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In the Matter of the Adoption of Keith M.W. (10/31/2003) sp-5748
In the Matter of the Adoption of Keith M.W. (10/31/2003) sp-5748
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Adoption of: )
) Supreme Court No. S-10489
KEITH M. W. )
________________________________) Superior Court No.
) 3AN-00-1136 P/A
NATIVE VILLAGE OF )
NAPAIMUTE TRADITIONAL ) O P I N I O N
COUNCIL, )
) [No. 5748 - October 31, 2003]
Appellant, )
)
v. )
)
TERENCE W. and LUCY W., )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Scott Jay Sidell and Patty
Nieves, Association of Village Council
Presidents, Bethel, for Appellant. Andrew C.
Mitton and Robert B. Flint, Hartig, Rhodes,
Hoge & Lekisch, PC, Anchorage, for Appellees.
Michael G. Hotchkin, Assistant Attorney
General, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Amicus Curiae
State of Alaska.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
MATTHEWS, Justice, concurring.
I. INTRODUCTION
This appeal presents issues arising from an Indian
mother's decision to give up her baby and place him with a non-
Indian adoptive couple and her later change of heart before entry
of the adoption decree. After the mother purportedly
relinquished her parental rights, the trial court issued a
parental termination order. Despite the decision of the mother's
tribe to intervene in this matter, and the fact that the mother
subsequently changed her mind about giving up her child for
adoption, the trial court found good cause to deviate from the
placement preferences detailed in the Indian Child Welfare Act
(ICWA) and finalized the adoption by the non-Indian couple. We
conclude that the court's termination of the mother's parental
rights based on her conditional relinquishment of rights was
invalid. And although the mother's relinquishment functioned as a
consent to adoption, under ICWA a parent may withdraw consent to
adoption for any reason prior to entry of the final decree. But
because during the pendency of this appeal the Indian mother
reaffirmed her consent to the adoption of her child by the same
non-Indian couple, we affirm the superior court's finding of good
cause to deviate from ICWA's placement preferences and its
issuance of a final decree of adoption.
II. FACTS AND PROCEEDINGS
On May 19, 1999, eighteen-year-old Andrea, a member of
the Native Village of Napaimute, gave birth to a son, Keith.1
Because of financial concerns, post-partum depression, and a
diagnosis of cervical cancer, Andrea considered putting Keith up
for adoption. In early September 2000 Lucy and Terence Wilson,
the non-Indian sister and brother-in-law of a friend of Andrea's
mother, Jenna, met with Andrea and her extended family to discuss
the possibility of adoption. The parties agreed to an "open"
adoption, whereby the Wilsons would allow Andrea and Jenna
visitation rights. On September 19, 2000, Andrea signed a
document in which she claimed to "voluntarily and
unconditionally" relinquish her parental rights. But Andrea's
relinquishment of parental rights was not "unconditional," as it
contained the following statement: "If the adoption is not
completed, I understand that this relinquishment will be voided."
Thus, Andrea's relinquishment was conditioned on the Wilsons
successfully adopting Keith. On October 3, 2000, the superior
court issued a "final decree of termination of parental rights."
The Wilsons filed a petition for adoption on October
11, 2000. In mid-December 2000 the Native Village of Napaimute
Traditional Council ("the tribe") was permitted to intervene in
the adoption proceedings. Prior to the tribe's intervention,
Andrea changed her mind and voiced her wish to have Keith
returned to her.
After the tribe's intervention, Superior Court Judge
John Reese, in an opinion issued in January 2002, found that good
cause existed for deviating from the ICWA placement preferences
and placing Keith with the Wilsons. The primary basis for the
superior court's decision was Andrea's earlier-expressed desire
to deviate from the ICWA preferences when she relinquished her
parental rights and placed Keith with the Wilsons. The superior
court did not account for Andrea's change of preference:
The most obvious [reasons to deviate from
ICWA] are, of course, first of all, the
mother's preference in the relinquishment and
the termination. There's solid legal basis
for this in the Indian Child Welfare Act, in
the guidelines, as well as in the cases
interpreting the act and the guidelines, so
that probably is sufficient by itself, but
there is more. . . . [Andrea] gave up
[Keith]. That's it. That gets us past the
preferences.
We asked for supplemental briefing on a number of
issues, including the validity of the relinquishment and the
termination order. After supplemental briefing was completed,
the Wilsons supplemented the record with a notarized letter from
Andrea stating her request that the Wilsons "be able to fully
adopt [Keith] without any further interference from myself or any
other outside party." We then remanded this matter to the
superior court for an expedited hearing and determination of the
mother's consent to the adoption of Keith by the Wilsons. At the
supplemental hearing on September 9, 2003, Andrea again consented
to the adoption. On September 24 the superior court forwarded
its report on remand, finding that Andrea voluntarily signed the
consent to adoption in open court, that the terms and
consequences were fully explained to and understood by her, and
that the time for withdrawal of the consent had elapsed.
III. STANDARD OF REVIEW
The legal validity of a parental relinquishment or
termination order is a question of law. For questions of law,
the standard of review is de novo, and this court applies the
rule of law that is most persuasive in light of precedent,
reason, and policy.2
IV. DISCUSSION
A. Relevant ICWA Provisions
Reacting to a disturbing history of states placing
Indian children in non-Indian parental care, Congress passed ICWA
with the intention of discouraging this practice.3 The act is
intended "to protect the best interests of Indian children and to
promote the stability and security of Indian tribes and
families."4 It attempts to achieve this objective by
establishing "minimum Federal standards for the removal of Indian
children from their families and the placement of such children
in foster or adoptive homes which will reflect the unique values
of Indian culture."5
One way that ICWA promotes these goals is through
1913's requirement that courts return Indian children to their
biological parents if those parents withdraw consent to adopt
before issuance of a final adoption decree. While 1913(a)
recognizes that a parent may voluntarily consent to termination
of parental rights in favor of foster care placement or adoption,6
1913(c) provides that "[i]n any voluntary proceeding for
termination of parental rights to, or adoptive placement of, an
Indian child, the consent of the parent may be withdrawn for any
reason at any time prior to the entry of a final decree of
termination or adoption, as the case may be, and the child shall
be returned to the parent."7
ICWA further advances its goals by preferring Indian
adoptive parents over non-Indian adoptive parents. In
determining the appropriate adoptive placement of an Indian
child, ICWA requires that, in the absence of good cause,
preference be given to placement with "(1) a member of the
child's extended family; (2) other members of the Indian child's
tribe; or (3) other Indian families."8 ICWA does not define good
cause, however, leaving it to the states to determine when good
cause exists to deviate from the ICWA preferences.9 The Bureau
of Indian Affairs publication "Guidelines for State Courts;
Indian Child Custody Proceedings" lists factors that may convince
state courts that good cause does exist to deviate from the ICWA
preferences.10 Although the guidelines are only persuasive and are
neither exclusive nor binding, "this court has looked to them for
guidance."11 These factors include: (1) the extraordinary
physical and emotional needs of the child as established by
testimony of a qualified expert witness; (2) the unavailability
of suitable families for placement after a diligent search has
been completed for families meeting the preferences requirements;
and (3) parental preferences in favor of deviation.12
Accordingly, we have held that courts may consider parental
preference when determining whether there is good cause to
deviate from ICWA preferences.13
The superior court found that Andrea's initial desire
to deviate from the ICWA placement preferences at the time she
signed a document purporting to relinquish her parental rights
was the primary factor establishing good cause to deviate from
the ICWA preferences. The court did not consider the mother's
subsequent changed wishes when ruling that good cause existed to
deviate from the ICWA preferences. And once the mother's rights
were terminated, it is questionable whether she would have
standing to state a "parental preference."14 But the question
remains whether there was a valid final decree of parental
termination in this case that would prevent Andrea from
withdrawing her consent to adoption pursuant to 1913(c) of
ICWA. The answer to this question hinges on the validity of
Andrea's relinquishment of parental rights.
B. Relinquishments Must Be Unconditional.
We have recognized that "[p]arental termination
proceedings were unknown at common law. This means that in the
absence of statutory authorization there can be no termination of
parental rights and obligations."15 One way that a parent's
rights may be terminated is through a voluntary relinquishment.
