R.N.T. v. J.R.G.

OPINION Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ. MATTHEWS, Justice. R.N.T. appeals a determination by the superior court that he need not consent to the adoption of his two children from a previous marriage. The prospective adoptive parent is J.R.G. J.R.G. is the present husband of M.I.G. M.I.G. is R.N.T.’s former wife and the parent to whom custody of the children was awarded at the time of their divorce. R.N.T. refused to consent to the adoption by J.R.G. He contends his consent was necessary pursuant to AS 20.15.040(a)(2) (current version at AS 25.23.040(a)(2)). However, J.R.G. argued and the superior court concluded, that R.N.T.’s consent was not required due to the exception contained in AS 20.15.050(a)(2) (current version at AS 25.23.050(a)(2)), which states: (a) Consent to adoption is not required of [[Image here]] (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 as required by law or judicial decree; ... The superior court found that R.N.T. had “significantly failed without justifiable cause to communicate meaningfully with the children, and to provide for the care and support of the children as required by law and judicial decree.” R.N.T. contends that this finding was clearly erroneous. He argues that J.R.G. did not bear his burden of proving by clear and convincing evidence that a one year period transpired in which he unjustifiably failed significantly to communicate with or support his children.1 Thus, he argues, the superior court erred in dispensing with his consent to the adoption. MEANINGFUL COMMUNICATION R.N.T. and M.I.G. were divorced in 1975. Despite the divorce the family continued to reside together in Fairbanks until September, 1976, when R.N.T. was transferred by his employer, to Anchorage. M.I.G. and the two children remained in Fairbanks upon his transfer, but R.N.T. nonetheless maintained significant contact with his children, traveling to Fairbanks every other weekend to be with them and his former wife. M.I.G. and the two children moved to Anchorage later in 1976, and although separate residences were maintained, it appears that the family was once again united. R.N.T. and M.I.G. considered remarrying and buying a house, and they and the children were together almost every day. [1038] The family’s living arrangements remained substantially the same until late June or early July 1978. At that time trouble developed between R.N.T. and M.I.G. over another man. M.I.G. took the children and moved back to Fairbanks, and except for a family vacation in Utah which failed to resolve the problems between R.N.T. and M.I.G., R.N.T. did not visit with his children again until December 10, 1978. This was the last time that R.N.T. would see his two children. When he refused that evening to give M.I.G. money to use in buying her Christmas presents to the children she became furious. The next day M.I.G. turned over to the police some gold that R.N.T. had stolen in 1975. This evidence led to R.N.T.’s arrest and incarceration from December 20,1978 until February 26, 1980. R.N.T. attempted to communicate with his children while he was in prison. He wrote a letter to M.I.G. in March 1979 asking her to allow the children to write to him. M.I.G. took this letter to the District Attorney and told him that R.N.T. was bothering her. As a result, R.N.T.’s lawyer advised him to refrain from writing further letters to M.I.G. or his children. When he was released from prison, R.N.T. again attempted to communicate with his children. He sought permission from his parole officer to go to Fairbanks to see them.2 His parole officer informed him that under no circumstances, not even to see his children, was he allowed to go to Fairbanks. The officer further informed R.N.T. that any communication between himself and the children would have to be through a third party. R.N.T. could think of only one person who could arrange such a communication — M.I.G.⅛ brother. However, the brother told R.N.T. that he had had no contact with M.I.G. and made it clear that he didn’t want to become involved. R.N.T. was still living under the conditions of his parole at the time J.R.G. filed a petition for adoption in August 1981. At the adoption hearing the parties stipulated that there had been no meaningful communication between R.N.T. and his children since December 1978, the time of his incarceration. R.N.T. argued, however, that the failure to communicate over that period was justifiable. He contended that during his incarceration and parole constraints were imposed on him which effectively prevented any contact with his children. Having established the existence of those constraints, he argued that he had borne his burden of producing a justifiable cause for failing to communicate which J.R.G. failed to rebut by clear and convincing evidence. See D.L.J. v. W.D.R., 635 P.2d at 838. The superior court rejected these arguments. It concluded that R.N.T.’s incarceration and parole could not be used as a justification since they were both attributable solely to R.N.T.’s own conduct in committing the 1975 crime. Thus, the court determined that R.N.T. had failed to meet his initial burden of producing evidence of a justifiable cause for failing to-communicate. This was error. Appellees seek to uphold the judgment below on factual grounds, arguing that R.N.T. could have communicated meaningfully while in jail and on probation, but did not try. They do not defend the legal proposition that the prevention of communication by incarceration may not be justifiable cause under the statute. We reject appel-lee’s factually based contention. We also reject the legal proposition that inability to communicate caused by incarceration may not be justifiable cause. It is quite generally held that parental conduct which causes loss of a parent’s right to consent to adoption must be wilful. “Particular conduct brought on by force of circumstances, necessity, or misfortune does not ordinarily come within the statute.” 