K.M.M.'s Adoption, Matter of

• Decision Date: 16 May 1980
• Docket Number: No. 4321,4321
• Citation: 611 P.2d 84
• Parties: In the Matter of the ADOPTION of K.M.M. and B.M.M., Minor Children.
• Court: Alaska Supreme Court

Page 84

611 P.2d 84

In the Matter of the ADOPTION of K.M.M. and B.M.M., Minor Children.

No. 4321.

Supreme Court of Alaska.

May 16, 1980.

Brett M. Wood, Fairbanks, for appellant.

Thomas Fenton, Call, Haycroft & Fenton, Fairbanks, for appellees.

Before RABINOWITZ, C. J., CONNOR, BOOCHEVER and MATTHEWS, JJ., and DIMOND, Senior Justice.

OPINION

DIMOND, Senior Justice.

M.O. and his wife, K.M., were divorced in April, 1975. Custody of their two children, K.M.M. and B.M.M., ages six and four respectively, was awarded to their mother, K.M. In May, 1977, K.M. married G.M., and on May 23, 1978, G.M. filed a petition for the adoption of the two children.

M.O., the children's father, contested the proposed adoption on the basis that his consent was required. On September 18, 1978, the superior court granted the petition for adoption, concluding that M.O.'s consent was not required under AS 20.15.050(a). That statute provides in part:

Persons as to whom consent and notice not required. (a) Consent to adoption is not required of

(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 M.O. had failed both in meaningful communication and in providing support. By statute, his consent is unnecessary if either ground is present. Thus, we must consider both M.O.'s communication with his children and his support. If M.O. failed significantly without justifiable cause in either, the superior court's decision that his consent was unnecessary to the adoption must be affirmed. For purposes of convenience, we consider the support issue first.

SUPPORT

When M.O.'s wife, K.M., divorced him, custody of the children was given to her. M.O. was ordered by a divorce decree to pay $280.00 a month for the support of the two children. From the time of the divorce in April, 1975, until April, 1977, M.O. did not fail to meet this child support obligation. He continued his support payments during the time that his ex-wife was living with his closest friend, G.M., prior to G.M. and K.M.'s marriage in May, 1977.

In May, 1977, because of a period of unemployment, M.O. was able to send to his ex-wife only $180.00 for child support. She returned the check to M.O., apparently without explanation, because M.O. wrote to her after the check was returned stating that he did not know the reason for return of "my partial support payment." However, K.M. stated in testimony before the court on the adoption petition that she had returned the check because she and her new husband, G.M., knew what it was like to be broke, and that she had told M.O. "to keep the money and catch up later."

This return of the $180.00, coupled with M.O.'s concern that his support money was not being used properly for the support of his two children, ¹ prompted him to begin placing his support money in a savings account in trust for the children. ² It was his intention in establishing this fund for it to be so constituted that the signatures of both M.O. and his ex-wife, K.M., would be necessary before monies could be withdrawn. However, there was some misunderstanding or lack of communication between M.O. and K.M., coupled with what may have been a mistake on the part of the bank, which prevented K.M. from drawing on this account.

M.O. and his wife were divorced in the state of Washington in April, 1975. The divorce decree is not part of the record on appeal. However, there is no question that M.O. was to pay $280.00 a month for a support of his two children. For a period of two years after the divorce, M.O. sent monthly checks for $280.00 to his ex-wife, K.M. It is fair to presume from this that payment directly to her each month is what was required by the Washington divorce decree. Thus, M.O. was technically in default when in May, 1977, and thereafter, he deposited in the savings account, in trust for his children, $280.00 a month, instead of sending his money directly to his ex-wife, K.M. This situation existed for at least one year from May, 1977, until the petition for adoption was filed on May 23, 1978.

In these circumstances, the question presented is whether M.O.'s consent to the adoption of his children by G.M. was not required by reason of his actions for a period of one year in placing the child support money in a savings account in trust for the children, rather than sending monthly payments of $280.00 to his ex-wife, K.M. The superior court concluded that this arrangement did not constitute the providing of child support by M.O., because the money in the savings account was not subject to being withdrawn by K.M. The court held, therefore, that M.O.'s consent to the adoption of his children by G.M. was not required under AS 20.15.050.

