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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Adoption of S.K.L.H. (03/27/2009) sp-6348
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- 12960 |
| ) | |
| S.K.L.H., | ) Superior Court No. 1KE-06-144 PR |
| ) | |
| A Minor Child. | ) O P I N I O N |
| ) | |
| ) No. 6348 - March 27, 2009 | |
Appeal from the
Superior Court of the State of Alaska, First
Judicial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: H. Clay Keene, Blake M. Chupka,
Keene & Currall, P.C., Ketchikan, for
Appellants. Michael P. Heiser, Ketchikan,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
Biological parents consented to their babys adoption
and the superior court entered a final adoption decree. Six
months later the biological mother petitioned to set aside the
adoption decree, alleging that her consent was invalid. The
superior court granted her petition, finding first that there had
not been a meeting of the minds (which the court on
reconsideration later characterized as mistake) about the
biological mothers relationship with the child after the adoption
decree, and second that it was in the childs best interests to be
with her biological mother.
Because we do not recognize mere mistake about post-
adoption visitation as a ground to invalidate adoption consent or
an adoption decree, we reverse the superior courts decision and
reinstate the adoption decree. But because: (1) the adoption
consent form prepared by the attorney for the adoptive parents
and signed by the biological mother provided that the biological
mother understood she would have the right to visitation with the
child after the adoption; (2) the findings of fact and
conclusions of law prepared by the attorney for the adoptive
parents and entered by the court with the adoption decree
confirmed the parties contemplated visitation rights for the
biological mother following the adoption; and (3) the superior
court has the authority to enforce a visitation framework in the
best interests of the child, we remand with direction to consider
appropriate visitation for the biological mother in this open
adoption.1
II. FACTS AND PROCEEDINGS
Donna2 was barely eighteen years old when she gave
birth to a baby girl in October 2006. The childs biological
father was seventeen years old and resided in Iowa with no intent
to move to Alaska. He is not a party to this litigation.
During her pregnancy Donna expressed an intent to give
up her child for adoption. About one week before giving birth,
she approached her father and stepmother (the Smiths) about
adopting the child. Donna changed her mind about adoption after
the child was born, and she and the child moved in with Donnas
stepsister. About three weeks later Donna changed her mind
again. Donna asked her stepsister and her stepsisters boyfriend
to adopt the child, but they declined. Donna again approached
the Smiths about adopting the child. The Smiths agreed.
The child was placed in the Smiths care and custody on
November 9, 2006. Both Donna and the biological father were
required to give consent before the adoption could be completed,3
and on November 13 Donna and the Smiths met with the Smiths
attorney for Donna to review and sign her consent form. Donna
was not represented by an attorney at this meeting, but before
she signed her consent form the Smiths attorney read and
discussed each paragraph of the document with her.4
Paragraph six of Donnas consent form provided:
I understand that, by signing this consent, I
am giving up all of my rights to the care,
custody and control of the minor child, and
that I am giving up these rights permanently.
I will also be permanently relieved of all
responsibility for the child. I will have
legal relationships to the child including
for purposes of inheritance; and I will have
full right to visitation with the child after
the adoption.
Donnas consent form also provided that her consent
could be withdrawn up to ten days after signing the consent form,
but thereafter could be withdrawn only upon a finding by the
Court, after a hearing[,] that withdrawal of the consent is in
the childs best interests.5 It also provided that once the
adoption decree was entered, consent no longer could be withdrawn
at all.6 Donna signed the consent form that day, and it was
filed with the court. Donna later contacted the childs
biological father to solicit his consent to the adoption; his
written consent, which was not conditioned upon maintenance of
any legal relationships or visitation rights, was also filed with
the court.
The Smiths attorney lodged proposed findings of fact
and conclusions of law and a proposed decree. Relevant findings
and conclusions were that: (1) Mr. Smith (Donnas father) was
forty-nine years old and Mrs. Smith (Donnas stepmother) was
nearly forty years old; (2) the Smiths had seven children other
than Donna; (3) Donna voluntarily consented to the Smiths
adoption of her child; (4) Donna shall retain visitation rights
with the minor child following the adoption; (5) all required
consents had been filed or excused and all appropriate notices
had been given; and (6) the adoption was in the best interests of
the child. The findings and conclusions and the adoption decree
were entered as presented after a brief hearing on December 18,
2006.7
Donna visited the child freely in the weeks following
the adoption, but the Smiths then began imposing restrictions and
limitations that Donna characterizes as preventing meaningful
contact with the child. In late June 2007 Donna filed a verified
petition to set aside the adoption, alleging that: (1) her
consent had been obtained by misrepresentation and/or undue
influence, specifically that the Smiths falsely stated that
[Donna] could have her child back when she was ready; (2) the
Smiths had failed to obtain [Donnas] proper consent and failed to
give required notice of the [adoption] petition; (3) she had not
signed the consent voluntarily, knowingly or intelligently and
had not received a copy of it as required by statute; and (4) it
was in the best interests and welfare of the minor child to have
the parental relationship with [Donna] restored.
An evidentiary hearing was held on December 5 and 6,
2007. The superior court orally entered its decision to set
aside the adoption on December 6. The court first noted that it
had jurisdiction because the petition was filed within one year
of the decree.8 The court found that Donnas consent had not been
obtained by fraud or misrepresentation because there [was] no
question that the Smiths attorney did his job making sure that
Donna understood what was going on and that he did it well. The
court made no specific note or findings either of duress or undue
influence affecting Donnas consent, or of any procedural
infirmities during the adoption process. While not finding that
Donna lacked capacity when she signed the consent, the court
stated that considering her age, immaturity, lack of education,
and mental situation that she found herself in Donna was not in a
state of mind to be buying a car, and certainly not signing
consents for adoption of her child. The court concluded that
even if Donnas assumptions about the adoption were unreasonable
and foolish, these factors fatally undermined the strength of
Donnas consent.
