204 P.3d 320 (Alaska 2009), S-12960, In re Adoption of S.K.L.H.

Docket Nº:S-12960.
Citation:204 P.3d 320
Opinion Judge:WINFREE, Justice.
Party Name:In the Matter of the ADOPTION OF S.K.L.H., a Minor Child.
Attorney:H. Clay Keene, Blake M. Chupka, Keene & Currall, P.C., Ketchikan, for Appellants. Michael P. Heiser, Ketchikan, for Appellee.
Judge Panel:Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.
Case Date:March 27, 2009
Court:Supreme Court of Alaska

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204 P.3d 320 (Alaska 2009)

In the Matter of the ADOPTION OF S.K.L.H., a Minor Child.

No. S-12960.

Supreme Court of Alaska.

March 27, 2009

Page 321

H. Clay Keene, Blake M. Chupka, Keene & Currall, P.C., Ketchikan, for Appellants.

Michael P. Heiser, Ketchikan, for Appellee.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.


WINFREE, Justice.


Biological parents consented to their baby's adoption and the superior court entered a final adoption decree. Six months later the biological mother petitioned to set aside the adoption decree, alleging that her consent was invalid. The superior court granted her petition, finding first that there had not been a " meeting of the minds" (which the court on reconsideration later characterized as " mistake" ) about the biological mother's relationship with the child after the adoption decree, and second that it was in the child's best interests to be with her biological mother.

Because we do not recognize mere mistake about post-adoption visitation as a ground to invalidate adoption consent or an adoption decree, we reverse the superior court's decision and reinstate the adoption decree. But because: (1) the adoption consent form prepared by the attorney for the adoptive parents and signed by the biological mother provided that the biological mother understood she would have the right to

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visitation with the child after the adoption; (2) the findings of fact and conclusions of law prepared by the attorney for the adoptive parents and entered by the court with the adoption decree confirmed the parties' contemplated visitation rights for the biological mother following the adoption; and (3) the superior court has the authority to enforce a visitation framework in the best interests of the child, we remand with direction to consider appropriate visitation for the biological mother in this open adoption.1


Donna 2 was barely eighteen years old when she gave birth to a baby girl in October 2006. The child's biological father was seventeen years old and resided in Iowa with no intent to move to Alaska. He is not a party to this litigation.

During her pregnancy Donna expressed an intent to give up her child for adoption. About one week Before giving birth, she approached her father and stepmother (the Smiths) about adopting the child. Donna changed her mind about adoption after the child was born, and she and the child moved in with Donna's stepsister. About three weeks later Donna changed her mind again. Donna asked her stepsister and her stepsister's boyfriend to adopt the child, but they declined. Donna again approached the Smiths about adopting the child. The Smiths agreed.

The child was placed in the Smiths' care and custody on November 9, 2006. Both Donna and the biological father were required to give consent Before the adoption could be completed,3 and on November 13 Donna and the Smiths met with the Smiths' attorney for Donna to review and sign her consent form. Donna was not represented by an attorney at this meeting, but Before she signed her consent form the Smiths' attorney read and discussed each paragraph of the document with her.4

Paragraph six of Donna's consent form provided:

I understand that, by signing this consent, I am giving up all of my rights to the care, custody and control of the minor child, and that I am giving up these rights permanently. I will also be permanently relieved of all responsibility for the child. I will have legal relationships to the child including for purposes of inheritance; and I will have full right to visitation with the child after the adoption.

Donna's consent form also provided that her consent could be withdrawn up to ten days after signing the consent form, but thereafter could be withdrawn " only upon a finding by the Court, after a hearing[,] that withdrawal of the consent is in the child's best interests." 5 It also provided that once the adoption decree was entered, consent no longer could be withdrawn " at all." 6 Donna signed the consent form that day, and it was filed with the court. Donna later contacted the child's biological father to solicit his consent to the adoption; his written consent, which was not conditioned upon maintenance of any legal relationships or visitation rights, was also filed with the court.

