In Re Adoption of E.H. and J.H. , 431 P.3d 1190 ( 2018 )

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
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Adoption of )
) Supreme Court No. S-16710
E.H. and J.H. )
) Superior Court Nos. 3AN-15-01485/
) 01486 PR (Consolidated)
)
) OPINION
)
) No. 7316 – November 16, 2018
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Darryl L. Jones, Law Office of Darryl L.
Jones, Palmer, for Appellants Foster Parents. Allison
Mendel, Bonnie Calhoun, and John Sherman, Mendel Colbert
& Associates, Inc., Anchorage, for Appellees Grandparents.
Anna R. Jay, Assistant Attorney General, Anchorage, and
Jahna Lindemuth, Attorney General, Juneau, for Appellee
State of Alaska, Department of Health & Social Services,
Office of Children’s Services.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
Two young siblings were removed from their biological parents’ home and
placed with a foster family. The maternal biological grandparents remained involved in
the children’s lives and sought to adopt them, as did the foster parents. The grandparents
and foster parents entered into a formal settlement agreement, which was incorporated
into the ultimate adoption decree. Under the agreement the grandparents waived their
right to pursue adoption in exchange for several specific guarantees and assurances,
including that the foster parents would comply with a visitation agreement and facilitate
a relationship between the children and the grandparents. When the grandparents were
later denied post-adoption visitation, they moved to enforce the agreement and then to
vacate the adoption.
The superior court vacated the adoption after finding that the foster parents
made material misrepresentations throughout the pre-adoption process, including specific
misrepresentations about their intent to comply with the visitation and relationship
agreement. The superior court placed the children back in state custody to determine a
suitable adoptive placement. The foster parents appeal, arguing that the grandparents’
sole remedy is enforcement of the visitation agreement. But an adoption may be vacated
due to material misrepresentations, and because the adoptive parents do not challenge the
court’s factual finding that they never intended to comply with the settlement
agreement’s visitation and relationship provisions, we affirm the superior court’s
decision vacating the adoption.
II. FACTS AND PROCEEDINGS
The Office of Children’s Services (OCS) took custody of Simon and Ellie1
in 2012 after discovering that they were living in unsafe conditions.2 Simon was almost
1
We use pseudonyms to protect the children’s privacy.
2
See AS 47.10.011 (enumerating instances “court may find a child to be a
child in need of aid”); CINA Rule 15(f)(1) (empowering court at adjudication to order
child in need of aid placed in temporary OCS custody pending disposition).
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five and Ellie was only three months old. OCS placed the children with foster parents,3
with whom the children then resided continuously. The children regularly visited their
biological grandparents, including overnight visits, and generally maintained a positive
relationship with them.
During the children’s foster placement, however, the foster parents and the
grandparents did not get along. The foster parents accused the grandparents of violating
visitation rules, but OCS dismissed the accusation as unfounded. The grandparents
alleged that the foster parents were neglectful caregivers and that they relied on their
teenagers to provide for Simon and Ellie. Shortly before OCS petitioned to terminate the
biological parents’ parental rights,4 both the foster parents and the grandparents
requested to adopt the children.
In 2014, when Simon was seven and Ellie was two-and-a-half years old,
their biological parents’ parental rights were terminated. Early in the termination trial,
the grandparents withdrew their request for placement in exchange for an agreement
allowing them to remain in the children’s lives. The court approved the foster parents
as an adoptive placement for the two children.
Following the termination trial, OCS contracted for an adoption home study
to evaluate the foster parents. The home-study writer interviewed the foster parents and
other family members residing in their home. Neither foster parent disclosed at that time
that their own biological children had experienced or alleged sexual abuse. They
represented that they were bonded with Simon and Ellie. Both foster parents expressed
3
See AS 47.10.080(c)(1) (authorizing court to commit child in need of aid
to OCS custody “for placement in an appropriate setting for a period of time not to
exceed two years”).
4
See AS 47.10.080(c)(3) (authorizing termination of parental rights to child
in need of aid upon satisfaction of statutory conditions).
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misgivings whether they could create a safe and satisfactory visitation plan with the
grandparents, explaining that “[i]n prior visits, the grandparents had allowed [Simon] and
[Ellie] to be unsupervised with the birth parents.” The home-study writer also
interviewed an OCS caseworker, who stated that she supported adoption by the foster
parents but had “some concern that the family may not be supportive of maintaining
contact with the maternal grandparents.”
In early 2015, before the adoption was finalized, the foster mother reported
to OCS that the children’s grandfather had inappropriately touched Ellie. Investigators
interviewed both Simon and Ellie, neither of whom disclosed any abuse, and the
investigators concluded the abuse reports were unsubstantiated. Despite the
unsubstantiated allegations, the foster parents agreed to a settlement with the
grandparents. The foster parents testified at the settlement conference that they were
entering the settlement agreement of their own free will and with the assistance of
competent legal counsel. The foster parents later claimed they had been under the
impression they were not to notify the grandparents of the unsubstantiated allegations or
reference them during negotiations at the settlement conference.
