Native Village of Napaimute Traditional Council v. Terence W.

OPINION FABE, Chief Justice. I. INTRODUCTION This appeal presents issues arising from an Indian mother's decision to give up her baby and place him with a non-Indian adoptive couple and her later change of heart before entry of the adoption decree. After the mother purportedly relinquished her parental rights, the trial court issued a parental termination order. Despite the decision of the mother's tribe to intervene in this matter, and the fact that the mother subsequently changed her mind about giving up her child for adoption, the trial court found good cause to deviate from the placement preferences detailed in the Indian Child Welfare Act (ICWA) and finalized the adoption by the non-Indian couple. We conclude that the court's termination of the mother's parental rights based on her conditional relinquishment of rights was invalid. And although the mother's relinquishment functioned as a consent to adoption, under ICWA a parent may withdraw consent to adoption for any reason prior to entry of the final decree. But because during the pendency of this appeal the Indian mother reaffirmed her consent to the adoption of her child by the same non-Indian couple, we affirm the superior court's finding of good cause to deviate from ICWA's placement preferences and its issuance of a final decree of adoption. II. FACTS AND PROCEEDINGS On May 19, 1999, eighteen-year-old Andrea, a member of the Native Village of Napaimute, gave birth to a son, Keith.1 Because of financial concerns, post-partum depression, and a diagnosis of cervical cancer, Andrea considered putting Keith up for adoption. In early September 2000 Lucy and Terence Wilson, the non-Indian sister and brother-in-law of a friend of Andrea's mother, Jenna, met with Andrea and her extended family to discuss the possibility of adoption. The parties agreed to an "open" adoption, whereby the Wilsons would allow Andrea and Jenna visitation rights. On September 19, 2000, Andrea signed a document in which she claimed to "voluntarily and unconditionally" relinquish her parental rights. But Andrea's relinquishment of parental rights was not "unconditional," as it contained the following statement: "If the adoption is not completed, I understand that this relinquishment will be voided." Thus, Andrea's relinquishment was conditioned on the Wilsons successfully adopting Keith. On October 3, 2000, the superior court issued a "final decree of termination of parental rights." The Wilsons filed a petition for adoption on October 11, 2000. In mid-December 2000 the Native Village of Napaimute Traditional Council ("the tribe") was permitted to intervene in the adoption proceedings. Prior to the tribe's intervention, Andrea changed her [625] mind and voiced her wish to have Keith returned to her. After the tribe's intervention, Superior Court Judge John Reese, in an opinion issued in January 2002, found that good cause existed for deviating from the ICWA placement preferences and placing Keith with the Wilsons. The primary basis for the superior court's decision was Andrea's earlier-expressed desire to deviate from the ICWA preferences when she relinquished her parental rights and placed Keith with the Wil-sons. The superior court did not account for Andrea's change of preference: The most obvious [reasons to deviate from ICWA] are, of course, first of all, the mother's preference in the relinquishment and the termination. There's solid legal basis for this in the Indian Child Welfare Act, in the guidelines, as well as in the cases interpreting the act and the guidelines, so that probably is sufficient by itself, but there is more.... [Andreal gave up [Keith]. That's it. That gets us past the preferences. We asked for supplemental briefing on a number of issues, including the validity of the relinquishment and the termination order. After supplemental briefing was completed, the Wilsons supplemented the record with a notarized letter from Andrea stating her request that the Wilsons "be able to fully adopt [Keith] without any further interference from myself or any other outside party." We then remanded this matter to the superior court for an expedited hearing and determination of the mother's consent to the adoption of Keith by the Wilsons. At the supplemental hearing on September 9, 2003, Andrea again consented to the adoption. On September 24 the superior court forwarded its report on remand, finding that Andrea voluntarily signed the consent to adoption in open court, that the terms and consequences were fully explained to and understood