D.A. v. D.R.L. , 727 P.2d 768 ( 1986 )

OPINION

RABINOWITZ, Chief Justice.

I. Background.

D.A. brings this appeal from the superior court’s denial of his petition to adopt L.R.A. In his petition D.A. alleged that L.R.A.’s natural father failed significantly without justifiable cause to meaningfully communicate with her for a period of over one year, thereby obviating the necessity of obtaining the natural father’s consent to the adoption.¹ The child’s natural father, D.R.L., failed to appear at the first scheduled hearing on the adoption petition. At that time, Judge Gonzales ruled that notice to the natural father of the filing of the adoption petition and of the time and place of hearing was inadequate to meet the provisions of AS 25.23.100. The adoption hearing was continued until the natural father could be served with adequate notice. Subsequently, a second hearing was held before Judge Cutler.²

D.R.L. and L.A. were married in December 1980 and L.R.A. was born in June 1981. The couple separated in September 1982, and were divorced on December 20, 1982. D.R.L. visited his daughter twice in the three-month period between the separation and the divorce. In the months following the divorce, D.R.L. visited his daughter about once a month until his former wife married D.A. in October 1983. From October 1983 until July 1984, except for February through April when the new family vacationed in Arizona, D.R.L. telephoned L.A. approximately once a month to inquire about L.R.A. or to arrange visits to see her — none of which he carried out. From July through November 1984, D.R.L. did not contact L.A. In November 1984, D.A. filed the subject petition to adopt L.R.A.

D.A. testified that during his marriage to L.A., D.R.L. had sent no Christmas or birthday cards to L.R.A. On cross-examination L.A. revealed that D.R.L. had requested and been refused several visits with L.R.A. L.A. testified that the reason for these refusals was that she was uncomfortable being alone with her former husband and that D.A. (her present husband) was not at home when D.R.L. requested the visits.

At the conclusion of the cross-examination of D.A. the superior court asked the natural father’s counsel if he wished to have D.R.L. testify. D.R.L.’s counsel declined to present any evidence, instead moving for a directed verdict. This motion was based on two grounds. First, for three months of the one year and two weeks that had elapsed between D.R.L.’s last visit with L.R.A. and the filing of the petition for adoption, the new family had been in Arizona. Second, the petitioners failed to show by clear and convincing evidence that there was no justifiable cause for the natural father’s failure to meaningfully communicate with L.R.A.

The superior court granted the motion and dismissed the petition for adoption. It held that petitioners had not shown that the natural father’s failure to communicate was without justifiable cause, for several reasons. First, the court considered the fact that D.A. and L.A. took the child to Arizona for three months of the year, and found that this absence made it less reasonable for the natural father to exercise his visitation rights. Second, it considered the fact that L.R.A. was only between two and three years old during the year in question, an age which made meaningful communication through phone calls or letters difficult. Third, it considered the fact that during 1983, the natural father had seen L.R.A. almost every month. Finally, the court considered the youth of the divorced natural parents, and its effect on the difficult situation of the natural father visiting L.R.A. in the presence of his ex-wife and her new husband.

Petitioners’ subsequent motion for reconsideration was denied, and this appeal followed.

II. Superior Court’s Denial of The Petition for Adoption.

Appellants contend that the superior court erred in denying their petition for adoption. We conclude that the superior court’s decision should be affirmed.

As indicated above, Alaska’s forfeiture of consent statute provides in part that consent to adoption is not required of a noncustodial parent if that parent for a period of at least one year has failed significantly without justifiable cause to communicate meaningfully with the child.³ In past decisions this court has strictly construed these statutory consent provisions, in order to protect the rights of the natural parent. S.M.K. v. R.G.G., 702 P.2d 620, 623 (Alaska 1985); R.N.T. v. J.R.G., 666 P.2d 1036, 1040 (Alaska 1983); D.L.J. v. W.D.R., 635 P.2d 834, 837 (Alaska 1981); Matter of Adoption of 611 P.2d 84, 87-88 (Alaska 1980). We also have read the term “meaningful communication” broadly. See 611 P.2d at 88. Contra In re: 718 P.2d 948 (Alaska 1986). Thus, in circumstances where the child is too young to read or communicate over the telephone, we have relaxed the requirement of meaningful communication under the “without justifiable cause” language of AS 25.23.050(a)(2)(A). S.M.K., 702 P.2d at 624.⁴

