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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 E.H. and J.H. (11/16/2018) sp-7316

In Re Adoption of E.H. and J.H. (11/16/2018) sp-7316

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

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  


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                       THE SUPREME COURT OF THE STATE OF ALASKA                                         

In  the  Matter  of  the  Adoption  of                             )  


                                                                   )    Supreme C                         

                                                                                          ourt No. S-16710  


E.H. and J.H.                                                      )  


                                                                   )    Superior Court Nos. 3AN-15-01485/  


                                                                   )    01486 PR (Consolidated)  



                                                                   )    O P I N I O N  



                                                                   )    No. 7316 - November  16, 2018  


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


                      Judicial District, Anchorage, Eric A. Aarseth, Judge.  


                      Appearances:              Darryl  L.  Jones,  Law  Office  of  Darryl  L.  


                      Jones,  Palmer,  for  Appellants  Foster  Parents.                                     Allison  


                      Mendel, Bonnie Calhoun, and John Sherman,Mendel Colbert  


                      & Associates, Inc., Anchorage, for Appellees Grandparents.  


                      Anna R. Jay, Assistant Attorney  General, Anchorage,  and  


                      Jahna  Lindemuth, Attorney  General, Juneau,  for Appellee  


                      State of Alaska,  Department  of Health  &  Social  Services,  


                      Office of Children's Services.  


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      WINFREE, Justice.  




                      Two young siblings were removed fromtheir biological parents' home and  


placed with a foster family. The maternal biological grandparents remained involved in  


the children's lives and sought to adopt them, as did the foster parents. The grandparents  

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

and foster parents entered into a formal settlement agreement, which was incorporated                                                                                                                                                                                                                                                             

into the ultimate adoption decree.  Under the agreement the grandparents waived their                                                                                                                            

right to pursue adoption in exchange for several specific guarantees and assurances,                                                                                                                                                                                                                                                                    

including that the foster parents would comply with a visitation agreement and facilitate                                                                                                                                                                                                                                                                             

a relationship between the children and the grandparents.                                                                                                                                                                                                              When the grandparents were                                                                                      

later denied post-adoption visitation, they moved to enforce the agreement and then to                                                                                                                                                                                                                                                                                       

vacate the adoption.                                                                           

                                                              The superior court vacated the adoption after finding that the foster parents                                                                                                                                                                                                                                  

madematerialmisrepresentationsthroughoutthepre-adoption process,including                                                                                                                                                                                                                                                                                                 specific  

misrepresentations about their                                                                                                                  intent to                                    comply   with   the visitation                                                                                                    and   relationship  

agreement.   The superior court placed the children back in state custody to determine a                                                                                                                                                                                                                                                                                                                

 suitable adoptive placement.                                                                                                        The foster parents appeal, arguing that the grandparents'                                                                                                                                               

 sole remedy is enforcement of the visitation agreement. But an adoption may be vacated                                                                                                                                                                                                                                                                                   

dueto                       materialmisrepresentations,and                                                                                                                       because the                                           adoptive parents do not challengethe                                                                                                                     

court's   factual   finding   that   they   never   intended   to   comply   with   the   settlement  

agreement's   visitation   and   relationship  provisions,   we   affirm   the   superior   court's  

decision vacating the adoption.                                                                    

II.                            FACTS AND PROCEEDINGS                                              

                                                              The Office of Children's Services (OCS) took custody of Simon and Ellie                                                                                                                                                                                                                                                                      1  

in 2012 after discovering that they were living in unsafe conditions.2                                                                                                                                                                                                                                                     Simon was almost  


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



                                                             See AS 47.10.011 (enumerating instances "court may find a child to be a  


child in need of aid"); CINA Rule 15(f)(1) (empowering court at adjudication to order  


child in need of aid placed in temporary OCS custody pending disposition).  

                                                                                                                                                                                                 -2-                                                                                                                                                                                    7316

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

five and Ellie was only three months old.                                        OCS placed the children with foster parents,                                           3  


with whom the children then resided continuously.  The children regularly visited their  


biological grandparents, including overnight visits, and generally maintained a positive  


relationship with them.  