by her, and that the time for withdrawal of the consent had elapsed. III. STANDARD OF REVIEW The legal validity of a parental relinquishment or termination order is a question of law. For questions of law, the standard of review is de novo, and this court applies the rule of law that is most persuasive in light of precedent, reason, and policy.2 IV. DISCUSSION A. Relevant ICWA Provisions Reacting to a disturbing history of states placing Indian children in non-Indian parental care, Congress passed ICWA with the intention of discouraging this practice.3 The act is intended "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families."4 It attempts to achieve this objective by establishing "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture."5 One way that ICWA promotes these goals is through § 1913's requirement that courts return Indian children to their biological parents if those parents withdraw consent to adopt before issuance of a final adoption decree. While § 19183(a) recognizes that a parent may voluntarily consent to termination of parental rights in favor of foster care placement or adoption,6 § 19183(c) provides that "[iJn any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason [626] at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent." 7 ICWA further advances its goals by preferring Indian adoptive parents over non-Indian adoptive parents. In determining the appropriate adoptive placement of an Indian child, ICWA requires that, in the absence of good cause, preference be given to placement with "(1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (8) other Indian families."8 ICWA does not define good cause, however, leaving it to the states to determine when good cause exists to deviate from the ICWA preferences.9 The Bureau of Indian Affairs publication "Guidelines for State Courts; Indian Child Custody Proceedings" lists factors that may convince state courts that good cause does exist to deviate from the ICWA preferences.10 Although the guidelines are only persuasive and are neither exclusive nor binding, "this court has looked to them for guidance." 11 These factors include: (1) the extraordinary physical and emotional needs of the child as established by testimony of a qualified expert witness; (2) the unavailability of suitable families for placement after a diligent search has been completed for families meeting the preferences requirements; and (8) parental preferences in favor of deviation.12 Accordingly, we have held that courts may consider parental preference when determining whether there is good cause to deviate from ICWA preferences.13 The superior court found that Andrea's initial desire to deviate from the ICWA placement preferences at the time she signed a document purporting to relinquish her parental rights was the primary factor establishing good cause to deviate from the ICWA preferences. The court did not consider the mother's subsequent changed wishes when ruling that good cause existed to deviate from the ICWA preferences. And once the mother's rights were terminated, it is questionable whether she would have standing to state a "parental preference."14 But the question remains whether there was a valid final decree of parental termination in this case that would prevent Andrea from withdrawing her consent to adoption pursuant to § 1913(c) of ICWA. The answer to this question hinges on the validity of Andrea's relinquishment of parental rights. B. Relinquishments Must Be Unconditional. We have recognized that "[plarental termination proceedings were unknown at common law. This means that in the absence of statutory authorization there can be no termination of parental rights and obligations."15 One way that a parent's rights may be terminated is through a voluntary relinquishment. Relinquishments are regulated by AS 25.23.180(a) and (b) and may [627] occur "in or before an adoption proceeding."16 It "obviously is permissible in some cases" for relinquishments to occur in the absence of pending adoption cases.17 As we have explained, the relinquishment procedure established by AS 25.28.180(b) "does not contemplate involuntary termination actions, but rather refers to cases in which parents choose to give up their parental rights."18 However, the statute makes no provision for relinquishment of less than all rights. Moreover, the time frames for a parental change of mind are expressly set out in the statute,19 and there is no provision allowing a parent to withdraw the relinquishment after those deadlines if certain conditions have not been met. Despite its caption as a "relinquishment," the document that Andrea signed in this case was not an unconditional relinquishment; instead, it functioned as a consent to adopt. Andrea did not unconditionally relinquish her parental rights in this case. Indeed, her relinquishment was expressly conditioned on the successful completion of adoption by specified adoptive parents, the Wilsons. Andrea's relinquishment contained the statement: "If the adoption [by the Wilsons] is not completed, I understand that this relinquishment will be voided." Yet Alaska's adoption statute does not recognize a relinquishment of parental rights that is less than an absolute and permanent surrender of rights. Alaska's adoption statute provides that "[a/ll rights of a parent with reference to a child ... may be relinquished and the relationship of parent and child terminated by a writing, signed by the parent." 20 Courts in other jurisdictions have concluded that parents may not relinquish their parental rights on condition that specified adoptive parents be granted the child. The South Dakota Supreme Court held in In re Termination of Parental Rights Over J.M.J. that a mother, who relinquished her parental rights and requested that the child be placed with her sister and brother-in-law in Arizona, could not withdraw her relinquishment even though her sister and brother-in-law subsequently requested that J.M.J be removed from their home because of the couple's marital problems.21 The court concluded that the mother understood the termination to be irrevocable and noted that "there can be no conditional relinquishment of parental rights under [South Dakotal statutes."22 As a result, "Flt follows ... that D.J.'s request to have J.M.J. placed for adoption with the Filipeks cannot in any way be characterized as a condition, the nonfulfillment of which[ ] is fatal to D.J.'s consent to termination of her parental rights." 23 A Colorado Court of Appeals decision similarly concluded that a nineteen-year-old father and seventeen-year-old mother attempted an impermissible "partial" or "conditional" relinquishment.24 In the relinquishment petition, the parents changed the official, ge-nerie Colorado relinquishment form and added that possession of the child would be with the child's grandparents.25 Furthermore, testimony made it clear that "the child had been in the care of the grandparents for approximately one year" and "that the relinquishment proceedings were instituted as part of a family plan that the child would be adopted by the grandparents." 26 The court held that it was apparent from the petition and the testimony "that the parents were attempting a 'partial or 'conditional relinquishment.' 27 The court found that such a conditional relinquishment was not authorized by the Colorado relinquishment statute which, like the Alaska Statute, mandated that [628] "relinquishment shall divest the relinquishing parent or parents of all legal rights and obligations."28 The concurrence argues that Alaska case law "reflects the use of conditional relin-quishments."29 Specifically the concurrence refers to two cases, In re Adoption of F.H.30 and In re J.L.F.31 In F.H., the mother of an Indian child consistently expressed a parental preference for the superior court to deviate from the ICWA parental preferences.32 F.H.'s tribe requested that the court not deviate from the ICWA placement preferences.33 In ruling that the superior court did not err in finding good cause to deviate from the preferences, we noted that the mother exhibited a consistent preference for deviation.34 While the mother did sign a purported relinquishment conditioned on a specified couple adopting F.H., the mother never changed her mind about the adoption.35 Consequently, whether the purported relinquishment was a relinquishment or a consent was immaterial, as either way the adoption would have gone forward. Therefore, our ruling in F.H. did not sanction the use of conditional relinquishments. And J.L.F. does not deal with relinquishments; rather, it is a termination case.36 There, we held that "the trial court erred in concluding that unreasonable withholding of consent to adoption as provided in AS 25.28.180(c)(2) was a ground for termination of parental rights applicable in this case."37 J.L.F., then, does not directly support the proposition that conditional relinquishments are permissible in Alaska.38 The Uniform Adoption Act's commentary supports our conclusion: "A parent or guardian who makes a direct placement of a minor for adoption must execute a consent for the adoption to go forward."39 Whereas, "Tif the parent or guardian