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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 Hannah L. (3/10/2017) sp-7157

In Re Adoption of Hannah L. (3/10/2017) sp-7157

         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, email  



In the Matter of the Adoption of                            )  

                                                            )     Supreme Court No. S-15904  

HANNAH L., a Minor.                                         )  

                                                            )     Superior Court No. 3PA-13-00149 PR  


                                                            )     O P I N I O N  


                                                            )     No. 7157 - March 10, 2017  


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


                   Judicial District, Palmer, Vanessa White, Judge.  

                   Appearances:  Kristen C. Stohler, Stohler Law, P.C., Palmer,  

                   for Appellant Daniel W.  Notice of nonparticipation filed by  


                   Appellee Brandon L.  No appearance by Appellee Tarrah W.  


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


                   Bolger, Justices.  

                   WINFREE, Justice.  


                   Alleging that parenting failures waived the biological father's otherwise  

legally required consent, a stepfather petitioned to adopt his wife's daughter over the  

biological father's objection.  The superior court determined that the proposed adoption  


was not in the child's best interests and denied the petition.  On reconsideration the court  


noted that the child's best interests determination was sufficient to deny the petition and  


concluded that a determination whether the biological father had waived consent was  

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

unnecessary,  but  nonetheless  determined  that  the  biological  father's  actions  did  not  


constitute a waiver of consent.  The stepfather appeals.  Because the record supports the  


court's best interests determination - and that determination by itself is sufficient to  

block the adoption - we affirm the court's decision denying the adoption petition.  


                   Tarrah W. and Brandon L. are the biological parents of Hannah,1 born in  


2007.  Tarrah and Brandon never married; they ended their relationship when Hannah  

was an infant.  Tarrah and Daniel W. married in 2008.  

                   Tarrah  and  Brandon  initially  had  no  formal  custody  and  visitation  

agreement.  Brandon exercised frequent visits with Hannah by requesting time from  

Tarrah,  who  generally  was  accommodating.    Brandon's  time  with  Hannah  included  

overnight visits approximately every other weekend and other extended visits.   

                   According  to  Tarrah,  Hannah  began  resisting  visitation  with  Brandon  


around June 2011.  Hannah would scream and cry and refuse to see Brandon.  Tarrah  

would on occasion physically force Hannah to participate by, for example, removing  


Hannah from Tarrah's car, putting Hannah in Brandon's car, and leaving.  Alternatively  


she might "bribe" Hannah by telling her she could get ice cream or go to the toy store on  


the way to Brandon's house.  Tarrah discussed Hannah's resistence with Brandon, but  

he was generally dismissive, asserting that children frequently and inexplicably behave  



                   Tarrah said she stopped "forcing" Hannah to participate in visitation with  


Brandon starting in spring 2012; from then until June 2013, despite frequent requests,  


Brandon saw Hannah only once or twice.  Brandon and Tarrah typically communicated  



                   Initials for the adults' last names and a pseudonym for the child are used  

to protect the child's privacy.  

                                                            -2-                                                          7157  

----------------------- Page 3-----------------------

through text messaging, and his persistent requests generally were ignored.  

                     In April 2013 Tarrah proposed counseling to heal Hannah and Brandon's  


relationship.  Brandon disagreed with counseling, believing there was "nothing wrong  


with my daughter" and it "could do [her] more damage."  He accused Tarrah of being  

"dramatic"  and  using  counseling  as  an  obstacle  to  his  time  with  Hannah.    Over  


Brandon's objection Tarrah initiated counseling for Hannah in late April. In June Tarrah  


told Brandon that the counselor recommended Hannah have no contact with him and that  


Tarrah was taking that recommendation.  Tarrah invited Brandon to call the counselor.  

                     Daniel petitioned in early June to adopt Hannah, asserting that Brandon's  


consent to the adoption was not required under AS 25.23.050(a).   Brandon was not  


served with the petition. Unaware of the adoption action, a short time later Brandon sued  

Tarrah for legal and physical custody of Hannah.  