                          During the children's foster placement, however, the foster parents and the  


grandparents did not get along. The foster parents accused the grandparents of violating  


visitation rules, but OCS dismissed the accusation as unfounded.   The grandparents  


alleged that the foster parents were neglectful caregivers and that they relied on their  


teenagers to provide for Simon and Ellie. Shortly before OCS petitioned to terminate the  

                                                                       4   both  the  foster  parents  and  the  grandparents  


biological  parents'  parental  rights, 

requested to adopt the children.  


                          In 2014, when Simon was seven and Ellie was two-and-a-half years old,  


their biological parents' parental rights were terminated.  Early in the termination trial,  


the grandparents withdrew their request for placement in exchange for an agreement  


allowing them to remain in the children's lives.  The court approved the foster parents  


as an adoptive placement for the two children.  


                          Following thetermination trial, OCScontracted for an adoptionhomestudy  


to evaluate the foster parents. The home-study writer interviewed the foster parents and  


other family members residing in their home. Neither foster parent disclosed at that time  


that  their  own  biological  children  had  experienced  or  alleged  sexual  abuse.                                                                          They  


represented that they were bonded with Simon and Ellie.  Both foster parents expressed  


             3            See  AS 47.10.080(c)(1) (authorizing court to commit child in need of aid                                                                 

to OCS custody "for placement in an appropriate setting for a period of time not to                                                                                   

exceed two years").     

             4            See AS 47.10.080(c)(3) (authorizing termination of parental rights to child  


in need of aid upon satisfaction of statutory conditions).  


                                                                                  -3-                                                                           7316

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


misgivings whether they could create a safe and satisfactory visitation plan with the  


grandparents, explainingthat "[i]n prior visits, thegrandparentshadallowed[Simon]and  


[Ellie]  to  be  unsupervised  with  the  birth  parents."                              The  home-study  writer  also  


interviewed an OCS caseworker, who stated that she supported adoption by the foster  


parents but had "some concern that the family may not be supportive of maintaining  


contact with the maternal grandparents."  


                     In early 2015, before the adoption was finalized, the foster mother reported  


to OCS that the children's grandfather had inappropriately touched Ellie.  Investigators  


interviewed  both  Simon  and  Ellie,  neither  of  whom  disclosed  any  abuse,  and  the  


investigators   concluded   the   abuse   reports   were   unsubstantiated.                                       Despite   the  


unsubstantiated  allegations,  the  foster  parents  agreed  to  a  settlement  with  the  


grandparents.  The foster parents testified at the settlement conference that they were  


entering the settlement agreement of their own free will and with the assistance of  


competent legal counsel.   The foster parents later claimed they had been under the  


impression they were not to notify the grandparents of the unsubstantiated allegations or  


reference them during negotiations at the settlement conference.  


                     The settlement agreement was ultimately incorporated into the June 2015  


adoption decree.  The agreement is lengthy and specific in its terms.  The grandparents  


"agreed  not  to  continue  to  pursue  custody  and  placement  of  [the  children]  .  .  .  in  


exchange for the [foster parents'] guarantees and assurances." Other provisions include  


that the grandparents "will continue to be considered the children's legal grandparents"  


and that "[v]isitation between the children [and their grandparents] is an important part  


of the children's mental health and sense of connection to their biological family and  


heritage."  The agreement additionally provides that "[t]he parties agree to respect each  


other's roles and importance in the children's lives and to facilitate those relationships  


and titles."  

                                                                -4-                                                          7316

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


                    The  agreement  states  that  the  grandparents  shall  have  retained  and  


enforceable visitation rights surviving the child protection case and any subsequent  


adoption or guardianship case.  But the agreement provides for an initial two-month  


suspension of grandparent visitation to "solidify the formal and legal familial bond  


between the children and the [foster parents]," followed by three months of supervised,  


therapeutic  visits  conducted  with  one  of  the  two  therapists  named  in  the  order.  


Following that period of bonding and relationship building, the agreement sets out a  


highly detailed visitation schedule, with unsupervised visits between the children and  


their grandparents increasing in frequency and duration over time.  


