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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. David S. v. Jared H. (8/16/2013) sp-6808

David S. v. Jared H. (8/16/2013) sp-6808

         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  



DAVID S.,                                               )  

                                                        )        Supreme Court No. S-14816  

                   Appellant,                           )  

                                                        )        Superior Court No. 4FA-11-00273 PR  

          v.                                            )  

                                                        )        O P I N I O N  

JARED H. and CONNIE H.,                                 )  

                                                        )        No. 6808 – August 16, 2013  

                   Appellees.                           )  

                                                        )  



                   Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                   Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.   



                   Appearances:  Jason A. Weiner, Gazewood & Weiner, P.C.,  

                                                                                     

                   Fairbanks, for Appellant.  Joseph W. Miller, Law Offices of  

                                                                        

                   Joseph Miller, LLC, Fairbanks, for Appellees.   



                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                               

                   Bolger, Justices.  



                   STOWERS, Justice.  



I.        INTRODUCTION  



                   The superior court granted a grandfather and grandmother’s petition to  

                                                                                     



adopt their grandchild without the consent of the biological father.  The superior court  

                                                              



found that the father’s consent was not required because he failed significantly without  

                                                        



justifiable cause to communicate meaningfully with the child for a period of at least one  



year.  On appeal, the father does not challenge the superior court’s finding that he failed  

                                                                                              


----------------------- Page 2-----------------------

to communicate meaningfully with the child for at least the year-long period; he instead  



argues  that  this  failure  was  justified  by:  (1)  his  incarceration;  (2)  an  agreement  he  



               

allegedly  had  with  the  child’s  biological  mother;  (3)  alleged  interference  by  the  



grandparents; and (4) the totality of the circumstances.  The father also argues that the  



superior  court  abused  its  discretion  by  failing  to  consider  visitation  rights  and  by  



awarding attorney’s fees against him.  



                   Because the record does not support the father’s argument that his failure  



to communicate meaningfully with the child was justified, the superior court did not  



                               

clearly err in finding that this failure was unjustified, and we affirm the superior court’s  



                                                                                                

finding that the father waived his right to consent to the adoption.  Because the issue of  



                                                                                 

visitation rights was not raised before the superior court, we hold that the superior court  



                                                                                    

did not abuse its discretion in failing to consider the issue.  Finally, because the superior  



                                                                

court did not abuse its discretion in awarding attorney’s fees against the father, we affirm  



that award.  



II.       FACTS AND PROCEEDINGS  



         A.        Facts 

                                        1 was born to Alicia Howard and David Smith in December  

                    Katie Howard                 



2003.  Alicia was listed as the mother on the birth certificate, but David was not listed  



                        

as  the  father.       At  the  time  of  Katie’s  birth  David  was  incarcerated;  he  has  been  



incarcerated for the majority of Katie’s life.  David has never met or spoken to Katie.  



                                                                                                     

                   David lived with Alicia in her parents’ home in Fairbanks for a brief period  



prior to Katie’s birth, but moved out in early 2003 after a dispute with Alicia’s father.  



                                            

In September 2003 David was arrested and incarcerated in Fairbanks on forgery charges  



                                                                          

relating to an incident in Idaho.  Soon after David was incarcerated Alicia obtained a  



          1        Pseudonyms have been used to protect the privacy of the parties.  



                                                            -2-                                                        6808  


----------------------- Page 3-----------------------

domestic violence protective order against him. The protective order remained effective          



only for three weeks, as Alicia successfully requested to dissolve the order so that she  



                                                  

could “try to build a friendship [with David] and work things out for me and the baby to  



be.”  



                                                                                                                         

                     David was extradited to Idaho just prior to Katie’s birth, and he and Alicia  



                                                                 

initially  maintained  contact  by  sending  letters  to  one  another  and  by  talking  on  the  



telephone.  Alicia sent seven letters to David in December 2003 that varied in subject  



                       

matter and in tone.  In one she told David she was “sick of the [b.s.]” and accused him  



                                                                                      

of having an affair before he went to jail; in another she expressed her love for David and  



                                                                                                           

described Katie’s bedroom and the birthing plan to him.  In her final letter to David, sent  



                                           

in April 2005, Alicia told David that she still loved him but she needed to keep him  



“gone.”  



                                                                                             

                     David sent three letters to Alicia in early 2004 and two in 2005, all of which  



                                                                                            

were returned to sender.  In the letters David expressed his excitement over Katie’s birth  



                        

and requested pictures of her.  But David also grew frustrated over Alicia’s failure to  



communicate and blamed her family for this lack of communication, stating, “I guess that  



                                                                                                           

your parents have spoken and you are listening to them.” David also sent a letter directly  



                            

to Katie on April 6, 2004, in which he told her that he loved her and wanted to meet her,  



                                         

but that he needed to get out of prison and get his act together first; this letter was also  



returned to sender.  David mailed his final two letters to Alicia in 2005 to a post office  



box, noting he never received any response to the first three letters mailed to Alicia’s  



parents’ house.  



                     Alicia and David resumed limited contact via telephone and internet in  



                                                                                                     

2006 and 2008 when David was temporarily released on parole. In July 2009 Alicia sent  



                                   

David  a  message  on  a  social  networking  site  in  which  she  gave  him  her  telephone  



                                               

number and asked him to call her because she had “a couple of very important questions”  



                                                                  -3-                                                           6808
  


----------------------- Page 4-----------------------

for him.  In that same message Alicia also told David she was no longer mad at him and  



                                                                            

requested he “look [her] up” on a social networking site so he could see pictures of Katie.  



                                                                                                      

David did not respond or resume contact with Alicia until December 31, 2010, when he  



sent her a “friend” request via the social networking site.  David also had contact with  



           

Alicia  over  a  different  social  networking  site  in  January  or  February  2011.    This  



interaction was the last time David and Alicia ever communicated.  



                                              

                    Alicia and Katie resided with Alicia’s parents, Jared and Connie Howard,  



after Katie was born.  Alicia married in 2005, at which point she and Katie moved out  



                                                                

of the Howards’ home.  Alicia’s marriage lasted just over three years, and in 2008 she  



and Katie moved into  their  own home.  In 2009 Alicia was diagnosed with bipolar  



disorder.  



                                                                            

                    Alicia  died  unexpectedly  on  March  1,  2011.    Katie  has  lived  with  her  



                                                 

grandparents, Jared and Connie, ever since.  Following Alicia’s death, David sent Jared  



                              

and Connie a letter in which he asked to talk to them about Katie and expressed concern  



                                                                                          

over Katie’s “welfare and this new transition that we are all about to incur.”  It appears  



that David was released from jail in April 2012.  



          B.        Proceedings  



                    Soon  after  Alicia’s  death,  Jared  petitioned  the  superior  court  to  be  



                                             

appointed Katie’s temporary  guardian.  Jared stated in his petition that he had been  



                                                                       

Katie’s father figure for her entire life and that he and Connie planned to adopt Katie.  



