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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Adoption of S.F., a Minor (12/12/2014) sp-6974

In Re Adoption of S.F., a Minor (12/12/2014) sp-6974

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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                    THE SUPREME COURT OF THE STATE OF ALASKA  



In the Matter of the Adoption of                         )  

S.F., a Minor.                                           )        Supreme Court No. S-15359  

                                                         )  

                                                         )        Superior  Court  No.  3PA-12-00111  PR  

                                                         )  

                                                         )        O P I N I O N  

                                                         )  

                                                         )        No. 6974 - December 12, 2014  



                   Appeal from the Superior Court of the State of Alaska, Third  

                                                                     

                   Judicial District, Palmer, Eric Smith, Judge.   



                   Appearances:  Kathleen  C.  Barron,  Wasilla,  for  Appellant.  

                   No appearance by Appellee.  



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

                                                            

                   Bolger, Justices.  



                   STOWERS, Justice.  



I.        INTRODUCTION  



                   Robert  appeals  the  superior  court's  decision  that  his  consent  was  not  

required  for  his  biological  daughter's  adoption.1  

                                                                            The  superior  court  accepted  the  



                      

                                               

superior court standing master's recommendation that Robert's consent was not required  



                                                                                               

under AS 25.23.050 because he had abandoned his daughter for a period of over six  



                                                          

months,  failed  to  provide  for  her  care  and  support  for  over  one  year,  and  failed  to  



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


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

meaningfully  communicate  with  her  for  over  one  year.    Because  the  abandonment  



finding is well-supported by the record, we affirm.  



II.       FACTS AND PROCEEDINGS  



          A.       Facts  



                                                                          

                   In August 2004, Shawna was born to Denise and Robert in Siloam Springs,  



                                                                                          

Arkansas.  At the time of Shawna's birth, Denise and Robert were living with Denise's  



                                                                 

mother, Beverly, in Westville, Oklahoma.  Denise and Robert separated within a few  



                                                                                                       

months of Shawna's birth, but Robert remained in Westville until just before Shawna's  



first  birthday.    After  their  separation,  the  relationship  became  contentious  and  they  



disputed custody of Shawna.  



                                                                                                       

                   Robert testified before the Alaska Superior Court Master in May 2013 that  



                          

in 2005 he filed a custody petition with a court in Oklahoma, was granted temporary  



                                                       

custody, and lived with Shawna for a few months.  He testified that before the permanent  



                                                                                               

custody hearing was held, he left Oklahoma to attend a funeral in California, leaving  



Shawna with Denise.  Following his return, Shawna resumed living with him.  However,  



                                                                                         

he again left for California, this time for more than a month.  Robert testified that he was  



not present at the permanent custody hearing in October 2005, but his attorney appeared  



on his behalf.  



                                                                                                        

                   The only record from the Oklahoma proceeding that was presented to the  



                                                                                            

Alaska Superior Court Standing Master reveals that it was not a custody proceeding -  



it was a paternity proceeding.  Following this proceeding, a Decree of Paternity was  



                                                                                   

issued by a judge of the District Court of Adair County, Oklahoma on October 3, 2005  



                                                                                               

and filed on October 27, 2005.  According to the Decree, Robert had filed a Petition for  



Determination of Paternity, the court held a hearing on the petition on October 3, and  



Robert was not present but his attorney appeared for him.  The court determined that  



                                                                                                               

Robert was Shawna's father and awarded Denise "full custody" of the child. Robert was  



                                                             -2-                                                       6974
  


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

also allowed reasonable visitation and ordered to pay child support in the amount of     



$169 per month.  



                              

                   In the summer of 2006, Denise joined the National Guard.  She spent nine  



weeks in Missouri for basic training and four months in Texas for additional training,  



returning to Oklahoma in April 2007.  That June she married James, and the family  



                                                                                                          

moved to North Carolina.  She was deployed to Iraq in 2009.  After she returned from  



                                                                                                     

Iraq, the family moved to Colorado in 2010, then to Alaska in 2011.  James petitioned  



the superior court for adoption of Shawna in 2012.  



                   Robert returned from California to Oklahoma sometime in 2006, apparently  



                                                                                                                   

after Denise had left for basic training.   He contacted Beverly, who offered to send  



effects from him to Denise or Shawna, but he never pursued her offer.  Robert claimed  



                                                  

he never determined the outcome of the custody hearing or learned about his obligation  



to pay child support.  