                    In October 2015 the grandparents moved to reopen the adoption case and  


enforce the visitation agreement.  They sought court intervention after being "denied at  


least six of their visitations with the children, with no hope of any future visitations  


without immediate court intervention." The foster parents opposed, and they submitted  


affidavits detailing their history with the children and negative course of dealing with the  




                    In December 2015 the superior court granted the grandparents' motion to  


reopen the adoption.  In March 2016 the grandparents moved to vacate the adoption on  


the grounds of fraud and  misrepresentation.   The court held a five-day evidentiary  


hearing in November.  


                    After the hearing the court found that the foster parents' allegations of  


sexual abuse by the grandparents were not only unsubstantiated, they also were highly  


suspect and possibly fabricated.  The court found that the foster mother never wanted to  


enter   into   the   settlement   agreement,   actively   isolated   the  children   from  their  


grandparents, and manipulated therapists to promote her agenda.  


                    The court also found that the foster parents failed to disclose material facts  


that "were significant to the [grandparents'] decision to waive their right to adopt the  

                                                                -5-                                                         7316

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

 children" and "would have meaningfully affected the opinions of the home study writer,                                                                                                                                                                                                                                                                                                                                                                       

 OCS, the [guardian ad litem] and the court."                                                                                                                                                                                                                     These material facts included:                                                                                                                                                       (1) the   

 foster parents' family's "significant history of actual or allegations of sexual abuse";                                                                                                                                                                                                                                                                                                                                                              

 (2)  Simon's "pre-adoptive behavior, that he was not bonding with [his foster mother,]                                                                                                                                                                                                                                                                                                                                                           

 and that he was allegedly hoarding food"; and (3) the foster parents' actual pre-adoptive                                                                                                                                                                                                                                                                                                                                  

mind set, which was wholly at odds with their "affirmative promise to support and                                                                                                                                                                                                                                                                                                                                                                                           

 facilitate the relationship between [the children and their grandparents]."                                                                                                                                                                                                                                                                                                                                                         The court   

 emphasized that the foster parents' attempts to "undermine[] and improperly influence[]                                                                                                                                                                                                                                                                                                                                              

the reunification process between children and grandparents" were not "merely post-                                                                                                                                                                                                                                                                                                                                                                                  

 adoption conduct" but rather "a continuation of attitude and conduct that existed pre-                                                                                                                                                                                                                                                                                                                                                                                    

 adoption, and pre-agreement with [the grandparents]."                                                                                                                                                                  

                                                                           The superior court vacated the adoption and reappointed the Office of                                                                                                                                                                                                                                                                                                                                     

Public Advocacy as Simon's and Ellie's guardian ad litem and OCS as                                                                                                                                                                                                                                                                                                                                                                 their  legal  

 custodian   with  the   authority to make placement decisions.                                                                                                                                                                                                                                                                                          The court returned                                                                                                    the  

 children to their pre-adoptive status as children in need of aid.                                                                                                                                                                                                                                                                                            The court clarified that                                                                                       

 "[n]othingin this ordershall                                                                                                                             beconstruedas                                                                         disapproving the[foster parents']household                                                                                                                                               

 for placement and/or adoption"; the order returned the placement decision to OCS's                                                                                                                                                                                                                                                                                                     


                                                                           The foster parents appeal.                                                                             

III.                                  STANDARD OF REVIEW                                                                                    

                                                                           "Although we review the superior court's factual findings in adoption                                                                                                                                                                                                                                                                                               

proceedings for clear error, we review de novo as [a] matter[] of law whether . . . factual                                                                                                                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                                                                                                    5   We also review de novo  

 findings satisfy the requirements for application of a statute."                                                                                                                                                                                                                                                                                                                                                                                                     

                                      5                                   In  re   Adoption   of   Hannah   L.,   390   P.3d   1153,   1156   (Alaska   2017)

 (alterations in original) (quoting                                                                                                                                                         In re Adoption of S.K.L.H.                                                                                                                                     , 204 P.3d 320, 324-35


                                                                                                                                                                                                                                          -6-                                                                                                                                                                                                                           7316

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


the legal validity of an adoption decree,                             adopting "the rule of law that is most persuasive                 


in light of precedent, reason, and policy."                                                   

                                                                            We have stated:  


                       When  reviewing  factual  findings  we  ordinarily  will  not  


                        overturn a trial court's finding based on conflicting evidence,  


                        and we will not re-weigh evidence when the record provides  


                        clear support for the trial court's ruling; it is the function of  


                       the trial court, not of this court, to judge witnesses' credibility  

                                                                                    [  ]  



                        and to weigh conflicting evidence. 