           2         AS 25.23.040(a)(2) generally requires the father's consent before a minor   

may be adopted:  "[A] petition to adopt a minor may be granted only if written consent          

.  . . has been executed by . . . the father of the minor . . . ."                                        But AS    25.23.050(a)  


                     Consent to adoption is not required of  

                                          (1)  . . . a parent who  has abandoned a  

                                child for a period of at least six months;  

                                          (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 indigency,  

                                                     (A)        to      communicate  


                                          meaningfully with the child, or  

                                                     (B) to provide for the care  

                                          and      support        of     the     child      as  


                                          required by law or judicial decree;  

                                          . . . .  

                                                                  -3-                                                            7157

----------------------- Page 4-----------------------


                    The superior court consolidated the matters and held an evidentiary hearing  

on  interim  custody  in  August.    The  court  awarded  Tarrah  interim  primary  physical  

custody and awarded Brandon supervised visitation twice weekly.  Four supervised visits  


between   Brandon   and   Hannah   were   attempted,   but   visitation   continued   to   be  

unsuccessful because Hannah verbally and physically resisted meeting with Brandon.  


                   Brandon was allowed to select a new counselor for Hannah to alleviate bias  

concerns,  and  Hannah  began  therapy  with  the  new  counselor  in  September.                                          In  

November the superior court mediated a settlement agreement addressing the custody  

dispute and placing the adoption petition on hold for six months.  The parties agreed  


Brandon would not have legal or physical custody, but he gained certain visitation rights.  


Daniel agreed he would not later argue that Brandon had waived parental consent to  

adoption  by  failing  to  significantly  support  Hannah  if:    (1)  Brandon  paid  his  base  


monthly child support for six months; (2) Brandon complied with Hannah's counselor's  

recommendations; and (3) the counselor believed Brandon and Hannah made sufficient  


progress during reunification therapy.   

                   After the six months had elapsed a bench trial on the contested adoption  

took place in May and June of 2014; the superior court made its decision on the record  

at the end of June and rendered written Findings of Fact and Conclusions of Law in  


March 2015. The court denied Daniel's adoption petition because it was not in Hannah's  



best interests  and determined that Brandon's conduct did "not justify the termination of 

          3        See AS 25.23.050(a)(2)(B).  The settlement agreement did not address the  

other two relevant bases for waiver under AS 25.23.050(a).                                 See AS 25.23.050(a)(1)  

(abandoning a child for six months); AS 25.23.050(a)(2)(A) (failing to communicate  

meaningfully with a child for one year).  

          4        Under  AS  25.23.120(c)  the  superior  court  may  issue  a  final  decree  of  

adoption only if it "determines that the required consents have been obtained or excused  


                                                             -4-                                                       7157

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


his parental rights."  The court instead determined that it was in Hannah's best interests  

to maintain a relationship with Brandon; the court observed that Brandon had neither  


"taken a meaningful role" nor "demonstrated consistent involvement" in Hannah's life,  


and it ordered mandatory reunification therapy with the expectation of transitioning into  

a regular visitation schedule.  

                    Daniel  sought  reconsideration,  asserting,  among  other  things,  that  the  

superior court had failed to determine whether Brandon had waived his right to consent  

to the adoption.  Daniel argued that Brandon's failure to meaningfully communicate,  


failure to provide support, and abandonment constituted waiver of consent.  The court  


issued a reconsideration order clarifying  its findings and conclusions two days after  


Daniel's  motion  would  otherwise  have  been  deemed  denied  under  Alaska  Civil  

                     5   The order included findings that Brandon did not waive consent to the  


Rule 77(k)(4). 

adoption.  The court also explained it had not previously addressed waiver because "on  


the basis of the entirety of the testimony heard" it had determined that adoption was not  


in Hannah's best interests.  


                    Daniel appeals the adoption ruling, asserting that:  (1) the court's order on  


reconsideration should be vacated as a matter of law because it was untimely; (2) the  


court erred by failing to find that Brandon's consent had been waived; and (3) the court  

          4         (...continued)  

and   that   the   adoption   is   in   the   best   interest   of   the   person   to   be   adopted."  

AS 25.23.120(c) (emphasis added).  

          5         Rule 77(k)(4) establishes in pertinent part:  

                    If the motion for reconsideration has not been ruled upon by  


                    the court within 30 days from the date of the filing of the  


                    motion, . . . the motion shall be taken as denied.  

Alaska R. Civ. P. 77(k)(4).  

                                                             -5-                                                        7157

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


erred by deciding that adoption was not in Hannah's best interests.  Brandon and Tarrah  

have not participated in the appeal.  