prefers, instead, to have an agency place the minor and consent to the minor's adoption, the parent or guardian has to relinquish all rights with respect to the minor to the agency.40 After a parent relinquishes her rights and places a child with an agency, then "the agency acts in lieu of the parent or guardian: it acquires custody of the minor and the authority to place the child for adoption."41 Because Andrea placed Keith directly with the Wilsons, her parental consent was needed and her relinquishment was improper.42 [629] In summary, a biological parent may not relinquish parental rights conditioned upon successful completion of adoption by specified adoptive parents. Relinquishment requires a permanent and unconditional surrender of parental rights. Consequently, Andrea's initial conditional relinquishment of parental rights was not permitted by statute and was invalid. C. Andrea's Invalid Relingquishment Functioned as a Consent To Adopt. Although Andrea's conditional relinquishment of parental rights was invalid in that it was contingent on the successful adoption of Keith by the Wilsons, the document that she filed did function as a consent to adoption. Parental consent "lies at the foundation of the adoption process.43 A parent may consent to adoption by specific adoptive parents, whose identities may or may not be known to the biological parents.44 Under AS 25.283.060, a parent's consent ordinarily delegates to the adoptive parents all powers permitted under AS 18.26.020, including the "powers regarding care, custody, or property of the minor child or ward."45 While Andrea signed a document purporting to relinguish her parental rights on condition that the Wilsons successfully adopt Keith,46 and while a proper relinquishment eliminates the need for parental consent in an adoption proceeding, we look at the function and not the title of documents to determine their purpose. In S.O. v. W.S., we examined a similar document purporting to relinquish parental rights and held that regardless of its caption, the "relinquishment" in question was actually an attempt to consent to adoption.47 S.O. was a pregnant woman expecting to take a job on the North Slope and desiring to locate adoptive parents for her unborn child.48 With the help of the paternal grandmother and the grandmother's spouse, 8.0. located a prospective couple but requested that the couple's identity not be disclosed to her.49 The day after the child's birth, S.0. signed a document entitled "Relinquishment of Parental Rights," which purported to relinquish her rights and granted custody to her attorney, who was to take all steps necessary for the child's adoption by the prospective adoptive couple.50 About a week after giving birth, 8.0. changed her mind about going to the North Slope and giving up her child for adoption. She argued that any adoption proceeding would be invalid because she never consented to an adoption.51 Unpersuaded by this argument, we stated that "we think it abundantly clear that S.O. did in fact intend to consent to her son's [630] adoption. That the document purports to be a relinquishment is not controlling."52 The document signed in this case, like that in S.O., was an attempt to consent to a particular adoption. Thus, the superior court's reliance upon it in terminating the mother's parental rights was erroneous. D. Under ICWA, Andrea Should Have Been Permitted To Withdraw Her Initial Consent to Adoption Prior to Entry of the Final Adoption Decree. Under ICWA, a biological parent may withdraw consent to adoption "for any reason at any time prior to the entry of final decree of ... adoption ... and the child shall be returned to the parent.53 Because Andrea changed her mind prior to the final decree of adoption and wanted Keith back despite her earlier consent to adoption by the Wilsons, Keith should have been returned to Andrea at the time she withdrew her consent. However, this point is now moot, given that Andrea has reaffirmed her consent to the adoption during the pendency of this appeal. If we did not treat Andrea's initial conditional relinquishment of parental rights in favor of adoption by a specific couple as a consent to adoption, we would eviscerate a key ICWA provision. The statutory consent provisions provide for a relatively lengthy parental withdrawal period and "are designed to protect the natural rights of a parent to the custody, society, comfort, and services of the child."54 Permitting cireum-vention of these protections by pre-adoption relinquishment in private party adoption cases would eliminate these protections