                                                   

Jared also informed the court that David was incarcerated and that David was not listed  



                                                                           

as Katie’s father on her birth certificate. The court held a hearing and found that David’s  



                                                                                                               

parental rights had been terminated or suspended because he had never had contact with  



Katie,   had   denied   his   paternity,   and   was   incarcerated   in   another   state.                                 On  



March 25, 2011, the superior court appointed Jared as Katie’s temporary guardian.  



                                                              -4-                                                        6808
  


----------------------- Page 5-----------------------

                    On May 2, 2011, while a long-term guardianship hearing was pending, the  



 Howards petitioned to adopt Katie.  Such a petition normally requires written consent  



                                                                                                    

 from the child’s father, but consent is not required if the father has failed to legitimate  



                                                                                      2  

the child or if consent is not required under AS 25.23.050.   The Howards argued that  



                                                                                          

 David’s consent was not required and moved for summary judgment on the issue of  



 abandonment.  David was found to be indigent and was appointed counsel.  



                                                                                                 

                    In August 2011 Master Bethany S. Harbison held a two-day evidentiary  



                                                

hearing on the issue of whether David had waived his right to consent to the adoption.  



                                                                                                      

 The master heard testimony from David, David’s girlfriend, David’s mother, and from  



 Jared and Connie.  



                                                                                   

                   David testified that, although he had failed to communicate meaningfully  



with his daughter, he never waived his right to consent to the adoption because this  



                                                                      

failure was justified.  David acknowledged that he had occasionally gone a year or more  



without talking to Alicia, attributing the lack of regular contact to his incarceration in a  



                                               

medium-security facility, to the high costs of long-distance phone calls in prison, and to  



the fact that his letters were returned.  



          2	        AS 25.23.050(a) provides:  



                    Consent to adoption is not required of  



                                                 

                    (1) for purposes of this section, a parent who has abandoned  

                    a child for a period of at least six months;  



                                                                                             

                    (2) a parent of a child in the custody of another, if the parent  

                    for  a  period  of  at  least  one  year  has  failed  significantly  

                    without   justifiable   cause,   including   but   not   limited   to  

                    indigency,  



                    (A) to communicate meaningfully with the child, or  



                    (B)  to  provide  for  the  care  and  support  of  the  child  as  

                                                                                               

                    required by law or judicial decree.  



                                                             -5-	                                                      6808
  


----------------------- Page 6-----------------------

                                                                                   

                     David also cited an additional reason for his failure to communicate directly  



                                       

with Katie: according to David, he and Alicia had agreed that he would not communicate  



                                                                                                 

with his daughter while he was incarcerated.  David testified that he and Alicia began  



                                                                               

discussing the agreement in September or October 2003 and “finalized” it in January of  



                                                               

the following year. David stated that this agreement prevented him from contacting Katie  



or taking formal steps to legitimate her.  



                                                                                                

                     David provided two distinct rationales for  this  agreement.  First, David  



                                                                                                                           

testified that he and Alicia agreed that he would not be involved in Katie’s life until he  



                                                            

could be an active father, “[a]nd being in jail wasn’t being an active father.”  David stated  



                                                                                                                         

that he and Alicia decided he could have contact with Katie when he “could pay [his]  



                                                                                                       

own bills” and when he “grew up.”  Second, David explained that he and Alicia agreed  



        

that he would not have contact with Katie in order to prevent Alicia’s parents from  



                                                                                            

“cut[ting] her off” financially and emotionally, leaving her with no place to live.  David  



                                                                                                                          

testified that he had a poor relationship with Alicia’s parents, so much so that they had  



                                                                                                     

threatened to “cut [Alicia] out” if she had anything to do  with  David.  According to  



David, Alicia was “completely dependent on her parents” both financially and mentally  



because of her mental health issues.  



                                   

                     David’s girlfriend, Amanda, testified that David had not had any contact  



with Katie because he was incarcerated and because the letters he had sent to Alicia had  



                                                                                                                  

been returned to sender, but that it was his “strong desire” to be in Katie’s life.  Amanda  



                                                                                                                        

also  testified  about  her  own  relationship  and  communication  with  David.    Amanda  



                                                                                        

testified that she and David met in 1993 and began dating soon after he reinitiated contact  



with her via internet in late 2010 while he was on work release from prison.  Amanda  



                                         

stated that the amount of contact she had with David varied depending on his level of  



                                                       

incarceration:  when David was on work release, they communicated by internet several  



                                                                      

times a week and by telephone every other day; when David was incarcerated in the  



                                                                 -6-                                                          6808
  


----------------------- Page 7-----------------------

medium-security facility, they communicated by telephone at least every other week and               



by letter every four days or so.  



                    David’s mother, Jane, testified that she met Alicia in 2002 before Alicia  



                                                                                   

became pregnant.  Jane described a brief conversation she had with Alicia during which  



                     

Alicia stated that she was angry at David and did not want his name to appear on the birth  



                                                                         

certificate.  Jane also asserted that Alicia called her several years later to ask her to pass  



                                                                               

along the message to David that she was going to be married to another man, she did not  



                                                                                                    

want David to contact her, and she did not want any interference from David’s family.  



Jane testified that Alicia had additionally stated that she was afraid that, if she continued  



to see David, her parents would kick her out of the house and stop providing her with  



                                                                                                                  

financial support.  Jane testified she had never heard firsthand from Alicia that she and  



                                                                                                    

David had an agreement that he would not contact Katie, but that David had mentioned  



                                                                                       

the agreement to her by November 2003.  Jane stated she did not personally feel that she  



could contact Katie and that Alicia was very volatile because of her mental disorder.  



                                                                

                    Jane also testified about her own contact with David.  Jane stated that she  



                                               

talked to David at least once a week throughout his incarceration, and the only time she  



was completely unable to contact him was when he was on lockdown.  



                                                                                             

                    Connie Howard testified that she initially liked David and allowed him to  



live in her home, but that her feelings toward him changed because of his poor work ethic  



and because he lied a lot.  Connie asserted that David stole her expensive camera and,  



                                                                                                            

when Jared subsequently asked David to leave the house, David cursed her out.  Connie  



                                                                                                                  

explained that she would have been willing to give David a second chance, but he never  



tried to communicate with her again.  



                                                                                          

                    Connie also testified that her daughter was not financially dependent on her  



or her husband.  Connie stated that Alicia moved out of her parents’ home when she  



                                                              

married in 2005 and never moved back. Connie acknowledged that she and her husband  



                                                                -7-                                                        6808
  


----------------------- Page 8-----------------------

paid for many of Katie’s expenses, including her private schooling, her school clothes,  



her gymnastics, and food for her pets, but they rarely gave money directly to Alicia.  



                                                   

                     Jared testified that he initially allowed David to live with the family, but  



                                                                                                        

after moving in David forged one of his checks, stole his credit card, and made fraudulent  



                                                                                                                       

charges.  Jared testified that he told David that he needed to straighten his life out and be  



                                                    

“a productive citizen in society,” but David failed to act accordingly, so Jared asked him  



to leave.  