The settlement agreement was ultimately incorporated into the June 2015
adoption decree. The agreement is lengthy and specific in its terms. The grandparents
“agreed not to continue to pursue custody and placement of [the children] . . . in
exchange for the [foster parents’] guarantees and assurances.” Other provisions include
that the grandparents “will continue to be considered the children’s legal grandparents”
and that “[v]isitation between the children [and their grandparents] is an important part
of the children’s mental health and sense of connection to their biological family and
heritage.” The agreement additionally provides that “[t]he parties agree to respect each
other’s roles and importance in the children’s lives and to facilitate those relationships
and titles.”
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The agreement states that the grandparents shall have retained and
enforceable visitation rights surviving the child protection case and any subsequent
adoption or guardianship case. But the agreement provides for an initial two-month
suspension of grandparent visitation to “solidify the formal and legal familial bond
between the children and the [foster parents],” followed by three months of supervised,
therapeutic visits conducted with one of the two therapists named in the order.
Following that period of bonding and relationship building, the agreement sets out a
highly detailed visitation schedule, with unsupervised visits between the children and
their grandparents increasing in frequency and duration over time.
In October 2015 the grandparents moved to reopen the adoption case and
enforce the visitation agreement. They sought court intervention after being “denied at
least six of their visitations with the children, with no hope of any future visitations
without immediate court intervention.” The foster parents opposed, and they submitted
affidavits detailing their history with the children and negative course of dealing with the
grandparents.
In December 2015 the superior court granted the grandparents’ motion to
reopen the adoption. In March 2016 the grandparents moved to vacate the adoption on
the grounds of fraud and misrepresentation. The court held a five-day evidentiary
hearing in November.
After the hearing the court found that the foster parents’ allegations of
sexual abuse by the grandparents were not only unsubstantiated, they also were highly
suspect and possibly fabricated. The court found that the foster mother never wanted to
enter into the settlement agreement, actively isolated the children from their
grandparents, and manipulated therapists to promote her agenda.
The court also found that the foster parents failed to disclose material facts
that “were significant to the [grandparents’] decision to waive their right to adopt the
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children” and “would have meaningfully affected the opinions of the home study writer,
OCS, the [guardian ad litem] and the court.” These material facts included: (1) the
foster parents’ family’s “significant history of actual or allegations of sexual abuse”;
(2) Simon’s “pre-adoptive behavior, that he was not bonding with [his foster mother,]
and that he was allegedly hoarding food”; and (3) the foster parents’ actual pre-adoptive
mind set, which was wholly at odds with their “affirmative promise to support and
facilitate the relationship between [the children and their grandparents].” The court
emphasized that the foster parents’ attempts to “undermine[] and improperly influence[]
the reunification process between children and grandparents” were not “merely post-
adoption conduct” but rather “a continuation of attitude and conduct that existed pre­
adoption, and pre-agreement with [the grandparents].”
The superior court vacated the adoption and reappointed the Office of
Public Advocacy as Simon’s and Ellie’s guardian ad litem and OCS as their legal
custodian with the authority to make placement decisions. The court returned the
children to their pre-adoptive status as children in need of aid. The court clarified that
“[n]othing in this order shall be construed as disapproving the [foster parents’] household
for placement and/or adoption”; the order returned the placement decision to OCS’s
discretion.
The foster parents appeal.
III. STANDARD OF REVIEW
“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.”5 We also review de novo
5
In re Adoption of Hannah L., 390 P.3d 1153, 1156 (Alaska 2017)
(alterations in original) (quoting In re Adoption of S.K.L.H., 204 P.3d 320, 324-35
(continued...)
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the legal validity of an adoption decree,6 adopting “the rule of law that is most persuasive
in light of precedent, reason, and policy.”7 We have stated:
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.[8]
IV. DISCUSSION
An adoption decree is voidable within a year of its entry, but it enjoys a
strong “presumption favoring [its] validity.”9 The policy undergirding the adoption
statutes is to hold the parties to the decree’s terms “except under limited
circumstances.”10 “[C]onfusion, mistake about the finality of the agreement, and a
‘change of heart’ are generally insufficient grounds to invalidate consent to an
adoption.”11 So too are post-decree disputes about visitation rights and “the boundaries
5
(...continued)
(Alaska 2009)).
6
See S.K.L.H., 204 P.3d at 324-25.