Relinquishments are regulated by AS 25.23.180(a) and (b) and may
occur "in or before an adoption proceeding."16 It "obviously is
permissible in some cases" for relinquishments to occur in the
absence of pending adoption cases.17 As we have explained, the
relinquishment procedure established by AS 25.23.180(b) "does not
contemplate involuntary termination actions, but rather refers to
cases in which parents choose to give up their parental rights."18
However, the statute makes no provision for relinquishment of
less than all rights. Moreover, the time frames for a parental
change of mind are expressly set out in the statute,19 and there
is no provision allowing a parent to withdraw the relinquishment
after those deadlines if certain conditions have not been met.
Despite its caption as a "relinquishment," the document
that Andrea signed in this case was not an unconditional
relinquishment; instead, it functioned as a consent to adopt.
Andrea did not unconditionally relinquish her parental rights in
this case. Indeed, her relinquishment was expressly conditioned
on the successful completion of adoption by specified adoptive
parents, the Wilsons. Andrea's relinquishment contained the
statement: "If the adoption [by the Wilsons] is not completed, I
understand that this relinquishment will be voided." Yet
Alaska's adoption statute does not recognize a relinquishment of
parental rights that is less than an absolute and permanent
surrender of rights. Alaska's adoption statute provides that
"[a]ll rights of a parent with reference to a child . . . may be
relinquished and the relationship of parent and child terminated
by a writing, signed by the parent."20
Courts in other jurisdictions have concluded that
parents may not relinquish their parental rights on condition
that specified adoptive parents be granted the child. The South
Dakota Supreme Court held in In re Termination of Parental Rights
Over J.M.J. that a mother, who relinquished her parental rights
and requested that the child be placed with her sister and
brother-in-law in Arizona, could not withdraw her relinquishment
even though her sister and brother-in-law subsequently requested
that J.M.J be removed from their home because of the couple's
marital problems.21 The court concluded that the mother
understood the termination to be irrevocable and noted that
"there can be no conditional relinquishment of parental rights
under [South Dakota] statutes."22 As a result, "[i]t follows . .
. that D.J.'s request to have J.M.J. placed for adoption with the
Filipeks cannot in any way be characterized as a condition, the
nonfulfillment of which[] is fatal to D.J.'s consent to
termination of her parental rights."23
A Colorado Court of Appeals decision similarly
concluded that a nineteen-year-old father and seventeen-year-old
mother attempted an impermissible "partial" or "conditional"
relinquishment.24 In the relinquishment petition, the parents
changed the official, generic Colorado relinquishment form and
added that possession of the child would be with the child's
grandparents.25 Furthermore, testimony made it clear that "the
child had been in the care of the grandparents for approximately
one year" and "that the relinquishment proceedings were
instituted as part of a family plan that the child would be
adopted by the grandparents."26 The court held that it was
apparent from the petition and the testimony "that the parents
were attempting a `partial' or `conditional relinquishment.' "27
The court found that such a conditional relinquishment was not
authorized by the Colorado relinquishment statute which, like the
Alaska Statute, mandated that "relinquishment shall divest the
relinquishing parent or parents of all legal rights and
obligations."28
The concurrence argues that Alaska case law "reflects
the use of conditional relinquishments."29 Specifically the
concurrence refers to two cases, In re Adoption of F.H.30 and In
re J.L.F.31 In F.H., the mother of an Indian child consistently
expressed a parental preference for the superior court to deviate
from the ICWA parental preferences.32 F.H.'s tribe requested that
the court not deviate from the ICWA placement preferences.33 In
ruling that the superior court did not err in finding good cause
to deviate from the preferences, we noted that the mother
exhibited a consistent preference for deviation.34 While the
mother did sign a purported relinquishment conditioned on a
specified couple adopting F.H., the mother never changed her mind
about the adoption.35 Consequently, whether the purported
relinquishment was a relinquishment or a consent was immaterial,
as either way the adoption would have gone forward. Therefore,
our ruling in F.H. did not sanction the use of conditional
relinquishments. And J.L.F. does not deal with relinquishments;
rather, it is a termination case.36 There, we held that "the
trial court erred in concluding that unreasonable withholding of
consent to adoption as provided in AS 25.23.180(c)(2) was a
ground for termination of parental rights applicable in this
case."37 J.L.F., then, does not directly support the proposition
that conditional relinquishments are permissible in Alaska.38
The Uniform Adoption Act's commentary supports our
conclusion: "A parent or guardian who makes a direct placement
of a minor for adoption must execute a consent for the adoption
to go forward."39 Whereas, "[i]f the parent or guardian prefers,
instead, to have an agency place the minor and consent to the
minor's adoption, the parent or guardian has to relinquish all
rights with respect to the minor to the agency."40 After a parent
relinquishes her rights and places a child with an agency, then
"the agency acts in lieu of the parent or guardian: it acquires
custody of the minor and the authority to place the child for
adoption."41 Because Andrea placed Keith directly with the
Wilsons, her parental consent was needed and her relinquishment
was improper.42
In summary, a biological parent may not relinquish
parental rights conditioned upon successful completion of
adoption by specified adoptive parents. Relinquishment requires
a permanent and unconditional surrender of parental rights.
Consequently, Andrea's initial conditional relinquishment of
parental rights was not permitted by statute and was invalid.
C. Andrea's Invalid Relinquishment Functioned as a
Consent To Adopt.
Although Andrea's conditional relinquishment of
parental rights was invalid in that it was contingent on the
successful adoption of Keith by the Wilsons, the document that
she filed did function as a consent to adoption. Parental
consent "lies at the foundation of the adoption process."43 A
parent may consent to adoption by specific adoptive parents,
whose identities may or may not be known to the biological
parents.44 Under AS 25.23.060, a parent's consent ordinarily
delegates to the adoptive parents all powers permitted under AS
13.26.020, including the "powers regarding care, custody, or
property of the minor child or ward."45
While Andrea signed a document purporting to relinquish
her parental rights on condition that the Wilsons successfully
adopt Keith,46 and while a proper relinquishment eliminates the
need for parental consent in an adoption proceeding, we look at
the function and not the title of documents to determine their
purpose. In S.O. v. W.S., we examined a similar document
purporting to relinquish parental rights and held that regardless
of its caption, the "relinquishment" in question was actually an
attempt to consent to adoption.47 S.O. was a pregnant woman
expecting to take a job on the North Slope and desiring to locate
adoptive parents for her unborn child.48 With the help of the
paternal grandmother and the grandmother's spouse, S.O. located a
prospective couple but requested that the couple's identity not
be disclosed to her.49 The day after the child's birth, S.O.
signed a document entitled "Relinquishment of Parental Rights,"
which purported to relinquish her rights and granted custody to
her attorney, who was to take all steps necessary for the child's
adoption by the prospective adoptive couple.50 About a week after
giving birth, S.O. changed her mind about going to the North
Slope and giving up her child for adoption. She argued that any
adoption proceeding would be invalid because she never consented
to an adoption.51 Unpersuaded by this argument, we stated that
"we think it abundantly clear that S.O. did in fact intend to
consent to her son's adoption. That the document purports to be
a relinquishment is not controlling."52 The document signed in
this case, like that in S.O., was an attempt to consent to a
particular adoption. Thus, the superior court's reliance upon it
in terminating the mother's parental rights was erroneous.
D. Under ICWA, Andrea Should Have Been Permitted To
Withdraw Her Initial Consent to Adoption Prior to Entry
of the Final Adoption Decree.
Under ICWA, a biological parent may withdraw consent to
adoption "for any reason at any time prior to the entry of final
decree of . . . adoption . . . and the child shall be returned to
the parent."53 Because Andrea changed her mind prior to the final
decree of adoption and wanted Keith back despite her earlier
consent to adoption by the Wilsons, Keith should have been
returned to Andrea at the time she withdrew her consent.
However, this point is now moot, given that Andrea has reaffirmed
her consent to the adoption during the pendency of this appeal.
If we did not treat Andrea's initial conditional
relinquishment of parental rights in favor of adoption by a
specific couple as a consent to adoption, we would eviscerate a
key ICWA provision. The statutory consent provisions provide for
a relatively lengthy parental withdrawal period and "are designed
to protect the natural rights of a parent to the custody,
society, comfort, and services of the child."54 Permitting
circumvention of these protections by pre-adoption relinquishment
in private party adoption cases would eliminate these protections
of parental rights.55 And if allowing such an end run would
impair the rights of parents in non-ICWA cases, it would do even
greater injury to the rights granted by ICWA to Indian families
and the parents of Indian children. Because Andrea has ratified
the adoption by reaffirming her consent to have Keith adopted by
the Wilsons, we must now turn to the question whether the
superior court properly deviated from ICWA's placement
preferences.