                   "When interpreting the Civil Rules we exercise our independent judgment,  

adopting  the  rule  of  law  that  is  most  persuasive  in  light  of  reason,  precedent,  and  


policy."     "Although  we  review  the  superior  court's  factual  findings  in  adoption  


proceedings for clear error, we review de novo as [a] matter[] of law whether . . . factual  


findings satisfy the requirements for application of a statute."   We have explained:  

                   When  reviewing  factual  findings  we  ordinarily  will  not  

                   overturn a trial court's finding based on conflicting evidence,  

                   and we will not re-weigh evidence when the record provides  


                   clear support for the trial court's ruling; it is the function of  

                   the trial court, not of this court, to judge witnesses' credibility  



                   and to weigh conflicting evidence.  



          A.	      The  Superior  Court  Did  Not  Err  By  Issuing  Its Reconsideration  


                   The  superior  court  issued  its  written  custody  and  adoption  decision  in  


March 2015.  Daniel timely moved for reconsideration.  After 30 days Daniel's motion  

was deemed denied under Rule 77(k)(4).9  Daniel filed a timely notice of appeal the next  

          6        DeNardo v. ABC Inc. RVs Motorhomes , 51 P.3d 919, 922 (Alaska 2002)  

(quoting Peter v. Progressive Corp. , 986 P.2d 865, 867 (Alaska 1999)).  

          7        In re Adoption of S.K.L.H. , 204 P.3d 320, 324-25 (Alaska 2009).  

          8        Id.  at 325 (quoting         Tessa M. v. State, Dep't of Health & Soc. Servs., 182  

P.3d 1110, 1114 (Alaska 2008)).  

          9        See Alaska R. Civ. P. 77(k)(4) ("If the motion for reconsideration has not  


been ruled upon by the court within 30 days . . . the motion shall be taken as denied.").  


                                                             -6-	                                                     7157

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



day.       But the following day, notwithstanding that the motion to reconsider was already  

deemed denied under Rule 77(k)(4), the court issued its "Order Denying Motion for  


Reconsideration and Clarifying Findings of Facts and Conclusions of Law," directly  

addressing Daniel's reconsideration contentions.  

                     Daniel asserts that the superior court erred by ruling on his motion for  


reconsideration two days after the 30-day time period provided by Rule 77(k)(4) expired.  


Daniel urges us "to vacate the trial court's [reconsideration order] as untimely and to rely  

on the record as  it existed [on the date given by Rule 77(k)(4)]."  Arguing that the  

"deadline is not optional, it is mandatory," Daniel suggests that the court made "novel  


factual and legal findings relative to its original order" that were inappropriate because  


the  order  was  late.                He  also  contends  that  the  delay  required  him  to  undertake  

unanticipated additional appellate briefing while "not knowing exactly what findings of  

fact and conclusions of law" were subject to appeal.  

                     We  reject  Daniel's  contentions.    To  the  extent  the  Civil  Rules  are  

"mandatory"  in  this  context,  their  enforcement  is  against  parties ,  not  the  court.12  


Rule 77(k)'s limited purpose is "to remedy mistakes in judicial decision-making where  

           10        See  Alaska R. App. P. 204(a)(1), (3)(E) (providing notice of appeal shall   

be filed within 30 days of judgment appealed from; this period terminates and reinitiates  

in full at earliest of either court ruling on reconsideration or operation of Rule 77(k)(4)).  


           11        Daniel's  additional  argument  that  the  superior  court's  reconsideration  

findings and conclusions were issued "without allowing any other party an opportunity  


to respond" is baseless.  A court need only consider requesting another party's response  


before   granting   reconsideration.      See   Alaska   R.   Civ.   P.   77(k)(3).      Here   the  


reconsideration motion was Daniel's and the court denied it.  



                      Cf. Alaska R. Civ. P. 95(a) (providing that "[f]or any infraction of these  

rules"  the  trial  court  may  assess  penalties  warranted  under  the  circumstances  and  

necessary to discourage future similar conduct, and that such penalties "may be imposed  


upon offending attorneys or parties" (emphasis added)).  

                                                                   -7-                                                             7157

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

grounds  exist,  while  recognizing  the  need  for  a  fair  and  efficient  administration  of  

             13                                                                                                                 14 


justice."        A party requesting reconsideration invites the court to reassess its ruling.  

