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Adoption of A.F.M. (6/26/98), 960 P 2d 602

     Notice:  This opinion is subject to 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, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.


                              )    Supreme Court No. S-8150
In the Matter of the          )    Superior Court No.
Adoption of A.F.M., a minor.  )    3AN-96-122 PA
                              )    O P I N I O N
______________________________)    [No. 5005 - June 26, 1998]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.

          Appearances:  Ernest M. Schlereth, Law Office
of Ernest M. Schlereth, Anchorage, for appellant.  Elizabeth
Kennedy, Law Office of Elizabeth Kennedy, Anchorage, for appellee. 

          Before: Matthews, Chief Justice, Compton,
          Eastaugh, Fabe, and Bryner, Justices.  

          EASTAUGH, Justice.

          A child ordinarily may not be adopted in Alaska unless
the biological parent consents.  But AS 25.23.050(a)(2)(B) waives
consent if the parent has failed significantly and unjustifiably to
support the child for "at least one year."  Because Bruce Farley
[Fn. 1] paid no support for his daughter, A.F.M., between August
15, 1995 and August 16, 1996, the superior court allowed David
Muntz to adopt A.F.M. without Farley's consent.  We vacate the
adoption decree because the superior court implicitly
misinterpreted the statute and miscalculated the period of
nonsupport.  In anticipation of further potential disputes, we
conclude that a parent whose rights are terminated by adoption has
no statutory visitation rights under AS 25.23.130(c).
          Laura Muntz and David Muntz were married in 1966 and
divorced in February 1990.  Laura Muntz and Bruce Farley formed a
relationship in 1991.  In 1992 Laura gave birth to A.F.M. in
Spokane.  Farley is A.F.M.'s biological father.  Laura's
relationship with Farley apparently ended before A.F.M.'s birth. 
          Farley brought a paternity action in Spokane County in
early 1993 and was adjudicated A.F.M.'s father and ordered to pay
$180 child support monthly.  But by the summer of 1993, Farley
could no longer support himself, and he began receiving
unemployment benefits.  The Washington child support agency reduced
his monthly support obligation to $25; Farley states that the
Washington unemployment office made the $25 payments directly to
the Washington child support agency.
          Farley received his last unemployment check in August
1995.  Farley received monthly veteran's benefits of about $91; he
claimed that was his only income between August 1995 and August
1996.  On August 15, 1995, the unemployment office paid the
Washington child support agency $25.65 for A.F.M.  The child
support division received nothing more until Farley paid $25 on
August 16, 1996.  Farley later testified that he also paid $100 in
child support arrearages on August 16, 1996; that he paid $25 in
September 1996 and October 1996; and that he paid $200 in
arrearages in October 1996.  He made no payments after October
          Laura Muntz and David Muntz remarried in December 1994.
They and A.F.M. began living in Alaska in March 1995.  Farley
continued to live in Washington.  In February 1996 David Muntz
petitioned for adoption of A.F.M. in the superior court in
Anchorage.  He contended that Farley's consent was unnecessary
because conception had occurred as a result of sexual assault.
Farley opposed the petition.
          Laura Muntz died of cancer in August 1996.
          On August 23, 1996, David Muntz filed a notice in the
adoption proceeding stating that Farley had not paid the $25
monthly child support for more than one year.  Although Muntz's
original petition for adoption did not claim that any failure to
pay child support would dispense with Farley's consent, Muntz's
August 1996 notice informed Farley of the issue, and the parties
briefed it in the superior court in November 1996.
          In March 1997 the superior court conducted a hearing to
determine whether Farley's consent was necessary.  It found that
Farley had made payments on August 15, 1995, and August 16, 1996.
It reasoned that, despite Farley's unemployment, he could have paid
the required support by reducing his cigarette consumption
(estimated to be five to seven packs weekly, at $2 a pack).  The
court found that Farley had failed, without justifiable cause, to
support A.F.M. for at least one year.  It concluded that, under AS
25.23.050(a)(2)(B), Farley's consent to the adoption was not
          The court then conducted a hearing on the child's best
interests.  It concluded that it was in the child's best interests
to be adopted by Muntz.  On April 22, 1997, the court entered an
adoption decree.
          Although Farley sought greater visitation rights, the
court found that it was not in A.F.M.'s best interests to have
contact with Farley, except for the limited post-adoption contact
permitted by Muntz (such as sending Farley A.F.M.'s school photos
and allowing Farley to send Christmas and birthday presents). 
Muntz also agreed to give Farley's address and telephone number to
A.F.M. when she turns fourteen, and to help her contact him if she
wishes to do so. 
          Farley appeals these rulings. 
     A.   Did Farley Fail to Provide Support for at Least One Year?

