STOWERS, Justice.
The superior court granted a grandfather and grandmother's petition to adopt their grandchild without the consent of the biological father. The superior court found that the father's consent was not required because he failed significantly without justifiable cause to communicate meaningfully with the child for a period of at least one year. On appeal, the father does not challenge the superior court's finding that he failed to communicate meaningfully with the child for at least the year-long period; he instead argues that this failure was justified by: (1) his incarceration; (2) an agreement he allegedly had with the child's biological mother; (3) alleged interference by the grandparents; and (4) the totality
Because the record does not support the father's argument that his failure to communicate meaningfully with the child was justified, the superior court did not clearly err in finding that this failure was unjustified, and we affirm the superior court's finding that the father waived his right to consent to the adoption. Because the issue of visitation rights was not raised before the superior court, we hold that the superior court did not abuse its discretion in failing to consider the issue. Finally, because the superior court did not abuse its discretion in awarding attorney's fees against the father, we affirm that award.
Katie Howard
David lived with Alicia in her parents' home in Fairbanks for a brief period prior to Katie's birth, but moved out in early 2003 after a dispute with Alicia's father. In September 2003 David was arrested and incarcerated in Fairbanks on forgery charges relating to an incident in Idaho. Soon after David was incarcerated Alicia obtained a domestic violence protective order against him. The protective order remained effective only for three weeks, as Alicia successfully requested to dissolve the order so that she could "try to build a friendship [with David] and work things out for me and the baby to be."
David was extradited to Idaho just prior to Katie's birth, and he and Alicia initially maintained contact by sending letters to one another and by talking on the telephone. Alicia sent seven letters to David in December 2003 that varied in subject matter and in tone. In one she told David she was "sick of the [b.s.]" and accused him of having an affair before he went to jail; in another she expressed her love for David and described Katie's bedroom and the birthing plan to him. In her final letter to David, sent in April 2005, Alicia told David that she still loved him but she needed to keep him "gone."
David sent three letters to Alicia in early 2004 and two in 2005, all of which were returned to sender. In the letters David expressed his excitement over Katie's birth and requested pictures of her. But David also grew frustrated over Alicia's failure to communicate and blamed her family for this lack of communication, stating, "I guess that your parents have spoken and you are listening to them." David also sent a letter directly to Katie on April 6, 2004, in which he told her that he loved her and wanted to meet her, but that he needed to get out of prison and get his act together first; this letter was also returned to sender. David mailed his final two letters to Alicia in 2005 to a post office box, noting he never received any response to the first three letters mailed to Alicia's parents' house.
Alicia and David resumed limited contact via telephone and internet in 2006 and 2008 when David was temporarily released on parole. In July 2009 Alicia sent David a message on a social networking site in which she gave him her telephone number and asked him to call her because she had "a couple of very important questions" for him. In that same message Alicia also told David she was no longer mad at him and requested he "look [her] up" on a social networking site so he could see pictures of Katie. David did not respond or resume contact with Alicia until December 31, 2010, when he sent her a "friend" request via the social networking site. David also had contact with Alicia over a different social networking site in January or February 2011. This interaction was the last time David and Alicia ever communicated.
Alicia and Katie resided with Alicia's parents, Jared and Connie Howard, after Katie
Alicia died unexpectedly on March 1, 2011. Katie has lived with her grandparents, Jared and Connie, ever since. Following Alicia's death, David sent Jared and Connie a letter in which he asked to talk to them about Katie and expressed concern over Katie's "welfare and this new transition that we are all about to incur." It appears that David was released from jail in April 2012.
Soon after Alicia's death, Jared petitioned the superior court to be appointed Katie's temporary guardian. Jared stated in his petition that he had been Katie's father figure for her entire life and that he and Connie planned to adopt Katie. Jared also informed the court that David was incarcerated and that David was not listed as Katie's father on her birth certificate. The court held a hearing and found that David's parental rights had been terminated or suspended because he had never had contact with Katie, had denied his paternity, and was incarcerated in another state. On March 25, 2011, the superior court appointed Jared as Katie's temporary guardian.
On May 2, 2011, while a long-term guardianship hearing was pending, the Howards petitioned to adopt Katie. Such a petition normally requires written consent from the child's father, but consent is not required if the father has failed to legitimate the child or if consent is not required under AS 25.23.050.
