390 P.3d 1153 (Alaska 2017), S-15904, In re Adoption of Hannah L.

Docket Nº:S-15904, 7157
Citation:390 P.3d 1153
Opinion Judge:WINFREE, Justice.
Party Name:In the Matter of the Adoption of HANNAH L., a Minor
Attorney:Kristen C. Stohler, Stohler Law, P.C., Palmer, for Appellant Daniel W. Notice of nonparticipation filed by Appellee Brandon L. No appearance by Appellee Tarrah W.
Judge Panel:Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger, Justices.
Case Date:March 10, 2017
Court:Supreme Court of Alaska
 
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Page 1153

390 P.3d 1153 (Alaska 2017)

In the Matter of the Adoption of HANNAH L., a Minor

No. S-15904, No. 7157

Supreme Court of Alaska

March 10, 2017

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Vanessa White, Judge. Superior Court No. 3PA-13-00149 PR.

Kristen C. Stohler, Stohler Law, P.C., Palmer, for Appellant Daniel W.

Notice of nonparticipation filed by Appellee Brandon L.

No appearance by Appellee Tarrah W.

Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger, Justices.

OPINION

WINFREE, Justice.

I. INTRODUCTION

Alleging that parenting failures waived the biological father's otherwise legally required consent, a stepfather petitioned to adopt his wife's daughter over the biological father's objection. The superior court determined that the proposed adoption was not in the child's best interests and denied the petition. On reconsideration the court noted that the child's best interests determination was sufficient to deny the petition and concluded that a determination whether the biological father had waived consent was unnecessary, but nonetheless determined that the biological father's actions did not constitute a waiver of consent. The stepfather appeals. Because the record supports the court's best interests determination -- and that determination by itself is sufficient to block the adoption -- we affirm the court's decision denying the adoption petition.

II. FACTS AND PROCEEDINGS

Tarrah W. and Brandon L. are the biological parents of Hannah,1 born in 2007. Tarrah and Brandon never married; they ended their relationship when Hannah was an infant. Tarrah and Daniel W. married in 2008.

Tarrah and Brandon initially had no formal custody and visitation agreement. Brandon exercised frequent visits with Hannah by requesting time from Tarrah, who generally was accommodating. Brandon's time with Hannah included overnight visits approximately every other weekend and other extended visits.

According to Tarrah, Hannah began resisting visitation with Brandon around June 2011. Hannah would scream and cry and refuse to see Brandon. Tarrah would on occasion physically force Hannah to participate by, for example, removing Hannah from Tarrah's car, putting Hannah in Brandon's car, and leaving. Alternatively she might " bribe" Hannah by telling her she could get ice cream or go to the toy store on the way to Brandon's house. Tarrah discussed Hannah's resistence with Brandon, but he was generally dismissive, asserting that children frequently and inexplicably behave defiantly.

Tarrah said she stopped " forcing" Hannah to participate in visitation with Brandon starting in spring 2012; from then until June 2013, despite frequent requests, Brandon saw Hannah only once or twice. Brandon and Tarrah typically communicated through text messaging, and his persistent requests generally were ignored.

In April 2013 Tarrah proposed counseling to heal Hannah and Brandon's relationship. Brandon disagreed with counseling, believing there was " nothing wrong with my daughter" and it " could do [her] more damage." He accused Tarrah of being " dramatic" and using counseling as an obstacle to his time with Hannah. Over Brandon's objection Tarrah initiated counseling for Hannah in late April. In June Tarrah told Brandon that the counselor recommended Hannah have no contact with him and that Tarrah was taking that recommendation. Tarrah invited Brandon to call the counselor.

Daniel petitioned in early June to adopt Hannah, asserting that Brandon's consent to the adoption was not required under AS 25.23.050(a).2 Brandon was not served with the petition. Unaware of the adoption action, a short time later Brandon sued Tarrah for legal and physical custody of Hannah.