of parental rights.55 And if allowing such an end run would impair the rights of parents in non-ICWA cases, it would do even greater injury to the rights granted by ICWA to Indian families and the parents of Indian children. Because Andrea has ratified the adoption by reaffirming her consent to have Keith adopted by the Wilsons, we must now turn to the question whether the superior court properly deviated from ICWA's placement preferences. E. Because Andrea Renewed Her Consent to Adoption by the Wilsons, the Superior Court's Deviation from the ICWA Placement Preferences Was Not Error. In its initial January 2002 decision approving Keith's adoption by the Wilsons, the superior court found that good cause existed for deviating from ICWA placement preferences and that the adoption was in the best interests of the child. Judge Reese relied on several factors for deviating from the ICWA placement preferences, including Andrea's preference expressed when she purportedly relinquished her parental rights; the open nature of the adoption, which would allow Andrea to visit with Keith and assist the Wilsons in attending to Keith's cultural identity; and the emotional bonding of Keith to the Wilsons. Thus, the findings of the trial court in this case mirror those in F.H.,56 where we affirmed the superior court's finding of good cause to deviate from the ICWA placement preferences based on, among other factors, the biological mother's preference for the placement, the bond between the adoptive parent and the child, and the "openness" of the proposed adoption. All of these factors are present in the case now before us. Andrea's preference to have her son adopted by the Wilsons was reaffirmed during the pendency of this appeal. Upon receiving from the Wilsons a request to supplement the record with a notarized letter from Andrea in which she withdrew her demand for custody of Keith and requested that the Wilsons be able to adopt Keith "without any [631] further interference," we remanded this case to the superior court for a hearing and determination of whether Andrea wished to consent to the adoption of Keith by the Wilsons. (On September 9, 2003, Andrea executed a consent to adoption in open court before a superior court master. The superior court waited ten days, the time limit for withdrawal of consent in a non-ICWA case, before reporting to us that Andrea's consent was voluntary, that the terms and conditions of the consent had been explained to Andrea in detail, and that Andrea fully understood this explanation. Thus, Andrea has reaffirmed her initial position in this case, expressed during her purported relinquishment of parental rights: She consents to Keith's adoption by the Wilsons and it is her preference to deviate from ICWA by placing Keith with the Wilsons, a non-Indian family. The superior court's reliance on Andrea's preference to have Keith adopted by the Wilsons was central to its decision and "was an appropriate factor for the superior court to consider in its finding of good cause."57 As we noted in F.H., "ICWA and the Guidelines indicate that courts may consider parental preference when determining whether there is good cause to deviate from ICWA preferences.58 And although a pivotal factor in this case, it was not the only factor that the superior court took into account in its finding of good cause to deviate from the ICWA preferences. After the tribe's intervention into the case, the superior court supplemented its findings of good cause by relying on factors other than the mother's preference. These included the open nature of the adoption. As we recognized in F.H., reliance on an adoption structure that will "ensure access" by the biological parent to the child is "a proper factor for the superior court to consider."59 In its consideration of the importance of sensitivity by the adoptive parents in this case to cultural issues, the superior court characterized the open adoption as "a life raft." Although recognizing that the Wilsons "do not understand much about native culture," the court found that "[the open adoption offers relief," and that "[rleasonable contact with the birth family can take care of that." The court left open until a future hearing the specifics of the contact schedule, acknowledging that while weekly or even monthly contact was not contemplated, there was a need for "contact that's sufficient and appropriate for [Keith] to know the people who are his birth family as well as ... [have] enough of an exposure to them and enough time with them so that he can come to learn and experience those parts of his culture as well as the parts that the [Wilsons] can provide to him."60 Finally, the superior court relied on the bonding between Keith and the Wilsons to find good cause to deviate from ICWA's placement preferences. The trial court found that it was "clear" and "not contested" that "[Keith] hald] closely bonded to the [Wilsons]" at the time of the October 10, 2001 hearing on the adoption. Two years have elapsed, and that bond has undoubtedly strengthened with time. As we noted in F.H., bonding between the adoptive mother and the child was "a proper factor for the superior court to consider." 