The superior court stated that the legislature is a
little coy, and so is the supreme court in telling me exactly
what sort of grounds I could . . . rely upon to invalidate a
consent, but that [i]t generally seems to be done in the same
fashion as an analysis of a contract . . . because weve talked
about misrepresentations, and fraud and duress, and I guess a
mistake. The court then applied a contract analysis and found
that there had not been a meeting of the minds with respect to
the post-decree relationship among the Smiths, Donna, and the
child:
[Donna] and her parents were on different
tracks entirely. They really intended to
become this childs parents and I really think
that [Donna had] some vague concept whereby
they were going to be the grandparents who
raised her kid for a while at least, and
maybe for the full 18 years.
The superior court stated that it needed to reopen this
and have a look and see what [was] in the best interest of this
child. The court applied the best interests analysis set forth
in AS 25.24.150(c),9 generally applicable in divorce-like
proceedings,10 to determine whether Donna or the Smiths should
raise the child. In Donnas favor, the court found that: (1)
there was a natural bond between Donna and her child; Donna had
matured in the year since giving up the child for adoption; Donna
was the one more willing to allow the other to play a role in the
childs life; and Donna was the more age-appropriate parent. In
the Smiths favor, the court found that because the couple had
custody of the child for more than a year, they had bonded with
her and she with them, and that they clearly were more
experienced as parents. The court ultimately concluded that it
was in the childs best interests to be raised by Donna.
A written order setting aside the adoption was issued
shortly after the hearing; the child was removed from the Smiths
custody and given to Donna that day. The Smiths moved for
reconsideration, a stay pending reconsideration, and if
necessary, a stay pending appeal. The motion was denied. In its
order denying reconsideration the superior court clarified the
basis for its earlier ruling: the court has the power to vacate
the adoption decree upon the ground of mistake, [Donna] met her
burden of proof showing mistake, and . . . setting aside the
adoption is in the best interests of the child.
The Smiths appealed. Pending resolution of the appeal
we ordered that in lieu of a stay of the superior courts order,
the superior court establish a visitation schedule for the Smiths
and the child.
III. STANDARD OF REVIEW
Although we review the superior courts factual findings
in adoption proceedings for clear error,11 we review de novo as
matters of law whether (1) factual findings satisfy the
requirements for application of a statute,12 or (2) an adoption
decree is void for lack of consent,13 adopting the rule of law
that is most persuasive in light of precedent, reason, and
policy.14
As we recently stated:
When reviewing factual findings we ordinarily
will not overturn a trial courts finding
based on conflicting evidence, and we will
not re-weigh evidence when the record
provides clear support for the trial courts
ruling; it is the function of the trial
court, not of this court, to judge witnesses
credibility and to weigh conflicting
evidence.[15]
IV. DISCUSSION
A. Donnas Consent and the Adoption Decree Should Not Have
Been Set Aside Based on Mistake About Post-Adoption
Relationships or the Best Interests of the Child.
The superior court may set aside an adoption decree if
it is challenged within the first year.16 But there is a
presumption favoring the validity and regularity of an adoption
decree,17 and the burden is on the challenging party to show by a
preponderance of the evidence that the decree is invalid.18
Ambiguities in an adoption decree are to be construed in favor of
validity of the decree.19 In this case the validity of the
adoption decree turns on the validity of Donnas consent, because
withdrawal of her consent was prohibited once the decree was
entered.20
We first note that an adoption decree should not be set
aside lightly. The clear policy of the adoption statutes is to
hold a biological parent to the terms of a signed consent and to
the adoption decree, except under limited circumstances. This is
evidenced by the fact that after a year has elapsed from the
entry of a decree, it cannot be challenged for any reason, even
one as egregious as fraud or misrepresentation:21
Adoptive 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
childs well-being. . . . As we said in In re
T.N.F., 781 P.2d 973, 980 (1989), cert.
denied sub nom. Jasso v. Finney, 494 U.S.
1030, 110 S. Ct. 1480, 108 L. Ed. 2d 616
(1990):
To allow collateral attacks on
final adoption decrees at any time
threatens to unreasonably disrupt
the upbringing of the adopted
child. AS 25.23.140 is a strong
policy statement by the Alaska
Legislature that an adoption decree
should not be challenged on any
ground after one year.[22]
In response to Donnas collateral attack on the adoption
decree in this case, the superior court found mistake in the
adoption process, specifically the lack of a meeting of the minds
about the post-decree relationship among Donna, the Smiths, and
the child. The court thought Donna maybe foolishly misunderstood
what was happening, and she may have unreasonably assumed that
. . . she would come and go as mom, with grandparents raising the
children; while the Smiths felt the need to maintain [the]
fiction that theyre the parents and [Donnas] not the parent
anymore.23 After implying that this mistake invalidated Donnas
consent, the court went on to apply a best interests analysis to
determine whether the adoption decree should be set aside. The
court concluded that the best interest of the child would be
served by returning [her to Donna].