We believe the facts of this case call for a different result. There is no question, from the testimony of the hearing on the adoption petition, that M.O. was deeply concerned for the welfare and best interests of his children. He had sent to his ex-wife, K.M., regular payments of $280.00 for practically two years after their divorce in April, 1975. In May, 1977, when he was out of work, he sent K.M. $180.00, which she returned to him. It was after this that M.O. set up a savings account in which he regularly and faithfully deposited $280.00 each month in trust for his two children. He made no withdrawals from this account. On September 1, 1978, the bank's records show that there was on deposit in the savings account, in trust for M.O.'s children, the sum of $4,255.00. ³ The money was there and available, if needed, even perhaps in the future, as a fund that could be utilized for the children's care and support at a later time. This is far different from a case where an ex-husband and father of the children simply ceases making any payments at all for the support of his children.

We consider it significant that after K.M. returned the May, 1977, payment of $180.00, she took no action at all to require M.O. to make the required monthly payments of $280.00. The only step she took was to write a brief note to M.O. in June, 1977, stating that the support payments could be sent to a bank in Nenana, Alaska, to be deposited in a joint account of K.M. and her husband, G.M. This letter was written following M.O.'s letter to K.M. in which he stated that he did not understand the reason for the return of the $180.00.

K.M. was aware of the savings and trust account at least as early as September 12, 1977, when Mr. Wood, M.O.'s attorney, wrote to K.M., referring to the trust account, stating that:

(M.O.) is desirous of placing the money elsewhere so that a fund could be created which would grow as years go by. Monies could be drawn from the fund as they may be needed for the children's benefit or, if they were not needed, could be dispersed to the children when they reached majority for such purposes as a college education, etc. This seems to be (a) much more practical way of handling this than paying monies to you which aren't presently needed and which merely become co-mingled (sic) with the family funds of you and your present husband.

K.M. did not respond by demanding, for example, payment of the $280.00 a month to her under the divorce decree. Instead, her attorney, Mr. Fenton, answered Mr. Wood about five weeks later stating:

(K.M.) is not desirous of placing the money into any fund for future use. In addition to the foregoing, there is nothing to substantiate (M.O.'s) contention that (K.M.) does not need the support money for the children.

Again, no demand was made by counsel for payment of the arrearages of $280.00 a month under the divorce decree.

In the special circumstances of this case, we conclude that M.O., within the meaning of AS 20.15.050, did not fail "significantly without justifiable cause . . . to provide for the care and support" of his minor children as required by judicial decree. His constant concern was the welfare of his children. He faithfully made the required payments for their care and support despite the fact that payments after May, 1977, were placed into a savings-trust account for the children rather than being sent to his ex-wife, K.M. Her failure to request or demand that the money be given to her for the immediate care of the children might well have caused M.O. to believe that the children were then being adequately cared for, and that the trust fund, probably to be used for the children's needs in the future, was a permissible way to discharge his obligation to provide for their support, which obligation was a continuing one until the children reach the age of majority.

AS 20.15.050 is modeled after a provision of the Uniform Adoption Act. ⁴ States which have adopted this Act have required that it be strictly construed in favor of the natural parent when the declaration of parental rights is involved. ⁵ Apart from the Uniform Adoption Act, it has been similarly held that the fundamental nature of parental rights requires strict construction of adoption statutes. ⁶ This is in keeping with our own pronouncement on the subject. In Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973), which was decided prior to the enactment of AS 20.15.050 (the Uniform Adoption Act), we held that adoption consent provisions are designed to protect the natural rights of parents to custody, society, comfort, and services of the child. We further held that parents should not be deprived of the fundamental rights and duties inherent in the parent-child relationship except for "grave and weighty reasons." Id. at 712 (quoting with approval from In re Parks Petition, 267 Minn. 468, 127 N.W.2d 548, 553 (1964)).

Construing AS 20.15.050 strictly in favor of M.O., we hold that he did not fail substantially...