E. Because Andrea Renewed Her Consent to Adoption by
the Wilsons, the Superior Court's Deviation from the
ICWA Placement Preferences Was Not Error.
In its initial January 2002 decision approving Keith's
adoption by the Wilsons, the superior court found that good cause
existed for deviating from ICWA placement preferences and that
the adoption was in the best interests of the child. Judge Reese
relied on several factors for deviating from the ICWA placement
preferences, including Andrea's preference expressed when she
purportedly relinquished her parental rights; the open nature of
the adoption, which would allow Andrea to visit with Keith and
assist the Wilsons in attending to Keith's cultural identity; and
the emotional bonding of Keith to the Wilsons. Thus, the
findings of the trial court in this case mirror those in F.H.,56
where we affirmed the superior court's finding of good cause to
deviate from the ICWA placement preferences based on, among other
factors, the biological mother's preference for the placement,
the bond between the adoptive parent and the child, and the
"openness" of the proposed adoption. All of these factors are
present in the case now before us.
Andrea's preference to have her son adopted by the
Wilsons was reaffirmed during the pendency of this appeal. Upon
receiving from the Wilsons a request to supplement the record
with a notarized letter from Andrea in which she withdrew her
demand for custody of Keith and requested that the Wilsons be
able to adopt Keith "without any further interference," we
remanded this case to the superior court for a hearing and
determination of whether Andrea wished to consent to the adoption
of Keith by the Wilsons. On September 9, 2003, Andrea executed a
consent to adoption in open court before a superior court master.
The superior court waited ten days, the time limit for withdrawal
of consent in a non-ICWA case, before reporting to us that
Andrea's consent was voluntary, that the terms and conditions of
the consent had been explained to Andrea in detail, and that
Andrea fully understood this explanation. Thus, Andrea has
reaffirmed her initial position in this case, expressed during
her purported relinquishment of parental rights: She consents to
Keith's adoption by the Wilsons and it is her preference to
deviate from ICWA by placing Keith with the Wilsons, a non-Indian
family.
The superior court's reliance on Andrea's preference to
have Keith adopted by the Wilsons was central to its decision and
"was an appropriate factor for the superior court to consider in
its finding of good cause."57 As we noted in F.H., "ICWA and the
Guidelines indicate that courts may consider parental preference
when determining whether there is good cause to deviate from ICWA
preferences."58 And although a pivotal factor in this case, it
was not the only factor that the superior court took into account
in its finding of good cause to deviate from the ICWA
preferences.
After the tribe's intervention into the case, the
superior court supplemented its findings of good cause by relying
on factors other than the mother's preference. These included
the open nature of the adoption. As we recognized in F.H.,
reliance on an adoption structure that will "ensure access" by
the biological parent to the child is "a proper factor for the
superior court to consider."59 In its consideration of the
importance of sensitivity by the adoptive parents in this case to
cultural issues, the superior court characterized the open
adoption as "a life raft." Although recognizing that the Wilsons
"do not understand much about native culture," the court found
that "[t]he open adoption offers relief," and that "[r]easonable
contact with the birth family can take care of that." The court
left open until a future hearing the specifics of the contact
schedule, acknowledging that while weekly or even monthly contact
was not contemplated, there was a need for "contact that's
sufficient and appropriate for [Keith] to know the people who are
his birth family as well as . . . [have] enough of an exposure to
them and enough time with them so that he can come to learn and
experience those parts of his culture as well as the parts that
the [Wilsons] can provide to him."60
Finally, the superior court relied on the bonding
between Keith and the Wilsons to find good cause to deviate from
ICWA's placement preferences. The trial court found that it was
"clear" and "not contested" that "[Keith] ha[d] closely bonded to
the [Wilsons]" at the time of the October 10, 2001 hearing on the
adoption. Two years have elapsed, and that bond has undoubtedly
strengthened with time. As we noted in F.H., bonding between the
adoptive mother and the child was "a proper factor for the
superior court to consider."61
In sum, the superior court based its determination of
good cause to deviate from ICWA's placement preferences on
appropriate factors, and we affirm its decision on this issue.
V. CONCLUSION
Andrea's conditional relinquishment of parental rights
was invalid. Instead, it functioned as a consent to the Wilsons'
adoption of Keith. Although ICWA enables a biological parent to
withdraw consent at any time before the finalization of an
adoption, in this case, Andrea has reaffirmed on the record her
consent to the adoption of Keith by the Wilsons previously
ordered by the trial court. Because the trial court did not err
in determining that good cause exists to deviate from ICWA's
placement preferences, we AFFIRM the court's entry of the decree
of adoption and REMAND for a determination of the nature and
schedule of contact and visitation as provided in the adoption
decree.
MATTHEWS, Justice, concurring.
I agree that the decree of adoption should be affirmed
and that it is appropriate for the superior court on remand to
address the subject of visitation. I therefore concur in the
result of today's opinion. But I disagree with the opinion's
conclusion that the final decree of termination is invalid. The
natural mother's recent reaffirmation of her desire to have the
Wilsons adopt the child has mooted this point in this case. But
in future cases the dicta in today's opinion may have the effect
of disturbing existing adoptions and adoptive placements and will
change Alaska adoption practice. I therefore write separately to
express my disagreement. In my view, the adoption decree should
have been affirmed even if the natural mother had not, in the
eleventh hour of the appeal, ratified the adoption. The
discussion that follows is written without taking her
ratification into account.
Today's opinion states that the final order of
termination is invalid because the relinquishment on which it is
based is invalid. The opinion argues that the relinquishment is
invalid for two reasons. First, because it expresses an
understanding (the "condition") that if the child is not adopted
by the Wilsons the relinquishment will be voided. This provision
is invalid, according to the opinion, because it is a condition,
and our statutes do not permit conditional relinquishments. It
follows, the opinion concludes, that the relinquishment as a
whole is invalid. Second, the opinion argues that the
relinquishment is invalid because use of relinquishments, rather
than consents to adoption, is impermissible in private party
adoption cases.
I disagree. For two independent reasons I do not
believe that the expressed understanding that the relinquishment
can be withdrawn if the Wilsons do not adopt the child makes the
relinquishment invalid. First, regardless of its validity, the
condition is irrelevant because we know that it will not occur.
The Wilsons have adopted the child. Second, properly construed
the condition is not prohibited by the Alaska Statutes, mainly
because it is consistent with remedies that are available under
current law to a relinquishing parent upon the failure of a
contemplated adoption. As to the issue of whether
relinquishments rather than consents may be used in private party
adoptions, the Alaska Statutes suggest that relinquishments may
be used in such cases.
The paragraphs that follow explain my position in more
detail. Before discussing each issue separately, I make a number
of points that are common to each.
The statutory section concerning relinquishments is AS
25.23.180. I set out its relevant subsections in the margin.62
(g) Notwithstanding the provisions of (b) of this section, a
relinquishment of parental rights with respect to a child,
executed under this section, may be withdrawn by the parent, and
a decree of a court terminating the parent and child relationship
on grounds set out in (c)(1) and (2) of this section may be
vacated by the court upon motion of the parent, if the child is
not on placement for adoption and the person having custody of
the child consents in writing to the withdrawal or vacation of
the decree. This section and most of the rest of Alaska's
adoption act were enacted in 1974 based on the 1969 Uniform
Adoption Act as revised in 1971.63 Section .180's counterpart in
the 1969 Uniform Adoption Act is section 19.64 The 1969 Uniform
Act should not be confused with the very different 1994 Uniform
Adoption Act which Alaska has not adopted.65
Alaska's adoption act contains its own rule of
construction. Alaska Statute 25.23.005 provides: "This chapter
shall be liberally construed to the end that the best interests
of adopted children are promoted. Due regard shall be given to
the rights of all persons affected by a child's adoption."
Although section .005 was enacted in 1990, it is consistent with
the rule of construction that we had previously adopted. In S.O.
v. W.S. we rejected a rule of strict construction for our
adoption act.66 Instead we stated that the act should be
construed in a manner that best accomplishes the overriding
purpose of the act, promoting the welfare of children. We warned
against "permitting mere technical defects in consents to
adoption to serve as a basis for disrupting familial ties and
relationships that have developed in reliance on the validity of
such consents."67 The same admonition must also apply to
relinquishments.