The Smiths argue that invalidation of an adoption
decree is limited to the grounds mentioned in AS 25.23.140(b),
namely fraud, misrepresentation, failure to give required notice,
and lack of jurisdiction. None of these grounds was found by the
superior court. But that provision states only that upon the
expiration of one year after an adoption decree is issued, the
decree may not be questioned . . . in any manner upon any ground,
including fraud, misrepresentation, failure to give any required
notice, or lack of [personal or subject matter] jurisdiction.24
This does not necessarily preclude other grounds for a challenge
brought before the one-year period expires.25 That interpretation
would be inconsistent with our view that adoption consent
provisions should be construed to protect the rights of
biological parents.26
But we note that confusion, mistake about the finality
of the agreement, and a change of heart are generally
insufficient grounds to invalidate consent to an adoption.27 We
also note that the most recent version of the Uniform Adoption
Act provides that the validity of an adoption decree may not be
challenged for failure to comply with an open adoption agreement.28
The legislature took specific action to allow open
adoptions in Alaska by enacting AS 25.23.130(c) after a decision
by this court that Alaskas adoption statutes did not allow open
adoption agreements.29 That provision states that nothing in the
adoption statutes prohibits an adoption that allows visitation
between the adopted person and that persons natural parents or
other relatives.30 We subsequently noted that although this
statute does not give biological parents an inherent right to
post-adoption visitation, it does authorize courts to fashion
open adoption decrees securing visitation rights to a biological
parent if it is in the childs best interests to do so, with or
without an agreement between the biological and adopting parents.31
The superior court found that there was not much
strength in Donnas consent because of her lack of maturity and
that her foolish misunderstanding about her post-adoption
relationship with the child was a mistake. But even if Donna was
laboring under a mistake (and not simply having a change of
heart), this mistake is insufficient to invalidate Donnas
consent.
First, if the adoption decrees underlying conclusion
that Donna shall retain visitation rights is ambiguous because of
a lack of detail, ambiguities are construed in favor of validity
of the adoption decree.32 Second, the contours of an open
adoption are subject to the best interests of the child,
regardless of the detail and content of an agreement by the
parties.33 We therefore agree with the current Uniform Adoption
Act that post-decree disputes about details of an open adoption
cannot be grounds to set aside an adoption decree. If the
parties cannot resolve post-decree disputes about the boundaries
of a biological parents relationship with an adopted child, these
boundaries can be determined by the court.
The Smiths also argue that it was error to apply a best
interests analysis to set aside the adoption decree. We agree.
While it is true that adoption statutes generally are to be
liberally construed to the end that the best interests of adopted
children are promoted,34 those statutes also are to be construed
with due regard for the rights of all persons affected by the
adoption.35 Nowhere do the adoption statutes suggest that a valid
adoption decree can be set aside on the ground that it is in the
childs best interests to do so.36 It is unfortunate but true that
the best interests of a child alone do not always control
placement determinations. There are times when it may be in the
best interests of a child to be adopted, but in the absence of
parental consent that may be impossible.37 Just as the best
interests of a child cannot alone overcome a lack of consent, the
best interests of a child cannot alone overcome a valid consent
and previously entered adoption decree.38
B. Donnas Consent and the Adoption Decree Cannot Be
Set Aside on an Alternative Ground of Fraud,
Misrepresentation, Duress, or Undue Influence.
Donna argues that her consent should have been
invalidated because of: (1) actual or constructive fraud or
misrepresentation;39 (2) duress;40 or (3) undue influence;41 and she
asks that we affirm the superior court on one of these
alternative grounds.42 The court specifically found that there
had been no fraud or misrepresentation by the Smiths and may also
have found there was no duress: [W]eve talked about
misrepresentations, and fraud and duress, and I guess a mistake
. . . I dont find any fraud here, I dont find any
misrepresentation. I dont think there was a meeting of the minds
though with respect to what was going to happen. The court made
no specific mention of undue influence, but, as with duress, may
have implicitly found no undue influence given its ruling.
The superior courts actual findings of fact can be set
aside only if clearly erroneous, i.e., only if after a review of
the record we are left with the firm and definite conviction that
the court made a mistake.43 When we are asked to consider factual
determinations not made by the superior court, we are limited to
reviewing the record to see if the factual issues were
nonetheless established as a matter of law.44 We therefore must
examine the testimony presented at the evidentiary hearing, as
follows.
Donna lived with her mother in Iowa for the first four
or five months of her pregnancy and then moved to Alaska to live
with the Smiths. Donna testified that not at any time did she
want to give up her child for adoption. But there was other
testimony that before the child was born, Donna told Mr. and Mrs.
Smith, her physician, her prenatal home visitor, two of her
stepsisters, one of Mr. Smiths co-workers, and the childs
biological father that she wanted to give up the child for
adoption. She told some of them that she was not ready to be a
mother and others that she was going to move to California.
Donna testified that she had no recollection of
discussing adoption with the Smiths prior to the childs birth.
When directed to her previous deposition testimony that she had
conversations with the Smiths about adoption prior to the childs
birth, Donna agreed this refreshed her recollection that there
had been some discussions. Mr. Smith testified that prior to the
childs birth Donna discussed options of abortion, adoption, and
keeping the child. Donnas stepsister testified that she first
offered to adopt the child, but because she was expecting her
first child at about the same time, later declined to do so.
Mrs. Smith testified that a week or so before the child was born,
Donna asked her if the Smiths would adopt the child. Mr. Smith
then began looking into the adoption process. Mrs. Smith
testified that while still in the hospital and in her presence,
Donna told a doctor that she was going to give up the child for
adoption by the Smiths and move to California.
Donna and the child lived with the Smiths for about a
week after coming home from the hospital. Mr. Smith testified
that despite Donnas early talk about giving up the child for
adoption, he expected her to change her mind, and he was anxious
to see her make a go of it. According to Mrs. Smith Donna
changed her mind about adoption within two or three days after
the child was born.