                                                                                                              

                     Jared testified he and his wife provided Alicia with about $4,000 per year,  



most  of  which  was  spent  on  Katie.    According  to  Jared,  Alicia  was  not  completely  



                                         

dependent on him and his wife:  Alicia was consistently employed until her marriage in  



           

2005, and she relied on Section 8 housing and food stamps for the two years preceding  



                                                                                                           

her death because her bipolar disorder prevented her from working.  Jared testified that  



                                        

he would never “cut [his] children off.”  Jared also testified that even though David knew  



                                                                                                  

the Howards’ address and telephone number, David had never contacted Katie, and the  



                                                                                           

2011 letter was the first time David had tried to contact the Howards since Katie’s birth.  



                                                                                         

                     At the conclusion of the hearing the master declined to recommend to the  



                                                                 

superior court that summary judgment be granted, but she found that David had failed to  



                 

legitimate  Katie  and  that  David  had  failed  significantly  without  justifiable  cause  to  



                                                                                   

communicate meaningfully with Katie for a period of at least one year.  The master  



                                                                         

therefore  concluded  that  David’s  consent  to  the  adoption  was  not  required.    At  a  



                                                                                           3 

subsequent hearing, which David was not allowed to attend,  the master found that it was 

                                                                                              



in Katie’s best interests to be adopted by her grandparents.  The master entered her  



findings of fact and recommendation to the superior court on October 11, 2011.  



           3  

                                                                                                              

                     The master determined that, given her earlier finding that David’s consent  

 to the adoption was not required, David was no longer a party to the adoption and was  

 precluded from attending the adoption hearing.  



                                                                 -8-                                                              6808  


----------------------- Page 9-----------------------

                           On June 7, 2012, Superior Court Judge Paul R. Lyle entered a 28-page   



 decision adopting the master’s findings in part and granting the petition for adoption.   



Unlike the master, the superior   court found David had legitimated Katie pursuant to  



AS 25.20.050(a)(4).  But the superior court agreed with the master that David’s consent       



to  the  adoption  was  not  required  because  David  had  failed  significantly  without  



justifiable cause to communicate meaningfully with Katie for a period of at least one  



                                                                                                               

year.  The superior court subsequently determined that the adoption was in Katie’s best  



 interests  and  granted  the  Howards’  petition  for  adoption.    David  filed  a  motion  for  



reconsideration, which the superior court denied.  



                                                                                                    

                           Thereafter, the Howards moved for attorney’s fees and costs pursuant to  



Alaska Civil Rule 82.  The Howards argued that they were entitled to an enhanced fee  



                                

 award because their attorney had made efforts to minimize fees and because David had  



                                                                                                                                                                  

pursued unreasonable claims.  The superior court rejected the Howards’ request for an  



                                                                                                                                                               

 enhanced fee award but granted their motion in part and awarded them 22.5% of their  



 actual allowed attorney fees, or $2,790.56.  



                           David appeals.  



III.          STANDARD OF REVIEW  



                                                                                                                           

                           We review the superior court’s factual findings in an adoption proceeding  



                              4  

                                 “A factual finding is clearly erroneous ‘when a review of the record  

 for clear error.                                                                             



 leaves the court with a definite and firm conviction that the superior court has made a  

                                                                                   



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



 Adoption of Missy M. , 133 P.3d 645, 648 (Alaska 2006)).  



                                                                                     -9-                                                                                  6808  


----------------------- Page 10-----------------------

                 5                                                             6  

mistake.’  ”     We  review  questions  of  law  de  novo,   applying  our  own  independent  



                                                       

judgment and “adopting the rule of law that is ‘most persuasive in light of precedent,  

reason and policy.’ ”7  



                    The  findings  of  a  master  that  are  adopted  by  the  superior  court  are  



                                                          8  

considered  the  findings  of  that  court.     The  superior  court’s  factual  findings  enjoy  



                                                                                  

particular  deference  when  they  are  based  primarily  on  oral  testimony  because  the  



superior court, not this court, performs the function of judging the credibility of witnesses  

and weighing conflicting evidence.9  



                    The  superior  court’s  award  of  attorney’s  fees  is  reviewed  for  abuse  of  



                10 

                                                                                                                

discretion.         “We will reverse a ruling for abuse of discretion only when we are left with  



                                                                                               

a definite and firm conviction, after reviewing the entire record, that the [superior] court  

erred.”11  



           5        Fardig  v.  Fardig ,  56  P.3d  9,  11  (Alaska  2002)  (quoting  Siekawitch  v.  



 Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).  



           6         Osterkamp v. Stiles, 235 P.3d 193, 195-96 (Alaska 2010) (citing                                 Guin v.  



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



           7        Id. (quoting Kinnard v. Kinnard , 43 P.3d 150, 153 (Alaska 2002)).  



           8        Alaska R. Civ. P. 52(a).  



           9         William  P.  v.  Taunya  P.,  258  P.3d  812,  814  (Alaska  2011)  (quoting  

                                           

 Misyura v. Misyura , 242 P.3d 1037, 1039 (Alaska 2010)) (quotation marks omitted); see  

                                      

 also Bowman v. Blair , 889 P.2d 1069, 1072 n.5 (Alaska 1995) (“Due regard shall be  

                                    

 given to the opportunity of the master to judge the credibility of the witnesses.”).  



           10        C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001).  



           11  

                                                                  

                    Lentine v. State , 282 P.3d 369, 376 (Alaska 2012) (quoting Willoya v. State,  

 Dep’t of Corr. , 53 P.3d 1115, 1119 (Alaska 2002)) (quotation marks omitted).  



                                                             -10-                                                        6808
  


----------------------- Page 11-----------------------

IV.	       DISCUSSION  



           A.	       David Waived His Right To Consent To The Adoption .  



                      1.	       David did not communicate meaningfully with Katie for a one- 

                                                                                  

                                year period.  



                      Ordinarily  both  parents  of  a  minor  child  must  consent  to  the  child’s  



               12  

adoption.           The father’s consent is normally required “if the father was married to the  

                                                                                                                      



mother at the time the minor was conceived or at any time after conception, the minor is  

                                                      



the father’s child by adoption, or the father has otherwise legitimated the minor under the  

                                                                                                                              



                             13  

laws of the state.”              However, AS 25.23.050(a) provides that consent is not required of  

                                                                                                                           



“a parent of a child in the custody of another, if the parent for a period of at least one year  



has failed significantly without justifiable cause . . . to communicate meaningfully with  

                                                                                                               



                 14  

the child.”           This provision “should be strictly construed in favor of the [biological]  

                                                                   



parent  and  against  a  finding  that  the  failure  to  communicate  was  without  justifiable  

                    



            15  

cause.”         The adoptive parent must prove by clear and convincing evidence that the  



biological parent failed significantly to communicate meaningfully with the child for at  

                             

least one year.16  If the adoptive parent meets this burden, the burden of production shifts  



                                                                                                                                 

to the biological parent to come forward with evidence of a justifiable cause for the  



           12	        AS 25.23.040.  



           13	        AS 25.23.040(a)(2).  



           14         AS 25.23.050(a)(2)(A).  



           15         In re Adoption of B.S.L.              , 779 P.2d 1222, 1224 (Alaska 1989) (citing                             In re  



Adoption of K.M.M. , 611 P.2d 84, 88 (Alaska 1980)).  