The court is therefore authorized to enter new factual and legal findings addressing  

reconsideration arguments.  Contrary to Daniel's implication, denying reconsideration  

by providing additional analysis or clarification cannot in itself be prejudicial.   The  

superior court's additional determinations clarified its prior order's alleged shortcomings,  


comporting with Rule 77(k)'s purpose of efficiently remedying potential mistakes in  



judicial decision-making.                 Moreover the additional findings, conclusions, and analysis  


better serve us in undertaking meaningful review.                               Finally, we note that Daniel was  


notified of his appellate briefing due date  over  two months after he filed his appeal  


notice.    He  then  requested  and  was  granted  two  30-day  extensions  to  file  his  brief.  

Daniel had more than adequate time to address the reconsideration ruling.  


                    We conclude that the superior court did not violate Rule 77(k) by issuing  

the delayed reconsideration order.  

          13        Magden v. Alaska USA Fed. Credit Union , 36 P.3d 659, 663 (Alaska 2001)             

(quoting Neal & Co. v. Ass'n of Vill. Council Presidents Reg'l Hous. Auth.                                         , 895 P.2d  

497, 506 (Alaska 1995)).  

          14        See Alaska R. Civ. P. 77(k)(1)-(2) (establishing grounds for reconsideration  


request and mandating specificity about ruling "movant wishes the court to consider").  

          15        See Magden, 36 P.3d at 663.  

          16        See Price v. Eastham, 128 P.3d 725, 727 (Alaska 2006) ("[F]indings are  


sufficient[] . . . if they resolve all critical areas of dispute in the case and are sufficiently  


detailed to allow for meaningful appellate review.  In particular, the superior court must  


provide findings sufficient to give a clear understanding of the grounds upon which it  

reached its decision.").  

                                                               -8-                                                         7157

----------------------- Page 9-----------------------


          B.	       The Superior Court Did Not Err By Denying The Adoption Petition.  


                    1.	       Denial of an adoption petition can be based on either prong -  

                              lack of required consent or best interests of the child.  

                    Under  AS  25.23.120(c)  a  court  is  permitted  to  issue  a  final  decree  of  


adoption only if it determines both that "the required consents have been obtained or  



excused" and that "the adoption is in the best interest of the person to be adopted." 


superior court initially ruled that after making its best interests determination it did not  

need  to  examine  whether  Brandon  had  waived  his  right  to  consent  to  the  adoption.  


Daniel argues that "[t]he trial court erred by failing to make findings whether [Brandon]  


waived  his  right  to  consent  to  [the]  adoption."                        Daniel's  argument  is  based  on  a  

technicality  -  that  if  the  reconsideration  order  is  vacated  there  are  no  consent  


findings - but, as discussed  above, the reconsideration order stands and that order  

contained consent findings, rendering Daniel's error claim moot.18  

                    We  nonetheless  examine  the  merits  of  Daniel's  assertion  that  consent  


findings are a "threshold matter" to a best interests determination.  It is true that at least  


three of our cases articulate the procedural requirement that:  "The statutory scheme for  

adoption  contemplates  a  separate  determination  of  whose  consent  must  be  obtained  

          17        See also In re Adoption of Missy M.                     , 133 P.3d 645, 649 (Alaska 2006)  

("[AS 25.23.120(c)] expressly requires the trial court to engage in two inquiries, one to  

determine whether 'the required consents have been obtained or excused' and the other  

to determine whether 'the adoption is in the best interest of the person to be adopted.' "  


(quoting AS 25.23.120(c))).  



                    "A claim is moot where a decision on the issue is no longer relevant to  


resolving the litigation, or where it has lost its character as a 'present live controvery'  


.  .  .  ."    Clark  v.  State,  Dep't  of  Corr.,  156  P.3d  384,  387  (Alaska  2007)  (quoting  

Municipality of Anchorage v. Baxley , 946 P.2d 894, 899 (Alaska App. 1997)).  

                                                               -9-	                                                        7157

----------------------- Page 10-----------------------


before the merits of a petition for adoption are considered."                                But in each of those cases  

 a biological parent relied on the consent requirement to preserve parental rights when  


 adoption may well have been in the child's best interests.  When adoption is not in the  

 child's best interests, that determination alone can protect the parental rights regardless  


 of consent or waiver.  Daniel's argument that consent findings must be made separately  

 and irrespective of the best interests determination is therefore without merit.  