                                                                                                

                   Over the next few years, he made occasional contact with Beverly through  



Facebook.  Robert claimed that he had attempted to find Denise and Shawna, but was  



unaware how to locate them through the military and had no money to hire an attorney.  



Furthermore, he claimed that he had tried to get their contact information from Beverly,  



            

but she refused to supply it.  Finally, Robert claimed that he was in the process of trying  



                                                             

to find Denise on Facebook when he was served process regarding James's petition for  



                                                                               

adoption.  Denise testified that she was never aware of any attempts by Robert to contact  



                                                                        

either her or Shawna, and she denied ever trying to hide her location from him.  In fact,  



                                                   

Denise posted a message to Robert on Facebook in March 2011, but he never responded.  



          B.       Proceedings  



                   James submitted a petition to adopt Shawna in the Alaska Superior Court  



in  March  2012.    The  petition  alleged  that  Robert's  consent  to  the  adoption  was  



                                                                       

unnecessary because he had abandoned Shawna, had not provided monetary support for  



                                                             -3-                                                      6974
  


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

her, and had not had meaningful contact with her.                                                     A hearing was held before a superior  



court master in May 2013.  Following testimony, the master stated:  



                                                                                                                       

                                         There's really two versions of events for the Court to  

                                                                                               

                           believe.    One  is  that  [Robert]  left  without  a  forwarding  

                                                                                                                      

                            address,   and   the   other   is   that   [Denise]   left   without   a  

                            forwarding address. . . .    



                                         . . . .  



                                                                                                                    

                                         . . . I found the testimony of [Denise] and [Beverly] far  

                                                                                

                           more persuasive than the testimony of [Robert] with regards  

                            to how events unfolded, and what [Robert] could have done  

                            to try and be in touch with the child . . . . [Robert's] testimony   

                            is just not consistent, and it's certainly not consistent with the   

                            corroborating  evidence   with  regards   to  a   father  making  

                            consistent efforts to do what he could to contact . . . the child.   



                            That August, the master issued a report recommending that the superior   



court find Robert's consent not necessary for James's adoption of Shawna.  The superior                      



court accepted the master's report and recommendation.  



III.          STANDARD OF REVIEW  



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



                                 2  

for clear error."                                                                               

                                    "A factual finding is clearly erroneous 'when a review of the record  



                                                                                                                                                           

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



                        3  

mistake.'  "     A  master's  findings  adopted  by  the  superior  court  are  considered  the  



                                                              4  

                                                                                                              

findings of the superior court.   The superior court's "factual findings enjoy particular  



              2            David  S.  v.  Jared  H. ,  308  P.3d  862,  867  (Alaska  2013)  (citing  In  re  



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



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



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



              4            David S ., 308 P.3d at 867 (citing Alaska R. Civ. P. 52(a)).  



                                                                                      -4-                                                                              6974
  


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

                                                                                                       

deference when they are based 'primarily on oral testimony, because the trial court, not  



this court, performs the function of judging the credibility of witnesses and weighing  

conflicting evidence.' "5  



IV.       DISCUSSION  



                   The  master  based  his  recommendation  that  Robert's  consent  was  not  



                                                                                                             

required for Shawna's adoption on findings that Robert:  (1) "abandoned the [child] for  



over six months"; (2) "failed significantly without justifiable cause to provide for the  



                                                                                                 

care and support of the child for a period of over one year"; and (3) "failed to maintain  



                                                                

communication with the child for over one year."  Under AS 25.23.050, any of these  



                                                                                       6 

                                                                                          Given that we affirm on  

findings would independently negate the consent requirement. 

grounds of abandonment, we do not reach the other findings.7  



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



Misyura v. Misyura , 242 P.3d 1037, 1039 (Alaska 2010)).  



          6        AS 25.23.050(a) provides:   



                   Consent to adoption is not required of  

                   (1) . . . a parent who has abandoned a child for a period of at  

                   least six months; [or]  

                   (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 . . . .  



          7        See, e.g., Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's  



                                

Servs., 212 P.3d 756, 762 (Alaska 2009) ("Because only one statutory basis is required  

                                                

. . . we do not need to address the superior court's other . . . findings.").  Jon S. made this  

                                                                                

point in a child in need of aid (CINA) case, but it applies equally to this adoption statute.  



