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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Adoption of S.F., a Minor (12/12/2014) sp-6974

In Re Adoption of S.F., a Minor (12/12/2014) sp-6974

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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In the Matter of the Adoption of                         )  

S.F., a Minor.                                           )        Supreme Court No. S-15359  


                                                         )        Superior  Court  No.  3PA-12-00111  PR  


                                                         )        O P I N I O N  


                                                         )        No. 6974 - December 12, 2014  

                   Appeal from the Superior Court of the State of Alaska, Third  


                   Judicial District, Palmer, Eric Smith, Judge.   

                   Appearances:  Kathleen  C.  Barron,  Wasilla,  for  Appellant.  

                   No appearance by Appellee.  

                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                   Bolger, Justices.  

                   STOWERS, Justice.  


                   Robert  appeals  the  superior  court's  decision  that  his  consent  was  not  

required  for  his  biological  daughter's  adoption.1  

                                                                            The  superior  court  accepted  the  



superior court standing master's recommendation that Robert's consent was not required  


under AS 25.23.050 because he had abandoned his daughter for a period of over six  


months,  failed  to  provide  for  her  care  and  support  for  over  one  year,  and  failed  to  

          1        Pseudonyms have been used to protect the privacy of the parties.   

----------------------- Page 2-----------------------

meaningfully  communicate  with  her  for  over  one  year.    Because  the  abandonment  

finding is well-supported by the record, we affirm.  


          A.       Facts  


                   In August 2004, Shawna was born to Denise and Robert in Siloam Springs,  


Arkansas.  At the time of Shawna's birth, Denise and Robert were living with Denise's  


mother, Beverly, in Westville, Oklahoma.  Denise and Robert separated within a few  


months of Shawna's birth, but Robert remained in Westville until just before Shawna's  

first  birthday.    After  their  separation,  the  relationship  became  contentious  and  they  

disputed custody of Shawna.  


                   Robert testified before the Alaska Superior Court Master in May 2013 that  


in 2005 he filed a custody petition with a court in Oklahoma, was granted temporary  


custody, and lived with Shawna for a few months.  He testified that before the permanent  


custody hearing was held, he left Oklahoma to attend a funeral in California, leaving  

Shawna with Denise.  Following his return, Shawna resumed living with him.  However,  


he again left for California, this time for more than a month.  Robert testified that he was  

not present at the permanent custody hearing in October 2005, but his attorney appeared  

on his behalf.  


                   The only record from the Oklahoma proceeding that was presented to the  


Alaska Superior Court Standing Master reveals that it was not a custody proceeding -  

it was a paternity proceeding.  Following this proceeding, a Decree of Paternity was  


issued by a judge of the District Court of Adair County, Oklahoma on October 3, 2005  


and filed on October 27, 2005.  According to the Decree, Robert had filed a Petition for  

Determination of Paternity, the court held a hearing on the petition on October 3, and  

Robert was not present but his attorney appeared for him.  The court determined that  


Robert was Shawna's father and awarded Denise "full custody" of the child. Robert was  

                                                             -2-                                                       6974

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also allowed reasonable visitation and ordered to pay child support in the amount of     

$169 per month.  


                   In the summer of 2006, Denise joined the National Guard.  She spent nine  

weeks in Missouri for basic training and four months in Texas for additional training,  

returning to Oklahoma in April 2007.  That June she married James, and the family  


moved to North Carolina.  She was deployed to Iraq in 2009.  After she returned from  


Iraq, the family moved to Colorado in 2010, then to Alaska in 2011.  James petitioned  

the superior court for adoption of Shawna in 2012.  

                   Robert returned from California to Oklahoma sometime in 2006, apparently  


after Denise had left for basic training.   He contacted Beverly, who offered to send  

effects from him to Denise or Shawna, but he never pursued her offer.  Robert claimed  


he never determined the outcome of the custody hearing or learned about his obligation  

to pay child support.  


                   Over the next few years, he made occasional contact with Beverly through  

Facebook.  Robert claimed that he had attempted to find Denise and Shawna, but was  

unaware how to locate them through the military and had no money to hire an attorney.  