In August 2011 Master Bethany S. Harbison held a two-day evidentiary hearing on the issue of whether David had waived his right to consent to the adoption. The master heard testimony from David, David's girlfriend, David's mother, and from Jared and Connie.
David testified that, although he had failed to communicate meaningfully with his daughter, he never waived his right to consent to the adoption because this failure was justified. David acknowledged that he had occasionally gone a year or more without talking to Alicia, attributing the lack of regular contact to his incarceration in a medium-security facility, to the high costs of long-distance phone calls in prison, and to the fact that his letters were returned.
David also cited an additional reason for his failure to communicate directly with Katie: according to David, he and Alicia had agreed that he would not communicate with his daughter while he was incarcerated. David testified that he and Alicia began discussing the agreement in September or October 2003 and "finalized" it in January of the following year. David stated that this agreement prevented him from contacting Katie or taking formal steps to legitimate her.
David provided two distinct rationales for this agreement. First, David testified that he and Alicia agreed that he would not be involved in Katie's life until he could be an active father, "[a]nd being in jail wasn't being an active father." David stated that he and Alicia decided he could have contact with Katie when he "could pay [his] own bills" and when he "grew up." Second, David explained that he and Alicia agreed that he would not have contact with Katie in order to prevent Alicia's parents from "cut[ting] her off" financially and emotionally, leaving her with no place to live. David testified that he had a poor relationship with Alicia's parents, so much so that they had threatened to "cut [Alicia] out" if she had anything to do with
David's girlfriend, Amanda, testified that David had not had any contact with Katie because he was incarcerated and because the letters he had sent to Alicia had been returned to sender, but that it was his "strong desire" to be in Katie's life. Amanda also testified about her own relationship and communication with David. Amanda testified that she and David met in 1993 and began dating soon after he reinitiated contact with her via internet in late 2010 while he was on work release from prison. Amanda stated that the amount of contact she had with David varied depending on his level of incarceration: when David was on work release, they communicated by internet several times a week and by telephone every other day; when David was incarcerated in the medium-security facility, they communicated by telephone at least every other week and by letter every four days or so.
David's mother, Jane, testified that she met Alicia in 2002 before Alicia became pregnant. Jane described a brief conversation she had with Alicia during which Alicia stated that she was angry at David and did not want his name to appear on the birth certificate. Jane also asserted that Alicia called her several years later to ask her to pass along the message to David that she was going to be married to another man, she did not want David to contact her, and she did not want any interference from David's family. Jane testified that Alicia had additionally stated that she was afraid that, if she continued to see David, her parents would kick her out of the house and stop providing her with financial support. Jane testified she had never heard firsthand from Alicia that she and David had an agreement that he would not contact Katie, but that David had mentioned the agreement to her by November 2003. Jane stated she did not personally feel that she could contact Katie and that Alicia was very volatile because of her mental disorder.
Jane also testified about her own contact with David. Jane stated that she talked to David at least once a week throughout his incarceration, and the only time she was completely unable to contact him was when he was on lockdown.
Connie Howard testified that she initially liked David and allowed him to live in her home, but that her feelings toward him changed because of his poor work ethic and because he lied a lot. Connie asserted that David stole her expensive camera and, when Jared subsequently asked David to leave the house, David cursed her out. Connie explained that she would have been willing to give David a second chance, but he never tried to communicate with her again.
Connie also testified that her daughter was not financially dependent on her or her husband. Connie stated that Alicia moved out of her parents' home when she married in 2005 and never moved back. Connie acknowledged that she and her husband paid for many of Katie's expenses, including her private schooling, her school clothes, her gymnastics, and food for her pets, but they rarely gave money directly to Alicia.
Jared testified that he initially allowed David to live with the family, but after moving in David forged one of his checks, stole his credit card, and made fraudulent charges. Jared testified that he told David that he needed to straighten his life out and be "a productive citizen in society," but David failed to act accordingly, so Jared asked him to leave.