                     Daniel  also  relies  on  In  re  Adoption  of  S.K.L.H. ,  a  decision  involving  


biological parents who consented to their child's adoption but then six months later  


                                                         Reversing the trial court's decision to set aside the  

petitioned to set aside the adoption.  

 adoption,  we  concluded  that  no  grounds  existed  to  void  the  valid  written  parental  



 consent.        Daniel quotes our In re S.K.L.H. comments about consent to adoption and a  

 child's best interests:  


                     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.   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.  

                     But  those  statements  actually  support  our  conclusion  that  a  negative  

 determination under either prong of AS 25.23.120(c) - consent or best interests -  


preserves  parental rights.  To the extent In re S.K.L.H. provides guidance in this case, it  

           19       D.L.J. v. W.D.R. , 635 P.2d 834, 838 (Alaska 1981) (emphasis added);                                      see  

In re Missy M. , 133 P.3d at 649 (quoting D.L.J. , 635 P.2d at 838);  S.M.K. v. R.G.G., 702  

P.2d 620, 623 n.6 (Alaska 1985) (quoting D.L.J. , 635 P.2d at 838).  

          20         204 P.3d 320, 321 (Alaska 2009).  

          21        Id. at 321, 327-28, 332.  

          22        Id. at 328.  

                                                               -10-                                                        7157

----------------------- Page 11-----------------------

 supports our holding that both prongs of AS 25.23.120(c) must be satisfied before an  


 adoption can proceed.  If both prongs are necessary then the failure to meet either prong  


 is sufficient for the adoption petition to be denied.  In re S.K.L.H. does not require that  

 superior courts make a consent determination when adoption is not in the child's best  



                   2.	       We affirm the superior court's determination that adoption is  

                             against Hannah's best interests.  


                   Daniel contends the superior court abused its discretion in its best interests  

 analysis because the court was obligated to consider the nine factors enumerated in  

 AS 25.24.150(c), the statute governing child custody best interests determinations in  

 cases of divorce, legal separation, or placement of a child when one or both parents has  

        23  On reconsideration the court explained that although it was unpersuaded that  


 application of the child custody best interests factors was required, those factors "in fact  


 shaped" the court's determination. Daniel also contends the court committed clear error  

 in its factual findings and erred in its best interests determination.  

                             a.	      The nine-factor child custody best interests inquiry for  

                                      domestic  relations  cases  is  not  mandated  for  adoption  



                   We disagree with Daniel's assertion that in an adoption proceeding a court  


 must consider AS 25.24.150(c)'s nine factors for deciding the best interests of the child.  

 That  statute  governs  custody  decisions,  typically  in  actions  between  divorcing  or  


 separating parents.           We have found no statutory language or legislative history, and  

 Daniel points to none, manifesting a legislative mandate or intent to base adoption best  

          23       AS 25.24.150(c)(1)-(9).  

          24       See AS 25.24.150(a), authorizing courts to "make, modify, or vacate an  

 order for the custody of or visitation with" a minor child "[i]n an action for divorce or  


for legal separation ."  (Emphasis added.)  

                                                           -11-	                                                   7157

----------------------- Page 12-----------------------

interests determinations on the nine factors required in the child custody context.25  

                    The statutory factors are not phrased in a manner translating seamlessly into  


the adoption setting.  Custody decisions in domestic relations cases typically do not sever  

one party's constitutionally protected parental rights.  Instead they determine whether the  

parties  -  both  of  whom  maintain  their  parental  rights  -  are  suited  to  continue  or  


assume legal and physical custody of their child, and in what proportion that custody  


should  be  shared.    And  we  have  never  expressed  that  courts  must  examine  the  

AS 25.24.150(c) factors for a best interests determination in the adoption context.  


                    The adoption case In re J.J.J. seemingly suggests some support for Daniel's  


contention.          There we indicated that in AS 25.24.150(c), "the legislature has set forth  



statutory standards [that] guide the trial courts in the difficult determination of a child's  


                                                         We then applied those factors in assessing the  

best interests in custody disputes." 


merits of the trial court's best interests determination.                            But we did not hold that the  


AS 25.24.150(c) factors must be applied, and the issue of determining the child's best  

interests  was  not  squarely  before  us.    The  In  re  J.J.J.  discussion  about  weighing  



competing factors, for instance, relied on our decision in the adoption case S.O. v. W.S. 