Donna and the child moved in with Donnas stepsister and
her stepsisters boyfriend to get out on [her] own, but, according
to both Donnas stepsister and the childs biological father, Donna
concluded that she was unable to deal with the responsibilities
of raising the child. Donna testified: I was very stressed out.
I was doing it all alone and I had no help from nobody. I was
very stressed out. I wasnt eating and I wasnt sleeping at all.
Donnas stepsisters boyfriend testified that Donna asked them to
adopt the child, but he believed it would be too much for them
along with their own newborn. Donnas stepsister testified that
she suggested Donna go back and talk to the Smiths about an
adoption, and that she let Donna know it would be a final thing;
it wasnt something that they were just going to babysit [the
child] for a few months, and then [the child] was going to come
back [to Donna].
According to Mrs. Smith, Donna called on November 8 or
9, 2006, to again request that the Smiths adopt the child,
telling Mrs. Smith that raising the child was too much for her,
that there were other things she wanted to do with her life, and
that she was not ready to be a mother. Mrs. Smith testified that
the Smiths talked with Donna about other possible candidates to
adopt the child, but Donna wanted the Smiths to adopt the child
because she did not want the child to be adopted outside the
family or to lose contact with the child. Donna testified only
that she recalled having a conversation with her stepsister about
her situation and that on November 8 or 9 Mrs. Smith called her
and they talked about . . . having her take the baby.
Donna testified that she gave the child to the Smiths
on November 9, 2006, but she understood the Smiths were going to
take her to help me and then I could when I was ready that they
were going to give her back. Mrs. Smith testified that the
Smiths took the child only after Donna agreed to a formal
adoption. Mr. Smith testified that it was clear from the very
first discussions about adoption that they would only take the
child if there was a legal adoption. The Smiths denied ever
suggesting that if they adopted the child, Donna could have the
child back when she was ready.
Mr. Smith testified that it was a difficult decision to
agree to adopt Donnas child:
I mean, if like I say, I was pushing 50 and
personal daycare was the last thing I was
thinking about when I was 49 years old, but
its family, and its what we she asked us to
do, its what we volunteered to her to do
because thats what families do for family.
You know, we werent going to have it nor did
[Donna] want it to go to strangers and
disappear out of our lives.
Mr. Smith also testified about his discussions with Donna about
post-adoption relationships and the open adoption:
Q. [W]hat, if any discussions do you recall
where you told [Donna] the baby would be
there for her when she wanted to come to
become a mom? In other words, she could ask
for it and get it back?
A. Well, that never happened. I mean, thats
why we were going through the adoption. An
adoption is for real, its not babysitting,
its not just for a while, its not healthy for
the child, you know, were not going to bounce
[her] back and forth. And she needed the
stability of the family and if we were going
to do this, that [we] were going to adopt
her, you will always be a part of the family,
[Donna], youre my daughter, you know, this
will give you a chance to to develop a
relationship with [her] like a big sister,
youll be, you know, able to have fun and and
this kind of approach versus the
disciplinary, everything that you dont want
about it, [she] will still be there and some
day in the future, thats why moms keeping two
baby books, you know, the truth will come
out, just like the truth with all of our
kids, my step-kids, my wifes step-kids,
everybody knows who their biological parents
are. And theres no reason that [this] would
be any different, but we werent going to keep
her for a couple of weeks or a couple of
months . . . . Thats [what] we committed to
do and thats what were doing, and it was
understood with all parties that, yes, youre
going to raise [her], youre going to adopt
[her], and it was easy for [Donna] to do
because [Donna] knows the kind of home that
[she] was coming into and going to be raised
in.
Donna testified that she went with the Smiths to their
attorneys office to sign some papers on November 13 but did not
know what she was signing she thought it was help so they could
take [the child] to the doctor and if something happened . . .
make sure she was okay. She testified that her mental state
really wasnt there, I mean, I was restless, . . . I was very
upset. She testified that she had no recollection of anything
the attorney told her. Donna testified that she thought that if
she did not go with the Smiths to the attorneys office they would
not help her, although she had no idea what would have happened
if she had not signed the paperwork.
According to the Smiths attorney: (1) he read and
discussed the consent form with Donna; (2) he believed Donna
understood the terms of the adoption and of the consent, as did
the Smiths; (3) he gave Donna the chance to reflect on her
consent before she signed it. Mrs. Smith and the attorney
testified that Donna was not restless and upset, but rather was
normal, pleasant, and even eager and happy to sign the consent.
Donna admitted she was not forced to sign anything.
The attorney testified that during the meeting he noted
that the adoption required the consent of the biological father,
and that Donna provided the name and contact information. Mrs.
Smith testified that Donna was very willing to call him and get
all the needed information. Donna testified that she contacted
the biological father and that she understood he was permanently
giving up his parental rights by signing the paperwork; she did
not know exactly what he signed, but guessed he signed the same
thing she did. Donna claimed she never once, to [her] best
recollection, used the word adoption, but just told him he was
giving his right, you know, I told him that [the Smiths] were
taking [the child] in.
The biological father testified that Donna told him:
(1) she was not able to handle the responsibility of parenting
the child; (2) the best thing to do was to give up the child for
adoption; and (3) the Smiths had offered to adopt the child. He
testified that he thought it was in the childs best interests to
be adopted by the Smiths and that he relinquished his parental
rights so the Smiths could adopt the child.
Donna continued to live with her stepsister and her
stepsisters boyfriend for two or three months after the child
went to live with the Smiths. Donnas stepsister testified that
Donna told her about going to the attorneys office and signing
the adoption consent papers. Donna did not complain about
signing the consent and never indicated that she wanted to undo
the adoption or get the child back. According to Mrs. Smith,
after Donna signed her consent but before the adoption decree was
entered, Donna called Mrs. Smith to talk about feeling
uncomfortable when people asked about the child and said she was
telling people that the Smiths were babysitting. Mrs. Smith
encouraged her to be honest and accept the situation. At no time
prior to the adoption decree did Donna tell the Smiths that she
did not want to go through with the adoption.