The damage that can be done to children by disrupting
psychological ties between adoptive parents and children is well
recognized. As we stated in Hernandez v. Lambert, "[a]doptive
custody results in the rapid development of lasting and powerful
psychological ties between adoptive parents and children,
especially young children. Once formed, these bonds can seldom
be severed without irreparable damage to the child's well being."68
I. The Condition Is Irrelevant Because it Will Not Occur.
We know that the condition that the relinquishment may
be voided if the Wilsons do not adopt Keith will not occur
because the superior court has entered a decree of adoption in
favor of the Wilsons. Under this circumstance the condition is
moot and can properly be ignored. The natural mother's
expectations have been satisfied. There is no need to speculate
as to what a proper judicial response would be if the condition
had occurred, because we know that it will not occur.
I know of no case that suggests that an adoption should
be invalidated because it is based on a relinquishment that is
subject to an impermissible condition where it is known that the
condition will not be realized. To the contrary, in In re J.R.S.
we held that the defeasing condition expressed in AS 25.23.180(g)
(authorizing the withdrawal of a relinquishment with the consent
of the person having custody of the child where the child is not
placed for adoption) did not destroy the finality of a
termination decree for ICWA purposes because the condition had
not occurred and the condition was thus "not relevant."69
This is not a case in which a parent attempts
to revoke a relinquishment before her child
has been placed for adoption. AS
25.23.180(g), which provides that a decree
terminating parental rights may be vacated if
the child has not been placed for adoption
and the person having custody agrees to the
decree's vacation, is not relevant here.
Nothing in the statute governing
relinquishments suggests that the decree the
superior court entered was anything less than
final.[70]
The teaching of J.R.S. is that where a condition that could cause
the avoidance of a relinquishment will not occur, the fact that
at the time of the termination decree the possibility that the
condition might occur was still open is not relevant. Once we
know that the condition will not occur it may be ignored.
Such a rule makes eminent good sense. No conceivable
purpose is served by vacating an adoption based on a hypothetical
possibility that we know will not occur. In such circumstances,
the best response is simply to treat the condition as irrelevant.
Consistent with the statutory and case law rule of construction
noted earlier, this is the response that promotes the best
interests of adopted children and avoids the disruption of
familial ties and relationships that have developed as a result
of an adoptive placement.
II. Relinquishments May be Terminable upon the Failure of a
Contemplated Adoption.
The point that the condition is irrelevant because it
will not occur is, in my opinion, a sufficient response to the
majority's position that the conditional nature of the
relinquishment would require the present adoption to be set
aside. But I also believe that properly understood the condition
is permissible for the reasons that follow.
An opinion of the Massachusetts Supreme Court, In re
Adoption of a Minor,71 contains a useful analysis of a questioned
condition in an adoption context. In that case the natural
mother consented to the adoption of her child by the adoptive
parents "on condition that they will give me visitation rights
. . . ."72 Although the adoptive parents allowed visitation, the
natural mother attempted to withdraw her consent to adoption and
petitioned for return of the child. She contended that her
consent was unenforceable because it was conditional and
therefore did not satisfy the requirements of Massachusetts law
and was against public policy.73 The Massachusetts court, in an
opinion authored by the distinguished jurist and law professor,
Robert Braucher, held that the questioned condition did not
invalidate the consent. The court first observed that the
condition must be given a practical construction making it
subject to the overriding interest in the welfare of the child.
Justice Braucher wrote:
We think that the mother in this case sought,
not a legal assurance of visitation rights
overriding all requirements of the welfare of
the child, but a practical assurance of the
cooperation of the petitioners so long as
visitation rights were not contrary to the
interests of the child. She got what she
sought. If she had not tried to withdraw her
consent, a decree of adoption might have been
entered incorporating the agreement. Such a
decree would not be void. But it would not
prevent "the supreme inquiry as to the
requirements of the welfare of the child."[74]
As so construed, the court found the condition not to be against
public policy. But the court went on to observe that if the
condition were found to be against public policy, the condition
would be unenforceable, but the consent to adoption would still
be valid:
If the agreement had provided for a legal
right overriding the welfare of the child, it
would at least to that extent be against
public policy, but the result would be that
the offending provision would be
unenforceable, not the consent to adoption.
Otherwise, the overriding policy serving the
welfare of the child would be frustrated.[75]
I believe that the condition in this case must be
construed at all times to be subject to the overriding interest
in the welfare of the child. It should also, in my judgment, be
given a practical construction similar to that employed by the
Massachusetts court in In re Adoption of a Minor. What it
contemplated was that the Wilsons would go forward with the
adoption, but if the adoption failed it was understood that they
would not stand in the way of the resumption of custody by the
natural mother. As so construed, the condition is fully
consistent with existing remedies that are available following
the failure of a contemplated adoption.
There are three principal remedies for failed
adoptions. The first is contained in AS 25.23.180(g).76 This
subsection contains a provision that permits a parent to withdraw
her relinquishment if the child "is not on placement for
adoption" with the consent of the party having custody of the
child. The second remedy is contained in AS 25.23.120(d). This
subsection requires the court, upon determining that an adoption
petition must be denied, to decide who should have custody of the
child, considering the child's best interests.77 A voluntarily
terminated parent is not excluded from the group of potential
custodians under this section.78 The third remedy is found in
Civil Rule 60(b) (permitting relief from judgments in defined
circumstances). A relinquishing parent, like any other litigant,
may avail herself of the remedies provided by Civil Rule 60(b).79
Relief is sometimes afforded under this rule's catch-all clause,
60(b)(6) ("any other reason justifying relief from the operation
of the judgment"), when in important ways a fundamental
assumption underlying the basis for consenting to a judgment has
been destroyed.80
Construed reasonably and practically, the condition in
question fits readily within these remedies. If the Wilsons were
to have a change of heart after accepting custody of the child or
if their adoption efforts failed and the child was therefore no
longer on placement for adoption, subsection .180(g) would be
applicable. Subject to considerations of the best interests of
the child, the understanding reflected in the relinquishment that
the natural mother would resume custody could be realized. If
the adoption was actually denied, AS 25.23.120(d) would also
apply and the court would have to determine, considering the best
interests of the minor, who would have custody of the minor. In
such a proceeding the Wilsons' cooperation with the efforts of
the natural mother would be expected, though it might be of
little importance given that their adoptive efforts would already
have been refused. As to the potential 60(b) remedy, the
condition reflects a fundamental assumption that exists in most
private party adoption cases, namely that the parties to whom the
child is relinquished for adoption would adopt the child. Even
when not made a condition, one would expect that this would be
the assumption of the relinquishing parent. Upon the failure of
such an assumption, Rule 60(b)(6) relief should be available.
Since this could be the case even if the assumption were not
expressed as a condition, the fact that the condition is
expressed should not make a difference. The same relief should
be available either way.
In short, I believe that the expression of the
understanding that if the Wilsons did not adopt the child the
relinquishment would be voided, when given a reasonable and
practical construction, is consistent with and, at most,
facilitates the remedies that would be available in any event to
the natural mother. It is therefore unobjectionable.
It is undisputed that relinquishments that are subject
to withdrawal upon the failure of specified parties to adopt a
particular child have long been used in Alaska adoption practice.
The State of Alaska acknowledges that the Division of Family and
Youth Services "has allowed conditional relinquishments in the
past." Currently the policy and procedure manual of the division
still contemplates that parents may relinquish their parental
rights "with the understanding that their child will be adopted
by a specific person." The division treats this understanding as
subject to the welfare of the child.81
Our case law reflects the use of conditional
relinquishments. In In re J.L.F. the state negotiated a
conditional relinquishment with the biological mother which,
eventually, the biological mother refused to sign.82 This refusal
was found by the superior court to be a reason in support of the
superior court's finding under AS 25.23.180(c)(2) that the
biological mother had unreasonably withheld her consent to
adoption.83 In In re Adoption of F.H. a relinquishment
conditioned on adoption by particular prospective adoptive
parents was employed.84 An adoption in favor of these prospective
parents would have amounted to a deviation from the ICWA
preferences.85 The superior court held that the conditional
nature of the relinquishment was one reason why good cause
existed for deviation from the ICWA preferences, because
otherwise there would be much uncertainty concerning the child's
future.86 We upheld the court's reliance on the conditional
nature of the relinquishment.87
The historic use of conditioned relinquishments in
Alaska is relevant in considering whether the Alaska Statutes
should be construed as prohibiting the practice. "The meaning
attached by people affected by an act may have an important
bearing on how it is construed."88 In addition, adopting parties
and their counsel have relied on this practice, its recognition
by the courts, and the fact that it has never been questioned, in
structuring adoptions. This reliance is also a reason favoring a
permissive construction: "One of the soundest reasons sustaining
contemporaneous interpretations of long standing is the fact that
the public has relied on the interpretation."89 Such an
interpretation is also called for by the applicable rule of
construction that Alaska's adoption statutes should be construed
to promote the best interests of adopted children and avoid
disrupting adoptive placements.90
I also believe that the law of contracts provides an
applicable analogy that should guide our decision as to whether
the current relinquishment is unenforceable. Under contract law,
whether a contract or a part of a contract is unenforceable
entails a balancing of the interests for and against enforcement.91
In weighing the interest in enforcement, account must be taken of
the justified expectations of the parties, any forfeiture that
would result if enforcement were denied, and any special public
interest in enforcement. In weighing the public policy against
enforcement, account must be taken of the strength of the policy
against enforcement, the likelihood that a refusal to enforce
will further that policy, the seriousness of any misconduct, and
the directness of the connection between any misconduct and the
questioned provision.