IV.         DISCUSSION  

                       An adoption decree is voidable within a year of its entry, but it enjoys a  


strong "presumption favoring [its] validity."9                                      The policy undergirding the adoption  


statutes   is   to   hold   the   parties   to   the   decree's   terms   "except   under   limited  


circumstances."10                 "[C]onfusion, mistake about the finality of the agreement, and a  


 'change  of  heart'  are  generally  insufficient  grounds  to  invalidate  consent  to  an  


adoption."11   So too are post-decree disputes about visitation rights and "the boundaries  


            5           (...continued)  


(Alaska 2009)).  

            6          See S.K.L.H., 204 P.3d at 324-25.  


            7          State, Dep't of Health &Soc. Servs., Office of Children's Servs. v. Michelle  


P., 411 P.3d 576, 581-82 (Alaska 2018) (quoting S.B. v. State, Dep't of Health & Soc.  


Servs., Div. of Family & Youth Servs., 61 P.3d 6, 10 (Alaska 2002)).  


            8          Hannah L., 390 P.3d at 1156 (quoting S.K.L.H., 204 P.3d at 325).  


            9          S.K.L.H., 204 P.3d at 325 (citing Holt v. Powell, 420 P.2d 468, 470 (Alaska  




            10         Id.  


            11         Id. at 327.  


                                                                         -7-                                                                   7316

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


of a biological parent's relationship with an adopted child."                                                         Although "adoption   

statutes generally are 'to be liberally construed to the end that the best interests of                                                                

                                                             13  we have held "the best interests of a child cannot  

adopted children are promoted,' "                                                                                                              


alone overcome a valid consent and previously entered adoption decree."                                                                 


                         Notwithstanding this strong presumption of validity, a party may seek to  


void an adoption decree due to "fraud, misrepresentation, failure to give any required  


notice,  or  lack  of  jurisdiction  of  the  parties  or  of  the  subject  matter."15                                                  Although  


AS 25.23.140(b) prohibits any party from challenging an adoption decree after one year  


on any ground, including fraud and misrepresentation, we clarified in In re Adoption of  


S.K.L.H. that such defenses, as well as defenses not specifically listed in the statute, may  


be brought before the one-year period expires.16   A party seeking to vacate an adoption  


decree  on  the  ground  of  misrepresentation  must  establish  the  existence  of:                                                           "(1)  a  


misrepresentation; (2) which was fraudulent or material; (3) which induced the party to  


                                                                                                                          17   A fraudulent or  

enter the contract; (4) upon which the party was justified in relying."                                                                                 


            12          Id.  

            13          Id.  (quoting  AS  25.23.005).   

            14          Id.  at  328.   

            15          See  AS 25.23.140(b).   To vacate an adoption, the challenger must "show  

by  a  preponderance  of  the  evidence  that  the  decree  is  not  valid."   Alaska  Adpt.  R.  17(a).  

            16          204 P.3d at 326.  


            17          See  Seybert  v.  Cominco  Alaska  Expl.,  182  P.3d  1079,  1094  (Alaska  2008);  

See  S.K.L.H.,  204  P.3d  at  328  n.39  (emphasis  in original)  (citing  Seybert,   182  P.3d  at  

 1094);   RESTATEMENT    (SECOND)    OF    CONTRACTS       164(1)  (1981)   ("If   a   party's  

manifestation  of  assent  is  induced  by  either  a  fraudulent  or  a  material  misrepresentation  

by  the  other  party  upon  which  the  recipient  is  justified  in  relying,  the  contract  is  voidable  

by  the  recipient.").  

