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In the Matter of the Adoption of J.B.K. and T.S.K. (12/10/93), 865 P 2d 737
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Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the )
Adoption of ) Supreme Court File No. S-5346
) Superior Court File No.
) 91-606 P/A
J.B.K and T.S.K. )
) O P I N I O N
Minors. )
) [No. 4035 - December 10, 1993]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Julie A. Clark, Anchorage,
for Appellant. Fred H. Valdez, Anchorage,
for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
MOORE, Chief Justice.
MATTHEWS, Justice, concurring.
RABINOWITZ, Justice, concurring in part,
dissenting in part.
In this adoption appeal, B.K., who seeks to adopt his
two step-children, challenges the superior court's determination
that the children's natural father, D.C., retains his right to
withhold consent to the adoption pursuant to AS 25.23.050.1
I. Facts and Proceedings
Tanya and Dell were married in 1977. Their son J.B.K.
was born in 1978 and their daughter T.S.K. was born in 1979. In
1980 Dell obtained a dissolution decree from an Oklahoma court.
However, the couple continued to live together and later moved to
Butte, Montana.
In 1981 Tanya moved out of the house with the children.
Nevertheless the couple remained on good terms and had frequent
contact. During this period of separation, Tanya and the
children went on welfare and Dell worked various odd jobs. Dell
did not pay any formal child support at this time.2
In the spring of 1983, Tanya and the children moved to
Helena, Montana. A month later, Dell left Montana and came to
Alaska. In November 1983, the couple reconciled and remarried in
Anchorage.
Dell and Tanya finally separated in September 1986 and
obtained a second dissolution decree a month later. The
dissolution decree awarded custody of the children to Tanya and
directed Dell to pay $400 a month in child support.
Dell made only three formal support payments.3 Because
Tanya went back on welfare after Dell moved out in September,
Dell made these payments directly to the Child Support
Enforcement Division. After Dell stopped making voluntary
payments, the Division garnished his Permanent Fund Dividend
checks and tax refunds. Dell also sporadically sent money
directly to Tanya and the children.
Eight months after the second divorce, Dell was
convicted of sexually abusing his niece. He moved to waive all
support while he was in prison and his support obligation was
decreased to the minimum level of $50 per month in June 1990.
Bill married Tanya in July 1990 and petitioned to adopt
J.B.K. and T.S.K. in May 1991. Dell opposed the proposed
adoption. Master John Duggan heard this case in a
series of four hearings between October 1991 and May 1992. These
hearings focused on whether Dell had forfeited his right to
withhold consent to the adoption pursuant to AS
25.23.050(a)(2)(B).4 Bill also sought to introduce evidence that
Dell had sexually abused his children. He contended that this
evidence was relevant to the issue whether Dell retained the
right to withhold consent, arguing that AS 25.23.180(c)(1)
authorized termination proceedings on the grounds of sexual abuse
as a part of an adoption proceeding.5 Master Duggan ruled that
such evidence had no bearing on the issue of consent and refused
to hear the evidence. Bill subsequently filed a motion in the
superior court seeking an opportunity to inquire into Dell's
alleged sexual abuse if he failed to prevail on the nonsupport
issue. However, Superior Court Judge John Reese denied this
motion without comment.
At the hearings, Tanya testified that Dell did not
support the children during the two-year period following the
couple's first divorce. Although conceding that she never
formally sought support from Dell, she testified that Dell
refused her informal requests for help despite the fact that he
was often working.
Dell countered that Tanya had never asked for child
support after their 1981 separation. He testified that although
they maintained separate residences, he "basically lived with
her" and that there was "no need to pay support." He further
testified that he contributed groceries to the household.
Tanya also testified that Dell had failed to make regular support
payments after the 1986 divorce. Dell testified that he only
made three support payments after the second divorce because he
was facing criminal prosecution. He claimed that he could not
meet his support obligation due to his incarceration.
Master Duggan filed his report in May 1992, finding
that Dell had "failed significantly and without justifiable
excuse to provide support for the subject children for at least
one year between the fall of 1981 and December of 1983." He
therefore recommended that Dell's consent for the proposed
adoption be waived for unexcused nonsupport. In support of his
recommendation, Master Duggan cited Dell's "ongoing pattern of
infrequent, involuntary and/or inadequate child support paid
[between September 1986 through 1990]".
Judge John Reese rejected the Master's report and
recommendations, ruling that "[t]he remoteness of the one year
period of nonsupport and the intervening remarriage make the
holding of the court in [In re J.J.J., 718 P.2d 948 (Alaska
1986)] inapplicable to this case." Bill's motion for
reconsideration was denied and the petition for adoption was
dismissed on Dell's motion in August 1992. This appeal followed.