Donnas prenatal home care visitor testified that Donna
said she intended to give up the child for adoption and move to
California; Donna denied recollection of the conversation. Donna
admitted that she had plans to go to California to visit her
mother and admitted that her mother told her not to come, but
denied that it had anything to do with adoption. But Donna
acknowledged previous deposition testimony that when she told her
mother she would not be bringing the child because she was giving
it up for adoption, her mother told her not to come without the
child.
Donna also testified that until March 2007, she did not
actually realize the child had been adopted by the Smiths. But
Donnas prenatal home care visitor testified that she was
concerned about Donna being depressed, and that she provided
Donna with a handout about grief over the loss of a child through
death or adoption within one month of Donna giving the child to
the Smiths. Donnas stepsister testified that Donna told her she
had gone to a lawyers office and signed papers consenting to the
adoption within a week of it happening.
The foregoing testimony provides substantial evidence
to support the superior courts explicit finding that the Smiths
had not engaged in fraud or misrepresentation, and that finding
is not clearly erroneous. We glean from this finding and other
comments by the superior court, including its emphasis that the
Smiths attorney did an excellent job explaining the adoption
consent to Donna, that the court did not believe Donna had no
idea she was giving up her child for adoption when she signed
paperwork in the attorneys office. Even if, as the superior
court suggested while giving Donna some benefit of the doubt,
Donna was probably foolish and may have unreasonably assumed . .
. she could come and go as mom, on this record we cannot overturn
the superior courts finding that her foolish and unreasonable
assumption was not the result of any material misstatement of
fact or similar wrongful conduct by the Smiths.
Donnas claims of duress and undue influence also must
fail on this record.
A fair reading of the superior courts oral decision reflects that
the court implicitly found no duress or undue influence by the
Smiths, and these findings are supported by substantial evidence
and are not clearly erroneous. There is no evidence in the
record to suggest that the Smiths somehow threatened and aroused
such fear in Donna that she could no longer exercise her free
will to refuse her consent to the adoption. Similarly there is
no evidence in the record to suggest that the Smiths assumed
control of Donnas free will, precluded Donna from exercising her
own free and deliberate judgment about her options and about
consenting to the Smiths adoption of the child, or coerced her
into an adoption to which she otherwise would have not have
agreed. Even if the superior court did not implicitly address
undue influence or duress, as a matter of law this record cannot
support such claims.
Testimony showed that Donna considered and made up her
own mind about adoption prior to the childs birth, then changed
her own mind and decided to keep the child, and then changed her
own mind again after unsuccessfully trying to live on her own and
be a mother to the child. The evidence in the record reflects
that: (1) the Smiths supported Donnas decisions, but did not
make them for her; (2) Donna asked the Smiths to adopt the child
after discussing other placement options; (3) Donna specifically
wanted the Smiths to adopt the child to keep the child within the
family; (4) Donna personally contacted the childs biological
father and persuaded him to relinquish his parental rights,
telling him it was in the best interests of the child to have the
Smiths adopt her; and (5) the Smiths were reluctant to adopt the
child because of their age, but agreed to do so to help Donna,
their daughter.
We accept Donnas arguments that: (1) she was in a
difficult situation; (2) she was young, inexperienced, and
immature; (3) she was stressed-out trying to be a mother to her
child; and (4) she needed help. We also accept Donnas argument
that the Smiths were in a position to influence Donnas decisions.
But these arguments overlook a critical component for Donnas
claims of duress and undue influence Donna must show that the
Smiths did something wrongful. The Smiths certainly did nothing
to put Donna in her difficult situation; the evidence actually
reflects that the Smiths tried as best they could to help her in
her time of need. Donna did not present any evidence that the
Smiths threatened her or tried to force her to give up her child
for adoption. Nor has Donna suggested a motive for the Smiths to
do anything wrongful the only evidence in the record about
motive is Mr. Smiths testimony that the Smiths agreed to adopt
the child because it was what Donna wanted, because it would
avoid Donna and the family losing the child completely, and
because it was what families do for family.
We therefore reject Donnas argument that the superior
courts decision can be affirmed on alternative grounds of actual
or constructive fraud or misrepresentation, duress, or undue
influence.
C. We Reverse the Order Invalidating the Adoption Decree
and Remand for Consideration of a Visitation Framework
in the Best Interests of the Child.
The decision to invalidate the adoption decree cannot
be sustained. The adoption decree must be reinstated, and the
child must be returned to the Smiths. If Donna and the Smiths
cannot agree on post-adoption visitation, the superior court must
consider an appropriate visitation framework for Donna.45
We note that the childs living situation will tend to
foster the kind of open adoption that must have been
contemplated: (1) the parties live in a small community; (2) the
child will be raised by her biological grandparents; (3) Donna
has seven siblings who will be the childs biological aunts and
uncles as well as adoptive brothers and sisters; and (4) Donna
will be the childs adoptive sister as well as biological mother.
Under these circumstances it is very likely the child will become
aware of her natural place in her extended family at an early
age. The Smiths expected this and were planning for it by
keeping two baby books, one reflecting the childs biological
parents and their families. If the parties leave it to the court
to fashion a visitation framework, these circumstances will no
doubt play a significant role in its determination.
