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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Adoption of J. R. S. (3/4/2022) sp-7585

In the Matter of the Adoption of J. R. S. (3/4/2022) sp-7585

          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,  

                                                                                                                   

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                      

          corrections@akcourts.gov.  



                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



In  the  Matter  of  the  Adoption  of                        )  

                                                              )    Supreme  Court  No.  S-18052  

J.R.S.                                                        )  

                                                                                                                            

                                                              )    Superior Court No. 3AN-20-00655 PR  

                                                              )  

                                                                                       

                                                              )    O P I N I O N  

                                                              )  

                                                                                                      

                                                              )    No. 7585 - March 4, 2022  



                                                                                                          

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

                                                                                                    

                     Judicial District, Anchorage, Yvonne Lamoureux, Judge.  



                                                                                                          

                     Appearances:  John J. Sherman, Sherman Law Office, LLC,  

                                                                                                                   

                     Anchorage,   for   Appellants   Randi   B.   and   Bradley   B.  

                                                                                                         

                     Jennifer  M.  Coughlin,  Landye  Bennett  Blumstein,  LLP,  

                                                                     

                     Anchorage, for Appellee Dale S.  



                                                                                                    

                     Before:           Winfree,         Chief       Justice,       Maassen,          Carney,  

                                                                  

                     Borghesan, and Henderson, Justices.  



                                                  

                     WINFREE, Chief Justice.  



I.        INTRODUCTION  



                                                                                                                          

                     A  maternal  aunt  and  uncle  sought  to  adopt  a  child  over  the  father's  



                                                                                                                              

objection;  after  finding  that  the  father's  consent  was  required,  the  superior  court  



                                                                                                                                   

dismissed the adoption petition.  The aunt and uncle contend the superior court erred by  



                                                                                                                                  

finding that:  (1) the father had justifiable cause for his failure to communicate with the  



                                                                                                                                   

child for one year or more; (2) the father did not abandon the child for six months or  



                                                                                                                           

more; and (3) the father did not fail to support the child for one year or more.  


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

                         Following oral arguments we issued a brief order affirming the superior                                                  



court's decision dismissing the adoption petition. This opinion sets forth the reasons for                                                                  



our earlier order.               



II.          FACTS AND PROCEEDINGS       



             A.          Background  



                                                                                     1  

                         J.R.S. was born in August 2016.                                                                                 

                                                                                         Her parents, Dale S. and Samantha S.,  



                                                                                                         

have a history of substance abuse, including heroin and methamphetamine.  



             B.          Proceedings  



                                                               

                         1.          Proceedings generally  



                                                                                                                                                           

                         In April 2019 J.R.S.'s maternal aunt and uncle, Randi and Bradley B.,  



                                                                                                                                                        

petitioned for sole legal and primary physical custody of J.R.S.   They alleged "that  



                                                                                                                                                  

 [J.R.S.] ha[d] lived with them continuously since July . . . 2018, that the . . . parents'  



                                                                                                                                                      

rights  have  been  suspended  by  circumstances  (specifically  due  to  substance  abuse  



                                                                                                                                                   

issues), and that the . . . parents had abandoned [J.R.S.]"  Dale responded to the petition  



                                                                                                                                                       

and requested that he and Samantha be awarded custody. The court held an initial status  



                                                                                                                                                   

hearing in May; only Randi, Bradley, and Samantha participated.  The court granted  



                                                                                                                                  

Randi and Bradley's unopposed motion for interim custody of J.R.S.  



                                                                                                                                                           

                         In December Dale attempted to mediate the custody dispute with Randi and  



                                                                                                                                                         

Bradley.            Dale  later  testified  that  the  mediation  was  unsuccessful  because  he  was  



                                                                                                                                                          

unwilling to "sign over [his] daughter."  Dale explained that Randi and Bradley had  



                                                                                                                                                      

offered to allow visitation with J.R.S. if Dale agreed to grant them custody and to attend  



                                                                                                                                                          

substance  abuse  treatment.                              Dale  acknowledged  that  he  had  tested  positive  for  



             1           We  use  initials  to  protect  the  child's  privacy.   The  petition  was  captioned  



In  the  Matter  of  the  Adoption  of  J.R.B.,  using  the  aunt  and  uncle's  last  initial.   Because  

the  adoption  petition  was  denied,  the  child  will  keep  her  birth  name;  we  accordingly  refer  

to  her  as  J.R.S.  



                                                                              -2-                                                                      7585
  


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

methamphetamine   and   heroin   in   June   and   that he   had not   attended   substance   abuse  



treatment.    