Jared testified he and his wife provided Alicia with about $4,000 per year, most of which was spent on Katie. According to Jared, Alicia was not completely dependent on him and his wife: Alicia was consistently employed until her marriage in 2005, and she relied on Section 8 housing and food stamps for the two years preceding her death because her bipolar disorder prevented her from working. Jared testified that he would never "cut [his] children off." Jared also testified that even though David knew the Howards' address and telephone number, David had never contacted Katie, and the 2011 letter was the first time David had tried to contact the Howards since Katie's birth.
On June 7, 2012, Superior Court Judge Paul R. Lyle entered a 28-page decision adopting the master's findings in part and granting the petition for adoption. Unlike the master, the superior court found David had legitimated Katie pursuant to AS 25.20.050(a)(4). But the superior court agreed with the master that David's consent to the adoption was not required because David had failed significantly without justifiable cause to communicate meaningfully with Katie for a period of at least one year. The superior court subsequently determined that the adoption was in Katie's best interests and granted the Howards' petition for adoption. David filed a motion for reconsideration, which the superior court denied.
Thereafter, the Howards moved for attorney's fees and costs pursuant to Alaska Civil Rule 82. The Howards argued that they were entitled to an enhanced fee award because their attorney had made efforts to minimize fees and because David had pursued unreasonable claims. The superior court rejected the Howards' request for an enhanced fee award but granted their motion in part and awarded them 22.5% of their actual allowed attorney fees, or $2,790.56.
David appeals.
We review the superior court's factual findings in an adoption proceeding for clear error.
The findings of a master that are adopted by the superior court are considered the findings of that court.
The superior court's award of attorney's fees is reviewed for abuse of discretion.
Ordinarily both parents of a minor child must consent to the child's adoption.
The superior court found that David had legitimated Katie,
There appears to be no dispute between the parties about whether David failed to communicate meaningfully with Katie after 2005. On appeal David does not argue that the superior court erred in finding that he failed to communicate meaningfully with Katie; he instead contends that the court erred in finding that this failure lacked justifiable cause. We therefore affirm the superior court's undisputed finding that David did not communicate meaningfully with Katie for a one-year period beginning in 2005.
"A parent has the duty to make reasonable efforts to locate and communicate with his or her child."
David argues that four separate grounds justified his failure to communicate meaningfully with his daughter: (1) he was incarcerated during Katie's entire life; (2) he had a prior agreement with Alicia that prohibited him from communicating with Katie; (3) Alicia's parents interfered with his communication attempts; and (4) the totality of the circumstances barred meaningful communication.
The superior court found that David adduced evidence supporting the first two justifications; the Howards therefore bore the burden of proving by clear and convincing evidence that David's incarceration and alleged prior agreement with Alicia did not provide justifiable cause for his failure to meaningfully communicate with Katie.
David argues that the fact that he was incarcerated for Katie's entire life provides sufficient justification for his lack of meaningful communication with his daughter. David argues that it was "uncontested that he could not come to Fairbanks, was limited where he could go ..., and that he could not be a father or support [Katie] under the conditions placed on him by the penal system."
David cites to our decision in R.N.T. v. J.R.G. for the proposition that "neglect of parental duties caused by imprisonment is not necessarily wilful and thus does not inevitably result in the loss of a parent's right to consent."
David's reliance on R.N.T. is misplaced. In R.N.T., we considered whether a father had justifiable cause for failing to communicate meaningfully with his children, where the father's attorney advised him not to write to his children or their mother while he was in prison and his parole officer forbade him from communicating with his children once he was released, except through a third party.
Three years later in In re J.J.J., however, we adopted the R.N.T. dissent's position and ruled that, where the terms of a parent's imprisonment and parole effectively prevent the parent from having contact with his or her children, "[t]he issue that must be addressed is whether the constraints imposed on [the parent] were the result of his own conduct, in which case his failure to communicate would not be justifiable, or were instead the result of circumstances over which he had no control."
Under the In re J.J.J. standard, David's incarceration cannot justify his failure to communicate meaningfully with Katie because that failure was due to David's own conduct and subsequent incarceration. David was repeatedly granted parole and placed on work release following Katie's birth, but he continually violated his parole
Moreover, even if In re J.J.J. did not foreclose David's argument, R.N.T. would not provide support because ample evidence in the record clearly and convincingly established that the circumstances of David's incarceration did not prevent him from having contact with Katie.