           16         In re D.J.A. , 793 P.2d 1033, 1037 (Alaska 1990) (citing D.L.J. v. W.D.R. ,  



 635 P.2d 834, 837 (Alaska 1981)).  



                                                                   -11-	                                                            6808
  


----------------------- Page 12-----------------------

                                      17  

failure to communicate.                   If the biological parent meets this burden of production, the  

                                                                                 



adoptive parent must then prove by clear and convincing evidence that the biological  

parent’s failure to communicate was without justifiable cause.18  



                     The superior court found that David had legitimated Katie,19 but that the  



Howards “established by clear and convincing evidence that there was a one year period  

                                                                                                         



where there was no meaningful communication by [David] with [Alicia] or [Katie].”  The  

                                                                                                                 



court found that David meaningfully communicated in 2004 and 2005 by sending letters  

                           



to Alicia from jail, but that after 2005 David “sent no messages intended for [Katie],  



                                                    

never asked to speak to [Katie], and had only occasional, fleeting contact with [Alicia]  



by telephone or social media between 2006 and the filing of this adoption petition.”  



                     There appears to be no dispute between the parties about whether David  



failed to communicate meaningfully with Katie after 2005.  On appeal David does not  



                                                       

argue that the superior court erred in finding that he failed to communicate meaningfully  



with Katie; he instead contends that the court erred in finding that this failure lacked  



                                                                                                                          

justifiable cause.  We therefore affirm the superior court’s undisputed finding that David  



                                                                                                 

did not communicate meaningfully with Katie for a one-year period beginning in 2005.  



           17         Id. (citing D.L.J. , 635 P.2d at 837).  



           18         Id. (citing D.L.J. , 635 P.2d at 837).  



           19         Although the master found otherwise, the Howards do not challenge the                          



 superior court’s finding that David legitimated Katie.  



                                                                  -12-                                                           6808
  


----------------------- Page 13-----------------------

                    2.	       The superior court did not clearly err in finding that David’s  

                                                                                                             

                              failure to communicate meaningfully with Katie was without  

                             justifiable cause.  



                    “A   parent   has   the   duty   to   make   reasonable   efforts   to   locate   and  

                                                                                                          

communicate with his or her child.”20   A parent’s failure to communicate with his child  

                                                         



is justified only if his “efforts to communicate were objectively reasonable in light of the  

                                                                            

                                    21  But “[t]he long-established and continuing rule in Alaska is  

existing circumstances.”                                                                                 



that absent the element of willfulness, a parent does not lose the right to consent [to an  

                                                          

adoption] under AS 25.23.050(a)(2).”22  



                    David argues that four separate grounds justified his failure to communicate  



meaningfully with his daughter:  (1) he was incarcerated during Katie’s entire life; (2)  



he had a prior agreement with Alicia that prohibited him from communicating with Katie;  



                                                                                                              

(3) Alicia’s parents interfered with his communication attempts; and (4) the totality of the  



circumstances barred meaningful communication.  



                                                                                                                      

                    The superior court found that David adduced evidence supporting the first  



                             

two  justifications;  the  Howards  therefore  bore  the  burden  of  proving  by  clear  and  



                                                                             

convincing evidence that David’s incarceration and alleged prior agreement with Alicia  



                                                          

did  not  provide  justifiable  cause  for  his  failure  to  meaningfully  communicate  with  

Katie.23  



          20        In re Adoption of B.S.L. , 779 P.2d at 1224 (citing                       E.J.S. v. State, Dep’t of  



Health & Soc. Servs. , 754 P.2d 749, 751 (Alaska 1988)).  



          21        Id. (citing D.L.J. , 635 P.2d at 839).  



          22        In re Adoption of J.M.F. , 881 P.2d 1116, 1118 (Alaska 1994).  



          23        See In re D.J.A. , 793 P.2d at 1037.  

                           



                                                             -13-	                                                       6808
  


----------------------- Page 14-----------------------

                             a.	       The superior court did not clearly err in declining to find   

                                       that     David’s        incarceration           justified       his     failure      to  

                                       communicate meaningfully with Katie.  



                    David argues that the fact that he was incarcerated for Katie’s entire life  



provides  sufficient  justification  for  his  lack   of  meaningful  communication  with  his  



daughter.  David argues that it was “uncontested that he could not come to Fairbanks,  



                                                       

was limited where he could go . . . , and that he could not be a father or support [Katie]  



under the conditions placed on him by the penal system.”  



                    David  cites  to  our  decision  in  R.N.T.  v.  J.R.G.  for  the  proposition  that  



                                                                                                         

“neglect of parental duties caused by imprisonment is not necessarily wilful and thus  



                                                                                                 24  

does not inevitably result in the loss of a parent’s right to consent.”                              David argues that,  



                                                                                 

like the defendant in R.N.T. , his incarceration precluded meaningful communication with  

his daughter and therefore justified his failure to communicate.25  



                    David’s reliance on R.N.T. is misplaced.  In R.N.T. , we considered whether  



                                                                                   

a father had justifiable cause for failing to communicate meaningfully with his children,  



                                                           

where the father’s attorney advised him not to write to his children or their mother while  



             

he  was  in  prison  and  his  parole  officer  forbade  him  from  communicating  with  his  



                                                                                                  26  

children  once  he  was  released,  except  through  a  third  party.                                   We  ruled  that  



imprisonment  does  not  necessarily  preclude  a  parent  from  communicating  with  his  



children, but where it does, “the failure to communicate is properly considered non-wilful  



          24        R.N.T. v. J.R.G., 666 P.2d 1036, 1039 (Alaska 1983).  



          25        See id.  



          26        Id. at 1038.  



                                                             -14­                                                          6808  


----------------------- Page 15-----------------------

                                        27  

and thus justifiable cause.”                 Under this standard, we held that the circumstances of the  

                               

father’s incarceration and parole provided justifiable cause.28  



                    Three years later in In re J.J.J. , however, we adopted the R.N.T. dissent’s  



                                                                               

position and ruled that, where the terms of a parent’s imprisonment and parole effectively  



prevent the parent from having contact with his or her children, “[t]he issue that must be  



                                                                           

addressed is whether the constraints imposed on [the parent] were the result of his own  



               

conduct, in which case his failure to communicate would not be justifiable, or were  

instead the result of circumstances over which he had no control.”29  



                                                                                    

                    Under the In re J.J.J. standard, David’s incarceration cannot justify his  



failure to communicate meaningfully with Katie because that failure was due to David’s  



own conduct and subsequent incarceration.  David was repeatedly granted parole and  



                                                                                   

placed on work release following Katie’s birth, but he continually violated his parole or  



received new charges.  Thus, any constraints imposed on David resulted from his own  



conduct and from circumstances over which he had control.  