Furthermore, he claimed that he had tried to get their contact information from Beverly,  


but she refused to supply it.  Finally, Robert claimed that he was in the process of trying  


to find Denise on Facebook when he was served process regarding James's petition for  


adoption.  Denise testified that she was never aware of any attempts by Robert to contact  


either her or Shawna, and she denied ever trying to hide her location from him.  In fact,  


Denise posted a message to Robert on Facebook in March 2011, but he never responded.  

          B.       Proceedings  

                   James submitted a petition to adopt Shawna in the Alaska Superior Court  

in  March  2012.    The  petition  alleged  that  Robert's  consent  to  the  adoption  was  


unnecessary because he had abandoned Shawna, had not provided monetary support for  

                                                             -3-                                                      6974

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her, and had not had meaningful contact with her.                                                     A hearing was held before a superior  

court master in May 2013.  Following testimony, the master stated:  


                                         There's really two versions of events for the Court to  


                           believe.    One  is  that  [Robert]  left  without  a  forwarding  


                            address,   and   the   other   is   that   [Denise]   left   without   a  

                            forwarding address. . . .    

                                         . . . .  


                                         . . . I found the testimony of [Denise] and [Beverly] far  


                           more persuasive than the testimony of [Robert] with regards  

                            to how events unfolded, and what [Robert] could have done  

                            to try and be in touch with the child . . . . [Robert's] testimony   

                            is just not consistent, and it's certainly not consistent with the   

                            corroborating  evidence   with  regards   to  a   father  making  

                            consistent efforts to do what he could to contact . . . the child.   

                            That August, the master issued a report recommending that the superior   

court find Robert's consent not necessary for James's adoption of Shawna.  The superior                      

court accepted the master's report and recommendation.  


                            "We  review the superior court's factual findings in an adoption proceeding  


for clear error."                                                                               

                                    "A factual finding is clearly erroneous 'when a review of the record  


leaves the court with a definite and firm conviction that the superior court has made a  


mistake.'  "     A  master's  findings  adopted  by  the  superior  court  are  considered  the  



findings of the superior court.   The superior court's "factual findings enjoy particular  

              2            David  S.  v.  Jared  H. ,  308  P.3d  862,  867  (Alaska  2013)  (citing  In  re  

Adoption of S.K.L.H. , 204 P.3d 320, 324 (Alaska 2009)).  

              3            Fardig  v.  Fardig ,  56  P.3d  9,  11  (Alaska  2002)  (quoting  Siekawitch  v.  

Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).  

              4            David S ., 308 P.3d at 867 (citing Alaska R. Civ. P. 52(a)).  

                                                                                      -4-                                                                              6974

----------------------- Page 5-----------------------


deference when they are based 'primarily on oral testimony, because the trial court, not  

this court, performs the function of judging the credibility of witnesses and weighing  

conflicting evidence.' "5  


                   The  master  based  his  recommendation  that  Robert's  consent  was  not  


required for Shawna's adoption on findings that Robert:  (1) "abandoned the [child] for  

over six months"; (2) "failed significantly without justifiable cause to provide for the  


care and support of the child for a period of over one year"; and (3) "failed to maintain  


communication with the child for over one year."  Under AS 25.23.050, any of these  


                                                                                          Given that we affirm on  

findings would independently negate the consent requirement. 

grounds of abandonment, we do not reach the other findings.7  

          5        William  P.  v.  Taunya  P.,  258  P.3d  812,  814  (Alaska  2011)  (quoting  

Misyura v. Misyura , 242 P.3d 1037, 1039 (Alaska 2010)).  

          6        AS 25.23.050(a) provides:   

                   Consent to adoption is not required of  

                   (1) . . . a parent who has abandoned a child for a period of at  

                   least six months; [or]  

                   (2)  a parent of a child in the custody of another, if the parent  


                   for  a  period  of  at  least  one  year  has  failed  significantly  


                   without   justifiable   cause,   including   but   not   limited   to  


                            (A) to communicate meaningfully with the child, or  

                            (B)   to   provide   for   the   care   and   support   of   the  

                            child . . . .  

          7        See, e.g., Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 212 P.3d 756, 762 (Alaska 2009) ("Because only one statutory basis is required  


. . . we do not need to address the superior court's other . . . findings.").  Jon S. made this  


point in a child in need of aid (CINA) case, but it applies equally to this adoption statute.  

