In Re Adoption of S.F., a Minor , 340 P.3d 1045 ( 2014 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Adoption of )
S.F., a Minor. ) Supreme Court No. S-15359
)
) Superior Court No. 3PA-12-00111 PR
)
) OPINION
)
) 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.
I. INTRODUCTION
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.
meaningfully communicate with her for over one year. Because the abandonment
finding is well-supported by the record, we affirm.
II. FACTS AND PROCEEDINGS
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
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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
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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.
III. STANDARD OF REVIEW
“We review the superior court’s factual findings in an adoption proceeding
for clear error.”2 “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.’ ”3 A master’s findings adopted by the superior court are considered the
findings of the superior court.4 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)).
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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
IV. DISCUSSION
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
findings would independently negate the consent requirement.6 Given that we affirm on
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
indigency,
(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.
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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.”8
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,”9 thus supporting the
master’s abandonment finding.
8
D.M. v. State, 515 P.2d 1234, 1237 (Alaska 1973).
9
Id.
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 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
information. Robert relies on In re Adoption of A.J.N,10 in which we reversed the
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.12 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
court are considered the findings of that court.” 13 Those “factual findings enjoy
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
witnesses and weighing conflicting evidence.”14 In this regard, we note that the master
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)).
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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.
V. CONCLUSION
For the reasons given above, we AFFIRM the superior court.
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