                    In  March  2020  Randi   and  Bradley  petitioned  to   adopt J.R.S.   The   court  



ordered  that  the  custody  and  adoption  cases  be  heard  together  and  bifurcated  the  trial;  the  



first part   took   place   in   December   and   addressed   whether   the   adoption   required   the  



parents'   consents.   Randi   and  Bradley   sought  to  prove  that   consent was  not  required  



because  the  parents  had:   (1)  failed  to  communicate  meaningfully  with J.R.S. without  



justifiable  cause  for  one  year  or  more;  (2)  abandoned  J.R.S.  for  six  months  or  more;  and  



(3)  failed  to  provide  for  J.R.S.'s  care  and support as required by law or  judicial  decree  



                                                                  2  

without  justifiable  cause  for  one  year  or  more.   The  court  found  that  Samantha's  consent  



to  adoption  was  not  required  but  that  Dale's  consent  to  adoption  was  required,  and  it  



accordingly  dismissed  the  adoption  petition.    



                    Randi  and  Bradley  appeal,  asserting  that  the  superior  court  erred  by  finding  



that  Dale's  consent  was  required.   



                    2.	       Testimony   and   superior   court   findings   about   whether   Dale  

                              failed  to  communicate  without  justifiable  cause  or  abandoned  

                              J.R.S.  



                              a.	      August  2016  through  April  2018  



                    Trial testimony indicated that after J.R.S.'s August 2016 birth she lived  

                                                                                                                        



with  Dale  and  Samantha  until  about  June  2017.                         Samantha's  mother  testified  that  

                                                                                                                          



 Samantha and J.R.S. lived with her from June until November 2017. Samantha's father  

                                                                                                                        



testified that J.R.S. then lived with him until approximately April 2018.  

                                                                                                           



                    The parties dispute whether Dale had contact with J.R.S. between June  

                                                                                                                         



2017 and spring 2018. Dale testified that he had several video chats with J.R.S. between  

                                                                                                                    



          2  

                                                                                                        

                    See AS 25.23.050(a)(1)-(2) (enumerating exceptions to requirement for  

                                                        

biological parents' consent to child's adoption).  



                                                              -3-	                                                         7585  


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

June  and  November,  but  Samantha's  mother  testified  that,  although  Dale  and  Samantha  



had been  in contact,  she  could  not  remember seeing or hearing from Dale while J.R.S.  



lived  with  her.   Dale  testified  that in  January  2018  he   started  an  oilfield  job  in  North  



Dakota,  working  a  varying  schedule  of  weeks  in  the  field  and  returning  to  Alaska  for  his  



time   off.     Dale   testified   that   in   late   January   or   early   February   2018   he   had   visited  



Samantha   and   J.R.S.   a   few   times   and   that   they   went   to   a   park   or   shopping,  but  



Samantha's  father  testified  that  he  did  not  see  Dale  from  November  2017  to  April  2018.   



The  superior  court  found  that  Dale  had  contact  with  J.R.S.  prior  to  April  2018.   



                          b.       April  2018  through  November  2018  



                  Samantha  was  undergoing  cancer  treatment  throughout  2018.   Samantha's  



mother  testified that in April she picked  up J.R.S. from  Samantha's father's home and  



that  she  offered  to  care  for J.R.S. until Samantha got better.  Randi  testified that J.R.S.  



began  living  with  her  and  Bradley  in  July.   



                  Testimony  reflected  that  Dale  had  multiple  visits  with  J.R.S.   during  the  



summer   and   fall   of   2018.    Samantha's   mother   testified that Dale   attended   a   family  



gathering   at   a  restaurant   in  May.    Samantha's  mother further  testified  that  Dale   also  



attended  a  family  gathering  for  J.R.S.'s  birthday  in  August.   Randi  testified  that  early  in  



the  summer  J.R.S.  lived  with  Samantha  and  Dale  at  Samantha's  father's  home  when  Dale  



was   in   town   but   that   around   August   they   agreed   it   would   be   best for   J.R.S.'s   sleep  



schedule   for   her   to   spend   days   with   Samantha   and   Dale   and   return   to   Randi   and  



Bradley's  home  at  night.  Randi testified that in October and  November  she  twice  told  



Samantha  and  Dale  that  future  visits  with  J.R.S.  needed  to  be  supervised  because  of  their   



fighting.   Randi  also  testified  that  at  the  end  of  November  she  blocked  calls  from  Dale's  



number   and   told   Samantha   that   Dale   could   coordinate   supervised visits   with   J.R.S.  



through  Samantha's  mother.   



                                                       -4-                                                 7585
  


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

                                                                  c.                    November 2018 through trial                                                            



                                            Dale   testified   that   he   tried   contacting   Samantha's   mother   and   Randi  



multiple times in early 2019 and that neither one responded. Samantha's mother testified                                                                                                                                                                          



that in March she exchanged texts and phone calls with Dale; he wanted to take J.R.S.                                                                                                                                                           



to Wasilla to visit his family, but he would not agree to supervision.                                                                                                                                                       Randi testified that                               



she unblocked Dale's calls in March and that she told him she knew he had been trying                                                                                                                                                                                    



to contact her.                                    She testified that Dale indicated he wanted to take J.R.S. to Wasilla to                                                                                                                                                          



visit his family and his brother would be willing to supervise.                                                                                                                                               Randi asserted that she  



told Dale she wanted to meet his brother, that she tried to arrange a meeting, but that                                                                                                                                                                                        