Viewing the relinquishment as a whole, the interest in
its enforcement readily outweighs any public policy against its
enforcement. First, all parties justifiably expected that the
relinquishment would be enforceable. Second, the forfeiture
involved is the severance of the bonded parent/child ties that
have developed between the child and the Wilsons. This is an
extraordinarily strong interest. Relatedly, the special public
interest involved is the public interest in the stability of
adoptive placements. This too is an extraordinarily strong
interest.
I am at a loss to express what the public policy might
be against enforcement of the relinquishment. No judicial
decision of this court has ever expressed a policy against
conditional relinquishments. The two cases on which the majority
opinion relies from other jurisdictions92 express the view that
there can be no conditional relinquishment under the statutes in
their respective states, but they express that conclusion without
giving reasons. The only public policy reason offered by the
majority is that relinquishments have shorter periods for their
withdrawal than do consents,93 but this reason challenges the use
of relinquishments in all adoptions, and has nothing to do with
the conditionality of relinquishments.94 I had assumed, at least
provisionally, that a defeasing condition such as we have here
might be felt to be undesirable because it potentially interferes
with the stability of an adoptive placement. But this is not
likely to be the case because the relinquishment would not be
revoked until and unless the placement failed to lead to
adoption. It is the failure, not the condition, that would cause
the instability.
Turning to the second relevant factor of section 178(3)
of the Restatement, we can ask whether refusal to enforce the
relinquishment will further the policy of stability of adoptive
placements. The answer to that question is that just the
opposite will occur where, as here (and as will commonly be the
case), the contemplated adoption actually occurs. The policy of
stability in adoptive placements is furthered by enforcing the
relinquishment. Ironically, refusing to enforce the
relinquishment causes instability. As to the third factor, there
is no misconduct in this case. It is therefore apparent that the
balance of relevant factors clearly favors the conclusion that
the relinquishment is not unenforceable on grounds of public
policy.
Another point should also be made. In light of the
clear preponderance of interests favoring upholding adoptive
placements, if the condition in this case were found to be
against public policy, the condition should not be enforced, but
this should not affect the validity of the relinquishment. As
the Massachusetts court stated, if the agreement were "against
public policy, . . . the result would be that the offending
provision would be unenforceable, not the consent to adoption.
Otherwise the overriding policy serving the welfare of the child
would be frustrated."95
In summary, the understanding expressed in the
relinquishment in this case did not render the relinquishment
invalid. Properly construed, it is consistent with remedies that
the law provides to a relinquishing parent upon the failure of a
contemplated adoption and is therefore unobjectionable. Further,
similar provisions have long been used and recognized in Alaska
without critical comment, and parties have relied on this
practice. The practice does not violate public policy when one
considers the relevant factors that should be considered in
determining whether a provision is unenforceable on grounds of
public policy. This interpretation satisfies the applicable rule
of construction that Alaska's adoption statutes should be
construed to promote the best interests of adopted children and
to avoid disrupting adoptive placements. Finally, even if the
questioned condition were against public policy, the appropriate
remedy would be to declare the condition to be unenforceable but
not the relinquishment.
III. Alaska Law Provides Two Methods for the Voluntary
Termination of Parental Rights and the Adoption of Children
- Either Method May Be Used in Private Party Adoptions.
Today's opinion holds that the final order of
termination is invalid because it is based on a relinquishment
which might be voided if the Wilsons did not adopt the child.
But the opinion also makes a second point, namely that relinquish
ments in private party adoption cases are simply impermissible.96
As this point has nothing to do with the conditionality of any
particular relinquishment, it would serve as a basis for
invalidating the decree of termination in this case even if the
relinquishment were not found to be invalid because of its
conditional nature.
The majority makes the point that private placement
adoptions cannot be accomplished by a method involving
relinquishments without any analysis or discussion of the terms
of the Alaska Statutes. Instead, the majority relies on the
commentary to the Uniform Adoption Act of 1994.97 While the
Uniform Adoption Act of 1994 does contain a number of provisions
making it clear that relinquishments can only be made to
agencies,98 the 1994 act has not been adopted in Alaska. As
already stated, Alaska's laws pertaining to adoption were mostly
passed in 1974 and were patterned on the 1969 Revised Uniform
Adoption Act. Neither Alaska's statutes nor the 1969 Uniform
Adoption Act contain provisions similar to the 1994 Uniform
Adoption Act specifying that a relinquishment of parental rights
may only be made to an agency.99 To the contrary, Alaska law
contains provisions that suggest that a relinquishment may be
made in the context of a private party adoption.
One very strong suggestion is found in AS
25.23.180(e)(2). This subsection permits a petitioner for
adoption, necessarily a private individual, to file "a petition
for termination" of parental rights "in connection with an
adoption proceeding." Adoption Rule 6(b) makes it clear that
such a petition for termination may be based on a voluntary
relinquishment of parental rights pursuant to AS 25.23.180(b).
Thus a private individual may petition for termination based on a
voluntary relinquishment given under subsection .180(b) in
combination with the private individual's petition for adoption.
This strongly implies that the relinquishment on which the
private individual bases the combined petition for termination
and adoption may permissibly have been given in favor of the
private individual.
Further support is found in subsection .180(a) which
provides that parental rights "may be relinquished and the
relationship of parent and child terminated in or before an
adoption proceeding as provided in this section."100 Again, since
adoption proceedings are only brought by private individuals this
suggests that relinquishments may be used by private individuals
in connection with adoption proceedings. Added support is found
in subsection .180(b)(1) which provides that a relinquishment
must either be signed in the presence of the representative of an
agency or "in the presence and with the approval of a court
. . . ." This suggests that relinquishments may be given in
favor of private individuals, because signing before a court
would not be necessary in the case of an agency taking a
relinquishment.
Finally, AS 25.23.180(b)(2) applies to signed
relinquishments that do not meet the formal requirements of
(b)(1) where "the petitioner has had custody of the minor for two
years . . . and the court finds, after considering the
circumstances of the relinquishment and the long continued
custody by the petitioner, that the best interest of the child
requires the granting of adoption." One would expect that
relinquishments granted in favor of professional agencies would
meet the formal requirements of (b)(1), whereas relinquishments
in favor of private individuals are far more likely to be
defective.101 This savings clause thus seems squarely aimed at
private party relinquishments.
Alaska law clearly provides for two parallel methods
that lead to the same end result of termination of parental
rights and adoption. That these dual methods exist is
uncontested. What is at issue is whether the relinquishment
method may be used in private party adoptions. I will here
briefly describe each method.
