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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
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, email
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-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.
I. INTRODUCTION
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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II. FACTS AND PROCEEDINGS
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.
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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
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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.
III. STANDARD OF REVIEW
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
IV. DISCUSSION
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
(2010).
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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
V. CONCLUSION
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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