David also testified that after Alicia contacted him via social media in 2009 and asked him to contact her so he could see pictures of Katie, he made no attempt to respond until December 2010 when he "friended" her on a social networking site. David attributed his lack of response to his incarceration, stating he "got rolled up from that [medium-security] facility because [he was] denied parole, and wasn't able to have contact with her until... early this year." However, David was able to maintain regular contact with his mother and girlfriend when he was incarcerated at the medium-security facility in 2011; he spoke on the telephone with his girlfriend at least once every other week and with his mother at least once a week. David's incarceration in a medium-security facility did not prevent him from maintaining regular contact with his mother and girlfriend, demonstrating that his failure to respond to Alicia's message regarding Katie was not a result of his incarceration.
The superior court did not err in finding that the Howards established by clear and convincing evidence that David's incarceration did not justify his failure to communicate meaningfully with Katie.
David argues that his failure to communicate meaningfully with Katie was justified by his agreement with Alicia. David asserts that Alicia's parents, on whom she was completely dependent, had threatened to "cut [Alicia] off financially" if David tried to maintain contact with his daughter, so he and Alicia agreed that he would not contact Katie. David also argues that because he could not be an active father while incarcerated, he and Alicia agreed that he would not contact Katie until he was released from prison and could participate actively in Katie's life. David asserts that this agreement justified his lack of communication.
The following evidence supports the superior court's finding that, contrary to David's testimony, David and Alicia never made an agreement that David would not contact Katie: (1) David's forgery conviction undermined his credibility, which was
The superior court found that David's credibility was undermined by evidence of his past forgery conviction. Alaska Rule of Evidence 609 permits a party to attack a witness's credibility by admitting evidence that the witness has been convicted of a crime of dishonesty if less than five years has elapsed since the date of the conviction and the conviction is more probative than prejudicial.
On cross-examination the Howards' attorney questioned David about a 2007 forgery conviction. The superior court properly considered this conviction, which was less than five years old at the time of the hearing, after finding that its prejudicial effect did not outweigh its probative value. The superior court did not clearly err in finding that David's forgery conviction undermined his credibility.
Additionally, the letters David and Alicia exchanged between 2003 and 2005 in and of themselves clearly and convincingly establish that there was no agreement. David testified that he and Alicia formed their agreement by January 2004 at the very latest, but David sent a letter to Katie in April 2004 in which he stated, "I hope your mother reads this [letter] to you and all the ones to come." David acknowledged in the letter that he "ha[d] to get [his life] together" before things could work out between him and Alicia, and he also stated that he hoped he was able to get strong and well enough that Alicia would "give [him] a shot at the marriage [he] promised her." But David in no way indicated that he had to accomplish these things before he could contact Katie; to the contrary, David stated there would be more letters to come. David repeatedly inquired after Katie in his other letters to Alicia sent after the purported agreement had been finalized; they also do not indicate the existence of any sort of agreement. And David expressed frustration with Alicia in a 2004 letter after she failed to communicate with him, stating, "I can't ... believe you.... I would never loose [sic] contact with you and my daughter."
The letters also undermine David's claim that he believed Alicia's parents would stop providing her with financial assistance if they knew Alicia or Katie was in contact with David. David sent three of his five letters to Alicia's parents' home. He sent the other two letters to the post office box solely because the first three had been returned to sender, and he indicated that he would send future letters to Alicia's parents' house if Alicia did not receive the letters addressed to the post office box. David's willingness to write to Alicia at her parents' home is inconsistent with his testimony that he feared the Howards would cut off Alicia if he had anything to do with her.
The Howards' testimony also undermines David's claim that he and Alicia feared that Alicia's parents would stop providing Alicia with financial assistance if David were to contact Katie. Jared testified he would never "cut [Alicia] off" or kick her out of his home or disown her, and Connie testified she had never "throw[n] out [her] daughter." Both parents also testified that although they paid for many of Katie's expenses, they provided Alicia with only limited financial support, and Alicia supported herself. The superior court found their testimony credible.
In sum, David's own evidence and testimony contradicts his allegation that an agreement with Alicia prevented him from meaningfully
David also argues that his failure to communicate with Katie was justified by the Howards' interference with his attempts at communication. David likens his situation to our decision in S.M.K. v. R.G.G., where we held that a father and his family had interfered with the mother's attempts to communicate with the child such that the mother's failure to communicate was justified.
