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In the Matter of Adoption of J.M.F. (9/30/94), 881 P 2d 1116
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of Adoption of )
J.M.F. ) Supreme Court No. S-6043
) Superior Court No.
J.F. and R.F., ) 3AN-92-1075 P/A
Appellants, ) O P I N I O N
v. ) [No. 4128 - September 30,
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
John Reese, Judge.
Appearances: Allison E. Mendel, Mendel
& Huntington, Anchorage, for Appellants.
James F. Vollintine, Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, and Eastaugh,
J.F. and R.F. (the F.s) appeal the superior court's
determination that C.H.'s failure to support her child, J.M.F.,
was with justifiable cause, and that C.H.'s right to consent to
the adoption had therefore not been terminated.
I. FACTS AND PROCEEDINGS
C.H. placed her child, J.M.F., with her brother J.F.
and sister-in-law R.F. two days after J.M.F.'s birth on June 1,
1988. At the time of placement both C.H. and the F.s
contemplated that the F.s would adopt the child.
In November 1991, when J.M.F. was 3 1/2 years old, C.H.
demanded that the child be returned to her. During the time
between J.M.F.'s placement with the F.s and C.H.'s demand for
return of the child, the F.s had not instituted a formal
adoption. In January 1992, after the F.s refused to return
J.M.F., C.H. filed a suit seeking custody of J.M.F. At the
conclusion of the custody action the superior court awarded C.H.
and the F.s joint custody, with C.H. to receive sole custody of
J.M.F. in the autumn of 1994. In regard to this custody judgment
the F.s appealed only from the award of attorney's fees to C.H.1
While the parties were litigating C.H.'s custody
action, the F.s, in a separate proceeding, filed a formal
petition to adopt J.M.F. In their petition the F.s asserted that
C.H.'s consent to their adoption of J.M.F. was not required,
because she had failed, without justifiable cause, to support
J.M.F. while the child was in the care of the F.s. See
At the adoption hearing the F.s argued that C.H. lacked
justifiable cause for failing to support J.M.F. Although she had
purchased food, clothing, and toys for J.M.F. while her child was
with the F.s, C.H. did not provide regular financial support for
the child, because the F.s did not ask for it, and because she
assumed that the F.s would adopt the child and expect no support.
The record establishes that the F.s never asked her for support
on the same assumption. C.H. testified that she would have
provided support had the F.s requested it.
The F.s also argued that C.H. had relied upon Yupik
customs, under which parents may turn their children over to
relatives for adoption with the understanding that the biological
parents cannot later reclaim the children. The F.s contended
that C.H. should not be able to use the law to force J.M.F.'s
return while simultaneously relying on cultural practices to
establish justifiable excuse for failure to support the child.3
C.H. had knowledge of such "cultural adoptions,"but the record
does not indicate that she relied upon this custom. Instead, she
testified that at all times that the F.s had J.M.F., she
understood that they would "legally in court adopt" the child,
and that "that was the . . . adoption term we were using." J.F.
also testified that the F.s had intended to seek a decree of
adoption from the Alaska courts, but had never followed through
on this plan.
Applying the law for a formal statutory adoption, the
superior court ruled that C.H. had justifiable cause for not
[N]o one on the [F.] side asked for or
expected support from [C.H.], nor did [C.H.]
feel obligated to pay support. . . . The
reason no support was paid was that everyone
thought that [J.M.F.] was being adopted.
That is the reason, and it is a justifiable
Beyond being merely justifiable, it
would have been unusual, unexpected and
probably contrary to the anticipated adoption
if she had paid support. [C.H.] said that
she would have been more than willing to pay
support if asked. [R.F.] said it never came
up because they were adopting and never
expected [C.H.] to pay support. This
justifies the lack of support as contemplated
by Alaska Statute 25.23.050(a)(2)(B).
Accordingly, the superior court dismissed the F.s' petition for
adoption. The superior court expressly declined to reach the
issue of whether ICWA preempted AS 25.23.050(a)(2)(B). The F.s
appeal from the superior court's dismissal of their petition for
adoption of J.M.F.
II. THE EFFECT OF AS 25.23.050(a)(2)(B)
Consent to adoption is not required of "a parent of a
child in the custody of another, if the parent for a period of at
least one year has failed significantly without justifiable cause
. . . to provide for the care and support of the child as
required by law or judicial decree." AS 25.23.050(a)(2)(B); see
also In re J.J.J., 718 P.2d 948, 953-54 (Alaska 1986).
The party seeking to terminate parental rights in
connection with an adoption proceeding bears a high burden of
proof. We have held that the petitioner for adoption must prove
by clear and convincing evidence that the natural parent failed
to support the child. D.L.J. v. W.D.R., 635 P.2d 834, 838
(Alaska 1981). Once the petitioner has made this showing, the
natural parent bears the burden of producing evidence of
justifiable cause for his or her failure to support the child.
