt her biological son.  She has 

never been married to the child's father.          While the court concluded that the father's 

consent was not needed, it denied the petition as not being in the child's best interests. 

Instead, the court granted physical and legal custody to the mother and visitation rights 

to the father. Because Alaska's adoption statute does not contemplate an adoption under 

the circumstances of this case, we affirm. 

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               Xavier K. was born in August 2005 to Roberta Katz and Frank Smith.1 

Katz and Smith have never been married.  Smith has a felony history including burglary, 

theft, and assault.    Shortly after learning that she was pregnant, Katz discovered that 

Smith had been unfaithful to her.   She moved out of their shared apartment and was not 

living with Smith when Xavier was born.          Smith learned of Xavier's birth from a third 

party and traveled to Anchorage to see his son in the hospital.         After Katz and Xavier 

were released from the hospital, Smith sought out Katz while she and Xavier were on an 

outing in Nikiski.  They discussed the expense of raising a child, and Smith claims that 

he gave Katz $400 in cash. 

               In September 2005, probation officers seized cocaine and marijuana from 

Smith's apartment, along with $4,210 in cash.           Smith was indicted by a grand jury, 

convicted, and incarcerated from September 2005 to September 2007.                  Katz visited 

Smith at least twice while he was in prison but did not bring Xavier.          While Smith was 

in   prison,   the  Child  Support   Services   Division  (CSSD)   set   Smith's   child  support 

obligation at $50 per month.   CSSD informed Smith that he must notify CSSD once he 

was released and employed.       Smith did not make any child support payments to CSSD 

while he was in prison.  He did, however, make several cash payments and medical cost 

reimbursements to Katz in 2007 and 2008. 

               Smith was released in September 2007 with five years' probation.  He did 

not contact CSSD upon his release.        Smith visited Xavier for the first time in October 

2007 following his release.      Between this visit and August 10, 2008, 18 visits occurred 

between Smith and Xavier, supervised by Katz and mostly taking place at McDonald's. 

Smith missed a number of additional scheduled visits. 

        1      We use pseudonyms to protect the family's privacy. 

                                               -2-                                            6634 

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                By this point, Katz was involved with another man, Seth Colton. Katz later 

testified that in front of Xavier, "[Smith] was referred to as Father and [Colton] was 

referred to as . . . Dad."     During one of Smith's final visits with Xavier, the boy saw 

Colton in the parking lot and said something to the effect of "there's my daddy."                  This 

comment   upset   Smith.       In   August   2008,   Katz   asked   Smith   to   rent   a   playroom   at 

McDonald's for Xavier's birthday party.             Smith declined, as he was still upset about 

Xavier's remark.      Smith then declined an opportunity to meet with Katz and Xavier at 

the 2008 State Fair. 

                On   August   18,   2008,   Katz   and   Smith   exchanged   a   long   string   of   text 

messages. Smith expressed frustration that Katz allowed Xavier to call Colton "Daddy," 

while Katz expressed frustration that Smith would not sign a parenting agreement giving 

her   sole   legal   and  primary   physical   custody     of   Xavier.  The   parties    then   cut   off 

communication with each other.  Katz did not communicate her whereabouts to Smith, 

nor did she facilitate communication between Xavier and his father.  In late summer or 

fall of 2008, Smith began living with a woman named Sarah Selwyn. 

                In November 2009, Katz petitioned to adopt Xavier.  The petition alleged 

that Smith's consent was not needed because he had abandoned the child for at least six 

months, he had failed to "communicate meaningfully," and he had failed to provide child 

support   payments.       Smith   contested   the   adoption.   Hearings   were   conducted   before 

Superior Court Judge Carl Bauman in Kenai in March 2010.                     By this time, Katz was 

engaged to Colton and Smith was engaged to Selwyn.                 Smith and Selwyn had recently 

had a child. 

                During the hearings, the court heard testimony on the parties' efforts to 

contact each other, the visits between Smith and Xavier, the amount of child support that 

Smith had paid to Katz, and Smith's difficulties finding employment since being released 

from prison.     Some of the testimony addressed the limited   involvement of Xavier's 

                                                  -3-                                             6634

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paternal grandparents in his life, with Katz testifying that Smith's mother had sent Xavier 

two cards in four years.  The court found that Smith had made a total of $1,300 in child 

support payments - $400 in August 2005, and $100 per month from November 2007 

through July 2008. 

                The court issued its findings of fact and conclusions of law on March 26, 

2010.    Alaska Statute 25.23.120(c) provides that a court may issue a final decree of 

adoption if it finds "that the required consents have been obtained or excused and that 

the adoption is in the best interest of the person to be adopted."  The court concluded that 

Smith's consent was not required, because Smith failed to communicate meaningfully 

with his son, and failed to provide for Xavier's care and support.              But the court also 

decided that it was not in Xavier's best interests to grant the adoption petition.  Instead, 

the court granted sole physical and legal custody to Katz and visitation rights to Smith. 

                Katz appeals. 


                We review de novo as a matter of law whether factual findings satisfy the 

requirements for application of a statute, adopting the rule of law that is most persuasive 
in light of precedent, reason, and policy.2 


        Alaska's      Adoption      Statute    Does     Not    Permit     Adoption      Under     The 
        Circumstances Of This Case. 

                This   case   presents   a   situation   unprecedented   in   this   court   -   a   parent 

petitioning to adopt the parent's own biological child when parental rights to the child 

have never been extinguished.  But while Katz seeks to "adopt" Xavier, essentially she 

seeks to terminate Smith's parental rights without his consent. An adoption has the dual 

        2       In re Adoption of S.K.L.H., 204 P.3d 320, 324-25 (Alaska 2009). 

                                                 -4-                                              6634 

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effects   of   (1)   creating   a   parental   relationship   under   the   law   between   petitioner   and 
adoptee, and (2) terminating the biological parents' parental rights.3             Here, Katz already 

has parental rights, and so adoption would achieve only the second of these goals. 