We also note that in fashioning a visitation framework
the superior court must be mindful of addressing three
potentially competing interests: (1) Donna is entitled to
reasonable visitation with the child; (2) the Smiths are the
childs legal parents and Donnas visitation may not unreasonably
interfere with the Smiths parental rights; and (3) the visitation
framework must reasonably reflect the best interests of the child
in light of the adoption and all other relevant family
circumstances. Because the superior court did not attempt to
fashion a visitation framework and the parties therefore have not
discussed visitation in their briefing to us, we do not address
legal issues that may be implicated in recognizing and
accommodating these interests. If the superior court must
fashion a visitation framework over the objection of an
interested party, the courts decision should be supported by
appropriate findings of fact and conclusions of law to allow
appellate review.
V. CONCLUSION
We REVERSE the courts order setting aside the adoption
decree and REMAND with directions to return the child to the
Smiths custody and to consider a visitation framework for Donna
that takes into account the Smiths parental rights, Donnas right
to visitation, and the best interests of the child.
_______________________________
1 The term open adoption is used to describe
the situation where there is no
confidentiality between the natural parents
(or siblings) and the adoptive parents or
where there is some degree of contact between
the child and birth family following the
adoption. While the adoptive parents are
still the sole legal parents, the natural
parents and/or siblings may have ongoing
contact with the child, ranging from an
exchange of photographs and letters up to
visitation rights.
Ann M. Haralambie, Handling Child Custody, Abuse and Adoption
Cases 14.21 (McGraw-Hill 1993).
2 Pseudonyms are used for all family members.
3 See AS 25.23.040(a)(1)-(2) (consent generally required
from biological mother and father of a minor child); In re
Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001) (ordinarily
parental consent is required for adoption, but not if the parents
relationship with the child has been terminated in an adoption or
child in need of aid proceeding).
4 Paragraph three of Donnas consent provides an
acknowledgment that Donna had the right to consult with her own
attorney.
5 See AS 25.23.070(b) (setting conditions for withdrawal
of consent after ten days but prior to entry of adoption
decree).
6 See AS 25.23.070(a) (consent may not be withdrawn after
entry of adoption decree).
7 The decree itself made no mention of visitation.
Because: (1) the Smiths attorney prepared the findings and
conclusions and the decree; (2) the court entered the findings
and conclusions and the decree at the same time and appears to
have treated the findings and conclusions as a part of the
decree; and (3) the parties likewise have treated the findings
and conclusions as a part of the decree, we follow the courts and
the parties convention. But we note for future application that
the existence (but not the details) of post-adoption visitation
rights must be set forth in the adoption decree. See, e.g.,
Alden H. v. State, Office of Childrens Servs., 108 P.3d 224, 229
n.19 (Alaska 2005) (a natural parent is entitled to request
inclusion of visitation rights in a future decree.); In re
Adoption of Keith M.W., 79 P.3d 623, 630-32 (Alaska 2003)
(holding deviation from ICWA placement preferences was justified
because parent consented to open adoption by non-native couple
and remanding case to trial court for a determination of the
nature and schedule of contact and visitation as provided in the
adoption decree). Doing so will avoid later disputes over
whether visitation was to be allowed despite the decrees silence
on the matter. See Haralambie, supra note 1, 14.21 (Where both
the natural and adoptive parents agree, and where state law
permits private adoption, the parties may draft an open adoption
agreement. If the court is unwilling to incorporate the terms
into the adoption decree, the parties may nonetheless maintain
their agreement in the form of a collateral writing. It is
doubtful, however, that such an agreement would be enforceable in
the event that the adoptive parents refused to allow continued
contact.).
8 See AS 25.23.140(b) (adoption decree generally may not
be questioned by any person for any reason after one year).
9 AS 25.24.150(c) provides:
(c) The court shall determine custody in
accordance with the best interests of the
child under AS 25.20.060 - 25.20.130. In
determining the best interests of the child
the court shall consider
(1) the physical, emotional, mental,
religious, and social needs of the child;
(2) the capability and desire of each parent
to meet these needs;
(3) the child's preference if the child is of
sufficient age and capacity to form a
preference;
(4) the love and affection existing between
the child and each parent;
(5) the length of time the child has lived in
a stable, satisfactory environment and the
desirability of maintaining continuity;
(6) the willingness and ability of each
parent to facilitate and encourage a close
and continuing relationship between the other
parent and the child, except that the court
may not consider this willingness and ability
if one parent shows that the other parent has
sexually assaulted or engaged in domestic
violence against the parent or a child, and
that a continuing relationship with the other
parent will endanger the health or safety of
either the parent or the child;
(7) any evidence of domestic violence, child
abuse, or child neglect in the proposed
custodial household or a history of violence
between the parents;
(8) evidence that substance abuse by either
parent or other members of the household
directly affects the emotional or physical
well-being of the child;
(9) other factors that the court considers
pertinent.
10 See AS 25.24.150(a).
11 See In re Adoption of Missy M., 133 P.3d 645, 648
(Alaska 2006) (we reverse controlling factual findings if clearly
erroneous) (citing In re Adoption of Bernard A., 77 P.3d 4, 7
(Alaska 2003)). A factual finding is clearly erroneous when a
review of the record leaves us with the definite impression that
a mistake has been made. Id. (citing Fardig v. Fardig, 56 P.3d 9,
11 (Alaska 2002)).
12 Missy M., 133 P.3d at 648 (reviewing application of
facts to adoption statute).
13 C.T. v. J.S., 951 P.2d 1199, 1199-1200 (Alaska 1998)
(reviewing whether adoption was void for lack of consent); see
also In re Keith M.W., 79 P.3d at 624-25 (stating that [t]he
legal validity of a parental relinquishment or termination order
is a question of law to which a de novo standard of review
applies and that relinquishment of parental rights could function
as consent to adoption).