                                                 

                    Moreover, even if In re J.J.J. did not foreclose David’s argument, R.N.T.  



would   not   provide   support   because   ample   evidence   in   the   record   clearly   and  



                                              

convincingly established that the circumstances of David’s incarceration did not prevent  



                                                      30 

                                                                                                             

him from having contact with Katie.                       When David was on work release in late 2010 and  



                                                         

early 2011 he was able to form a new romantic relationship and maintain regular internet  



           27       Id. at 1039.  



           28       Id.  



           29       In re J.J.J. , 718 P.2d 948, 953 (Alaska 1986) (quoting                           R.N.T. , 666 P.2d at  



 1041 (Compton, J., dissenting)).  



           30        See  R.N.T. ,  666  P.2d  at  1039  (“Of  course,  imprisonment  does  not  

                                                                                 

 necessarily preclude a parent from communicating with his children.”).  



                                                               -15-                                                        6808
  


----------------------- Page 16-----------------------

                                                                                                           

and  phone  communication  with  his  girlfriend.    David  had  only  limited  internet  



communication with Alicia and no communication with Katie during this period.  



                                                                                                               

                    David also testified that after Alicia contacted him via social media in 2009  



                                                   

and asked him to contact her so he could see pictures of Katie, he made no attempt to  



                                                                                 

respond until December 2010 when he “friended” her on a social networking site.  David  



attributed his lack of response to his incarceration, stating he “got rolled up from that  



[medium-security]  facility  because  [he  was]  denied  parole,  and  wasn’t  able  to  have  



                                        

contact with her until . . . early this year.”  However, David was able to maintain regular  



                                                                   

contact with his mother and girlfriend when he was incarcerated at the medium-security  



                                                                                               

facility in 2011; he spoke on the telephone with his girlfriend at least once every other  



                 

week and with his mother at least once a week.  David’s incarceration in a medium- 



security facility did not prevent him from maintaining regular contact with his mother  



and girlfriend, demonstrating that his failure to respond to Alicia’s message regarding  

Katie was not a result of his incarceration.31  



                                                                                                              

                    The superior court did not err in finding that the Howards established by  



                                  

clear and convincing evidence that David’s incarceration did not justify his failure to  



communicate meaningfully with Katie.  



           31        David also relies on the Ninth Circuit’s decision in  United States v. Wolf  



 Child,  699 F.3d 1082 (9th Cir. 2012), to argue that his inability to have meaningful  

                                                                                  

 contact with his daughter because of his incarceration was “of constitutional dimension,”  

                                                                                 

 and   that   incarceration   therefore   provides   “a   blanket   justification   for   failure   to  

        

 meaningfully communicate with a child.”  In  Wolf Child, the Ninth Circuit held that a  

                                                    

 special condition of supervised release that prohibited a defendant from being in the  

                                                                                                                           

 company of minors, including his own children, was unconstitutional.  Id. at 1087-88.  

 Wolf Child recognizes no constitutional rights previously unrecognized by this court and  

                                                                      

 in no way supports David’s argument.  



                                                               -16-                                                        6808
  


----------------------- Page 17-----------------------

                                                                                                        

                               b.	       The superior court did not clearly err in declining to find  

                                         that the “agreement” between David and Alicia justified  

                                         David’s failure to communicate meaningfully with Katie.  



                     David argues that his failure to communicate meaningfully with Katie was  



                                                                                        

justified by his agreement with Alicia.  David asserts that Alicia’s parents, on whom she  



                                            

was completely dependent, had threatened to “cut [Alicia] off financially” if David tried  



                                                           

to maintain contact with his daughter, so he and Alicia agreed that he would not contact  



                                                           

Katie. David also argues that because he could not be an active father while incarcerated,  



                                                                                                      

he and Alicia agreed that he would not contact Katie until he was released from prison  



and could participate actively in Katie’s life.  David asserts that this agreement justified  

his lack of communication.32  



                                            

                     The following evidence supports the superior court’s finding that, contrary  



                                                                                                            

to David’s testimony, David and Alicia never made an agreement that David would not  



contact Katie:  (1)  David’s forgery conviction undermined his credibility, which was  



                                                                                                                              

critical because David’s testimony provided the primary support for the existence of an  



                                                                                                                            

agreement; (2) the letters undercut David’s testimony that an agreement existed, or that  



                                                                       

he reasonably believed an agreement existed; and (3) the Howards testified credibly that  



                                                                              

they would not cut off their own daughter and that Alicia was not financially dependent  



on them, thereby undermining David’s testimony that an agreement ever existed.  



           32        David argues his agreement with Alicia is similar to the agreement at issue                           



 in  D.L.J.   v.   W.D.R ,   635   P.2d   834   (Alaska   1981),   where   the   father’s   lack   of  

 communication resulted in part from his efforts to comply with the mother’s request that  

                                                  

 he not tell the child that he was the child’s biological father.  Id. at 839.  D.L.J. does not  

                                                                  

 support David’s argument:  the superior court in this case did not find that David and  

                                                                              

 Alicia’s  agreement  did  not  provide  justifiable  cause  for  his  failure  to  meaningfully  

                                                                                                 

 communicate; it found that “[t]he evidence clearly and convincingly establishes that no  

                                                                                     

 agreement existed between [David] and [Alicia] that [David] would have no contact with  

                                                              

 [Katie] until his release from incarceration.” (Emphasis added.)  



                                                                -17-	                                                        6808
  


----------------------- Page 18-----------------------

                   The  superior  court   found  that  David’s  credibility  was  undermined  by  



evidence of his past forgery conviction.  Alaska Rule of Evidence 609 permits a party to   



attack a witness’s credibility by admitting evidence that the witness has been convicted  



                                                                     

of a crime of dishonesty if less than five years has elapsed since the date of the conviction  



and the conviction is more probative than prejudicial.  



                   On cross-examination the Howards’ attorney questioned David about a  



2007 forgery conviction.  The superior court properly considered this conviction, which  



was less than five years old at the time of the hearing, after finding that its prejudicial  



                                   

effect did not outweigh its probative value.  The superior court did not clearly err in  



finding that David’s forgery conviction undermined his credibility.  



                   Additionally, the letters David and Alicia exchanged between 2003 and  



2005  in  and  of  themselves  clearly  and  convincingly  establish  that  there  was  no  



agreement.  David testified that he and Alicia formed their agreement by January 2004  



                                                 

at the very latest, but David sent a letter to Katie in April 2004 in which he stated, “I hope  



your mother reads this [letter] to you and all the ones to come.”  David acknowledged in  



the letter that he “ha[d] to get [his life] together” before things could work out between  



him and Alicia, and he also stated that he hoped he was able to get strong and well  



enough that Alicia would “give [him] a shot at the marriage [he] promised her.”  But  



                                            

David in no way indicated that he had to accomplish these things before he could contact  



                                                               

Katie;  to  the  contrary,  David  stated  there  would  be  more  letters  to  come.    David  



repeatedly  inquired  after  Katie  in  his  other  letters  to  Alicia  sent  after  the  purported  



agreement had been finalized; they also do not indicate the existence of any sort of  



agreement.  And David expressed frustration with Alicia in a 2004 letter after she failed  



                                                          -18-                                                    6808
  


----------------------- Page 19-----------------------

                                                                                                                

to communicate with him, stating, “I can’t . . . believe you. . . . I would never loose [sic]  

contact with you and my daughter.”33  



                                                                         

                        The letters also undermine David’s claim that he believed Alicia’s parents  



                                                                                                                                                 

would stop providing her with financial assistance if they knew Alicia or Katie was in  



contact with David.  David sent three of his five letters to Alicia’s parents’ home.  He  



sent the other two letters to the post office box solely because the first three had been  



                                                                                                   

returned to sender, and he indicated that he would send future letters to Alicia’s parents’  



house if Alicia did not receive the letters addressed to the post office box.  David’s  



                                                                                                                    

willingness to write to Alicia at her parents’ home is inconsistent with his testimony that  



he feared the Howards would cut off Alicia if he had anything to do with her.  