                Katz's     attempted    use   of  the   adoption    statute   is  deeply   problematic. 

Termination   of   parental   rights   is   an   extreme   measure,   and   "parents   should   not   be 

deprived of the fundamental rights and duties inherent in the parent-child relationship 
except for grave and weighty reasons."4           Two means exist for involuntarily terminating 

parental rights in Alaska.  The first is the Children in Need of Aid (CINA) statute, which 

lays out rigorous criteria for parental unfitness that the state must prove by clear and 
convincing evidence.5       The second is through adoption, which may take place without 

the consent of the biological parent(s) under the conditions outlined in AS 25.23.050. 

However, adoption and CINA terminations differ in a fundamental respect: "An adoption 

proceeding      operates    to replace    a  parent,   while   a  [CINA]     proceeding     operates    to 
emancipate a child from an offending parent's legal bonds."6              An adoption petition such 

as Katz's, which would terminate the non-consenting father's parental rights without 

replacing him with a legally obligated adult, contravenes the purpose of adoption. 

                Alaska's   adoption   statutes   do   permit   an   individual   to   adopt   his   or   her 

biological child - AS 25.23.020(a), which lists the categories of individuals who may 

adopt, states in subsection (3) that "the unmarried father or mother of the person to be 

        3       AS 25.23.130(a)(1)-(2). 

        4       In re K.M.M.'s Adoption, 611 P.2d 84, 87 (Alaska 1980) (internal quotation 

marks omitted). 

        5       AS 47.10.088(a). 

        6       In re Adoption of Missy M ., 133 P.3d 645, 653 (Alaska 2006) (emphasis in 

original) (quoting In re Adoption of B.S.L., 779 P.2d 1222, 1226 (Alaska 1989)). 

                                                   -5-                                             6634

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adopted" may adopt. But, as we conclude below, a biological parent adoption should not 

be granted under the circumstances of this case.  Alaska's adoption statutes are based on 
the 1969 version of the Uniform Adoption Act,7 which originally provided that "the 

unmarried father or mother of the individual to be adopted" may adopt.8               In 1994, this 

provision of the Act was amended to state that "any individual may adopt or be adopted 

by another individual for the purpose of creating the relationship of parent and child 
between them."9     Under this measure, a biological parent who already has a legal parent- 

child relationship with his or her own child would not qualify to adopt. 

                In   the  past  we  have   looked    to  the  1994   revision  of  the  Act   and  its 
commentary for guidance on adoption issues.10            Guided by the 1994 Act, we conclude 

that a biological parent adoption is permissible only where the petitioning parent does 

not have a legal parent-child relationship with the child.            One such situation occurs 
where the parental relationship has previously been severed as a matter of law.11                  A 

second scenario may exist where a biological father never established his parental rights 

- for instance, where he discovers that he had unknowingly fathered a child, and wishes 
to establish his parental rights.12    While these examples are not necessarily exhaustive, 

        7       S.K.L.H., 204 P.3d at 327 n.28 (citations omitted).

        8       Unif. Adoption Act  3(3) (superseded 1994), 9 U.L.A. 143 (1999).

        9       Unif. Adoption Act  1-102, 9 U.L.A. 22 (1999) (emphasis added). 

        10      E.g., S.K.L.H., 204 P.3d at 327;In re Adoption of Keith M.W., 79 P.3d 623,

628 & nn.39-42 (Alaska 2003). 

        11      E.g., Leake v. Grissom, 614 P.2d 1107, 1109 (Okla. 1980). 

        12      See  Ashley L. Driver,  Confusing Plain Language: The Compelling but 

Counterintuitive Need for Adoption by a Biological Parent, 63 ARK .L.REV . 139, 148-49 

                                                 -6-                                           6634

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they are illustrative of the unusual conditions that should be in place before a biological 

parent   petitions   for   adoption.   Otherwise,   the   trial   court   should   deny  the   petition 
immediately and revert the proceeding to a custody determination.13 

                In the present case, Katz already had a legal parent-child relationship with 

Xavier.    Smith's   paternity   was   known,   and   he   had   previously   rejected   a   proposed 

custody arrangement giving Katz full legal and primary physical custody. Alaska Statute 

25.23.020(a) was not designed for a parent to terminate another parent's parental rights 

as a substitute proceeding for a custody dispute. The superior court rightly denied Katz's 
petition and awarded custody instead.14 


                In the absence of the threshold circumstances necessary for a biological 

parent adoption, full custody is the best outcome that Katz could have received under the 

circumstances of this case.  This is exactly what the superior court awarded to Katz, and 

we see no reason to disturb that decision. 

                We AFFIRM the superior court's denial of Katz's adoption petition. 

        13      See  AS     25.23.120(c)-(d).      AS    25.23.120(c)     provides    that  if,  at  the 

conclusion of an adoption 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."          But under AS 25.23.120(d), "[i]f 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." 

        14      In light of our determination that Alaska's adoption statute does not permit 

adoption under the circumstances of this case, we find it unnecessary to address any of 
Katz's   arguments   on   appeal.    But   we   have   reviewed   all   of   them   -   concerning   the 
superior court's best interests finding, the superior court's denial of Katz's bifurcation 
request, the equal protection claim, and the test for abandonment - and find them all to 
be without merit. 

                                                 -7-                                              6634 
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