Dale did not follow through and the meeting never happened.                                                                                                                                                 



                                            Randi testified that in March she went to see Samantha; the superior court                                                                                                                                                     



found that Dale and Samantha were both living at Samantha's father's home at this time.                                                                                                                                                                                                        



Randi testified that she observed bruising on Samantha and drug paraphernalia in the                                                                                                                                                                                              



home.     Randi   said   that   shortly   after   this   visit,   she   made   a   report   to   the   Office   of  

                                                                                         3   Randi and Bradley also filed a petition for legal custody of  

Children's Services (OCS).                                                                                                                                                                                                                                                            



J.R.S., and in April the court granted them temporary custody of J.R.S.  

                                                                                                                                                                                                                                           



                                            Randi testified that Dale contacted her in April after she made the OCS  

                                                                                                                                                                                                                                                                           



report and filed the custody petition; he asked to see J.R.S., and Randi told him he would  

                                                                                                                                                                                                                                                                        



                      3                     OCS's  mission  is  to  "[e]nsur[e]  the  safety,  permanency  and  well-being  of  



children  by  strengthening  families,  engaging  communities,  and  partnering  with  Tribes."   

Office  of  Children's  Services:   Mission,  Vision,  Guiding  Principles  and  Values,  ALASKA  

DEP'T OF HEALTH  & SOC. SERVS.,  https://dhss.alaska.gov/ocs/Pages/aboutus/default.aspx  

(last  visited  Dec.   16,  2021).  



                                            An  OCS  caseworker  later  testified  that:   OCS  received  a  report  alleging  that  

Dale and Samantha neglected J.R.S.;  the caseworker talked  to Samantha on the phone  

once  but  never talked  to  Dale;  the  caseworker  never  met  with  either  parent; O                                                                                                                                                                           CS  was  

"not  legally  involved  or  setting  up  visits";  and  because  the  child  was  in  someone  else's  

temporary  custody  and  there  was  an  open  custody  case,  OCS  closed  its  file.  



                                                                                                                                          -5-                                                                                                                               7585
  


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

                                                                                                                      

need to go through OCS to coordinate a visit.  Randi further testified that Dale contacted  



                                                                                                                                 

her  again in June asking to  see J.R.S. and that  she again told him he would need to  



                                                                                                                    

coordinate visits through OCS.  Randi also stated that on J.R.S.'s birthday in August,  



                                                                                                                               

Dale left a message asking her to say happy birthday to J.R.S.  Randi testified that was  



                                                     

the last time she heard from Dale.  



                                                                                                                                

                    Dale  testified  that  he  first  learned  about the  custody petition  when  his  



                                                                                                                       

mother called him in North Dakota to let him know that Randi and Bradley had been  



                                                                                                                                

awarded temporary custody.  Dale explained that he had not received notice because the  



                                                                                                                                 

paperwork had been  sent to Samantha's father's address, Dale then was working  in  



                                                                                        

North Dakota, and when he was not working he was not living at Samantha's father's  



                                                                                                                               

house.  Dale stated that as soon as he got back to Alaska he went to the courthouse and  



                                                                                                                              

filed an answer.  He also testified that he worked overtime for several months to save  



                                                                                                                                

enough money to hire an attorney.  Dale asserted that, despite repeated requests, his  



                                                                                                                               

attorney refused to file a request for interim visitation and that the attorney advised him  



                                                                                                                      

not to contact Randi and Bradley directly.  The superior court found Dale's testimony  



                                                                                                                         

on this issue credible, noting:  "Dale . . . followed the advice of his attorney and stopped  



                                                                                                                       

contacting the maternal relatives in order to facilitate visitation with [J.R.S.]"  



                                                                                                                            

                    The superior court found that during 2018 J.R.S. had not lived with either  



                                                                                                                         

of her parents since spring, that J.R.S. had been in Randi and Bradley's physical custody  



                                                                                                                   

since July, and that Dale had not had contact with J.R.S. since November.  



                                                                                                                       

                    3.         Evidence  and  findings about  whether  Dale  failed  to  support  

                               J.R.S.  



                                                                                                                              

                    The court found: "[J.R.S.]'s extended maternal family members have been  



                                                                                                                               

supporting [J.R.S.] her entire life. They have been providing housing, food, diapers, and  



                                                                                                                               

clothes for [J.R.S.]"  Samantha's father, Samantha's mother, and Randi all testified that  



                                                                -6-                                                         7585
  


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

during the periods when J.R.S. was living with each of them they financially supported                                                                                                                                              



her. Randi further testified that Dale never purchased anything "of substance" for J.R.S.                                                                                                                                                                            