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The Smiths' attorney lodged proposed findings of fact and conclusions of law and a proposed decree. Relevant findings and conclusions were that: (1) Mr. Smith (Donna's father) was forty-nine years old and Mrs. Smith (Donna's stepmother) was nearly forty years old; (2) the Smiths had seven children other than Donna; (3) Donna voluntarily consented to the Smiths' adoption of her child; (4) Donna " shall retain visitation rights with the minor child following the adoption" ; (5) all required consents had been filed or excused and all appropriate notices had been given; and (6) the adoption was in the best interests of the child. The findings and conclusions and the adoption decree were entered as presented after a brief hearing on December 18, 2006.7

Donna visited the child freely in the weeks following the adoption, but the Smiths then began imposing restrictions and limitations that Donna characterizes as preventing " meaningful contact" with the child. In late June 2007 Donna filed a verified petition to set aside the adoption, alleging that: (1) her consent had been " obtained by misrepresentation and/or undue influence," specifically that the Smiths " falsely stated that [Donna] could have her child back when she was ready" ; (2) the Smiths had " failed to obtain [Donna's] proper consent" and " failed to give required notice of the [adoption] petition" ; (3) she had not signed the consent " voluntarily, knowingly or intelligently" and had not received a copy of it as required by statute; and (4) it was " in the best interests and welfare of the minor child to have the parental relationship with [Donna] restored."

An evidentiary hearing was held on December 5 and 6, 2007. The superior court orally entered its decision to set aside the adoption on December 6. The court first noted that it had jurisdiction because the petition was filed within one year of the decree.8 The court found that Donna's consent had not been obtained by fraud or misrepresentation because " there [was] no question" that the Smiths' attorney " did his job" making sure that Donna understood what was going on and that " he did it well." The court made no specific note or findings either of " duress" or " undue influence" affecting Donna's consent, or of any procedural infirmities during the adoption process. While not finding that Donna lacked capacity when she signed the consent, the court stated that " considering her age, immaturity, lack of education, and mental situation that she found herself in" Donna " was not in a state of mind to be buying a car, and certainly not signing consents" for adoption of her child. The court concluded that even if Donna's assumptions about the adoption were " unreasonable" and " foolish," these factors fatally undermined the " strength" of Donna's consent.

The superior court stated that " the legislature is a little coy, and so is the supreme court in telling me exactly what sort of grounds I could ... rely upon to invalidate a consent," but that " [i]t generally seems to be

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done in the same fashion as an analysis of a contract ... because we've talked about misrepresentations, and fraud and duress, and I guess a mistake." The court then applied a contract analysis and found that there had not been a " meeting of the minds" with respect to the post-decree relationship among the Smiths, Donna, and the child:

[Donna] and her parents were on different tracks entirely. They really intended to become this child's parents and I really think that [Donna had] some vague concept whereby they were going to be the grandparents who raised her kid for a while at least, and maybe for the full 18 years.

The superior court stated that it needed to " reopen this and have a look and see what [was] in the best interest of this child." The court applied the best interests analysis set forth in AS 25.24.150(c),9 generally applicable in divorce-like proceedings,10 to determine whether Donna or the Smiths should raise the child. In Donna's favor, the court found that: (1) there was a natural bond between Donna and her child; Donna had matured in the year since giving up the child for adoption; Donna was the one more willing to allow the other to play a role in the child's life; and Donna was the more age-appropriate parent. In the Smiths' favor, the court found that because the couple had custody of the child for more than a year, they had bonded with her and she with them, and that they clearly were more experienced as parents. The court ultimately concluded that it was in the child's best interests to be raised by Donna.

A written order setting aside the adoption was issued shortly after the hearing; the child was removed from the Smiths' custody and given to Donna that day. The Smiths moved for reconsideration, a stay pending reconsideration, and if necessary, a stay pending appeal. The motion was denied. In its order denying reconsideration the superior court clarified the basis for its earlier ruling: " the court has the power to vacate the adoption decree upon the ground of mistake, [Donna] met her burden of proof showing mistake, and ... setting aside the adoption is in the best interests of the child."

The Smiths appealed. Pending resolution of the appeal we ordered that in lieu of a stay of the superior court's order, the superior court establish a...

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