          Finding that Farley had "for a period of at least one
year failed significantly without justifiable cause, including
indigency, to provide for the care and support of the child,"the
superior court relied on AS 25.23.050(a)(2)(B) [Fn. 2] to dispense
with Farley's consent to the adoption. 
          Farley contends that the superior court erroneously
applied that statute because it miscalculated Farley's period of
nonsupport as one year and one day.  First, he asserts that his
August 15, 1995, payment "represented child support for the month
of August 1995,"and that his period of nonsupport was only eleven
months.  He maintains that the child support office considered his
payment timely "so long as it's within that month."  Second, he
asserts that the August 15, 1995, payment was not posted until
August 16, 1995.  Therefore, only one year, not one year and one
day, passed before he hand-delivered his payment on August 16,
          When reviewing a decision terminating parental rights, we
will not disturb the lower court's factual findings unless they are
clearly erroneous -- that is, unless they leave us with the
definite and firm conviction that a mistake has been made.  See
E.A. v. State, 623 P.2d 1210, 1212 (Alaska 1981) (citing In re
S.D., Jr., 549 P.2d 1190, 1195 (Alaska 1976)).  We apply our
independent judgment when interpreting a statute.  See In re
J.B.K., 865 P.2d 737, 739 n.7 (Alaska 1996).  
          We have explained that courts should "strictly construe
AS 25.23.050 in favor of the natural parent."  S.M.K. v. R.G.G.,
702 P.2d 620, 623 (Alaska 1985).  "'[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 duties inherent in
the parent-child relationship except for 'grave and weighty
reasons.''"D.L.J. v. W.D.R., 635 P.2d 834, 837 (Alaska 1981)
(quoting In re Adoption of K.M.M., 611 P.2d 84, 87 (Alaska 1980)). 
Therefore, "where two interpretations of the statute are reasonably
possible, that interpretation which is most protective of the
rights of the natural parent is to be selected."  In re J.J.J., 718
P.2d 948, 959 (Alaska 1986) (Matthews, J., dissenting).
          Farley was required to pay child support of $25 per
month.  Alaska Statute 25.23.050(a)(2)(B) does not specify how the
year of nonsupport is to be calculated.  We must strictly construe
the statute in Farley's favor.  See S.M.K., 702 P.2d at 623. 
Because the parties have suggested two possible ways of measuring
the year, we must select the way that is more protective of the
biological parent's rights.  See In re J.J.J., 718 P.2d at 959.
          Through garnishment of his unemployment check, Farley
paid his August 1995 monthly payment on August 15, 1995; he paid
his August 1996 monthly payment on August 16, 1996.  Muntz argues
that a year and a day separated Farley's payments.  We are
unwilling to interpret the statute to mean that because the August
1996 payment was as little as one day late, it is a nullity for
purposes of determining whether Farley failed to provide support
for A.F.M. for August 1996 and for purposes of deciding whether to
dispense with the biological parent's consent.  Farley therefore
failed to provide for support of A.F.M. for eleven, not twelve,
months.  This failure does not satisfy the strict requirements of
AS 25.23.050(a)(2)(B).  
          Because Farley did not fail to support A.F.M. "for a
period of at least one year,"we conclude that AS
25.23.050(a)(2)(B) does not dispense with Farley's consent to the
adoption.  Our resolution of this issue makes it unnecessary to
address Farley's alternative argument based on the date when his
August 1995 payment was posted.
     B.   Does Farley Have Statutory Post-Adoption Visitation
          Although our decision to vacate the adoption decree
appears to render the post-adoption visitation issue moot, the
issue of post-adoption visitation may again arise on remand.  As an
alternative reason for dispensing with Farley's consent to the
adoption, Muntz argued in the superior court that conception