2 C.J.S., Adoption of Persons § 61, at 483 (1972) (footnote omitted); see also In Re Adoption of A.J.N., 525 P.2d 520, 523 (Alaska 1974) (“conscious disregard of [parent’s] [1039] obligations” required). The commentary to the Uniform Adoption Act, on which AS 20.15.040(a)(2) was modeled, makes it clear that the wilfulness requirement was intended to be continued in the Uniform Act. Uniform Adoption Act § 6 commissioner’s note, 9 U.L.A. 27 (1979) (communication and support required “when the parent is able to do so.”). Those authorities which have considered the question have generally held 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. Harden v. Thomas, 329 So.2d 389, 390-91 (Fla.App.1976); Murphy v. Vanderver, 169 Ind.App. 528, 349 N.E.2d 202, 203 (1976); In re Adoption of Riggs, 10 Misc.2d 617, 175 N.Y.S.2d 388, 389-90 (N.Y.Cty.Ct.1958); Elliott v. Maddox, 510 S.W.2d 105, 107 (Tex.Civ.App.1974); In re Adoption of Jameson, 20 Utah 2d 53, 432 P.2d 881, 882 (1967); see State v. Grady, 231 Or. 65, 371 P.2d 68, 69-70 (1962); cf. Nada A. v. State, 660 P.2d 436, 439 (Alaska 1983) (impliedly holding that incarceration is not wilful conduct necessary to constitute abandonment.) Of course, imprisonment does not necessarily preclude a parent from communicating with his children. Where it does, however, the failure to communicate is properly considered non-wilful and thus justifiable cause. See Peyla v. Martin, 40 Ill.App.3d 373, 352 N.E.2d 407, 410-11 (1976) (admonition of parole officer not to pursue visitation and refusal to grant travel permits to parolee were factors that precluded finding of failing to maintain a reasonable degree of interest in child); In re Adoption of Herman, 406 N.E.2d 277, 280 (Ind.App.1980) (“Thus, it must be determined whether [the parent], though incarcerated, still maintained the ability to communicate with the minor child.”). The circumstances of R.N.T.’s incarceration and parole clearly prohibited him from communicating with his children. To deny that these circumstances may act as a justification misreads former AS 20.15.050. In Matter of Adoption of K.M.M., 611 P.2d 84, 87-88 (Alaska 1980) we determined that this statute must be strictly construed in favor of the natural parent. There we found justification in the mere fact that it was emotionally traumatic for the natural father to see his children and former wife living with a man who had been the father’s closest friend. Here the evidence of justifiable cause is much more substantial. R.N.T. was effectively prevented by the circumstances of his incarceration and parole from establishing meaningful communication with his children. CARE AND SUPPORT The superior court also found that R.N.T. had failed significantly and without justification to provide for the care and support of his children since the time of the divorce. By statute, such failure over a one year period is an alternative ground for dispensing with a natural parent’s consent to an adoption. Thus, we must review this finding as well. By the terms of the divorce decree, R.N.T. was required to pay $100.00 per child per month as child support to M.I.G. R.N.T. admitted that he had not complied with that order.3 However, R.N.T. repeatedly testified that from the time of the divorce until June or July, 1978 he was informally giving money to M.I.G. to help support the children, and that he was himself taking care of them. J.R.G. did not rebut this testimony at the adoption hearing. In December, 1978 R.N.T. was arrested and incarcerated. At the adoption hearing he claimed to have been indigent since that time. Former AS 20.15.050(a)(2) specifical [1040] ly states that indigency is a justifiable cause for failing to provide for care and support. Again, J.R.G. offered no proof rebutting R.N.T.’s contentions. While it is clear that R.N.T. has not formally complied with the judicial decree ordering him to pay child support, that failure does not necessarily place him within the exception of former AS 20.15.-050(a)(2)(B). See D.L.J. v. W.D.R., 635 P.2d at 839; Matter of Adoption of K.M.M., 611 P.2d at 85-87. The statute requires that he significantly fail to provide for care and support, and any such failure must be unjustified. The prospective adoptive parent has the ultimate burden of proving these points by clear and convincing evidence. D.L.J. v. W.D.R, 635 P.2d at 838. On the present state of the record we are left to speculate whether the amount of care and support that R.N.T. provided before his arrest was minimal or substantial, since J.R.G. presented no evidence in this regard. The record reveals only that some amount of care and support was in fact provided by R.N.T. Likewise, for the period of time after R.N.T.’s arrest we have before us only his assertion that he was indigent. J.R.G. has not proven by clear and convincing evidence that an entire year passed in which R.N.T. failed significantly and without justification to provide for the care and support of his children. The superior court’s finding to the contrary is clearly erroneous. The decree of adoption of the superior court is REVERSED. CONNOR, J., not participating. Footnotes [1] In D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981), we held that the natural parent has the initial burden of producing evidence of a justifiable cause for failing to communicate or provide support. Once this burden is met, the burden of proving by clear and convincing evidence that the natural parents’ omissions were not justified rests with the adoptive parent. Id. [2] Such permission was necessary because one of the conditions of R.N.T.’s parole required him to remain within a fifty mile radius of his residence. [3] He explained that, until June or July, 1978, he and M.I.G. and the children were largely still living together as they had before the divorce, and because they had adequate financial resources the subject of the child support order never arose. In Matter of Adoption of K.M.M., 611 P.2d at 86, we found it significant that the custodial parent had not demanded compliance with a child support order.