                                                                                                                   

                        The Howards’ testimony also undermines David’s claim that he and Alicia  



                                                                                                                                               

feared that Alicia’s parents would stop providing Alicia with financial assistance if David  



were to contact Katie.  Jared testified he would never “cut [Alicia] off” or kick her out  



      

of  his  home  or  disown  her,  and  Connie  testified  she  had  never  “throw[n]  out  [her]  



daughter.”    Both  parents  also  testified  that  although  they  paid  for  many  of  Katie’s  



expenses, they provided Alicia with only limited financial support, and Alicia supported  



herself.  The superior court found their testimony credible.  



                                                                                                         

                        In sum, David’s own evidence and testimony contradicts his allegation that  



                                                                                                                                         

an agreement with Alicia prevented him from meaningfully communicating with Katie,  



             33         Additional extrinsic evidence also establishes that there was no agreement   



 between David and Alicia.   As the superior court noted, in her November 2003 motion                 

 to dissolve the protective order Alicia stated that she wanted to “work things out [with     

 David] for me and the baby to be.”  This statement contradicts David’s assertion that the       

 no-contact  agreement  was  being  formulated  at  this  time.    David  attributed  this  

 contradiction to Alicia’s “[u]ps and downs, being pregnant, not knowing what to do, the  

                                                                                                           

 father of her baby-to-be is in jail,” but the dissolution motion is consistent with the letters  

                                                                                                                                   

 in proving a lack of agreement between Alicia and David.  



                                                                          -19-                                                                     6808
  


----------------------- Page 20-----------------------

and the Howards’ credible testimony further supports the superior court’s finding that  



                                                    

such an agreement never existed.  The superior court did not clearly err in concluding  



                                                                               

that there was clear and convincing evidence that no agreement existed between David  



and  Alicia  that  would  justify  David’s  failure  to  communicate  meaningfully  with  his  



daughter.  



                                                                      

                             c.	       The superior court did not clearly err in declining to find  

                                                                    

                                       that the Howards interfered with David’s communication  

                                                        

                                       attempts.  



                                                      

                    David also argues that his failure to communicate with Katie was justified  



      

by  the Howards’ interference with his attempts at communication.  David likens his  



                                                    

situation to our decision in S.M.K. v. R.G.G., where we held that a father and his family  



                                                                   

had interfered with the mother’s attempts to communicate with the child such that the  

mother’s failure to communicate was justified.34  



                    In S.M.K., the father interfered with the mother’s communication attempts  

                                                                                            



by leaving the family home with the child without advising the mother of his plans,  



                                                                

giving custody of the child to his sister and her husband in another state, and refusing to  



                                                                 35  

tell  the  mother  of  the  child’s  whereabouts.                      The  child’s  paternal  grandmother  also  



interfered with the mother’s communication attempts by lying to the mother and to a  



                                                                 

sheriff, and by pulling a gun on the mother when she came to the grandmother’s home  

to inquire after her child.36  



                   S.M.K.  is  inapplicable  here.    David  alleges  no  specific  instances  of  



interference by the Howards.  David wrote one letter to Katie that was returned to sender,  



          34        702 P.2d 620, 623-25 (Alaska 1985).  



          35        Id. at 621-22.  



          36        Id. at 621.  



                                                             -20­                                                          6808  


----------------------- Page 21-----------------------

but David does not allege that the Howards were responsible for this failed attempt at  



                                                                                              

communication.  David instead argues that he was precluded from communicating with  



Katie because, given her young age, any communication would require the Howards’  



                                                                                                     

assistance, and he could not enlist their assistance because he did not have much of a  



relationship with them.  This lack of relationship does not amount to interference or  



justify David’s failure to attempt to communicate with Katie.  



                   David has produced no evidence of interference by the Howards in his  



                                             

attempts to communicate with Katie, and the superior court did not err in declining to  



find that the alleged interference justified his failure to communicate meaningfully.  



                                                                                               

                            d.	       The superior court did not clearly err in declining to find  

                                      that  the  totality  of  the  circumstances  justified  David’s  

                                      failure to communicate meaningfully with Katie.  



                                                                               

                   Finally, David argues that the totality of the circumstances justified his  



                                                      

failure to communicate meaningfully with Katie.  David relies on Katie’s age, his own  



incarceration,  his  “agreement”  with  Alicia,  Alicia’s  bipolar  disorder,  his  “turbulent”  



                                                         

relationship with Alicia, and his lack of a relationship with the Howards to argue that the  



totality  of  the  circumstances  provided  justification.    David  cites  to  our  decisions  in  



                     37                         38                         39	                                          40 

                                                    

D.A. v. D.R.L.,         S.M.K. v. R.G.G.,   D.L.J. v. W.D.R. ,                and In re Adoption of K.M.M. ,  



as  examples  of  cases  where  we  have  looked  “at  all  the  circumstances  and  [found]  



justification for a parent’s failure to communicate with his child.”  



          37        727 P.2d 768 (Alaska 1986).  



          38        702 P.2d 620 (Alaska 1985).  



          39        635 P.2d 834 (Alaska 1981).  



          40        611 P.2d 84 (Alaska 1980).  



                                                           -21-	                                                   6808
  


----------------------- Page 22-----------------------

                    We have “relaxed the requirement of meaningful communication” in cases  



                                                                                                                  41  

“where the child is too young to read or communicate over the telephone.”                                             We have  



                                                                                                                    

previously  found  justifiable  cause  in  cases  where  a  child  is  very  young  and  where  



significant  barriers  to  communication  exist.    In D.A. ,  for  example,  we  affirmed  the  



                                          

superior court’s finding of justifiable cause where the child was too young to talk on the  



                                                                                         

telephone or understand gifts or letters from the father, the mother postponed visitations  



requested  by  the  father,  the  mother  remarried  and  the  father  experienced  emotional  



                                                                                                   

difficulty in visiting with the new family, and the new family was absent from Alaska for  



                                                                   42  

                                                                                                          

three months during the critical year period.                          In D.L.J. we affirmed a justifiable cause  



                                             

finding where the biological father was separated from his child when the child was just  



                                               

three months old and lived far from the child, and the father was informed by the child’s  

                                                                                43  And in S.M.K., discussed above,  

                                                                                    

stepfather that his visits and money were unwelcome. 



we affirmed a finding of justifiable cause where the biological mother lived a significant  

                                                                         



distance from her three-year-old child and her husband had actively prevented her from  

                                                                       

contacting the child for several years.44  



                    Here,  although  Katie  was  too  young  to  read  or  communicate  over  the  

                                                                                                                       



telephone for the majority of David’s incarceration, the totality of the circumstances did  

                                                          



not justify David’s failure to meaningfully communicate with his daughter.  David made  



                                                                                    

no real attempts to communicate with Katie after 2005. David implicitly asserts that such  



                                                                                                                    

attempts would have been futile because his letters to Alicia and Katie were returned to  



sender   and   because   he   had   problematic   relationships   with   Katie’s   mother   and  



           41        D.A. , 727 P.2d at 770 (citing S.M.K., 702 P.2d at 624).  



           42        Id.  



           43        635 P.2d at 836-39.  