In S.O., although the adoption petition was filed three years after the 1977 enactment of  

          25        See  AS  25.23.005-.240  (failing  to  reference   domestic  relations  child  

custody best interests factors).  

          26        718 P.2d 948 (Alaska 1986).  

          27        Id. at 956 (citing a former v            ersion  of AS  25.24.150(c) c   ontaining only six  


          28        Id.  

          29        Id. (citing S.O. v. W.S., 643 P.2d 997, 1006 (Alaska 1982)).  

                                                             -12-                                                        7157

----------------------- Page 13-----------------------



the AS 25.24.150(c) multiple-factor inquiry,                                we neither relied on nor made reference  

to the child custody statutory factors.31  

                      Daniel's  reliance  on  In  re  S.K.L.H.  is  also  misplaced.    He  cites  our  


statement in In re S.K.L.H. that "[t]he [trial] court applied the best interests analysis set  

forth  in  AS  25.24.150(c),  generally  applicable  in  divorce-like  proceedings"  as  an  


instance  where  we  "acknowledged  application"  of  the  child  custody  factors  in  the  


adoption context.                We did not object to the trial court's reliance on the child custody  



factors, but we did not mandate their use.                           We simply made an observation of the means  

by which the trial court arrived at its best interests determination.34  


                      We conclude as a matter of law that in an adoption proceeding courts are  


free to consider relevant AS 25.24.150(c) factors for guidance in making a best interests  


determination but that those factors are not mandatory.  The superior court therefore did  

           30         643 P.2d at 1000;             see  Ch. 63, § 1, SLA 1977 (enacting the earlier version         

of AS 25.24.150(c)).  

           31         Without  referring  to  AS  25.24.150(c),  S.O.  instead  more  generally  

recognized that in the contested adoption setting the best interests assessment involves  


not just comparing social status or economic means, but weighing "myriad factors" such  


as the competing parties' "character and maturity"; their "commitment to the care of the  


child"; "the child's present bonds of affection"; and "the family setting and stability."  

S.O., 643 P.2d at 1006 (quoting In re Anderson , 589 P.2d 957, 974 (Idaho 1978) (Bakes,  


J., dissenting)).  

           32         204 P.3d 320, 324 (Alaska 2009) (footnote omitted).  

           33         Id.  



                      Id. ; see also In re Adoption of Missy M., 133 P.3d 645, 649 n.13 (Alaska  


2006) ("The superior court stated that it was using the factors listed in AS 25.24.150(c)  

to delineate the contours of the best interests of the child standard.").  

                                                                    -13-                                                              7157

----------------------- Page 14-----------------------



not err or abuse its discretion by declining to explicitly address each factor in its order. 

                               b.	       The  superior  court  did  not  err  by  determining  that  

                                         adoption is against Hannah's best interests.36  


                     The  superior  court  determined  not  only  that  the  adoption  is  against  

Hannah's best interests, but also that "[i]t is Hannah's best interest to have her father in  


her life."  The court made several findings relating to Hannah's best interests based on  


"the entirety of the testimony heard."  Specifically the court found that:  (1) Hannah's  

"emotional,  mental,  and  social  needs  would  best  be  served  by  working  towards  


developing a loving, meaningful relationship with her father," and Brandon was capable  


of  meeting  those  needs  as  long  as  he  complied  with  the  court's  recommendations;  


(2) Brandon was "interested, willing and able to work towards a closer relationship" with  

Hannah,  and  their  relationship  "ha[d]  not  been  destroyed";  and  (3)  the  "love  and  

          35         See In re Missy M., 133 P.3d at 648 (quoting                         Fardig v. Fardig , 56 P.3d 9,  

 11 (Alaska 2002)) ("We will find an abuse of discretion if the trial court '. . . failed to                           

consider statutorily mandated factors . . . .' ").  



                     Daniel   has   not   briefed   whether   the   superior   court's   best   interests  

determination  is  an  ultimate  finding  of  fact  reviewed  for  clear  error  or  a  decision  

reviewed for abuse of discretion.  For purposes of this appeal we assume it is the former.  