7
State, Dep’t of Health &Soc. Servs., Office of Children’s Servs. v. Michelle
P., 411 P.3d 576, 581-82 (Alaska 2018) (quoting S.B. v. State, Dep’t of Health & Soc.
Servs., Div. of Family & Youth Servs., 61 P.3d 6, 10 (Alaska 2002)).
8
Hannah L., 390 P.3d at 1156 (quoting S.K.L.H., 204 P.3d at 325).
9
S.K.L.H., 204 P.3d at 325 (citing Holt v. Powell, 420 P.2d 468, 470 (Alaska
1966)).
10
Id.
11
Id. at 327.
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of a biological parent’s relationship with an adopted child.”12 Although “adoption
statutes generally are ‘to be liberally construed to the end that the best interests of
adopted children are promoted,’ ”13 we have held “the best interests of a child cannot
alone overcome a valid consent and previously entered adoption decree.”14
Notwithstanding this strong presumption of validity, a party may seek to
void an adoption decree due to “fraud, misrepresentation, failure to give any required
notice, or lack of jurisdiction of the parties or of the subject matter.”15 Although
AS 25.23.140(b) prohibits any party from challenging an adoption decree after one year
on any ground, including fraud and misrepresentation, we clarified in In re Adoption of
S.K.L.H. that such defenses, as well as defenses not specifically listed in the statute, may
be brought before the one-year period expires.16 A party seeking to vacate an adoption
decree on the ground of misrepresentation must establish the existence of: “(1) a
misrepresentation; (2) which was fraudulent or material; (3) which induced the party to
enter the contract; (4) upon which the party was justified in relying.”17 A fraudulent or
12
Id.
13
Id. (quoting AS 25.23.005).
14
Id. at 328.
15
See AS 25.23.140(b). To vacate an adoption, the challenger must “show
by a preponderance of the evidence that the decree is not valid.” Alaska Adpt. R. 17(a).
16
204 P.3d at 326.
17
See Seybert v. Cominco Alaska Expl., 182 P.3d 1079, 1094 (Alaska 2008);
See S.K.L.H., 204 P.3d at 328 n.39 (emphasis in original) (citing Seybert, 182 P.3d at
1094); RESTATEMENT (SECOND) OF CONTRACTS § 164(1) (1981) (“If a party’s
manifestation of assent is induced by either a fraudulent or a material misrepresentation
by the other party upon which the recipient is justified in relying, the contract is voidable
by the recipient.”).
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material misrepresentation may constitute sufficient grounds for vacating an adoption
decree if the misrepresentation induced the consent of a party required to consent to the
adoption under AS 25.23.040(a)18 or if it induced the assent of a party to a settlement
agreement incorporated into the adoption decree.19
We note that it is unnecessary to demonstrate multiple misrepresentations
to vacate an adoption decree — one will suffice. The foster parents do not dispute the
superior court’s finding that they misrepresented their intent to facilitate a relationship
between the grandparents and the children.20 They instead rely on their argument that
an adoption cannot be challenged for failure to comply with a grandparent visitation
agreement, asserting that the superior court erred by vacating the adoption instead of
enforcing the visitation agreement.21
18
See S.K.L.H., 204 P.3d at 331-32 (holding that superior court erred by
vacating adoption decree because adopted child’s biological mother had not established
existence of misrepresentation which vitiated her adoption consent).
19
Cf. Old Harbor Native Corp. v. Afognak Joint Venture, 30 P.3d 101, 105
(Alaska 2001) (citations omitted) (“Settlement agreements and releases are contracts; as
such, they are susceptible to attack under the legal theories of mistake, fraud, and
misrepresentation.”).
20
In the foster parents’ opening brief, they do not deny their intent to reduce
contact between the children and their grandparents; the foster parents instead contend
they had valid reasons for going forward with the adoption and hiding their intent at the
time. Only in their reply brief do they contest the court’s factual findings, stating that
they did intend to abide by the decree’s visitation provisions. But an argument
superficially raised for the first time in a reply brief cannot be considered on appeal.
Manning v. State, Dep’t of Fish & Game, 420 P.3d 1270, 1279 n.51, 1280-81 (Alaska
2018). This argument is thus waived. See Maines v. Kenworth Alaska, Inc., 155 P.3d
318, 326 (Alaska 2007).
21
The foster parents also challenge OCS’s right to participate in this appeal
in support of the grandparents’ position. The foster parents assert that because OCS
(continued...)