           44        702 P.2d at 621-25.  



                                                               -22-                                                         6808
  


----------------------- Page 23-----------------------

grandparents.  But David alleges no instances of active interference of the type that  



                                                 45  

                                                               

existed in D.L.J. , D.A. , or S.M.K.                 Even assuming that David’s failure to communicate  



was  initially  justified  by  the  fact  that  his  letters  were  returned  to  sender,  the  



                                                                    

circumstances still do not warrant a finding of justifiable cause because in 2009 Alicia  



made clear that she wanted to communicate with David about Katie, but David still failed  



                                                                          

to initiate contact with his daughter and waited over 18 months to communicate with  



Alicia.  



                                                                                                                      

                    The superior court did not clearly err in declining to find that the totality of  



the circumstances justified David’s failure to meaningfully communicate with Katie.  



          B.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Declining  To  

                    Order Visitation.  



                    David  argues  that  the  superior  court  abused  its  discretion  by  failing  to  



                                                                                 

consider his post-adoption visitation rights.  David  argues that this issue was clearly  



                                                                            

raised  during  the  adoption  hearing  and  asks  us  to  remand  for  the  superior  court  to  



consider whether he should be granted the right to visit with his daughter.  



                                                                                                                 

                    David has waived this claim because he failed to raise it in the superior  



         46  

                                                                                 

court.       In none of his pleadings to the superior court did David ever argue he should be  



                                                             

granted visitation rights.  The only time visitation rights were ever addressed was at the  



           45        See D.A., 727 P.2d at 769 (mother repeatedly refused father’s visitation  



 requests); S.M.K., 702 P.2d at 621-22 (father sent child to another state and refused to  

                                                                                                                     

 give custody to mother, and child’s grandmother lied to sheriff and pulled gun on mother  

                                     

 to  prevent  her  from  seeing  child);  D.L.J. ,  635  P.2d  at  836  (father  was  informed  by  

 stepfather that he and his money were unwelcome in child’s life, and mother lied to child  

                                                                                                                         

 about the identity of her real father); see also In re Adoption of K.M.M. , 611 P.2d at 87­ 

                                                                              

 88 (it was “an emotionally traumatic episode” for father to visit children due to the fact  

 that his wife left him and later married his best friend).  



           46  

                                                                                                                    

                     See Brandon v. Corr. Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (“A  

party may not raise an issue for the first time on appeal.”).  



                                                               -23-	                                                       6808
  


----------------------- Page 24-----------------------

                                                                                                              

consent hearing, when David’s counsel asked the master, “[I]s this petition to . . . cut off  



                                              

his parental rights and have no visitation?”  The master responded, “[Yes], it’s the effect  



                                                                     

of an adoption.  It would terminate all rights he has.”  Counsel responded that “adoptions  



can preserve visitation rights,” and the master agreed, stating, “They can, if there’s an  



agreement like that.”  David never indicated that he wanted to preserve his visitation  



rights or suggested that the court should consider whether visitation would be in Katie’s  



best interests.  



                                                                                                     

                    Although “Alaska’s adoption statutes explicitly permit ‘visitation between  

the adopted person and that person’s [biological] parents and other relatives,’ ”47 the  



                                                                                                                        48  

                                                                                                                            A  

statutes “do[] not give the [biological] parent a right to post-adoption visitation.” 



                                                              

court may in its discretion grant visitation rights if it finds that visitation is in the child’s  



                                                                                              49 

best interests, but the court is under no independent duty to do so.                              Thus, David’s rights  



were not violated by the superior court’s failure to consider post-adoption visitation.  



          C.	       The  Superior  Court  Did  Not  Abuse  Its  Discretion  By  Awarding  

                    Attorney’s Fees Against David.  



                    The superior court applied Alaska Civil Rule 82 to award the Howards  



                                            

$2,790.56 in attorney’s fees, which was 22.5% of their actual fees.  The superior court  



                                                              

found that Rule 82 applied to this private contested adoption, that David was a party to  



                           

the adoption, that Rule 82 does not exempt indigent litigants from paying attorney’s fees  



                        

and that David was not completely without assets, that the Howards’ attorneys made  



          47	       C.L. v. P.C.S., 17 P.3d 769, 778 (Alaska 2001) (quoting AS 25.23.130).  



          48        In  re  Adoption  of  A.F.M. ,   960  P.2d  602,   606  (Alaska  1998)  (citing  



 AS 25.23.130(c)).  



          49        AS 25.23.130(c); see In re Adoption of A.F.M. , 960 P.2d at 606 (holding  

                                                     

 that  AS  25.23.130(c)  does  not  give  the  biological  parent  a  right  to  post-adoption  

                                                                                           

 visitation).  



                                                             -24-	                                                      6808
  


----------------------- Page 25-----------------------

                                                                                                                       

efforts to minimize fees, and that the Howards were entitled to a fee award. The superior  



                                                                        

court found that Rule 82(b)(2) called for a fee award of 30% of the Howards’ reasonable,  



                                                                                                                   

actual attorney’s fees necessarily incurred, but that a downward variation was warranted  



                              

in order to ensure that similarly situated parents of minimal financial means would not  



                                                                               

be  deterred  from  voluntary  use  of  the  courts.                          The  superior  court  thus  reduced  the  



Howards’ $ 12,402.50 actual attorney’s fees by 25% to $9,301.87, and awarded them  



30% of $9,301.87, or $2,790.56.  



                                                                      

                     David argues that the superior court abused its discretion by awarding any  



                                                    

attorney’s fees to the Howards.  David notes that Rule 82(b)(3) allows a court to vary a  



                                                                                                         

fee award calculated under Rule 82 and argues that, because he is indigent, because his  



                                                                                      

constitutional  rights  were  implicated,  and  because  his  claims  and  defenses  were  



                                                                                                                           

reasonable, “[t]his court should find that all the equitable factors require this [c]ourt to  



                                                                       

find that no attorney fees should be awarded in this case should Co-Petitioners prevail.”  