See  In  re  J.J.J.,  718  P.2d  948,  951,  956  (Alaska  1986)  (noting  "superior  court  .  .  .  


overturned  the  [master's]  'best  interest'  finding  as  clearly  erroneous"  and  holding  

"master's finding that the boy's adoption would not be in his best interest was clearly  


erroneous"); cf. id. at 956 ("[T]his single factor is far outweighed by other significant  


factors and thus does not justify the master's finding that the adoption would not be in  


the boy's best interests.  We have repeatedly stated that in analyzing the best interests of  

a child, no single factor should be allowed to outweigh all others.").   Compare In re  


Adoption of Bernard A. , 77 P.3d 4, 7 (Alaska 2003) (noting in Indian Child Welfare Act  


adoption cases "the court's best interests of the child finding and other factual findings  


are reviewed under the 'clearly erroneous' standard" (citing In re J.J.J. , 718 P.2d at  

957)),  with  Caroline  J.  v.  Theodore  J.,  354  P.3d  1085,  1091-92  (Alaska  2015)  


(reviewing superior court's AS 25.24.150(c) best interests determination in custody case  


for abuse of discretion).  

                                                               -14-	                                                         7157

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affection"  between  Hannah  and  her  father  "ha[d]  been  damaged"  but  her  counselor  

believed it was in Hannah's best interests to work through her issues with her father  


"when she [was] ready," and "a relationship with her father need[ed] to be formed."  The  

record supports these findings and we cannot say they are clearly erroneous.  


                    First, prior to spring 2012 when Tarrah  stopped "forcing" Hannah into  


visitation, Brandon's involvement had enhanced Hannah's emotional, mental, and social  


well-being.    Brandon  had  frequently  seen  Hannah,  including  on  overnight  stays  


approximately every other weekend during some periods and for other extended visits  


such  as  camping  and  fishing  trips.    Brandon  also  presented  video  of  a  May  2014  


"surprise" visit to his mother's house while Hannah was there, demonstrating that even  


though she had not spent any appreciable time with him for over two years she was, as  

the counselor noted, "engaging and responsive" and "initiated joking, physical affection"  

toward him.  The court explained that it gave "significant weight to [the counselor's]  


opinions of Hannah's emotional needs."  The counselor's belief was that "Hannah could  


benefit in working through this at some point and seeing that her father can be a positive  

person in her life."  

                     Second,  the  record  supports  the  superior  court's  findings  that  Brandon  


intended to improve his relationship with his daughter and that their relationship was not  


beyond repair. The counselor testified that Brandon "really seemed sincere and genuine  


. . . that he wanted to build a relationship with [Hannah]."  After Tarrah began denying  

Brandon's visitation requests in spring 2012, he persistently continued seeking visits,  


and, unaware of the adoption petition, he ultimately filed for custody.  On the counselor's  

recommendation  Brandon  also  wrote  letters  to  Hannah,  and  Hannah  wrote  back,  


expressing in at least one reply that she loved Brandon.  In addition to frequent letters,  


Brandon sent Hannah holiday cards and gifts.  The video of Brandon and Hannah's May  


2014 visit at his mother's house demonstrated that Hannah appeared fairly comfortable  

                                                               -15-                                                         7157

----------------------- Page 16-----------------------

with  Brandon.    The  counselor's  assessment  of  the  video  was  that  Hannah  was  


"interacting pleasantly and not demonstrating any fear or any resistence."  The superior  

court noted that although she seemed at times "tentative and uncertain," she "never  


appeared upset or frightened in the presence of her father."  Brandon's efforts to improve  


his relationship with Hannah, his attempts to maintain a connection with her, and her  

positive reactions to him support the superior court's findings.  


                    Third, the superior court relied on the counselor's opinion that Hannah  


should work through her issues with Brandon.  The counselor testified:  "I absolutely  

believe that it's worthwhile continuing therapy and . . . [for] Hannah [to] work through  


this with her dad because I think there is value in it."  The counselor explained Hannah's  


adverse  feelings  toward  her  father  may  have  indicated  "intense  trauma"  that  she  


associated  with  him  or  they  may  have  just  resulted  from  the  child's  temperament.  