                                                           -5-                                                     6974

----------------------- Page 6-----------------------

                    Alaska Statute  25.23.050(a)(1) states that "[c]onsent to adoption is not  


required of . . . a parent who has abandoned a child for a period of at least six months."  

Abandonment is established where a parent's "conscious disregard of the obligations  



owed by a parent to the child, lead[s] to the destruction of the parent-child relationship." 

                    The  master  found  that  "[t]here  is  clear  and  convincing  evidence  that  


[Robert] abandoned [Shawna] when he left Oklahoma without providing any forwarding  

information."  The master also found that "[Robert] clearly disregarded his parental  


obligations  when  he  went  to  California  without  leaving  contact  information,  or  

contacting  [Denise]  in  a  reasonable  timeframe  to  check  on  [Shawna]."    Finally,  the  


master found that Robert failed to take advantage of Beverly's offer to relay a message  


to Denise and Shawna.  The master concluded that because Robert "has had no contact  


with [Shawna] since she was about one year old[,] [t]here is no parent-child relationship"  

between them.  


                    The record supports the master's findings.  Robert knew how to contact  


Denise before she left for basic training.  After that, he knew how to contact Beverly and  


had done so several times since 2005.  Furthermore, as the master correctly observed,  

"even  if  [Beverly]  was  reluctant  to  provide  [Denise]'s  contact  information  directly,  

[Robert] did not take advantage of her offer to relay a message."  Finally, Robert never  

responded when Denise contacted him through Facebook in March 2011.  These facts  

collectively  indicate  Robert's  "conscious  disregard"  of  his  parental  obligations  to  


Shawna  and  a  "destruction  of  the  parent-child  relationship,"   thus  supporting  the  

master's abandonment finding.  

          8         D.M. v. State , 515 P.2d 1234, 1237 (Alaska 1973).  

          9         Id .  

                                                              -6-                                                            6974  

----------------------- Page 7-----------------------

                   Robert  argues  that  the  superior  court  erred  by  accepting  the  master's  


finding of abandonment; he asserts that he was prevented from communicating with his  


child not only by Denise, but also by Beverly, who refused to provide Denise's contact  

                                                                                   10   in  which  we  reversed  the  

information.    Robert  relies  on  In  re  Adoption  of  A.J.N ,                                          

superior court's finding of abandonment.  But A.J.N. is inapposite because the superior  


court in that case failed to focus on the proper factors for determining abandonment.11  


Furthermore, A.J.N.  is factually distinguishable from this case because the father there  

made ongoing efforts to exercise his visitation rights; his efforts were actively frustrated  



by the child's mother and stepfather.                     Here, the evidence indicates that Robert made  


minimal effort to locate or contact Shawna, and no persuasive evidence indicates that  

either Denise or Beverly interfered with that effort.  

                   Furthermore, the "findings of a master that are adopted by the superior  

                                                                          13    Those  "factual  findings  enjoy  

court  are  considered  the  findings  of  that  court."      

particular  deference  when  they  are  based  primarily  on  oral  testimony  because  the  

superior  court,  not  this  court,  performs  the  function  of  judging  the  credibility  of  


                                                                       In this regard, we note that the master  

witnesses and weighing conflicting evidence."                                                                  

found  Robert's  testimony  "not  consistent"  and  less  "persuasive"  than  Denise's  and  


Beverly's testimony.  

          10       525 P.2d 520, 523 (Alaska 1974).

          11       Id.

          12       Id .

          13       David S. v. Jared H           ., 308 P.3d 862, 867 (Alaska 2013) (citing Alaska R.  

Civ. P. 52(a)).  

          14       Id. (citing  William P. v. Taunya P., 258 P.3d 812, 814 (Alaska 2011)).  

                                                             -7-                                                      6974

----------------------- Page 8-----------------------


                   The master's findings of fact are amply  supported  by  the record.    The  


superior court thus did not clearly err by adopting the master's findings.  Therefore  the  


court also did not err in concluding that Robert's consent to Shawna's adoption by James  

was unnecessary.  


                   For the reasons given above, we AFFIRM the superior court.  

                                                          -8-                                                    6974

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