                                                                                                                 

                     Alaska courts generally award partial attorney’s fees to the prevailing party  

                                                      50   The purpose of Rule 82 is to partially compensate  

                                                                                

in a civil case pursuant to Rule 82.  



                                                                                                       51  

a prevailing party for the expenses  incurred in winning a case.                                           Rule 82 gives the  



           50         See, e.g., State v. Jacob , 214                 P.3d 353, 361 (Alaska 2009).  Civil Rule  



 82(b)(2) provides:  



                      In   cases in which the prevailing party recovers no money  

                     judgment, the court shall award the prevailing party in a case     

                      which  goes  to  trial  30  percent  of  the  prevailing  party’s  

                      reasonable  actual  attorney’s  fees  which  were  necessarily  

                      incurred,  and  shall  award  the  prevailing  party  in  a  case  

                                             

                      resolved without trial 20 percent of its actual attorney’s fees  

                                                                               

                      which were necessarily incurred.  



           51  

                                                                   

                      Tobeluk  v.  Lind,  589  P.2d  873,  876  (Alaska  1979)  (“[The  rule]  is  not  

 intended as a vehicle for accomplishing anything other than providing compensation  

                                                                                                                    (continued...)  



                                                                  -25-                                                           6808
  


----------------------- Page 26-----------------------

                                                                      

superior court the discretion to vary a fee award upon the consideration of several factors,  



                                                                                                

amongst which are the attorney’s efforts to minimize fees; the reasonableness of the  



                                                                              

claims and defenses pursued by each side; the extent to which a given fee award may be  



                                                                                   

so onerous to the non-prevailing party that it would deter similarly situated litigants from  

the voluntary use of the courts; and other equitable factors deemed relevant.52  



                    Here,  the  superior  court  made  a  thorough,  thoughtful  analysis  before  



awarding attorney’s fees to the Howards.  The superior court carefully considered our  

                                          

                                              53 where we affirmed the award of attorney’s fees against  

decision in Adoption of V.M.C. ,                                              



grandparents who unsuccessfully sought to adopt their grandchild without the biological  

                                                                         



father’s  consent,  thereby  rejecting  the  argument  that  attorney’s  fees  should  not  be  

                           



awarded in adoption proceedings as a matter of judicial policy and that such awards  

                                                                                      

would create “a chilling effect upon the legitimate assertion of rights by both parties.”54  

                                                                                         



The  superior  court  interpreted Adoption  of  V.M.C.  as  permitting  fee  awards  against  



biological  parents  in  contested  adoption  proceedings,  but  found  that  a  variance  was  

                                                                                                            



necessary  to  ensure  that  similarly  situated  parents  would  not  be  deterred  from  the  

                                        55  The superior court also gave thoughtful consideration to  

voluntary use of the courts.     



our decision in Prentzel v. State, Department of Public Safety , where we affirmed the  

                                                                                              



          51(...continued)  



 where it is justified.”).  



          52        Alaska R. Civ. P. 82(b)(3).  



          53        528 P.2d 788 (Alaska 1974).  



          54        Id. at 789-92, 795-96.  (“[W]e do not find in the facts of this case or the  



 equities of appellants’ position any sufficiently demonstrable interest or justification” to  

                                                                                           

 warrant a departure from the usual procedure under Civil Rule 82.).  



          55        See Alaska R. Civ. P. 82(b)(3)(I).  



                                                             -26-                                                       6808
  


----------------------- Page 27-----------------------

                                                                                56  

award of attorney’s fees against an indigent litigant.                              The superior court interpreted  



Prentzel as cautioning against but not prohibiting the imposition of fee awards against  



indigent litigants, and therefore appeared to find that any additional downward variation  



                                                                                                    57  

                                                                                                               

that might have been warranted by David’s unconfirmed indigence                                        was cancelled out  



by the Howards’ attorneys’ efforts to minimize fees.  



                    The superior court made a commendable effort to carefully consider our  



prior   decisions   addressing   attorney’s   fees   awards   involving   contested   adoption  



                                                                                                                      

proceedings and indigent litigants as well as the applicable variance factors listed in  



                                                                                             

Civil  Rule 82.  The superior court did not abuse its discretion in awarding a reduced fee  

award against David.58  



           56        In Prentzel , 169 P.3d 573 (Alaska 2007), the superior court found that the               



 State was the prevailing party and awarded   partial fees.                              Id. at 594.  On appeal, the  

 indigent litigant Prentzel argued that the award  of attorney’s fees should have been  

 reversed because it could deter other similarly situated civil-rights litigants from bringing  

 actions  in  good  faith.    Id.  at  595.    We  disagreed,  holding  that  “the  superior  court  

                                           

 accounted for Prentzel’s status as a pro se indigent litigant by cutting the [S]tate’s hourly  

                                                                                                            

 billing rate in half.  Moreover, the court ensured that time spent on Prentzel’s civil rights  

 claim and on his first appeal was not included in the award.”  Id.  We thereupon affirmed  

                                                        

 the award of attorney’s fees.  Id.  



           57        There  was  a  question  in  the  superior  court  about  whether  David  was  



                             

 actually indigent.  The superior court found that he was indigent and appointed him  

 counsel in the long-term guardianship hearing and in the adoption proceeding, but on  

                              

 cross-examination David indicated that he might at an unknown date be receiving an  

 inheritance of an unspecified amount.  



           58  

                                                                                   

                     The only ground David advances for why we should overturn the fee award  

 is that the superior court abused its discretion; he does not argue that attorney’s fees  

                                                           

 should not be awarded against parents in contested adoption proceedings as a matter of  

                         

 law or policy.   Given the lack of briefing on this issue, the facts before us, and the  

                                 

 superior court’s fair and careful analysis, we decline to hold that the fee award in this  

                                                                                         

 case is invalid as a matter of law.  We note, however, that we are troubled by an award  

                                                                                                              (continued...)  



                                                              -27-                                                         6808
  


----------------------- Page 28-----------------------

V.        CONCLUSION  



                   For the foregoing reasons, we AFFIRM the superior court in all respects.  



         58(...continued)  



 of attorney’s  fees against a biological parent in what is effectively a parental rights  

                     

termination proceeding.  In the near-40 years since Adoption of V.M.C. was decided, we  

have recognized that “[t]he right to direct the upbringing of one’s child is one of the most  

                                               

basic of all civil liberties” and is so important a right that “[d]ue process requires that  

 [an] indigent [biological] parent be appointed an attorney to assist him in demonstrating  

why his consent to the adoption of his child should not be rendered unnecessary.”  In re  

                                                   

K.L.J. ,  813  P.2d  276,  279-86  (Alaska  1991)  (internal  quotation  marks  and  citations  

 omitted).  Thus, although we do not reach the issue of whether attorney’s fees awards  

 should be barred as a matter of law against a biological parent in a contested adoption  

                                               

proceeding, we recognize there are strong policy arguments supporting such a ban.  But  

                                                   

 again,  given  the  superior  court’s  careful,  thoughtful  analysis,  we  find  no  abuse  of  

                                                                                             

 discretion in the case before us.  



                                                           -28-                                                        6808  

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