61 [632] In sum, the superior court based its determination of good cause to deviate from ICWA's placement preferences on appropriate factors, and we affirm its decision on this issue. v. CONCLUSION Andrea's conditional relinquishment of parental rights was invalid. Instead, it functioned as a consent to the Wilsons' adoption of Keith. Although ICWA enables a biological parent to withdraw consent at any time before the finalization of an adoption, in this case, Andrea has reaffirmed on the record her consent to the adoption of Keith by the Wilsons previously ordered by the trial court. Because the trial court did not err in determining that good cause exists to deviate from ICWA's placement preferences, we AFFIRM the court's entry of the decree of adoption and REMAND for a determination of the nature and schedule of contact and visitation as provided in the adoption decree. MATTHEWS, Justice, concurring. Footnotes [1] Pseudonyms are used to protect the privacy of those involved. [2] Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000). [3] 25 U.S.C. § 1901(4), (5) (1978); In re Adoption of F.H., 851 P.2d 1361, 1364 (Alaska 1993). [4] 25 U.S.C. § 1902 (1978). [5] Id. [6] 25 U.S.C. § 1913(a) (1978) states: Where any parent or Indian custodian voluntarily consents to a foster care placement or to termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. [7] In contrast, courts apply a non-preferential, best-interests test outside the ICWA context when determining whether to return a child to a parent who has withdrawn consent to adopt; the child is not retuined automatically to the parent. S.O. v. W.S., 643 P.2d 997, 1005 (Alaska 1982). [8] In re Adoption of F.H., 851 P.2d at 1364 (quoting 25 U.S.C. § 1915(a) (1978)). [9] Id. [10] Id. [11] Id. [12] 44 Fed.Reg. 67583, 67594 (1979); C.L. v. P.C.S., 17 P.3d 769, 773 (Alaska 2001). [13] In re Adoption of F.H., 851 P.2d at 1364. We also have held that "[wlhether there is good cause to deviate [from ICWA preferences] in a particular case depends on many factors including, but not necessarily limited to, the best interests of the child, the wishes of the biological parents, the suitability of persons preferred for placement and the child's ties to the tribe." Id. at 1363-64. [14] Through § ICWA applies to termination of parental rights. Arguably, a post-termination parental change in placement preference is meaningless as the parent's rights have been terminated. Nevertheless, we bave relied on a parent's consistent preference, even after termination, for ICWA deviation. In re Adoption of F.H., 851 P.2d at 1365 ("Since signing [documents relinquishing parental rights], E.P.D. has consistently supported an adoption by the Hart-leys."). [15] Perry v. Newkirk, 871 P.2d 1150, 1153 (Alaska 1994) (citation omitted). [16] AS 25.23.180(a). [17] S.J.v. L.T., 727 P.2d 789, 796 (Alaska 1986). [18] Id. [19] AS 25.23.180(b)(1), (g). [20] AS 25.23.180(b) (emphasis added). [21] 379 N.W.2d 816, 817-18 (S.D.1985). [22] Id. at 818. [23] Id. [24] K.W.E. v. People of the State of Colorado, 31 Colo.App. 219, 500 P.2d 167, 168 (1972). [25] Id. [26] Id. [27] Id. [28] Id. [29] Concurrence at 636. [30] 851 P.2d 1361 (Alaska 1993). [31] 912 P.2d 1255, 1260 (Alaska 1996); concurrence at 636-637. [32] 851 P.2d at 1365. [33] Id. at 1364. [34] Id. at 1365. [35] Id. at 1362 & 1365. [36] 912 P.2d at 1260. [37] Id. at 1263 (italics and capitalization removed from section heading). [38] The concurrence contends that conditional re-linquishments are permissible because they are not expressly prohibited by our statutes. Concurrence at 632. Such reasoning contradicts our holding in S.J. v. L.T. that "in the absence of statutory authorization there can be no termination of parental rights and obligations." 