The first method, the consent track, entails execution
of a consent to adoption by the natural parent, filing a petition
for adoption, and entry of an adoption decree.102 The second
method, the relinquishment track, does not require a consent to
adoption, but entails execution by the natural parent of a
relinquishment of parental rights, entry of a decree terminating
parental rights, filing a petition for adoption, and entry of a
decree of adoption.103
There are different safeguards that apply depending
upon which track is used. The "change-of-mind" period for the
consent track is, as a matter of right, ten days after the
consent is given and, by leave of court upon a showing that
withdrawal of consent is in the best interest of the child, any
time before entry of a decree of adoption.104 By contrast, the
withdrawal period as a matter of right under the relinquishment
track is ten days after execution of the relinquishment without a
provision for subsequent withdrawal by leave of court.105 But
consents to adoption need only be signed before a notary,106
whereas a relinquishment must be signed in the presence of an
agency or the court, and if the latter, must also be approved by
the court after an inquiry as to the parent's understanding of
the consequences of the relinquishment and the voluntariness of
her assent.107 Alternatively, written relinquishments that do not
meet the formal requirements of AS 25.23.180(b)(1) may still be
valid but only if the private party petitioning for adoption has
had custody of the child for two years and the court, after
considering the circumstances of the relinquishment and the
period of custody by the petitioner finds that the best interests
of the child requires granting the adoption.108
That the relinquishment track may be used in private
adoptions is supported by evidence of actual practice in Alaska
over several decades. The record before us contains the
unrefuted affidavits of two experienced adoption attorneys who
state that the use of the relinquishment track has long been a
normal and accepted practice in private adoptions in Alaska.109
And two of our published cases confirm the use of the
relinquishment track in private adoptions. In In re Adoption of
F.H. the mother appeared before the probate master and executed
documents "relinquishing her parental rights to the Hartleys."110
Over the opposition of both the state and the child's tribe, an
adoption decree in accordance with the private relinquishment was
entered and affirmed by this court.111 S.O. v. W.S. is another
case in which the relinquishment method was employed in a private
adoption context.112
As this case illustrates, parties have relied on the
established and recognized practice described above. Further, as
also noted, this practice finds much support in the Alaska
adoption act. Because of these factors, the applicable rule of
construction promoting the interest of children and disfavoring
the disruption of bonded relationships based on adoptive
placements also counsels in favor of an interpretation validating
the existing practice.
Today's majority opinion views the use of the
relinquishment track in private party adoption cases as an "end
run" around the "relatively lengthy parental withdrawal period"
built into the consent track.113 But one could say by the same
logic that use of the consent track circumvents the greater
protection inherent in the more demanding execution requirements
pertaining to relinquishments.114 In truth, it is not appropriate
to regard the use of one track rather than the other as a
circumvention of protections built into the other because both
tracks are legislatively permitted methods of achieving the same
end.
The only public policy reason offered by today's
opinion for setting aside the relinquishment is in order to
"disallow the circumvention of procedures" inherent in the
"relatively lengthy parental withdrawal period" allowed for
adoptions under the consent track.115 Since the time for
withdrawal as a matter of right is exactly the same under state
law for relinquishments and consents, what the majority appears
to be saying is that the longer periods for withdrawing
relinquishments as a matter of right provided by ICWA are
desirable as a matter of public policy.
My response to this is that the primary source of
public policy employed by this court should be the Alaska
Statutes. ICWA must be followed where it applies. But I do not
think that ICWA should be regarded as a source for public policy
based rulings where the periods it mandates do not apply and
differ from the express provisions of Alaska law.
Alternatively, or in addition, the majority may be
saying that a period for withdrawing relinquishments not as a
matter of right but by leave of court is desirable as a matter of
public policy. Such a period is provided by state law in consent
track cases but not in relinquishment track cases. My response
to this is that the majority's policy judgment is at bottom a
quarrel with the dual track system provided under Alaska law.
The legislature has chosen to provide no period for withdrawal by
leave of court after the ten day withdrawal as a matter of right
period in relinquishment track cases, while providing a period
for withdrawal by leave of court in consent cases. It is not for
this court to say which choice is better. I note, for example,
that the 1994 Uniform Adoption Act does not contain any period
during which an effort can be mounted to withdraw either a
consent or a relinquishment on general best interests grounds.116
Thus although the majority seems to endorse the view that a long
period for withdrawal by leave of court is best, the current
thinking of the commissioners on uniform state laws is consistent
with the procedures in Alaska's relinquishment track, namely that
there should be no such period.
Natural parents must be treated fairly. But their
interests are subordinate to the goal of promoting the best
interests of adopted children.117 There is no question but that
the procedures under either the consent track or the
relinquishment track are fair to natural parents. The procedures
under both tracks are designed to ensure that parents fully
understand the consequences of their assent and that they have
given it freely and voluntarily. Further, they are afforded a
ten-day period during which, as matter of right, they may
withdraw their consents or relinquishments.118
In summary, the majority reaches its conclusion that
the relinquishment method for termination and adoption may not be
used in private party adoption cases without any analysis of the
text of our adoption act. A textual analysis strongly suggests
that the relinquishment track is intended for private as well as
agency use. Alaska adoption practice over the years lends
support to this view as does the applicable rule of construction
favoring the interests of children and the maintenance of
adoptive relationships. The policy reasons offered by the
majority for its conclusion - basically that longer withdrawal
periods are better than shorter ones - conflict with the choices
made by the Alaska Legislature and express the majority's
preference for the procedures afforded in one of the two
available methods in the Alaska Statutes. Since both methods are
permitted, it is not for this court to say that one is inherently
superior to the other.
IV. Conclusion
For the reasons expressed above, I believe that the
relinquishment used in this case is valid and therefore that the
final order of termination is also valid. The majority has
reached a contrary conclusion, but the natural mother's unselfish
act of ratifying the adoption has resulted in the adoption being
affirmed, a result that I warmly endorse.
_______________________________
1 Pseudonyms are used to protect the privacy of those
involved.
2 Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).
3 Id.25 US.C. 5 1913(a) (1978) states:Where any parent or I
ndian custodian voluntarily co
4 ents to a f¯ster care pla
5 Id.
6 25 U.S.C. 1913(a) (1978) states:
Where any parent or Indian custodian
voluntarily consents to a foster care
placement or to termination of parental
rights, such consent shall not be valid
unless executed in writing and recorded
before a judge of a court of competent
jurisdiction and accompanied by the presiding
judge's certificate that the terms and
consequences of the consent were fully
explained in detail and were fully understood
by the parent or Indian custodian.
7 In contrast, courts apply a non-preferential, best-interests
test outside the ICWA context when determining whether to return
a child to a parent who has withdrawn consent to adopt; the child
is not returned automatically to the parent. S.O. v. W.S., 643
P.2d 997, 1005 (Alaska 1982).
8 In re Adoption of F.H., 851 P.2d at 1364 (quoting 25 U.S.C.
1915(a) (1978)).
9 Id.
10 Id.
11 Id.
12 44 Fed. Reg. 67583, 67594 (1979); C.L. v. P.C.S., 17 P.3d
769, 773 (Alaska 2001).
13 In re Adoption of F.H., 851 P.2d at 1364. We also have held
that "[w]hether there is good cause to deviate [from ICWA
preferences] in a particular case depends on many factors
including, but not necessarily limited to, the best interests of
the child, the wishes of the biological parents, the suitability
of persons preferred for placement and the child's ties to the
tribe." Id. at 1363-64.
14 Through 1903(1)(ii), ICWA applies to termination of
parental rights. Arguably, a post-termination parental change in
placement preference is meaningless as the parent's rights have
been terminated. Nevertheless, we have relied on a parent's
consistent preference, even after termination, for ICWA
deviation. In re Adoption of F.H., 851 P.2d at 1365 ("Since
signing [documents relinquishing parental rights], E.P.D. has
consistently supported an adoption by the Hartleys.").
15 Perry v. Newkirk, 871 P.2d 1150, 1153 (Alaska 1994)
(citation omitted).
16 AS 25.23.180(a).
17 S.J. v. L.T., 727 P. 2d 789, 796 (Alaska 1986).
18 Id.
19 AS 25.23.180(b)(1), (g).
20 AS 25.23.180(b) (emphasis added).
21 379 N.W.2d 816, 817-18 (S.D. 1985).
22 Id. at 818.
23 Id.
24 K.W.E. v. People of the State of Colorado, 500 P.2d 167, 168
(Colo. App. 1972).
25 Id.
26 Id.
27 Id.
28 Id.
29 Concurrence at 32.
30 851 P.2d 1361 (Alaska 1993).
31 912 P.2d 1255, 1260 (Alaska 1996); concurrence at 32-33.
32 851 P.2d at 1365.
33 Id. at 1364.
34 Id. at 1365.
35 Id. at 1362 & 1365.
36 912 P.2d at 1260.
37 Id. at 1263 (italics and capitalization removed from section
heading).
38 The concurrence contends that conditional relinquishments
are permissible because they are not expressly prohibited by our
statutes. Concurrence at 21-22. Such reasoning contradicts our
holding in S.J. v. L.T. that "in the absence of statutory
authorization there can be no termination of parental rights and
obligations." 727 P.2d 789, 796 (Alaska 1986). And there is no
general statutory acknowledgment of conditional relinquishments.
All of the concurrence's cited examples of when parents may
withdraw a relinquishment or maintain some contact with the child
despite a relinquishment are expressly established by statute.
