W.E.G., Matter of
| Decision Date | 06 December 1985 |
| Docket Number | Nos. S-777,S-778 and S-803,s. S-777 |
| Citation | 710 P.2d 410 |
| Parties | In the Matter of: W.E.G. and J.R.G., Minor Children Under the Age of Eighteen Years. |
| Court | Alaska Supreme Court |
J. John Franich, Fairbanks, for Foster Parents.
Gail M. Ballou, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for Biological Father.
Richard D. Savell, Fairbanks, for Adoptive Parents.
G.R. Eschbacher, Anchorage, for Biological Mother.
D. Rebecca Snow, Asst. Atty. Gen., Fairbanks, Norman C. Gorsuch, Atty. Gen., Juneau, for the State.
Daniel L. Callahan, Schendel & Callahan, Fairbanks, for Guardian Ad Litem.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
This difficult case concerns the adoption of two young boys. Their foster parents seek to adopt them, with the consent of the boys' biological parents. However, the boys' maternal grandparents oppose the foster parents' adoption petition; they, too, have filed an adoption petition, without the consent of the boys' biological parents. The superior court consolidated all actions concerning the boys, then excluded the grandparents from participating as parties in the hearing on the foster parents' petition. Ultimately, the superior court granted the foster parents' petition but also granted post-adoption visitation rights to the grandparents, contrary to the adoption statute. The court ruled the statute as applied to be unconstitutional as a denial of equal protection.
As discussed below, we conclude that: (1) AS 47.10.230(e) does not entitle the grandparents to an adoption preference; (2) the adoption statute as applied does not violate equal protection; (3) the inescapable language of the adoption statute precludes granting post-adoption visitation rights to an adopted child's biological relatives; (4) the superior court's post-consolidation exclusion of the grandparents was harmful error; and (5) on remand the superior court, in determining the boys' best interests, should consider the duration and quality of the time that the boys have spent in the foster parents' custody.
In February 1984 the Division of Family and Youth Services (the Division) was granted custody of the young sons (now ages 3 and 5) of M.B. and W.I. in a children-in-need-of-aid proceeding pursuant to AS 47.10.080. The Division placed the boys in the foster home of R.G. and C.G., who have had physical custody of the boys since that time.
On April 13, 1984, a stipulation was filed with the court, reflecting an agreement among all parties that it would be in the boys' best interest to be adopted by their foster parents. The boys' parents signed consents to such adoption. Later, however, the foster parents discontinued their initial adoption application; consequently, a series of other couples considered adopting the boys. The maternal grandparents also filed a petition to adopt the boys.
Within a month the Division concluded that the best alternative placement for the boys would be with their grandparents. This conclusion was contested by the boys' biological mother. A hearing was then held to determine whether the Division's decision to move the boys from the foster parents' home to that of the grandparents was an abuse of discretion. The court continued the hearing to allow the Division to "investigate the new alternatives."
On June 18 the hearing was reconvened. The foster parents then informed the Division's social worker that they again wished to adopt the boys. At the close of testimony the court recessed the proceedings again to allow the Division to evaluate the foster parents' renewed request to adopt the boys.
On July 18 the foster parents filed their petition to adopt the boys. The biological parents again gave their consents to the foster parents. A hearing on the foster parents' adoption petition was scheduled for August 16, but the grandparents obtained a temporary restraining order staying that proceeding. At the TRO hearing on August 23, Judge Van Hoomissen consolidated all proceedings pertaining to the boys.
On October 11 the superior court held a pretrial conference on the consolidated cases and ruled: (1) that the foster parents' adoption petition was the primary matter to be decided; (2) that their petition would be heard first; and (3) that the grandparents would not be allowed to participate as parties. The court further ruled that if the foster parents' adoption petition were granted, the matter of the boys' adoption placement would be concluded.
On October 15-16 the superior court held an adoption hearing and decided that the boys should be adopted by the foster parents. The court also determined that continued contact between the boys and their grandparents would be in the boys' best interests, and that AS 25.23.130(a) is unconstitutional as applied to this case. Judge Hodges deemed the statute a violation of equal protection because it "does not provide for the maintenance of familial relationships that are in the best interests" of the adopted child.
Subsequently, the boys' biological mother filed a motion to withdraw her consent to the foster parents' adoption petition. The court did not grant her motion. Ultimately, the court signed a revised order that set forth the grandparents' post-adoption visitation rights. Multiple appeals and cross-appeals followed.
The foster parents have appealed the superior court's decision that their adoption decree would not terminate the boys' relationship with their biological grandparents, arguing that the adoption statute precludes an order of enforceable post-adoption visitation rights.
The grandparents challenge the superior court's decision to consider the foster parents' adoption petition first, instead of their own petition. They argue that, as natural relatives, they should have been entitled to a preference, and that the superior court erred in precluding them from participating as parties in the hearing on the foster parents' adoption petition. They also contend that the adoption statute, AS 25.23.130, violates equal protection.
The boys' biological father argues in favor of the foster parents and against the grandparents. 1 The boys' biological mother argues that the superior court did not err in entering an adoption decree that also preserved the boys' legal relationship with their biological grandparents.
The guardian ad litem implicitly acknowledges that the court erred in excluding the grandparents from participating as parties in the hearing on the foster parents' adoption petition. The guardian ad litem contends, however, that such exclusion should be deemed harmless because the state adequately represented their interests during those proceedings.
The Division argues that the adoption statute should be construed to allow the granting of post-adoption visitation with biological relatives. However, the guardian ad litem argues that, even if this court were to stretch the adoption statute to allow post-adoption visitation rights, in this case it would not be in the boys' best interests for a court to order such visitation. 2
The Division also contends that the foster parents' adoption petition was deficient because the biological parents' consents were invalid. However, the Division did not appeal the superior court's adverse ruling on this point. Although the grandparents included the alleged invalidity in their points on appeal, they have not briefed that point. Thus the issue has been abandoned. Union Oil Co. v. State, 677 P.2d 1256 (Alaska 1984); Joseph v. Jones, 639 P.2d 1014 (Alaska 1982).
Finally, the parties dispute whether the superior court should, upon remand, consider the period that the boys have been in the foster parents' care in determining which placement would be in the boys' best interests.
In this case the grandparents appeal an adoption order by the superior court. They argue that they are entitled to a preference over the foster parents because AS 47.10.230(e) provides in part: "A child may not be placed in a foster home or in the care of an agency or institution providing care for children if a blood relative exists who requests custody of the child."
However, there is no such blood-relative preference in adoption cases. AS 47.10.230(f) is clear in stating: "Nothing in this subsection or in (e) of this section applies to child placement for adoptive purposes."
Moreover, as for subsection (e), the grandparents never initiated an action in superior court for de novo review of the Division's foster care decision to place the boys with the foster parents instead of with the grandparents. It seems that the Division did not make a formal determination to deny the grandparents' request to be the boys' foster parents. The Division characterized its decision on the grandparents' request as "pending" when all the parties initially stipulated to the foster parents' adoption of the boys. Later, after the foster parents indicated that they had changed their minds about the adoption, the Division did favor placing the boys with their grandparents. It is uncertain whether the Division intended such placement to be for foster care or adoption. Nevertheless, the grandparents did not request de novo review of the Division's original inaction on their request to become the boys' foster parents. That issue is therefore not before us.
The superior court concluded that the adoption statute, AS 25.23.130(a), is "unconstitutional as applied in this case" because it "does not provide adopted children with the equal protection of the laws," i.e., it does not allow the court to fashion a decree that would provide for post-adoption visitation with biological relatives. However, the superior court did not indicate a discriminatory...
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