Considering that petitioners had the burden of proving by clear and convincing evidence that the natural father failed to communicate meaningfully without justifiable cause for a period of one year, we hold that the superior court’s findings of fact, which were basic to its conclusion that the petition should be denied, are not clearly erroneous.⁵ In other words, we conclude that there is an adequate evidentiary basis for the superior court’s findings relating to the issue of the natural father’s justification for failing to communicate with his child. In this regard, we hold that the following controlling findings of fact were not clearly erroneous: the superior court’s finding that the natural father’s failure to communicate was justified since the child was too young to talk on the telephone or understand gifts or letters from her father; ⁶ the natural mother’s postponement of certain requested visitations and the natural father’s emotional difficulty in visiting with the new family justified his failure to communicate with the child;⁷ and the new family’s absence from Alaska for three months during the critical year period made it less reasonable for the natural father to exercise his visitation right.⁸

The superior court’s dismissal of the petition for adoption is AFFIRMED.⁹

1 . AS 25.23.050(a)(2)(A) provides that:

Consent to adoption is not required of ... (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 ... (A) to communicate meaningfully with the child....

2 . Appellants claim that notice of the first adoption hearing was adequate, and that they were deprived of their right to present their case before Judge Gonzales. Although this specification of error has been rendered moot, we note that adequacy of notice is controlled by AS 25.23.100(b), which calls for the giving of notice “in the manner appropriate under rules of civil procedure for the service of process in a civil action_” Alaska R.Civ.P. 4(h) allows for service of process by certified mail, as was done here, but requires that, "[p]roof of service shall be made by affidavit forthwith.” Since there was no affidavit of service before the court, Judge Gonzales ruled correctly in continuing the first adoption hearing. A return receipt is generally not adequate in the absence of an affidavit attesting to the fact that the mail which was delivered contained the required documents.

3 . For the text of AS 25.23.050(a)(2)(A) see note 1, supra.

4 . See also R.N.T., 666 P.2d at 1039; D.L.J., 635 P.2d at 840.

5 . See S.M.K., 702 P.2d 620; R.N.T., 666 P.2d 1036; D.L.J., 635 P.2d 834. In S.M.K., 702 P.2d at 624 n. 11, we said in part:

This court has developed the following heightened burden of proof for the consent exceptions:

[T]he adoptive parent has the burden of proving by clear and convincing evidence that the natural parent failed significantly to communicate with ... the child. Because only the natural parent could explain why he or she failed to communicate with or to provide support for the child, fairness requires that he or she then bear the burden of coming forward with evidence of justifiable cause for such omissions before justification becomes an issue. ... Thereafter, the burden of proving by clear and convincing evidence that the natural parent's omissions were not justified rests with the adoptive parent. On review, we will subject the findings to the clearly erroneous test generally used for review of questions of fact.

[citations omitted].

6 . S.M.K., 702 P.2d at 625; D.L.J., 635 P.2d at 839.

7 . See K.M.M., 611 P.2d at 88 (finding emotional trauma of natural father who saw ex-wife living with former best friend to be justifiable cause for failure to visit children).

8 . A failure to communicate must be willful and take place during a period when the parent is able to communicate with the child. S.M.K., 702 P.2d at 624; R.N.T., 666 P.2d at 1039.

9 . Inherent in this disposition is our rejection of petitioners’ claim that they didn’t have the opportunity to develop an adequate record before the superior court. The petitioners called only two witnesses. Nothing in the record shows that they desired to call, or were deprived of the opportunity of calling the natural father as a witness. In the context of this record we think Civil Rule 41(b) is inapplicable. For here it is clear that the parties submitted the entire case to the superior court for its determination.

Also inherent in our disposition is the conclusion that the natural father could rely on the evidence adduced in petitioners' case in chief to satisfy his burden of coming forward with evidence of justifiable cause for his failure to communicate. Here the direct and cross-examination of the natural mother and step-father furnished the evidentiary basis for the natural father’s satisfaction of his burden of proof.