                                        In May 2017 Samanthaobtained                                                                   an administrativechild                                              support order from   



the Alaska Department of Revenue, Child Support Services Division (CSSD). The order                                                                                                                                                                



required Dale to pay Samantha monthly child support starting in June, including arrears                                                                                                                                                       



fromOctober                              2016 through May 2017. CSSDrecords                                                                                   show that Dale made 20 payments  



between February 2018 and February 2021.                                                                                                Dale testified that he believed the child                                                                 



support payments were going to Randi and Bradley after J.R.S. began living with them.                                                                                                                                                                                



III.                STANDARD OF REVIEW                                      



                                        "A finding that a parent's failure to communicate or support a child was                                                                                                                                      



                                                                                                                                                                                                                             4  

                                                                                                                                                                                                                                                              

without justifiable cause is a finding of fact that we review for clear error."                                                                                                                                                    Whether a  



                                                                                                                                                                                                                                             

parent abandoned a child for at least six months is also a finding of fact that we review  



                                            5  

                                                                                                                                                                                                                                              

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  



                                6  

                                                                                                                                                                                                                                                     

mistake.' "                          "The superior court's 'factual findings enjoy particular 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  



                                         7  

                                    

evidence." ' " 



                    4                   Bruce  L.  v.   W.E.,  247  P.3d  966,  973  (Alaska  2011).   



                    5                   See  In  re  Adoption  of  S.F.,  340  P.3d  1045,  1048  (Alaska  2014)  (reviewing  



superior  court's  abandonment  finding  for  clear  error).  



                    6                  Id.  at   1047  (quoting  Fardig  v.  Fardig,  56  P.3d  9,   11  (Alaska  2002)).  



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



                                                                                                                             -7-                                                                                                                   7585
  


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

IV.	      DISCUSSION  



                    Under AS 25.23.040, both parents' consent is required for the adoption of  

                                                                                                                                 



their child unless an enumerated exception applies.  The three exceptions at issue in this  

                                                                                                                               



case are set out in AS 25.23.050(a)(1)-(2), which provides that consent is not required  

                                                                                                                       



if a parent has:  (1) failed without justifiable cause to communicate meaningfully with  

                                                                                                        



the child for one year or more; (2) abandoned the child for six months or more; or  

                                                                                                                                



(3) failed without justifiable cause to provide for the care and support of the child as  

                                                                                                                                



required by law or judicial decree for one year or more.  Trial courts are to "strictly  

                                                                                                                       

construe AS 25.23.050 in favor of the natural parent."8   "[A]doption consent provisions  

                                                                                                                    



are designed to protect the natural rights of parents to custody, society, comfort, and  

                                                                                                                              



services of the child. . . . [P]arents should not be deprived of the fundamental rights and  

                                                                                                                              



                                                                                                                                 9  

duties inherent in the parent-child relationship except for 'grave and weighty reasons.' "   

                                                                                                                                 



"The  long-established  and  continuing  rule  in  Alaska  is  that  absent  the  element  of  

                                                                                                                                

willfulness, a parent does not lose the right to consent under AS 25.23.050(a)(2)."10  

                                                                                                   



          A.	       The Superior Court Did Not Clearly Err By Finding That Dale Made  

                                                                                                                           

                    Reasonable Efforts To Communicate With J.R.S.  

                                                                                           



                    Alaska  Statute  25.23.050(a)(2)(A)  provides  that  a  parent's  consent  to  

                                                                                                                                



adoption is not required if the parent "has failed significantly without justifiable cause  

                                               



. . . to communicate meaningfully with the child" for a period of at least one year.  This  

                                                                                                                             



exception is analyzed using a burden-shifting test:  

                                                                       



          8	        In  re   Adoption   of   A.F.M. ,   960   P.2d   602,   604   (Alaska   1998)   (quoting   



S.M.K.  v.  R.G.G.,  702  P.2d  620,  623  (Alaska   1985)).  



          9         Id.  (alterations  in  original)  (quoting  D.L.J.  v.   W.D.R.,  635  P.2d  834, 837  



(Alaska   1981)).  



          10        Ebert  v. Bruce  L.,  340  P.3d  1048,  1055 (Alaska  2014)  (quoting In  re  

                                                                                                                                

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

                                                                             



                                                               -8-	                                                        7585
  


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

                       The burden falls on the adoptive parents . . . to prove by clear                                  

                       and convincing evidence that communication . . . did not                                            

                       occur for that one-year period.  Once this showing is made,  

                                                                                                                  

                       the burden shifts to the biological parent to produce evidence  

                                                                                                                             

                       of justifiable cause for the failure in communication . . . .  If  

                                                                                                                           

                       the biological parent meets the burden of production, the  

                                                                                                             

                       adoptive parents then must show by clear and convincing  

                                                                                                                   

                       evidence that the failure in communication . . . was without  

                                                     [11]  

                                           

                       justifiable cause. 



                       The superior court found that Dale had failed to communicate with J.R.S.  