                                                                           -8-                                                                    7316

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

material misrepresentation may constitute sufficient grounds for vacating an adoption                                                                              

decree if the misrepresentation induced the consent of a party required to consent to the                                                                                      

                                                                     18  or if it induced the assent of a party to a settlement  

adoption under AS 25.23.040(a)                                                                                                                                 


agreement incorporated into the adoption decree.                                                            


                            We note that it is unnecessary to demonstrate multiple misrepresentations  


to vacate an adoption decree - one will suffice.  The foster parents do not dispute the  


superior court's finding that they misrepresented their intent to facilitate a relationship  


between the grandparents and the children.20  They instead rely on their argument that  


an adoption cannot be challenged for failure to comply with a grandparent visitation  


agreement, asserting that the superior court erred by vacating the adoption instead of  


enforcing the visitation agreement.21  


              18            See S.K.L.H.               , 204 P.3d at 331-32 (holding that superior court erred by                                                               

vacating adoption decree because adopted child's biological mother had not established                                                                        

existence of misrepresentation which vitiated her adoption consent).                                                        

              19            Cf. Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101, 105  


(Alaska 2001) (citations omitted) ("Settlement agreements and releases are contracts; as  


such,  they  are susceptible to attack  under  the  legal theories of mistake,  fraud,  and  



              20            In the foster parents' opening brief, they do not deny their intent to reduce  


contact between the children and their grandparents; the foster parents instead contend  


they had valid reasons for going forward with the adoption and hiding their intent at the  


time.  Only in their reply brief do they contest the court's factual findings, stating that  


they  did  intend  to  abide  by  the  decree's  visitation  provisions.                                                                        But  an  argument  


superficially raised for the first time in a reply brief cannot be considered on appeal.  


Manning v. State, Dep't of Fish & Game, 420 P.3d 1270, 1279 n.51, 1280-81 (Alaska  


2018).  This argument is thus waived.  See Maines v. Kenworth Alaska, Inc., 155 P.3d  


318, 326 (Alaska 2007).  


              21            The foster parents also challenge OCS's right to participate in this appeal  


in support of the grandparents' position.  The foster parents assert that because OCS  



                                                                                        -9-                                                                                7316

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

                            We defer to the superior court's undisputed finding that the foster parents                                                               

misrepresented   their   intent   to   abide   by   the   settlement's   visitation   and   relationship  

provisions.   As for the foster parents' legal argument, they are mistaken.                                                                                  The foster   

parents cite section 3-707(c) of the Uniform Adoption Act, which provides that "[t]he   

validity of a decree of adoption issued under this [Act] may not be challenged for failure                                                                             

                                                                                                                                                                      22    The  

to comply with an agreement for visitation or communication with an adoptee."                                                                                               

Act's commentary clarifies:  


                            [A]n             agreement                   for          post-adoption                       visitation                or  

                            communication, while not prohibited . . . has no effect on the  


                            fundamental  consequence  of  an  adoption,  which  is  to  


                            terminate the parental relationship between the child and the  


                            former parents and to create the relationship of parent and  


                            child in all respects between the adoptive parents and the  



                            adopted child.                       


The  foster  parents  assert  that  the  grandparents'  rights  to  visitation  arise  under  


AS 25.20.065 and, because the grandparents may petition the court for enforcement  


              21            (...continued)  


never substantively argued the issues below or joined the grandparents' petition to  


reopen the adoption, OCS failed to preserve its arguments and "knowingly waived any  


right to participate."  It is true that OCS did not take a position on these issues in the  


superior court.  But OCS, as the children's legal custodian, has a keen interest in the  


resolution of the appeal on their behalf.  OCS has not raised any new facts that are not  


in the record, and its legal arguments are closely related to the grandparents' legal  


arguments.  The foster parents have had a full and fair opportunity to respond to OCS's  


arguments,  and  we  conclude  that  the  foster  parents  are  not  prejudiced  by  OCS's  


participation in this appeal.  

              22            UNIF . A        DOPTION  ACT   3-707(c) (1994).                                      

              23            UNIF . A        DOPTION  ACT,  1-105 cmt. (1994).                                           

                                                                                      -10-                                                                                7316

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


under that statute,                   they cannot ask to vacate the adoption for failure to comply with the                                                        

visitation agreement.                       