14 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
15 Tessa M. v. State, Dept of Health & Soc. Servs., 182
P.3d 1110, 1114 (Alaska 2008) (internal citations omitted).
16 Alaska Adoption R. 17(a) (A person may move to set
aside the decree by filing a motion stating the grounds for
challenging the validity of the decree . . . .); AS 25.23.140(b)
(decree may not be questioned on any ground after expiration of
one year).
17 Holt v. Powell, 420 P.2d 468, 470 (Alaska 1966)
(existence of decree raises a presumption of its validity and
regularity and implies court found facts necessary for
jurisdiction).
18 Alaska Adoption R. 17(a) ([T]he burden is on the party
challenging the decree to show by a preponderance of the evidence
that the decree is not valid.).
19 Holt, 420 P.2d at 470.
20 AS 25.23.070(a) (A consent to adoption may not be
withdrawn after the entry of a decree of adoption.).
21 AS 25.23.140(b).
22 Hernandez v. Lambert, 951 P.2d 436, 441-42 (Alaska
1998).
23 That an adoptive parent is in fact the childs parent to
the exclusion of the biological parent is hardly a fiction under
the law. We already have acknowledged that the mere execution of
a consent to adoption ordinarily delegates to the adoptive
parents all powers permitted under AS 13.26.020 [governing powers
of attorney], including the powers regarding care, custody, or
property of the minor child or ward. In re Keith M.W., 79 P.3d
at 629 (citing AS 25.23.060(c)). When an adoption decree is
final the former parents legal relationship with the child is
terminated, rendering the former parent a non-parent AS
25.23.130(a)(1)-(2) provides that the effect of an adoption
decree is to relieve the natural parents of the adopted person of
all parental rights and responsibilities; to terminate all legal
relationships between the adopted person and the natural parents;
and to create the relationship of parent and child between
petitioner and the adopted person, as if the adopted person were
a legitimate blood descendant of the petitioner, for all
purposes. Prior to the legislative enactment of AS 25.23.130(c)
to allow biological-relative visitation rights with a child given
up for adoption, we stated that AS 25.23.130(a) clearly provides,
however harshly, that the final decree has the effect of making
an adopted child a stranger to the former relatives. Matter of
W.E.G., 710 P.2d 410, 414 (Alaska 1985) (declining to find blood-
relative visitation rights with adopted child). Although AS
25.23.130 now does not preclude an ongoing relationship between a
biological parent and a child given up for adoption, it still
clearly envisions that the adoptive parents in fact become the
childs parents.
24 AS 25.23.140(b) (emphasis added).
25 For example Wyoming expressly includes duress as a
ground for invalidating an otherwise irrevocable consent to an
adoption. Wyo. Stat. Ann. 1-22-109(d). Some jurisdictions
recognize force of circumstances or undue influence as grounds
for invalidating consent to an adoption, but others do not.
Compare Morrow v. Family & Cmty. Serv. of Catholic Charities,
Inc., 504 N.E.2d 2, 5 (Ohio 1986) (describing standard for
determining validity of consent and how that consent may have
been affected by duress or undue influence), with In re T.R., 777
P.2d 1106, 1110-11 (Wyo. 1989) ([S]ome courts have expanded the
meaning of duress to include force of circumstances and undue
influence. . . . We are not inclined, nevertheless, to expand the
grounds upon which a revocation of consent to adoption may be
premised.).
26 See In re Adoption of A.F.M., 960 P.2d 602, 604-05
(Alaska 1998) (when AS 25.23.050 is susceptible to two
interpretations, the interpretation most favorable to biological
parent is selected); In re Adoption of K.M.M., 611 P.2d 84, 87
(Alaska 1980) (strictly construing former AS 20.15.050, now AS
25.23.050, in favor of biological parents when determining
whether adoption consent is required); but see S.O. v. W.S., 643
P.2d 997, 1002 n.7 (Alaska 1982) (construing former AS
20.15.060(b), now AS 25.23.060(b); stating that because the
paramount purpose of adoption laws is to provide for childrens
welfare, adoption statutes should be construed to promote this
purpose rather than to protect rights of biological parents; and
holding that substantial compliance with technical consent
requirements is sufficient when statutory purpose has been
fulfilled), overruled on other grounds by Rosen v. Bd. of Pub.
Accountancy, 689 P.2d 478, 481-83 (Alaska 1984).
27 See In re Adoption of Infant Girl Banda, 559 N.E.2d
1373, 1384 nn.10-11 (Ohio App. 1990) (listing cases from various
jurisdictions); In re Adoption of Jimenez, 736 N.E.2d 477, 479
(Ohio App. 1999).
28 Unif. Adoption Act 3-707(c) (1994) (validity of
adoption decree may not be challenged for failure to comply with
agreement for visitation or communication with an adoptee).
Alaska has adopted a modified version of the 1969 Uniform
Adoption Act. In re J.J.J., 718 P.2d 948, 952 (Alaska 1986);
K.K.M., 611 P.2d at 87; Unif. Adoption Act 8 (1969). See also
Matter of J.L.F., 912 P.2d 1255, 1264 n.10 (Alaska 1996) (noting
that the 1969 Act was superseded by the 1994 Uniform Adoption
Act). In In re Adoption of Keith M.W., we looked to the 1994 Act
and its commentary for guidance on an adoption issue. 79 P.3d at
628 & nn.39-42.