Although the counselor was uncertain whether temperament was the cause, she testified  


that Hannah's behavior could be due to a "perfect storm" of factors including that "her  

mom's reaction . . . probably was secondarily reinforcing [the] behavior," causing it to  


grow.  The counselor thought Hannah's resistance to Brandon may mean she simply  

needed  "some  distance  and  some  space"  from  the  situation  before  again  attempting  


reconciliation.  The counselor's biggest concern was that Hannah not feel abandoned by  

Brandon, and the counselor felt that after some time had passed Hannah might "be better  

able to handle the relationship" and come to "see[] that her father can be a positive  

person in her life."  


                    The record supports both the underlying findings and the superior court's  


                                                                                                            We affirm the  

ultimate determination that adoption was not in Hannah's best interests. 

          37        Daniel  contests  several  of  the  superior  court's  other  factual  findings,

arguing that the court clearly erred in finding:  (1) for a substantial time period Tarrah


                                                             -16-                                                       7157

----------------------- Page 17-----------------------

superior court's order denying the adoption as against Hannah's best interests.38  

                    3.	       The  best  interests  determination  renders  moot  the  parental  

                              consent waiver issues.  

                    Daniel also argues the merits of the superior court's parental consent waiver  


findings.  Daniel contends that Brandon waived his right to consent through each of the  

                                                                         39                                                     40  

                                                                            failure to provide care and support; 

following:  failure to meaningfully communicate; 

          37        (...continued)  

refused Brandon visits with Hannah until he met with Tarrah in person; (2) any obvious  


problems in the parent-child relationship did not begin until summer 2013; (3) there was  


no corroborating evidence supporting a claim that Brandon's fiancée whipped Hannah  

with a belt; (4) Daniel and Tarrah filed the adoption petition because they felt Daniel  


deserved  to  be  recognized  as  Hannah's  legal  parent  rather  than  because  they  were  

focused on Hannah's best interests; and (5) the counselor testified that Hannah needed  

a break from the stress of litigation, when she "unambiguously testified" that Hannah  


needed a break from the stress of working to re-form a relationship with her biological  


father. Daniel does not explain how these factual challenges relate to legal issues, but we  


take his argument to be that different fact findings could lead to a determination that the  


adoption  is  in  Hannah's  best  interests.    We  disagree  because  the  superior  court's  

controlling findings about Hannah's best interests have been discussed above, and the  


court explained those findings were made "on the basis of the entirety of the testimony  


heard."       We  again  note:           "When  reviewing  factual  findings  we  ordinarily  will  not  


overturn a trial court's finding based on conflicting evidence, and we will not re-weigh  


evidence when the record provides clear support for the trial court's ruling . . . ."  In re  

S.K.L.H., 204 P.3d at 325 (quoting Tessa M. v. State, Dep't of Health & Soc. Servs., 182  

P.3d 1110, 1114 (Alaska 2008)).  



                    Because we conclude that a consent finding was not necessary, the superior  


court's  best  interests  determination  satisfies  the  statute's  requirements.    See  In  re  


S.K.L.H., 204 P.3d at 325 ("We review de novo . . . whether . . . factual findings satisfy  


the requirements for application of a statute." (citing In re Missy M. , 133 P.3d at 648)).  

          39        AS 25.23.050(a)(2)(A).  

          40        AS 25.23.050(a)(2)(B).  

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----------------------- Page 18-----------------------



and  abandonment.              Because  we  affirm  the  superior  court's  determination  that  the  



adoption is against Hannah's best interests and thus no adoption decree may issue, 

do not need to address Daniel's claim that the waiver findings were erroneous.43  

V.        CONCLUSION  


                   We AFFIRM the superior court's decision denying the adoption petition.  

         41        AS 25.23.050(a)(1).  

         42        See supra Section IV.B.1.  

         43        See Maness v. Daily,   184 P.3d 1,  8 (Alaska 2008) (quoting Clark v. State,  

Dep't of Corr. , 156 P.3d 384,  387 (Alaska 2007) (A claim is moot "where a decision on  

the issue is no longer relevant to resolving the litigation.")).  

                   We likewise do not need to address the related contention that the superior  

court misinterpreted the parties' settlement agreement respecting whether Daniel waived  


his right to argue failure to provide care and support.  

                                                          -18-                                                    7157

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