                                                           -5-                                                     6974
  


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

                    Alaska Statute  25.23.050(a)(1) states that "[c]onsent to adoption is not  



                                                                                                

required of . . . a parent who has abandoned a child for a period of at least six months."  



Abandonment is established where a parent's "conscious disregard of the obligations  



                                                                                                                                8  

                                                                                          

owed by a parent to the child, lead[s] to the destruction of the parent-child relationship." 



                    The  master  found  that  "[t]here  is  clear  and  convincing  evidence  that  



                                                                                             

[Robert] abandoned [Shawna] when he left Oklahoma without providing any forwarding  



information."  The master also found that "[Robert] clearly disregarded his parental  



                                                                                            

obligations  when  he  went  to  California  without  leaving  contact  information,  or  



contacting  [Denise]  in  a  reasonable  timeframe  to  check  on  [Shawna]."    Finally,  the  



                                                           

master found that Robert failed to take advantage of Beverly's offer to relay a message  



                                                                                                     

to Denise and Shawna.  The master concluded that because Robert "has had no contact  



                                                                  

with [Shawna] since she was about one year old[,] [t]here is no parent-child relationship"  



between them.  



                                                                                                  

                    The record supports the master's findings.  Robert knew how to contact  



                                               

Denise before she left for basic training.  After that, he knew how to contact Beverly and  



                                                                                

had done so several times since 2005.  Furthermore, as the master correctly observed,  



"even  if  [Beverly]  was  reluctant  to  provide  [Denise]'s  contact  information  directly,  



[Robert] did not take advantage of her offer to relay a message."  Finally, Robert never  



responded when Denise contacted him through Facebook in March 2011.  These facts  



collectively  indicate  Robert's  "conscious  disregard"  of  his  parental  obligations  to  



                                                                                                9  

Shawna  and  a  "destruction  of  the  parent-child  relationship,"   thus  supporting  the  



master's abandonment finding.  



          8         D.M. v. State , 515 P.2d 1234, 1237 (Alaska 1973).  



          9         Id .  



                                                              -6-                                                            6974  


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

                   Robert  argues  that  the  superior  court  erred  by  accepting  the  master's  



                                                    

finding of abandonment; he asserts that he was prevented from communicating with his  



                                                                           

child not only by Denise, but also by Beverly, who refused to provide Denise's contact  

                                                                                   10   in  which  we  reversed  the  

information.    Robert  relies  on  In  re  Adoption  of  A.J.N ,                                          



superior court's finding of abandonment.  But A.J.N. is inapposite because the superior  

                                                                                                             

court in that case failed to focus on the proper factors for determining abandonment.11  

                           



Furthermore, A.J.N.  is factually distinguishable from this case because the father there  



made ongoing efforts to exercise his visitation rights; his efforts were actively frustrated  

                      



                                                      12  

by the child's mother and stepfather.                     Here, the evidence indicates that Robert made  



                                                                            

minimal effort to locate or contact Shawna, and no persuasive evidence indicates that  



either Denise or Beverly interfered with that effort.  



                   Furthermore, the "findings of a master that are adopted by the superior  

                                                                          13    Those  "factual  findings  enjoy  

court  are  considered  the  findings  of  that  court."      



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  



                                                                   14  

                                                                       In this regard, we note that the master  

witnesses and weighing conflicting evidence."                                                                  



found  Robert's  testimony  "not  consistent"  and  less  "persuasive"  than  Denise's  and  

                                                                        



Beverly's testimony.  



          10       525 P.2d 520, 523 (Alaska 1974).
  



          11       Id.
  



          12       Id .
  



          13       David S. v. Jared H           ., 308 P.3d 862, 867 (Alaska 2013) (citing Alaska R.  



Civ. P. 52(a)).  



          14       Id. (citing  William P. v. Taunya P., 258 P.3d 812, 814 (Alaska 2011)).  



                                                             -7-                                                      6974
  


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

                                                                                                       

                   The master's findings of fact are amply  supported  by  the record.    The  



                                                                                        

superior court thus did not clearly err by adopting the master's findings.  Therefore  the  



                                                                               

court also did not err in concluding that Robert's consent to Shawna's adoption by James  



was unnecessary.  



V.       CONCLUSION  



                   For the reasons given above, we AFFIRM the superior court.  



                                                          -8-                                                    6974
  

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