                                                                                                                                              



for longer than one year.  Under AS 25.23.050(a)(2)(A) the burden shifted to Dale to  

                                                                                                                                                     



"produce  evidence  of  justifiable  cause";  Randi  and  Bradley  then  were  required  to  

                                                                                                                                                    



establish "by clear and convincing evidence that the failure . . . was without justifiable  

                                                                                                                                       

cause."12  

                  



                       "A parent's failure to communicate with his child is justified only if his  

                                                                                                                                                   



'efforts   to   communicate   were   objectively   reasonable   in   light   of   the   existing  

                                                                                                                                        

circumstances.' "13                 We also have noted that "[s]eeking the assistance of a court can  

                                                                                                                                                  



indicate a parent's interest in preserving his relationship with his child" and can thus  

                                                                                                                                                 

constitute reasonable efforts.14                        In Bruce L. v. W.E. the father had no contact with the  

                                                                                                                                                   



            11         Bruce  L.  v.  W.E.,  247  P.3d  966,  979-80  (Alaska  2011)  (footnotes  omitted).  



            12         See  id.  



            13         David  S.  v.  Jared  H.,  308  P.3d  862,  868  (Alaska  2013)  (footnote  omitted)  



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



            14         Bruce  L.,  247  P.3d  at  980-81;  see  also  S.M.K.  v.  R.G.G.,  702  P.2d  620,  624  



(Alaska   1985)  ("[The  mother]  showed  her  interest  in  preserving  her  relationship  with  

[her  son]  by  seeking  the  assistance  of   .   . . the   .   . . courts,  as  well  as  several  attorneys.   

These  efforts  were  reasonable  and  practical  given  the  facts  of  this  case.").  



                                                                         -9-                                                                   7585
  


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

                                                                                              15  

child for the first year of the child's life.                                                       But during that year the father "commenced                               



pro se legal proceedings by moving to be a party in the . . . initial adoption case and to                                                                                                             



be granted custody"; "represented himself at a hearing on the initial adoption petition to                                                                                                             



request custody" of the child; acquired court-appointed counsel and moved for paternity                                                                                                

                                                                                                                                                                                            16     We  

testing; filed a pro se custody suit; and requested a hearing in the custody suit.                                                                                                                



determined that the father had "clearly made reasonable efforts to obtain custody and to  

                                                                                                                                                                                                        



develop a relationship with" the child and that the prospective adoptive parents had not  

                                                                                                                                                                                                    



met  their  burden  of  proving  by  clear  and  convincing  evidence  that  the  father  had  

                                                                                                                                                                                                  

unjustifiably failed to communicate with the child for one year.17  

                                                                                                                                          



                               When deciding whether efforts to communicate were reasonable, we also  

                                                                                                                                                                                                   



consider  the  child's  age;  we  have  found  justifiable  cause  for  a  parent's  failure  to  

                                                                                                                                                                                                      



communicate  if  "the  child  is  too  young  to  read  or  [to]  communicate  over  the  

                                                                                                                                                                                                   

telephone."18  In D.L.J. v. W.D.R., for example, we upheld a determination that a father's  

                                                                                                                                                                                         



failure to communicate for two and a half years with his daughter -who was three years  

                                                                                                                                                                                                



old when he last visited - was justified because, among other things, the father could  

                                                                                                                                                      



not meaningfully communicate with such a young child "by letter or telephone without  

                                                                                                                                                                                          

the mother's cooperation."19  And in D.A. v. D.R.L. we upheld a similar determination  

                                                                                                                                   



                15             247  P.3d  at  980.  



                16             Id.  at  981.  



                17             Id.  



                18             David   S.,   308   P.3d   at   872   (quoting  D.A.   v.  D.R.L.,   727   P.2d 768,   770  



(Alaska   1986)).  



                19              635  P.2d  834,  836,  839  (Alaska   1981).  



                                                                                                 -10-                                                                                           7585
  


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

because "the child was too young to talk on the telephone or understand gifts or letters                                               

from her father."           20  



                      The superior court found Dale's participation in the custody and adoption  

                                                                                                                                   



cases constituted "reasonable efforts to obtain custody and to reunite with his daughter."  

                                                                                                                                                   



The court also found reasonable Dale's focus on in-person visitation over phone calls or  

                                                                                                                                              



video chats, noting that there was "a clear disagreement likely since approximately  

                                                                                                                         



November 2018, but definitely since March 2019, about whether [J.R.S.]'s contact with  

                                                                                                                                          



Dale . . . must be supervised. Dale . . . reasonably assumed that these court cases would  

                                                                                                                                       



resolve that disagreement."  And the court found that Dale was advised by his attorney  

                                                                                                                                    



to  stop  contacting  J.R.S.'s  maternal  relatives  about  visitation  pending  the  court  

                                                                                                                                        



proceedings' outcome.   The superior court determined that there was "not clear and  

                                                                                                                                           



convincing evidence that . . . [Dale's] failure to communicate meaningfully with [J.R.S.]  

                                                                                                                                     



was without justifiable cause."  