In S.M.K., the father interfered with the mother's communication attempts by leaving the family home with the child without advising the mother of his plans, giving custody of the child to his sister and her husband in another state, and refusing to tell the mother of the child's whereabouts.
S.M.K. is inapplicable here. David alleges no specific instances of interference by the Howards. David wrote one letter to Katie that was returned to sender, but David does not allege that the Howards were responsible for this failed attempt at communication. David instead argues that he was precluded from communicating with Katie because, given her young age, any communication would require the Howards' assistance, and he could not enlist their assistance because he did not have much of a relationship with them. This lack of relationship does not amount to interference or justify David's failure to attempt to communicate with Katie.
David has produced no evidence of interference by the Howards in his attempts to communicate with Katie, and the superior court did not err in declining to find that the alleged interference justified his failure to communicate meaningfully.
Finally, David argues that the totality of the circumstances justified his failure to communicate meaningfully with Katie. David relies on Katie's age, his own incarceration, his "agreement" with Alicia, Alicia's bipolar disorder, his "turbulent" relationship with Alicia, and his lack of a relationship with the Howards to argue that the totality of the circumstances provided justification. David cites to our decisions in D.A. v. D.R.L.,
We have "relaxed the requirement of meaningful communication" in cases "where the child is too young to read or communicate over the telephone."
Here, although Katie was too young to read or communicate over the telephone for the majority of David's incarceration, the totality of the circumstances did not justify David's failure to meaningfully communicate with his daughter. David made no real attempts to communicate with Katie after 2005. David implicitly asserts that such attempts would have been futile because his letters to Alicia and Katie were returned to sender and because he had problematic relationships with Katie's mother and grandparents. But David alleges no instances of active interference of the type that existed in D.L.J., D.A., or S.M.K.
The superior court did not clearly err in declining to find that the totality of the circumstances justified David's failure to meaningfully communicate with Katie.
David argues that the superior court abused its discretion by failing to consider his post-adoption visitation rights. David argues that this issue was clearly raised during the adoption hearing and asks us to remand for the superior court to consider whether he should be granted the right to visit with his daughter.
David has waived this claim because he failed to raise it in the superior court.
Although "Alaska's adoption statutes explicitly permit `visitation between the adopted person and that person's [biological]
The superior court applied Alaska Civil Rule 82 to award the Howards $2,790.56 in attorney's fees, which was 22.5% of their actual fees. The superior court found that Rule 82 applied to this private contested adoption, that David was a party to the adoption, that Rule 82 does not exempt indigent litigants from paying attorney's fees and that David was not completely without assets, that the Howards' attorneys made efforts to minimize fees, and that the Howards were entitled to a fee award. The superior court found that Rule 82(b)(2) called for a fee award of 30% of the Howards' reasonable, actual attorney's fees necessarily incurred, but that a downward variation was warranted in order to ensure that similarly situated parents of minimal financial means would not be deterred from voluntary use of the courts. The superior court thus reduced the Howards' $12,402.50 actual attorney's fees by 25% to $9,301.87, and awarded them 30% of $9,301.87, or $2,790.56.
David argues that the superior court abused its discretion by awarding any attorney's fees to the Howards. David notes that Rule 82(b)(3) allows a court to vary a fee award calculated under Rule 82 and argues that, because he is indigent, because his constitutional rights were implicated, and because his claims and defenses were reasonable, "[t]his court should find that all the equitable factors require this [c]ourt to find that no attorney fees should be awarded in this case should Co-Petitioners prevail." Alaska courts generally award partial attorney's fees to the prevailing party in a civil case pursuant to Rule 82.
Here, the superior court made a thorough, thoughtful analysis before awarding attorney's fees to the Howards. The superior court carefully considered our decision in Adoption of V.M.C.,
The superior court made a commendable effort to carefully consider our prior decisions addressing attorney's fees awards involving contested adoption proceedings and indigent litigants as well as the applicable variance factors listed in Civil Rule 82. The superior court did not abuse its discretion in awarding a reduced fee award against David.
For the foregoing reasons, we AFFIRM the superior court in all respects.