727 P.2d 789, 796 (Alaska 1986). And there is no general statutory acknowledgment of conditional relinquishments. All of the concurrence's cited examples of when parents may withdraw a relinquishment or maintain some contact with the child despite a relinquishment are expressly established by statute. [39] Unif Adoption Act § 2-403 cmt., 9 U.L.A. 53 (1999). [40] Id. [41] Id. [42] The concurrence argues that our two conclusions-that a parent may not conditionally relinquish parental rights and that relinquishments may not be used in a private party adoption context-are unrelated. Concurrence at 638-639. However, the second point naturally follows the first. Relinquishments may, as a matter of practice, only be viable in private party adoption contexts if they allow the natural parent to condition the relinquishment on a particular person or couple adopting the child. In holding that relinquishments in private party adoption contexts are not viable, we are informed by the 1994 Uniform Adoption Act and its commentary. The concurrence takes issue with our reliance on the 1994 Act because Alaska's adoption law is based on the 1969 Uniform Adoption Act. But the [629] relevant section and commentary from the 1994 Act do not change the substance of the 1969 Act, but simply clarify it: "This section helps clarify the distinction between consents and relinquish-ments and between direct and agency placements." Unif. Adoption Act § 2-403 cmt., 9 U.L.A. 53 (1999). [43] 2 Am Jur 2d Adoption § 60 (1994). [44] AS 25.23.040-.060. [45] Unlike this consent to adoption provision, the relinquishment statute makes no such provision for transfer of rights pending an adoption, an omission that compounds the problems with Andrea's purported conditional relinquishment. As the State points out in its amicus brief: Allowing a parent to terminate his or her relationship with a child through a relinquishment to a prospective adoptive parent, or through a decree issued pursuant to a relinquishment, could result in termination of the biological parent's responsibilities toward the child, without the concomitant assumption of those responsibilities by the adoptive parent. That such a child would have no responsible parent or agency during the pendency of the adoption proceeding, or perhaps longer if the adoption were to fail, would contradict the state's policy to promote the best interests of its children. [46] The concurrence correctly notes that we have disapproved of "permitting mere technical defects in consents to adoption to serve as a basis for disrupting familial ties and relationships that have developed in reliance on the validity of consents." S.O. v. W.S., 643 P.2d 997, 1002 n. 7 (Alaska 1982). Concurrence at 633. But we examine the function of the purported relinquishment precisely because we do not want technical defects to disrupt the child adoption process. And here, the defective relinquishment of parental rights functions as a consent to adoption. [47] 643 P.2d4 997, 1002 n. 6 (Alaska 1982). [48] Id at 999. [49] Id at 999-1000. [50] Id. at 1000. [51] Id. at 1000-01. [52] Id. at 1002 n. 6. [53] 25 U.S.C. § 1913(c). [54] Delgado v. Fawcett, 515 P.2d 710, 712 (Alaska 1973) (citing In re Parks' Petition, 267 Minn. 468, 127 N.W.2d 548, 553 (1964)). [55] The concurrence finds no public policy reason for prohibiting conditional relinquishments. But in D.M. v. State, Division of Family & Youth Services, we recognized that "parental rights are of the highest order." 995 P.2d 205, 212 (Alaska 2000) (internal quotation omitted). Our decision to disallow the circumvention of procedures in place to protect these rights promotes an important public policy. [56] 851 P.2d at 1364. [57] Id. [58] Id. [59] Id. at 1365. [60] Thus, while the latest consent to adoption drafted by the Wilsons and executed by Andrea on September 9, 2003 contained new language indicating that "[vlisitation rights are not allowed, except as agreed by the [Wilsons]," addition of new terms to the adoption was beyond the scope of our limited remand to the superior court to allow Andrea to reaffirm her consent to the adoption. The January 17, 2002 adoption decree entered by Judge Reese, which we now affirm, expressly ordered that "the biological mother retains visitation rights which shall be set out in a separate order." Thus, the new language drafted by the Wilsons purporting to restrict Andrea's visitation rights has no effect on the open nature of the adoption previously approved by Judge Reese. Indeed, the open nature of the adoption provided one of the bases for Judge Reese's finding of good cause, as it did for the trial court in F.H. Judge Reese left open to a future hearing the actual nature of the contact between Keith and Andrea, and the scheduling of this contact should be addressed on remand. [61] 851 P.2d at 1365.