                                                     



                      Randi and Bradley contend the superior court erred by finding that Dale's  

                                                                                                                                       



participationin thelegal proceedings constituted reasonable efforts to communicatewith  

                                                                                                                                          

                                                                                                    21  a case Randi and Bradley  

J.R.S.  Seeking to distinguish the parent's efforts in Bruce L.,  

                                                                                                                                    



characterize  as  the  parent  having  "actively  pursued  custody  or  visitation  from  the  

                                                                                                                                            



beginning of the child's life" and taken "proactive steps towards securing contact with  

                                                                                                                                          



the child," they contend Dale merely filed an answer to the custody petition, his "case  

                                                                                                                                  



was plagued by his failure to communicate with his attorneys," and he did not seek  

                                                                                                                                          



visitation while the case was pending.   They assert that Dale's testimony about his  

                                                                                                                                            



attorney being unwilling to request visitation or interim custody was not credible. They  

                                                                                                                                         



also assert that Dale acted unreasonably by failing to accept supervised visitation and  

                                                                                                                                           



           20         727  P.2d  at  770.  



           21         See  247  P.3d  at  980-81  (describing  father's  efforts).  



                                                                     -11-                                                                    7585  


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

failing to coordinate visits through OCS, pointing out that until May 2019 nothing                                                                    



prevented Dale from legally taking custody of J.R.S.                                                  Randi and Bradley analogize this                         



case to       In re Adoption of B.S.L.                          and  David S. v. Jared H.                        , cases in which we upheld              



findings that a parent had failed to make reasonable efforts to communicate with a                                                                                 

           22     They  argue that, like  in  those cases, Dale had  "avenues open  to  establish  

child.                                                                                                                                               



meaningful contact" with J.R.S., but he "failed to . . . avail [himself] of those avenues."  

                                                                                                                                                                       



                          Randi and Bradley's burden to show a lack of justification by clear and  

                                                                                                                                                               



convincing evidence and our deferential standard of review set a high bar for them to  

                                                                                                                                                                  

overcome the superior court's determination.23  The court's findings are factual in nature  

                                                                                                                                                          

and will not be overturned unless clearly erroneous.24                                                     We have on several occasions  

                                                                                                                                                   



emphasized this deferential standard of review in upholding determinations regarding  

                                                                                                                                                   



             22          In  re  B.S.L.,  779  P.2d  1222,  1224-26  (Alaska 1989)  (upholding  finding  that  



mother   did   not   make   reasonable   efforts to   communicate;   mother   did   not   attempt   to  

contact  child  because  she  believed  attempts  to  communicate would  be  blocked  by  child's  

father's  family,  with  whom  child  lived,  and, although  mother spoke to attorneys  about  

obtaining custody,  she  did  not  initiate  proceedings);  David  S.,  308  P.3d   862,   869-70,  

872-73  (Alaska  2013)  (upholding  finding  that  father  did  not  make  reasonable  efforts  to  

communicate;  he  made  no  real  attempts  to  contact  child,  alleged  no  active  interference  

with   communication   by   custodial   relatives,   and   despite   incarceration   he   maintained  

communication  with  people  other  than  child).  



             23          See Bruce L., 247 P.3d at 979-80 (explaining that adoptive parents must  

                                                                                                                                                             

prove "by clear and convincing evidence" failure of communication or support for one  

                                                                                                                                                               

year, that biological parent then must provide justifiable cause for the failure, and that  

           

"the adoptive parents then must show by clear and convincing evidence that the failure  

                                                                                                                                                         

in communication or support was without justifiable  cause").  

                                                                                                      



             24          See, e.g., David S., 308 P.3d at 867 ("We review the superior court's factual  

                                                                                                                                                         

findings in an adoption proceeding for clear error.").  

                                                                                      



                                                                               -12-                                                                         7585
  


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

                                                              25  

AS 25.23.050(a)'s consent exceptions.                             Dale's efforts are not unlike those of the father                 



                  26  

in  Bruce L.                                                                                                                         

                     Upon learning that Randi and Bradley were seeking custody of J.R.S., Dale  



                                                                                                                                

promptly went to the courthouse and filed an answer.   Dale testified that he worked  



                                                                                                                                

overtime to save enough money to hire an attorney to help him contest the custody  



                                                                                                                                   

proceedings.  After Randi and Bradley petitioned for adoption, Dale requested court- 



                                                                                                                                       

appointed  counsel  to  contest  the  adoption  proceedings.                                       Dale  participated  in  the  



                                                                                                                               

December 2019 custody mediation and, with one exception, allofthescheduled hearings  



                                                                                                                                       

relating to  J.R.S.'s custody.                    The superior  court acknowledged  that J.R.S.  was  old  



                                                                                                                                       

enough to recognize voices on the telephone and participate in video chats.  But the  



                                                                                                                                          

record does not suggest that Dale would have been successful even had he attempted to  



                                                                                                                                    

engage  in  video  chats  or  phone  calls;  Dale  testified  that  he  had  frequently  tried  



                                                                                                                                   

contacting both Samantha's mother and Randi but received no responses, and Randi  



                                                                                                                           

testified that she blocked Dale's number for over three months. As in D.L.J., meaningful  



           25         We   have   noted   that    superior    courts   may   properly  reach    different  



conclusions  on  similar  sets of  facts  without  erring.   In  re  B.S.L.,  779  P.2d  at   1225  n.3  

("[E]ven  if  the  facts  .  .  .  were  identical  it  would  not  follow  that the  trial  court's  finding  

in this case should be set aside as clearly erroneous.  The trial  court  heard lengthy, in- 

court  testimony   .   .   .   [and]   it  rendered   a   careful and thoughtful   decision.    The   clearly  

erroneous   standard   demands  that  we   defer  to  the  trial   court in  this  matter   .   .   .   .");   cf.  