39 Unif. Adoption Act 2-403 cmt., 9 U.L.A. 53 (1999).
40 Id.
41 Id.
42 The concurrence argues that our two conclusions - that a
parent may not conditionally relinquish parental rights and that
relinquishments may not be used in a private party adoption
context - are unrelated. Concurrence at 37-38. However, the
second point naturally follows the first. Relinquishments may,
as a matter of practice, only be viable in private party adoption
contexts if they allow the natural parent to condition the
relinquishment on a particular person or couple adopting the
child. In holding that relinquishments in private party adoption
contexts are not viable, we are informed by the 1994 Uniform
Adoption Act and its commentary. The concurrence takes issue
with our reliance on the 1994 Act because Alaska's adoption law
is based on the 1969 Uniform Adoption Act. But the relevant
section and commentary from the 1994 Act do not change the
substance of the 1969 Act, but simply clarify it: "This section
helps clarify the distinction between consents and
relinquishments and between direct and agency placements." Unif.
Adoption Act 2-403 cmt., 9 U.L.A. 53 (1999).
43 2 Am. Jur. 2d Adoption 60 (1994).
44 AS 25.23.040 - .060.
45 Unlike this consent to adoption provision, the
relinquishment statute makes no such provision for transfer of
rights pending an adoption, an omission that compounds the
problems with Andrea's purported conditional relinquishment. As
the State points out in its amicus brief:
Allowing a parent to terminate his or her
relationship with a child through a
relinquishment to a prospective adoptive
parent, or through a decree issued pursuant
to a relinquishment, could result in
termination of the biological parent's
responsibilities toward the child, without
the concomitant assumption of those
responsibilities by the adoptive parent.
That such a child would have no responsible
parent or agency during the pendency of the
adoption proceeding, or perhaps longer if the
adoption were to fail, would contradict the
state's policy to promote the best interests
of its children.
46 The concurrence correctly notes that we have disapproved of
"permitting mere technical defects in consents to adoption to
serve as a basis for disrupting familial ties and relationships
that have developed in reliance on the validity of consents."
S.O. v. W.S., 643 P.2d 997, 1002 n.7 (Alaska 1982). Concurrence
at 25. But we examine the function of the purported
relinquishment precisely because we do not want technical defects
to disrupt the child adoption process. And here, the defective
relinquishment of parental rights functions as a consent to
adoption.
47 643 P.2d 997, 1002 n.6 (Alaska 1982).
48 Id at 999.
49 Id at 999-1000.
50 Id. at 1000.
51 Id. at 1000-01.
52 Id. at 1002 n.6.
53 25 U.S.C. 1913(c).
54 Delgado v. Fawcett, 515 P.2d 710, 712 (Alaska 1973) (citing
In re Parks' Petition, 127 N.W.2d 548, 553 (Minn. 1964)).
55 The concurrence finds no public policy reason for
prohibiting conditional relinquishments. But in D.M. v. State,
Division of Family & Youth Services, we recognized that "parental
rights are of the highest order." 995 P.2d 205, 212 (Alaska
2000) (internal quotation omitted). Our decision to disallow the
circumvention of procedures in place to protect these rights
promotes an important public policy.
56 851 P.2d at 1364.
57 Id.
58 Id.
59 Id. at 1365.
60 Thus, while the latest consent to adoption drafted by the
Wilsons and executed by Andrea on September 9, 2003 contained new
language indicating that "[v]isitation rights are not allowed,
except as agreed by the [Wilsons]," addition of new terms to the
adoption was beyond the scope of our limited remand to the
superior court to allow Andrea to reaffirm her consent to the
adoption. The January 17, 2002 adoption decree entered by Judge
Reese, which we now affirm, expressly ordered that "the
biological mother retains visitation rights which shall be set
out in a separate order." Thus, the new language drafted by the
Wilsons purporting to restrict Andrea's visitation rights has no
effect on the open nature of the adoption previously approved by
Judge Reese. Indeed, the open nature of the adoption provided
one of the bases for Judge Reese's finding of good cause, as it
did for the trial court in F.H. Judge Reese left open to a
future hearing the actual nature of the contact between Keith and
Andrea, and the scheduling of this contact should be addressed on
remand.
61 851 P.2d at 1365.
62 AS 25.23.180 provides in relevant part:
(a) The rights of a parent with
reference to a child, including parental
right to control the child or to withhold
consent to an adoption, may be relinquished
and the relationship of parent and child
terminated in or before an adoption
proceeding as provided in this section.
(b) All rights of a parent with
reference to a child, including the right to
receive notice of a hearing on a petition for
adoption, may be relinquished and the
relationship of parent and child terminated
by a writing, signed by the parent,
regardless of the age of the parent, a copy
of which shall be given to the parent,
(1) in the presence of a representative
of an agency taking custody of the child,
whether the agency is within or outside of
the state or in the presence and with the
approval of a court within or outside of this
state in which the minor was present or in
which the parent resided at the time it was
signed, which relinquishment may be withdrawn
within 10 days after it is signed or the
child is born, whichever is later; and the
relinquishment is invalid unless it states
that the parent has this right of withdrawal;
or
(2) in any other situation if the
petitioner has had custody of the minor for
two years, but only if notice of the adoption
proceeding has been given to the parent and
the court finds, after considering the
circumstances of the relinquishment and the
long continued custody by the petitioner,
that the best interest of the child requires
the granting of adoption.
(c) 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 on the
grounds
(1) specified in AS 47.10.080(o) or
47.10.088;
(2) 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) 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.
(d) For the purpose of an adoption
proceeding under this chapter, a decree
issued by a court of competent jurisdiction
in this or another state terminating all
rights of a parent with reference to a child
or the relationship of parent and child
dispenses with the required
(1) consent by that parent to an
adoption of that child; and
(2) notice of a proceeding to that
parent unless otherwise required by this
section.
(e) A petition for termination of the
relationship of parent and child made in
connection with an adoption proceeding or in
an independent proceeding for the termination
of parental rights on grounds set out in
(c)(3) of this section may be made by
(1) either parent if termination of the
relationship is sought with respect to the
other parent;
(2) the petitioner for adoption, the
guardian of the person, the legal custodian
of the child, or the individual standing in
parental relationship to the child;
(3) an agency; or
(4) another person having a legitimate
interest in the matter.
. . . .
63 Unif. Adoption Act, 9 U.L.A. 133 (1999).
64 Compare AS 25.23.180 with Unif. Adoption Act 19, 9 U.L.A.
216-18 (1999).
65 See supra note 3 at 11.
66 643 P.2d 997, 1002 n.7 (Alaska 1982).
67 Id.
68 951 P.2d 436, 441-42 (Alaska 1998).
69 690 P.2d 10, 14 (Alaska 1984).
70 Id.
71 291 N.E.2d 729 (Mass. 1973).
72 Id. at 730.
73 Id. at 730-31.
74 Id. at 731 (internal citations omitted).
75 Id. (internal citations omitted).
76 See supra note 1.
77 AS 25.23.120(c)&(d) provide:
(c) If at the conclusion of the hearing
the court determines that the required
consents have been obtained or excused and
that the adoption is in the best interest of
the person to be adopted, it may issue a
final decree of adoption.
(d) If the requirements for a decree
under (c) of this section have not been met,
the court shall dismiss the petition and
determine, in the best interests of the
minor, the person including the petitioner to
have custody of the minor.
78 Id.
79 See In re J.R.S., 690 P.2d 10, 14 (Alaska 1984).
80 See Lacher v. Lacher, 993 P.2d 413 (Alaska 1999); Williams
v. Crawford, 982 P.2d 250 (Alaska 1999); McGee v. McGee, 974 P.2d
983 (Alaska 1999); Lowe v. Lowe, 817 P.2d 453 (Alaska 1991);
Schofield v. Schofield, 777 P.2d 197 (Alaska 1989); Foster v.
Foster, 684 P.2d 869 (Alaska 1984).
81 See State of Alaska, Dep't of Health & Social Servs, Div. of
Family & Youth Servs. Policy & Procedure Manual 3.9.1.h. This
subsection provides:
When parents have relinquished their
parental rights with the understanding that
their child will be adopted by a specific
person, the worker will notify them if the
proposed placement fails. The requirement to
notify the parents applies from the time of
the relinquishment until the adoption is
finalized, even after termination of parental
rights. After receiving notice that the
proposed placement has failed, a parent may
notify the division, in writing, of a desire
to withdraw the relinquishment. If the
parent does not submit such notice to the
division within 30 days of being notified of
the failed placement, the division is not
required to have any further contact with the
parent. The parent's request to withdraw the
relinquishment is not automatically granted.