II. Discussion
A. Failure to support
Alaska Statute 25.23.050 (a)(2) provides, in part, that
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, including but not
limited to indigency,
(A) to communicate meaningfully
with the child, or
(B) to provide for the care and
support of the child as required by law
or judicial decree . . . .
In In re J.J.J., 718 P.2d 948 (Alaska 1986), we held
that the 12-month period of nonsupport required for a waiver of
the right to withhold consent to adoption need not immediately
precede the filing of the adoption petition. Id. at 954-55.
[C]ourts shall consider a parent's
entire history of support or nonsupport to
determine whether that parent has waived his
or her right to block a child's adoption by a
step-parent.
Id. at 955. Bill contends that the trial judge erred in
concluding that Dell had not forfeited his right to withhold
consent to the adoption given Master Duggan's finding that Dell
had failed, without justifiable excuse, to support his children
between 1981-83. We disagree.
The cited period of nonsupport ended in Dell and
Tanya's remarriage in 1983. We agree with Judge Reese that the
three-year remarriage renders previous periods of nonsupport
irrelevant for the purpose of determining whether Dell had
forfeited his right to consent. In those rare cases where a
couple decides to remarry after a period of separation, we
believe that it is appropriate to treat this as a renewal of
their rights and obligations as parents. A remarriage obviously
nullifies the custody and support provisions of the previous
divorce decree. See Ringstrom v. Ringstrom, 428 N.E.2d 743 (Ill.
1981); Davis v. Davis, 437 P.2d 502 (Cal. 1968); see generally
Debra E. Wax, Annotation, Effect of Remarriage of Spouses to Each
Other on Child Custody and Support Provisions of Prior Divorce
Decree, 26 A.L.R.4th 325 (1983). Disputes over custody and
child support existing between the parties prior to the
remarriage should be put to rest as well. Ringstrom at 745.
Although Dell has demonstrated a sporadic pattern of support
after the second divorce, the statutory period has not been
satisfied.6 We therefore affirm Judge Reese's ruling.
B. Bill's right to initiate termination proceedings7
Bill contends that AS 25.23.180 explicitly provides
that an interested private party may initiate termination
proceedings on the grounds specified in AS 47.10.080(c)(3). He
argues that Judge Reese therefore erred in denying his motion for
a hearing to inquire into Dell's history of child sexual abuse.
Alaska Statute 25.23.180(c) provides:
The relationship of parent and child may
be terminated by a court order issued in
connection with a proceeding under this
chapter or a proceeding under AS 47.10:
(1) on the grounds specified in AS
47.10.080(c)(3);8
(2) on the grounds that a parent who
does not have custody is unreasonably
withholding consent to adoption, contrary to
the best interest of the minor child; or
(3) on grounds that the parent committed
an act constituting sexual assault or sexual
abuse of a minor under the laws of this state
or a comparable offense under the laws of the
state where the act occurred that resulted in
conception of the child and that termination
of the parental rights of the biological
parent is in the best interests of the child.
Dell contends that a child in need of aid (CINA)
adjudication must precede adoption proceedings for AS
25.23.180(c)(1) to apply. Dell's interpretation of the statute
is inconsistent with the Adoption Rules promulgated by this court9
and with the language of the statute itself. Alaska Statute
25.23.180(c) clearly states that parental rights may be
terminated "in connection with a proceeding under this chapter or
a proceeding under AS 47.10 . . . on the grounds specified in AS
47.10.080(c)(3) . . . ." (Emphasis added).
There is no question that Bill has standing as "an
interested party"to initiate termination proceedings under AS
25.23.180(e)10 or that he, in fact, sought termination of Dell's
parental rights under AS 25.23.180(c)(1) when he filed the
adoption petition. Thus the superior court erred in denying
Bill's motion for a hearing on Dell's alleged abuse of his
children. Under AS 25.23.180(c)(1), Bill may seek to terminate
Dell's parental rights in connection with the adoption
proceedings on the grounds specified in AS 47.10.080(c)(3). We
therefore remand this case for further proceedings consistent
with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
MATTHEWS, Justice, concurring.
I agree with the opinion of the court and write
separately merely to note that in my view the one-year period
referred to in AS 25.23.050(a)(2) refers to the year immediately
preceding the filing of the petition for adoption. My reasons
for this view are given at some length in the dissent in In re
J.J.J., 718 P.2d 948, 958-60 (Alaska 1986).