D.L.J.  v.   W.D.R.,  635  P.2d  834,  839  (Alaska   1981) ("Though  the  natural f  ather  could  

have  been  more  enterprising,  in  the  circumstances of  this  case  we  cannot  say  that  the  

master's determination that his f  ailure to communicate  with his daughter was justified  

was  clearly  erroneous.").  



           26         See Bruce L., 247 P.3d at 980-81 (finding that father did not unjustifiably  

                                                                                                                        

fail to communicate because he was actively involved in court proceedings regarding  

                                                                                                                             

custody and adoption of his son).  

                                                        



                                                                   -13-                                                             7585
  


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

communication with such a young child could not be accomplished without the custodial                                         

party's cooperation.            27  



                      The  record  amply  supports  the  determination  that  Dale's  failure  to  

                                                                                                                                       



communicate was not unreasonable or without justification, and the superior court did  

                                                                                                                                      



not clearly err in its determination.  

                                 



           B.	        The Superior Court Did Not Clearly Err By Finding That Dale Did  

                                                                                                                                     

                     Not Abandon J.R.S.  

                                               



                     A parent's consent to a child's adoption is not required if the parent "has  

                                                                                        

abandoned a child for a period of at least six months."28 

                                                                                                                          

                                                                                           "Abandonment is established  



                                                                                                                                  

[if] a parent's 'conscious disregard of the obligations owed by a parent to the child,  



                                                                                                29  

                                                                                               

lead[s] to the destruction of the parent-child relationship.' " 



                                                                                                                  

                      The superior court found that Dale's "actions do not rise to the level of a  



conscious disregard of his parental responsibilities."  The court noted that "there have  



                                                                                                                                

been periods of time when Dale . . . was an absent parent, [but] none of those periods  



                                                     

lasted six consecutive months."  



                                                                                                                          

                     Randi and Bradley contend that Dale abandoned J.R.S. from November  



                                                                                                                          

2018  until  the  date  of  the  trial,  offering  no  arguments  other  than  those  previously  



                                                                                                                               

discussed in the context of Dale's failure to communicate.  They additionally contend  



                                                                                                                                        

that Dale abandoned J.R.S. from June 2017 until April or May 2018.  They point to  



                                                                                                                                         

Samantha's mother's testimony that she did not see Dale during the period from June to  



                                                                                                                                    

November 2017 and to Samantha's father's testimony that he did not see Dale from  



           27        See  635  P.2d  at  839.  



           28        AS  25.23.050(a)(1).  



           29        In   re   Adoption   of   S.F.,   340   P.3d  1045,   1047   (Alaska   2014)   (second  



alteration  in  original)  (quoting  D.M.  v.  State,  515  P.2d   1234,   1237  (Alaska   1973)).  



                                                                  -14-	                                                            7585
  


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

November 2017  to  April  2018.   Randi  and  Bradley assert  that  Dale's testimony  about  



video  chats  and  some  in-person  visits  with  J.R.S.  during  this  time  was  not  credible.   



                   Dale  testified  that  he  made  continual efforts t  o  see  J.R.S.  during  the  first  



two  years   of  her   life, when she  was   living  with   Samantha   and   Samantha's  relatives.   



Following  Dale's  November 2018  visit  with J.R.S., he periodically contacted Samantha's  



mother   and   Randi   trying   to   arrange   visits.     Dale   testified   that   he   focused  on  



communicating  with  Randi  because  he  "was  under  the  assumption  that   [his]  daughter  



was  living  with  Randi,"  but  Randi  had  Dale's  number  blocked  on  her  phone  until  March  



2019.   And,  as  discussed  more  fully  above,  Dale  filed  an  answer  to  Randi  and  Bradley's  



custody   petition   in   April  2019   and   continued   participating   in   the   ongoing   legal  



proceedings  regarding  J.R.S.'s  custody  and  adoption.   The  court  found  credible  Dale's  



testimony  that  he  had  in-person  and  video  visits  with  J.R.S.  and that  there  was  no  six  



month  period  when  Dale  "was  an  absent  parent."    



                   Randi  and  Bradley  ask  us  to  reweigh  evidence  and  reach  a  different  factual  



conclusion  than  the  superior  court.   We  will  not  reweigh  evidence  if  the  record  provides  

                                        30  The court's factual finding that Dale did not abandon  

support   for   factual   findings.                                                                         



J.R.S. for six months is supported by the record and thus is not clearly erroneous.  