occurred as a result of sexual assault.  Because adoption without
Farley's consent still appears at least possible, we will address
the issue of post-adoption visitation. [Fn. 3] 
          The superior court stated, "AS 25.23.130(c) was added to
the statutes to allow the courts to fashion orders which would
allow for mutually-agreed-upon visitation after an adoption, but it
did not create a right to visitation in the biological family after
an adoption."  The court found that contact with Farley was not in
A.F.M.'s best interests, but it permitted the very limited contact
that Muntz suggested.  The court also noted that "[t]he effect of
the adoption, in the absence of [an] agreement, is to cut off all
rights in the biological family as stated in the statutes." 
          Farley argues that the superior court interpreted AS
25.23.130(a) and .130(c) "as permitting it to fashion open adoption
decrees . . . only in situations where the parties have previously
stipulated to or agreed to such an arrangement."[Fn. 4]  The
superior court, he contends, "viewed itself as not having such
statutory discretion to enter an open adoption decree"in this case
because the parties had not made such an agreement.
          We apply our independent judgment to questions involving
statutory interpretation.  See J.B.K., 865 P.2d at 739 n.7.  We
conclude that the superior court did not err in interpreting AS
25.23.130(c), and we agree that AS 25.23.130(c) does not give the
natural parent a right to post-adoption visitation.  The superior
court did not state that it believed that it lacked the discretion
to allow visitation by Farley.  Indeed, it is apparent from the
superior court's analysis of whether A.F.M.'s best interests would
be served by visitation that it understood that it had the power to
fashion an open adoption with visitation to the biological parent
despite the parties' failure to agree to such an arrangement.  This
interpretation of the statute was correct. In exercising its
discretion, the superior court determined that visitation with
Farley was not in A.F.M.'s best interests. 
          Finally, Farley argues that, if the court did interpret
AS 25.23.130(c) correctly, the statute as applied violates the due
process and equal protection clauses of the Alaska and United
States Constitutions.  Farley argues that the statute discriminates
against citizens "on the basis of whether they do or do not choose
to contest the issue of whether their consent to an adoption is
necessary."  He asserts that there is no rational basis for such a
classification.  We need not reach this issue because the superior
court's denial of visitation to Farley was not based on whether
Muntz consented or the parties had agreed to visitation.  
          We REVERSE the superior court's determination that
Farley's consent was not required and VACATE the adoption decree.


Footnote 1:

     All names are pseudonyms.  

Footnote 2:

     AS 25.23.050(a)(2)(B) provides:
          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, to
provide for the care and support of the child as required by law or
judicial decree.

Footnote 3:

     Even if a natural parent's parental rights are not terminated,
guardianship may be appropriate under some circumstances, and legal
and physical custody may be given to someone other than the natural
parent.  See Turner v. Pannick, 540 P.2d 1051, 1055 (Alaska 1975). 
If Muntz does not adopt A.F.M., the custody of A.F.M. may become an
issue because her mother has died.  See J.W. v. R.J., 951 P.2d 1206
(Alaska 1998).    

Footnote 4:

     AS 25.23.130(c) provides, "Nothing in this chapter prohibits
an adoption that allows visitation between the adopted person and
that person's natural parents or other relatives."  Subsection (c)
was added in 1986 to overrule that portion of our decision in In re
W.E.G., 710 P.2d 410, 415 (Alaska 1985), which held that subsection
.130(a) foreclosed biological relatives (presumably including
natural parents) from visitation rights after an adoption.