RABINOWITZ, Justice, concurring in part, dissenting in
part.
I dissent from the majority's disposition of the
"Failure to Support" issue. I remain of the view that the
relevant period referred to in AS 25.23.050(a)(2) is the year
immediately preceding the filing of the petition for adoption.
See In re J.J.J., 718 P.2d 948, 958-60 (Alaska 1989) (Matthews,
J., dissenting). Additionally, I would direct the superior court
to apply the standards of R.N.T. v. J.R.G., 666 P.2d 1036, 1039
(Alaska 1983), in determining whether Dell's imprisonment
precluded fulfillment of his parental support obligations.
I concur in all other aspects of the majority's
opinion.
_______________________________
1. In order to preserve the anonymity of the parties as
required by AS 25.23.150(c), and for the reader's convenience, we
will use "Bill"and "Dell"as placeholders for B.K.'s and D.C.'s
names. In addition, we will use "Tanya"as a placeholder for the
mother's name.
2. No support provisions were apparently included in the
Oklahoma divorce decree which awarded custody of the children to
Dell. However, Dell concedes that the Montana Child Support
Enforcement Agency Division did contact him about making support
payments.
3. These payments occurred in September and November 1986
and January 1987.
4. AS 25.23.050(a)(2)(B) provides that consent to adoption
is not required of a parent who has failed significantly and
without justifiable cause to provide for the care and support of
a child for at least one year.
5. AS 25.23.180(c)(1) authorizes the court to terminate
parental rights in either adoption or child in need of aid
proceedings on the grounds specified in AS 47.10.080(c)(3). Such
grounds include child abuse. A decree terminating the rights of
a parent dispenses with the need for that parent's consent to
adoption. AS 25.23.180(d).
6. Although Dell's last voluntary formal support payment
occurred in January 1987, the 12-month statutory period of
nonsupport without justifiable cause has not been satisfied after
the second divorce. Only four months passed between Dell's last
voluntary support payment and his incarceration in May 1987. We
previously have held that the neglect of parental duties caused
by imprisonment is not necessarily wilful and thus does not
inevitably result in the loss of the parent's right to consent.
See R.N.T. v. J.R.G., 666 P.2d 1036, 1039 (Alaska 1986). In this
case Bill appears to concede that the unexcused period of
nonsupport following the second divorce falls short of one year.
7. It is within the special competency of this court to
independently construe a statute. O'Callaghan v. State, 826 P.2d
1132, 1134 n.2 (Alaska 1992), cert. denied, 113 S. Ct. 176
(1992).
8. AS 47.10.080(c)(3) provides, in part, that a court may
determine
by order, upon a showing in the
adjudication by clear and convincing evidence
that there is a child in need of aid under AS
47.10.010(a)(2) as a result of parental
conduct and upon a showing in the disposition
by clear and convincing evidence that the
parental conduct is likely to continue to
exist if there is no termination of parental
rights . . . .
AS 47.10.010(a)(2)(D) provides that a child may be found in need
of aid where the child has been sexually abused or where there is
imminent and substantial danger that the child will be sexually
abused.
9. The Alaska Adoption Rules explicitly provide that a
petition for termination may be combined with a petition for
adoption. Adoption Rule 6 provides, in part:
(c) Petition for Involuntary
Termination. A petition for termination
based on the involuntary termination of
parental rights pursuant to AS
25.23.180(c)(1)-(3) must state, in addition
to the information required by paragraph (a),
the specific statutory and factual basis of
the claim that parental rights should be
involuntarily terminated.
(d) Relationship of Petitions to
Terminate Parental Rights and to Adopt. (1) A
petition to terminate parental rights under
paragraph (b) or (c) of this rule may be
combined with a petition for adoption.
Adoption Rule 13 provides, in part:
(b) Involuntary Termination of Parental
Rights. Proceedings for the involuntary
termination of parental rights in conjunction
with adoption proceedings must comply with
CINA Rule 18, except as otherwise provided by
AS 25.23.180(c)(2) and (3). 25 U.S.C.
Section 1912 also applies to all involuntary
termination proceedings involving an Indian
child.
Although neither party cited to the Adoption Rules in the
proceedings below or on appeal, these rules clearly contemplate
termination proceedings in the adoption context. Inquiry into a
parent's history of child sexual abuse would clearly be relevant
in termination proceedings under AS 25.23.180(c)(1).
10. A petition for termination of the parent-child
relationship may be brought in connection with an adoption
proceeding by "another person having a legitimate interest in the
matter." AS 25.23.180(e).
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