The Division decides whether to consent to
the withdrawal or not, based on the
circumstances of the case. Consents for
withdrawal must be approved and signed by the
Children's Services Manager.
82 912 P.2d 1255, 1260 (Alaska 1996).
83 Id. at 1259.
84 851 P.2d 1361, 1362 (Alaska 1993).
85 See 25 U.S.C. 1915(a).
86 In re Adoption of F.H., 851 P.2d at 1365.
87 We stated:
Master Duggan recognized that F.H.'s
situation would be uncertain if the Hartleys'
adoption petition were dismissed and E.P.D.
withdrew her conditional relinquishment.
E.P.D.'s relinquishment was conditioned on
the Hartleys' adoption of F.H. . . . The
superior court properly considered F.H.'s
situation if the adoption petition were
dismissed. It was not clearly erroneous for
the superior court to find that F.H.'s
uncertain situation would have continued if
the Hartleys were not allowed to adopt F.H.
Id. at 1365.
88 2B Norman J. Singer, Statutes and Statutory Construction
49:06 at 94 (6th ed. 2000).
89 Id., 49-07 at 99-100.
90 AS 28.23.005.
91 See Restatement (Second) of Contracts 178 & 179 (1981).
Section 178 of the Restatement provides:
(1) A promise or other term of an
agreement is unenforceable on grounds of
public policy if legislation provides that it
is unenforceable or the interest in its
enforcement is clearly outweighed in the
circumstances by a public policy against the
enforcement of such terms.
(2) In weighing the interest in the
enforcement of a term, account is taken of
(a) the parties' justified
expectations,
(b) any forfeiture that would
result if enforcement were denied, and
(c) any special public interest in
the enforcement of the particular term.
(3) In weighing a public policy against
enforcement of a term, account is taken of
(a) the strength of that policy as
manifested by legislation or judicial
decisions,
(b) the likelihood that a refusal
to enforce the term will further that policy,
(c) the seriousness of any
misconduct involved and the extent to which
it was deliberate, and
(d) the directness of the
connection between that misconduct and the
term.
In Brown v. Baker, 688 P.2d 943, 948 (Alaska 1984), we
employed these factors in order to determine whether a security
agreement in a limited entry fishing permit was unenforceable.
92 In re Termination of Parental Right Over J.M.J., 379 N.W.2d
816 (S. D. 1985); and K.W.E. v. People, 500 P.2d 167 (Colo. App.
1972).
93 Slip Op. at 16.
94 I discuss this reason below on pages 44-46.
95 In re Adoption of a Minor, 291 N.E.2d 729, 731 (1973)
(citations omitted).
96 Slip Op. at 12 & n.42.
97 Id.
98 See 1994 Uniform Adoption Act 2-402(a)(1); 2-403; 2-
406(a)(5), Unif. Adoption Act, 9 U.L.A. 51, 53, 55 (1999).
99 The 1994 Uniform Adoption Act "aims to be a comprehensive
and uniform state adoption code" that "goes beyond existing
statutory laws to create a coherent framework for legitimizing
and regulating both direct-placement and agency-supervised
adoptions." Prefatory Note to 1994 Uniform Adoption Act. Unif.
Adoption Act, 9 U.L.A. 12, 14 (1999). Notwithstanding footnote
42 in today's opinion, 2-403 of the 1994 act does not purport
to clarify the 1969 Uniform Act. That section, in full,
provides: "A parent or guardian whose consent to the adoption of
a minor is required by Section 2-401 may relinquish to an agency
all rights with respect to the minor, including legal and
physical custody and the right to consent to the minor's
adoption." Instead, this section is simply a part of the
comprehensive new act. Likewise, the commentary to 2-403
neither addresses nor purports to clarify the 1969 Uniform Act.
Instead, it explains the objectives and operation of the new act.
It states, in full:
This section helps clarify the
distinction between consents and
relinquishments and between direct and agency
placements. A parent or guardian who makes a
direct placement of a minor for adoption must
execute a consent for the adoption to go
forward. If the parent or guardian prefers,
instead, to have an agency place the minor
and consent to the minor's adoption, the
parent or guardian has to relinquish all
rights with respect to the minor to the
agency. From then on, the agency acts in
lieu of the parent or guardian: it acquires
custody of the minor and the authority to
place the child for adoption pursuant to the
procedures in Sections 2-103 and 2-104. An
agency may also acquire the right to place
the minor for adoption pursuant to a court
order.
Unif Adoption Act, 9 U.L.A. 53 (1999).
100 (Emphasis added.)
101 An example of a defective relinquishment in favor of a
private individual can be seen in S.O. v. W.S., 643 P.2d 997,
1000 (Alaska 1982).
102 AS 25.23.040-.130; AS 25.23.130(a)(1) (effect of adoption
decree is to terminate "all legal relationships between the
adopted person and the natural parents").
103 AS 25.23.180; AS 25.23.050(a)(4) (consent to adoption not
required of parent who has relinquished right to consent under AS
25.23.180); AS 25.23.050(b) (notice of hearing on a petition for
adoption not required to a person whose relinquishment has been
filed with the petition).
104 AS 25.23.070(b). ICWA changes the period of withdrawal as a
matter of right in consent track cases to the final decree of
adoption. 25 U.S.C. 1913(c).
105 AS 25.23.180(b)(1). ICWA changes the period under which a
relinquishment may be withdrawn as a matter of right to the final
decree of termination. 25 U.S.C. 1913(c).
106 AS 25.23.060(a).
107 AS 25.23.180(b)(1); see Adoption Rule 9(d).
108 AS 25.23.180(b)(2).
109 The Affidavit of Robert B. Flint, a member of the American
Academy of Adoption Lawyers, who has practiced adoption law in
Alaska for the better part of three decades, states in part:
I have routinely obtained decrees of
termination of parental rights in private
adoptions over the years of my adoption
practice. Such decrees have always been
obtained under AS 25.23.180(b). No court has
ever questioned the statute's applicability
to private adoptions nor has the Adoption
Rules Committee.
Based on my actual experience and belief
the use of AS 25.23.180(b) is a normal and
accepted practice in private adoptions.
The Affidavit of Mary Ellen Ashton, former Probate Master for the
Third Judicial District, and currently an attorney specializing
in adoptions, states:
As Probate Master I approved [decrees of
termination] under AS 25.23.180(b) in private
adoptions where the petitioners were private
parties.
I have practiced law since 1991 largely
in the field of adoption. I have handled
over 1000 adoption cases since that time
including private adoptions. As appropriate
I have used AS 25.[23].180(b) to obtain
decrees of termination of parental rights in
private adoption.
I am a member of the Adoption Rules
Committee appointed by the Court. At no
session of the Committee has it been
suggested that AS 25.23.180(b) is limited to
agency adoptions.
It is my belief that the use of AS
25.23.180(b) for termination in private
adoptions is acceptable practice and has been
for many years.
110 851 P.2d 1361, 1362 (Alaska 1993).
111 Id. at 1362, 1365.
112 643 P.2d 997, 1000 (Alaska 1982). But the relinquishment
used in that case was ineffective because it was not signed
before an agency or with the approval of a judge. Id.
113 Slip Op. at 16. Actually the period of withdrawal as a
matter of right is identical under both tracks provided by state
law: ten days after signature. The difference lies in
withdrawal by leave of court upon a finding that withdrawal is in
the best interest of the child. This type of withdrawal is
specifically provided under the consent track, AS 25.23.070(b),
but not under the relinquishment track. But in either case the
court must still, before approving an adoption, find it to be in
the best interest of the child, AS 25.23.120(c), and when this
requirement is not met, the court must dismiss the adoption and
proceed to determine based on the best interest of the child who
should have custody of the child. AS 25.23.120(d).
114 Compare AS 25.23.180(b)(1)&(2) with AS 25.23.060.
115 Slip Op. at 16 & n.55.
116 See 1994 Uniform Adoption Act 2-408, 2-409, Unif.
Adoption Act, 9 U.L.A. 60-63 (1999).
117 See, e.g., AS 25.23.005.
118 By contrast the 1994 Uniform Adoption Act only allows
revocation as a matter of right within 192 hours after birth.
See supra note 55. Thus although the majority seems to be saying
in part that a longer period than ten days for the withdrawal of
consents or relinquishments is good public policy, the current
thinking of the commissioners on uniform state laws appears to be
that a shorter period, or no period if the child is more than
eight days old, is appropriate.