                          Alaska has adopted a modified version of the Uniform Adoption Act, and                                                                  

                                                                                                                                                           25  Like  

our decisions are informed, though not controlled, by the Act and its commentary.                                                                               

the Uniform Adoption Act, AS 25.23.130 states that "a final decree of adoption" has the  


effect of "terminat[ing]all legal relationships between the adopted person and the natural  


parents and other relatives of that adopted person."26                                                   But the statute also provides that  


"[n]othing  in  this  chapter  prohibits  an  adoption  that  allows  visitation  between  the  


adopted person and that person's natural parents or other relatives."27  


                          In S.K.L.H. we considered section 3-707(c) of the Uniform Adoption Act  


in the context of a superior court ruling that a mother's consent to an open adoption  


decree was invalid due to her "mistake" about the extent of visitation and her post- 


adoption relationship with the child.28   We reversed the superior court's ruling, holding  


that the mother's alleged mistake was insufficient to invalidate the adoption because the  


decree's  visitation  provision,  though  lacking  in  detail,  was  unambiguous,  and  


"confusion, mistake about the finality of the agreement, and a 'change of heart' are  


             24           See  AS  25.20.065(a)  (providing  "a  child's  grandparent  may  petition  the  

superior   court   for   an   order   establishing   reasonable   rights  of   visitation   between   the  

grandparent  and  child"  after  an  adoption).   

             25           See, e.g., S.K.L.H., 204 P.3d at 327 n.28; In re Adoption of Keith M.W., 79  


P.3d 623, 628 n.42, 633 (Alaska 2003).  


             26           Compare AS  25.23.130(a)(1), with UNIF .   ADOPTION   ACT      1-105   cmt.  



             27           Compare  AS  25.23.130(c),  with  UNIF .  ADOPTION  ACT    3-707(c)  (1994).  

             28           S.K.L.H.,  204  P.3d  at  327.   

                                                                                -11-                                                                           7316

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


generally insufficient grounds to invalidate consent to an adoption."                                                                                    Given that there          

was no ground for finding a "mistake" during the decree's negotiation process - i.e.,     

the mother's consent was valid - we characterized the mother's claim as a "post-decree                                                                           

dispute"   about   the   visitation   details   and   shared   our   agreement   with   the   Uniform  

                                                                                                                                                                             30     Our  

Adoption Act that this "cannot be grounds to set aside an adoption decree."                                                                                                        

interpretation of the Uniform Adoption Act and resulting conclusion in S.K.L.H. in no  


way  preclude  a  superior  court  from  vacating  an  adoption  due  to  a  pre-decree  


misrepresentation about visitation.  Our  S.K.L.H. decision did not turn on the specific  


topic of visitation, but rather on the particular facts of the mother's purported "mistake,"  


which, due to the agreement's lack of ambiguity, more closely resembled a change of  


heart and was insufficient to invalidate her consent.31  


                             Unlike in S.K.L.H., in this case the superior court found that the foster  


parents  had  materially  misrepresented  their  intent  to  facilitate  visitation  and  the  


grandparents' relationship with the children, thus invalidating the grandparents' assent  


to the settlement agreement incorporated into the adoption decree. The court made clear  


that  the  foster  parents'  effort  to  "undermine[]  and  improperly  influence[]  the  


reunificationprocessbetweenchildrenandgrandparents"was not "merelypost-adoption  


conduct"but ratherwas "acontinuationofattitudeand conduct that existed pre-adoption,  


and pre-agreement with [the grandparents]." Because the foster parents do not challenge  


the court's finding that they misrepresented their intent to abide by the agreement's  


visitation provisions - an essential premise upon which the grandparents gave up their  


               29            Id.  

               30            Id.   

               31            Id. at 326-27.  


                                                                                          -12-                                                                                    7316

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

own right to pursue adoption of the children - and because it is not error to vacate an                                                                                                                                                                                                                                                                                                                                                         

adoption on this basis, we affirm the court's decision.                                                                                                                                                                                

V.                                 CONCLUSION  

                                                                     The superior court's decision to vacate the adoption is AFFIRMED.                                                                                                                                                                                                                         

                                                                                                                                                                                                                                     -13-                                                                                                                                                                                         7316

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