Upon the natural parent's introduction of such evidence, the
petitioner must show by clear and convincing evidence that the
natural parent's failure to support was without justifiable
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). See, e.g., In re
K.L.J., 813 P.2d 276, 281 & n.5 (Alaska 1991). Here, the
superior court relied upon the testimony of both C.H. and the F.s
that the F.s did not expect support because they anticipated that
they would formally adopt the child. Additionally, the superior
court relied upon C.H.'s uncontroverted testimony that she would
have been more than willing to provide support had the F.s asked
her to do so. This testimony is sufficient to establish that
C.H.'s failure to support J.M.F. was not willful and thus that
her failure to support J.M.F. was justifiable.4 It is the
underlying agreement between C.H. and the F.s, to the effect that
it was not anticipated that C.H. would support J.M.F. given the
contemplated adoption, which negates any element of willfulness
on C.H.'s part and demonstrates that her failure to support the
child was not without justifiable cause.5 Thus we hold that none
of the superior court's controlling findings of fact are clearly
erroneous and that the superior court did not err in its
determination that absent C.H.'s consent to the petition for
adoption, the petition should be dismissed.6
1 This court recently upheld the fee award.
2 C.H. subsequently filed two motions to dismiss the F.'s
adoption petitions, contending that the Indian Child Welfare Act
(ICWA) preempted AS 25.23.050(a)(2)(B), and that because the F.s
could have raised the adoption petition during the custody
proceeding, the doctrines of res judicata and collateral estoppel
barred the petition. The superior court denied both motions.
Because C.H. is Yupik, J.M.F. is an Indian child
subject to ICWA. See 25 U.S.C. 1901-1963.
3 The F.'s expressly declined to argue that any "cultural
adoption" in accordance with Yupik custom had the effect of a
formal adoption. The superior court admitted testimony on
cultural adoption because it could have been relevant to a
determination of the parties' intent and to the issue of consent.
4 In re Adoption of Female Child X, 537 P.2d 719 (Wyo.
1975), presents a factual situation similar to the one in the
case at bar. The natural mother in Child X left her child with
her parents. Id. at 721. The mother's parents neither requested
nor expected support, and neither the mother nor her husband
offered any. Id. The mother's parents petitioned to adopt the
child, relying upon a Wyoming statute that made the natural
parent's consent unnecessary in cases of abandonment or in cases
where the parent willfully failed to support the child for one
year or more. Id. at 720; see also Wyo. Stat. 1-22-110
(formerly 1-710.2). The Wyoming Supreme Court affirmed the
lower court's dismissal of the petition, in part on the following
The fact is that petitioners were
clearly volunteers and that no request or
suggestion was ever made that respondents
contributed to the support of this child.
. . . To now claim advantage for what was
never intended would be unfair. It would
appear obvious that such a holding would be
dangerous, and if we were to hold otherwise a
natural parent might be lulled into security
and lose the right to a child under such
circumstances without warning of the
intention of those with whom the child is
Id. at 722.
5 For purposes of this appeal, we assume without deciding
the question that despite the others' agreement that it was not
anticipated that C.H. would support J.M.F., C.H. was required "by
law," for purposes of AS 25.23.050(a)(2)(B), to provide for the
care and support of J.M.F.
In In re J.J.J., 718 P.2d 948, 955 (Alaska 1986), this
court considered the natural father's argument that because he
allegedly had an agreement with the mother not to provide support
as long as she received public assistance for their son's care,
his failure to support the child was excused. We upheld the
superior court's determination that the claim was meritless.
The case at bar presents a situation that is far
different from J.J.J. In J.J.J., a considerable amount of
evidence indicated that the father willfully refused to provide
support. His attempt to link the failure to support with his ex-
wife's reluctance to allow visitation clearly indicated that the
failure was the product of a conscious decision. See id. at 955.
The Child Support Enforcement Agency had to garnish his wages in
order to obtain support payments. Id. at 950. No such elements
are present in C.H.'s case.
6 The F.s assert that injustice would result from C.H.'s
alleged reliance on "cultural adoption"practices to establish
justifiable cause. It is evident that all parties in this
litigation contemplated that the F.s would obtain a formal decree
of adoption. Therefore, the superior court's finding that J.M.F.
was placed for adoption with C.H.'s brother and sister-in-law
"for statutory formal adoption"is not clearly erroneous.
7 We deem it unnecessary to address any of the remaining
contentions of the parties given our conclusion that the superior
court's holding--that the F.s failed to show by clear and
convincing evidence that C.H.'s failure to support J.M.F. was
without justifiable cause--was not clearly erroneous.