                                                                                                   



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

Adoption  of  S.K.L.H.,  204  P.3d  320,  325  (Alaska  2009)));  see  also  In  re  S.F.,  340  P.3d  

at  1047  ("The  superior  court's  'factual  findings  enjoy  particular  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."  '  "  

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



                                                         -15-                                                   7585
  


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

                C.	            The Superior Court Did Not Clearly Err By Finding That Dale Did                                                                                                  

                               Not Willfully Fail To Support J.R.S.                                        



                               Under AS25.23.050(a)(2)(B) aparent's consent to                                                                     adoptionis                not required   



if the parent has willfully and without justifiable cause failed significantly for a period                                                                                              



of at least one year "to provide for the care and support of the child as required by law                                                                                                        



                                             31  

or judicial decree."                                                                                                  

                                                   The burden is on the person seeking to adopt the child to "prove  



                                                                                                                                                                                                   32  

                                                                                                                                                                                    

by clear and convincing evidence that the natural parent failed to support the child." 



                                                                                                                                                                                     

                               Thesuperiorcourt foundthat "[J.R.S.]'sextendedmaternalfamilymembers  



                                                                                                                                                                                             

have been supporting [J.R.S.] her entire life" including by "providing housing, food,  



                                                                                                                                                                                 

diapers,  and  clothes."                                   The  court  nonetheless  found  that  "there  is  not  clear  and  



                                                                                                                                                                                        

convincing evidence that Dale . . . failed to support [J.R.S.] as required by law or judicial  



                                                                                                                                                                                                   

decree."  The court noted that Dale made numerous child support payments under an  



                                                                                                                                                                                                    

administrative child support order and that those payments "do not reflect a failure to  



                                                                                                                                                                                       

provide support for a period of at least one year." The court found: "Randi and Bradley  



                                                                                                                                                                                                  

 . . . never requested child support from Dale . . . and never filed an application for  



                                                                                                                                                                                                  

 services with CSSD.  Dale . . . assumed that the payments which were made under the  



                                                                                                                                                                             

administrative child support order were going to Randi and Bradley . . . ."  



                                                                                                                                                                                       

                               Randi and Bradley contend that Dale should have directed child support  



                                                                                                                                                                                                    

payments to them after they began caring for J.R.S. in July 2018 and that his failure to  



                                                                                                                                                                                             

pay them support constitutes a failure without justifiable cause to provide support. They  



                                                                                                                                                                                                      

assert:   "It cannot be the rule that an adoptive parent must make efforts to force a  



                31             See   Ebert   v.   Bruce   L.,   340   P.3d    1048,    1055   (Alaska   2014)   ("The  



long-established  and  continuing  rule  in  Alaska  is  that  absent  the  element  of  willfulness,  

 a  parent  does  not  lose  the  right  to  consent  under  AS  25.23.050(a)(2)."  (quoting  In  re  

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



                32             In re J.M.F., 881 P.2d at 1118.  

                                                                                          



                                                                                                -16-	                                                                                        7585
  


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

biological parent to support a child in their care."                                                           But we have held that a parent does         



not willfully fail to provide support without justifiable cause if the adoptive parents do                                                                                               



not ask for support.                         In  In re Adoption of J.M.F.                                 the adoptive parents did not ask for or                                         



expect support payments, and the parent testified that she would have been willing to                                                                                                     



provide   support   had   the   adoptive   parents   asked;   we   upheld   the   superior   court's  

                                                                                                                                                                            33    More  

determination that failure to support the child was justifiable and not willful.                                                                                                  



recently, in Ebert v. Bruce L. the adoptive parents "neither needed nor asked for any  

                                                                                                                                                                                      



support," the father had minimal income but testified he would have paid support if  

                                                                                                                                                                                           



asked, and the father testified he was unaware he had any obligation to pay support to  



the adoptive parents; we affirmed the superior court's finding that the father did not fail  

                                                                                                                                                                                        

to support the child.34  

                                



                             Like in J.M.F.  and Ebert, Randi and Bradley did not ask Dale to pay  

                                                                                                                                                                                      



support nor did they filed an application with CSSD.   And Dale was making child  

                                                                                                                                                                                   



support payments to CSSD; he testified that he believed CSSD "was doing [its] job and  

                                                                                                                                                                                       



making sure that money got to where it needed to be."  The superior court's finding that  

                                                                                                                                                                                       



AS 25.23.050(a)(2)(B) did not apply to Dale thus is not clearly erroneous.  

                                                                                                                                             



V.             CONCLUSION  



                             For  the  foregoing  reasons,  we  AFFIRM  the  superior  court's  decision  

                                                                                                                                                                           



dismissing the adoption petition.  

                                                      



               33            Id.  



               34             340  P.3d  at   1055.  



                                                                                           -17-                                                                                            7585  

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