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We defer to the superior court’s undisputed finding that the foster parents
misrepresented their intent to abide by the settlement’s visitation and relationship
provisions. As for the foster parents’ legal argument, they are mistaken. The foster
parents cite section 3-707(c) of the Uniform Adoption Act, which provides that “[t]he
validity of a decree of adoption issued under this [Act] may not be challenged for failure
to comply with an agreement for visitation or communication with an adoptee.”22 The
Act’s commentary clarifies:
[A]n agreement for post-adoption visitation or
communication, while not prohibited . . . has no effect on the
fundamental consequence of an adoption, which is to
terminate the parental relationship between the child and the
former parents and to create the relationship of parent and
child in all respects between the adoptive parents and the
adopted child.[23]
The foster parents assert that the grandparents’ rights to visitation arise under
AS 25.20.065 and, because the grandparents may petition the court for enforcement
21
(...continued)
never substantively argued the issues below or joined the grandparents’ petition to
reopen the adoption, OCS failed to preserve its arguments and “knowingly waived any
right to participate.” It is true that OCS did not take a position on these issues in the
superior court. But OCS, as the children’s legal custodian, has a keen interest in the
resolution of the appeal on their behalf. OCS has not raised any new facts that are not
in the record, and its legal arguments are closely related to the grandparents’ legal
arguments. The foster parents have had a full and fair opportunity to respond to OCS’s
arguments, and we conclude that the foster parents are not prejudiced by OCS’s
participation in this appeal.
22
UNIF. ADOPTION ACT § 3-707(c) (1994).
23
UNIF. ADOPTION ACT, § 1-105 cmt. (1994).
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under that statute,24 they cannot ask to vacate the adoption for failure to comply with the
visitation agreement.
Alaska has adopted a modified version of the Uniform Adoption Act, and
our decisions are informed, though not controlled, by the Act and its commentary.25 Like
the Uniform Adoption Act, AS 25.23.130 states that “a final decree of adoption” has the
effect of “terminat[ing] all legal relationships between the adopted person and the natural
parents and other relatives of that adopted person.”26 But the statute also provides that
“[n]othing in this chapter prohibits an adoption that allows visitation between the
adopted person and that person’s natural parents or other relatives.”27
In S.K.L.H. we considered section 3-707(c) of the Uniform Adoption Act
in the context of a superior court ruling that a mother’s consent to an open adoption
decree was invalid due to her “mistake” about the extent of visitation and her post-
adoption relationship with the child.28 We reversed the superior court’s ruling, holding
that the mother’s alleged mistake was insufficient to invalidate the adoption because the
decree’s visitation provision, though lacking in detail, was unambiguous, and
“confusion, mistake about the finality of the agreement, and a ‘change of heart’ are
24
See AS 25.20.065(a) (providing “a child’s grandparent may petition the
superior court for an order establishing reasonable rights of visitation between the
grandparent and child” after an adoption).
25
See, e.g., S.K.L.H., 204 P.3d at 327 n.28; In re Adoption of Keith M.W., 79
P.3d 623, 628 n.42, 633 (Alaska 2003).
26
Compare AS 25.23.130(a)(1), with UNIF. ADOPTION ACT § 1-105 cmt.
(1994).
27
Compare AS 25.23.130(c), with UNIF. ADOPTION ACT § 3-707(c) (1994).
28
S.K.L.H., 204 P.3d at 327.
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generally insufficient grounds to invalidate consent to an adoption.”29 Given that there
was no ground for finding a “mistake” during the decree’s negotiation process — i.e.,
the mother’s consent was valid — we characterized the mother’s claim as a “post-decree
dispute” about the visitation details and shared our agreement with the Uniform
Adoption Act that this “cannot be grounds to set aside an adoption decree.”30 Our
interpretation of the Uniform Adoption Act and resulting conclusion in S.K.L.H. in no
way preclude a superior court from vacating an adoption due to a pre-decree
misrepresentation about visitation. Our S.K.L.H. decision did not turn on the specific
topic of visitation, but rather on the particular facts of the mother’s purported “mistake,”
which, due to the agreement’s lack of ambiguity, more closely resembled a change of
heart and was insufficient to invalidate her consent.31
Unlike in S.K.L.H., in this case the superior court found that the foster
parents had materially misrepresented their intent to facilitate visitation and the
grandparents’ relationship with the children, thus invalidating the grandparents’ assent
to the settlement agreement incorporated into the adoption decree. The court made clear
that the foster parents’ effort to “undermine[] and improperly influence[] the
reunification process between children and grandparents” was not “merely post-adoption
conduct” but rather was “a continuation of attitude and conduct that existed pre-adoption,
and pre-agreement with [the grandparents].” Because the foster parents do not challenge
the court’s finding that they misrepresented their intent to abide by the agreement’s
visitation provisions — an essential premise upon which the grandparents gave up their
29
Id.
30
Id.
31
Id. at 326-27.
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own right to pursue adoption of the children — and because it is not error to vacate an
adoption on this basis, we affirm the court’s decision.
V. CONCLUSION
The superior court’s decision to vacate the adoption is AFFIRMED.
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