29 In re Adoption of A.F.M., 960 P.2d at 605 n.4.
30 AS 25.23.130(c).
31 In re Adoption of A.F.M., 960 P.2d at 605-06.
32 Holt, 420 P.2d at 470.
33 See In re Adoption of A.F.M., 960 P.2d at 606.
34 AS 25.23.005.
35 Id.; see also In re K.L.J., 813 P.2d 276, 278-80
(Alaska 1991) (accommodating best interest of child to be adopted
with due process guarantee of court-appointed counsel to contest
adoption).
36 A best interests analysis is explicitly warranted only
when a parent wishes to withdraw consent to an adoption after the
ten-day grace period has expired but before an adoption decree is
entered. See AS 25.23.070(b). This was the setting in S.O. v.
W.S., the case relied upon by the superior court to justify
looking at the childs best interests here. 643 P.2d at 1000-01,
1004-06. Here, the window for withdrawing consent already had
closed: six months had elapsed after the entry of the decree
before Donna filed her petition to set aside the adoption.
37 See AS 25.23.050(a) (setting out limited factual
predicates for adoption without consent); D.L.J. v. W.D.R., 635
P.2d 834, 838 (Alaska 1981) (best interests of the child are not
relevant to separate determination of whether natural parents
consent is required); In re Adoption of L.A.H., 597 P.2d 513, 517
n.14 (Alaska 1979) (former AS 20.15.120(c), now AS 25.23.120(c),
disposes of the argument that fathers consent not necessary if
adoption is in best interests of child).
38 See, e.g., In re Navajo County Juvenile Action No. JA-
691, 831 P.2d 368, 375 (Ariz. App. 1991) ([T]he best interests of
the children are simply irrelevant because, under [the statute],
an adoption is irrevocable unless obtained by fraud, duress or
undue influence.).
39 We recently discussed the difference between tortious
fraud and the level of misrepresentation necessary to avoid a
contract in Seybert v. Cominco Alaska Exploration, 182 P.3d 1079
(Alaska 2008). To sue in tort for damages related to
misrepresentation, a party must establish a false statement of
fact, scienter, intent to induce reliance, actual reliance, and
damage. Id. at 1094 n.48. To avoid an obligation, however, a
party need show only material misrepresentation and justifiable
reliance. Id. at 1094.
In Adams v. Adams, 89 P.3d 743 (Alaska 2004), we
described constructive fraud as follows:
Constructive fraud exists in cases in which
conduct, although not actually fraudulent,
ought to be so treated, that is, in which
such conduct is a constructive . . . fraud,
having all the actual consequences and all
the legal effects of actual fraud. Stated
otherwise, constructive fraud is a breach of
a duty, which while not intentionally
deceptive or actually dishonest, the law
declares fraudulent because of its tendency
to deceive others.
Id. at 750 (internal citations omitted).
40 Duress generally requires a threat that arouses such
fear as to preclude a party from exercising free will and
judgment, or it must be such as would induce assent on the part
of a brave person or a person of ordinary firmness. Crane v.
Crane, 986 P.2d 881, 887 (Alaska 1999) (citing 25 Am. Jur. 2d
Duress and Undue Influence 1 (1996)).
41 Undue influence is the exercise of sufficient control
over a person that: (1) deprives that person of freedom of
choice or overcomes that persons free will and substitutes the
will of another in its place: (2) precludes [that persons]
exercise of free and deliberate judgment; or (3) coerces [that]
person into doing something that would not have been done absent
the influence. 25 Am. Jur. 2d Duress and Undue Influence 36
(2004). The basic elements of undue influence are: (1) a
susceptible party; (2) the opportunity for another to exert
influence; (3) the exertion of improper influence; and (4) a
result showing the effect of the improper influence. Id. The
existence of undue influence depends upon the particular facts of
a case, and the focus must be on whether the influence is
reasonable under the circumstances. Id. at 37 (internal
citations omitted).
We have addressed the test for undue influence in the
context of making wills:
The party challenging a will must prove that
the testator was virtually compelled to make
a will [that the testator] would not have
made [if] left to the free exercise of [the
testators] own judgment and wishes. We
approach this issue by asking whether a
person used coercion and duress which would
act as a dominating power over the mind and
act of a testator. In other words, was the
willpower of the testator so destroyed as to
substitute the will of another?
Crittell v. Bingo, 36 P.3d 634, 639 (Alaska 2001) (internal
citations omitted). We more recently relied on Crittell to
establish the same test for inter vivos gifts. Ware v. Ware, 161
P.3d 1188, 1193-95 (Alaska 2007).
42 See Atcherian v. State, Dept of Revenue, Child Support
Enforcement Div., 14 P.3d 970, 974 n.8 (Alaska 2000) (We may
affirm a superior courts decision on any legal ground that
appears in the record, even if the superior court did not
consider the alternative ground. (citing, among other cases, N.
Lights Motel, Inc. v. Sweaney, 563 P.2d 256, 257 (Alaska 1977))).
43 See supra note 10.
44 See In re Estate of Brandon, 902 P.2d 1299, 1318-19
(Alaska 1995) (superior court directed to consider previously
unconsidered claim of duress on remand because [g]iven the
record, we cannot say as a matter of law that the claim of duress
is without merit); cf. A & G Constr. Co., Inc. v. Reid Bros.
Logging Co., Inc., 547 P.2d 1207, 1219 (Alaska 1976) (where trial
court did not make findings and conclusions on issue of economic
duress, this court [is] unable to determine whether the [trial]
court considered this issue [and] it is necessary to remand the
case for further findings and conclusions).
45 We recognize that the superior court considered and
rejected this path, stating that forc[ing] that down the throat
of both parties, I dont think thats the way to resolve this case.
But in the absence of a legitimate basis to invalidate Donnas
consent to the adoption, consideration of a visitation framework
is the appropriate action.
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