The superior court consolidated the matters and held an evidentiary hearing on interim custody in August. The court awarded Tarrah interim primary physical custody and awarded Brandon supervised visitation twice weekly. Four supervised visits between Brandon and Hannah were attempted, but visitation continued to be unsuccessful because Hannah verbally and physically resisted meeting with Brandon.

Brandon was allowed to select a new counselor for Hannah to alleviate bias concerns, and Hannah began therapy with the new counselor in September. In November the superior court mediated a settlement agreement addressing the custody dispute and placing the adoption petition on hold for six months. The parties agreed Brandon would not have legal or physical custody, but he gained certain visitation rights. Daniel agreed he would not later argue that Brandon had waived parental consent to adoption by failing to significantly support Hannah if: (1) Brandon paid his base monthly child support for six months; (2) Brandon complied with Hannah's counselor's recommendations; and (3) the counselor believed Brandon and Hannah made sufficient progress during reunification therapy.3

After the six months had elapsed a bench trial on the contested adoption took place in May and June of 2014; the superior court made its decision on the record at the end of June and rendered written Findings of Fact and Conclusions of Law in March 2015. The court denied Daniel's adoption petition because it was not in Hannah's best interests4 and determined that Brandon's conduct did " not justify the termination of his parental rights." The court instead determined that it was in Hannah's best interests to maintain a relationship with Brandon; the court observed that Brandon had neither " taken a meaningful role" nor " demonstrated consistent involvement" in Hannah's life, and it ordered mandatory reunification therapy with the expectation of transitioning into a regular visitation schedule.

Daniel sought reconsideration, asserting, among other things, that the superior court had failed to determine whether Brandon had waived his right to consent to the adoption. Daniel argued that Brandon's failure to meaningfully communicate, failure to provide support, and abandonment constituted waiver of consent. The court issued a reconsideration order clarifying its findings and conclusions two days after Daniel's motion would otherwise have been deemed denied under Alaska Civil Rule 77(k)(4).[5] The order included findings that Brandon did not waive consent to the adoption. The court also explained it had not previously addressed waiver because " on the basis of the entirety of the testimony heard" it had determined that adoption was not in Hannah's best interests.

Daniel appeals the adoption ruling, asserting that: (1) the court's order on reconsideration should be vacated as a matter of law because it was untimely; (2) the court erred by failing to find that Brandon's consent had been waived; and (3) the court erred by deciding that adoption was not in Hannah's best interests. Brandon and Tarrah have not participated in the appeal.

III. STANDARD OF REVIEW

" When interpreting the Civil Rules we exercise our independent judgment, adopting the rule of law that is most persuasive in light of reason, precedent, and policy." [6] " Although we review the superior court's factual findings in adoption proceedings for clear error, we review de novo as [a] matter[] of law whether . . . factual findings satisfy the requirements for application of a statute." 7 We have explained: When reviewing factual findings we ordinarily will not overturn a trial court's finding based on conflicting evidence, and we will not re-weigh evidence when the record provides clear support for the trial court's ruling; it is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence.8

IV. DISCUSSION

A. The Superior Court Did Not Err By Issuing Its Reconsideration Order.

The superior court issued its written custody and adoption decision in March 2015. Daniel timely moved for reconsideration. After 30 days Daniel's motion was deemed denied under Rule 77(k)(4).9 Daniel filed a timely notice of appeal the next day.10 But the following day, notwithstanding that the motion to reconsider was already deemed denied under Rule 77(k)(4), the court issued its " Order Denying Motion for Reconsideration and Clarifying Findings of Facts and Conclusions of Law," directly addressing Daniel's reconsideration contentions.

Daniel asserts that the superior court erred by ruling on his motion for reconsideration two days after the 30-day time period provided by Rule 77(k)(4) expired. Daniel urges us " to vacate the trial court's [reconsideration order] as untimely and to rely on the record as it existed [on the date given by Rule 77(k)(4)]." Arguing that the " deadline is not optional, it is mandatory," Daniel...

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