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David S. v. Jared H.

Supreme Court of Alaska

August 16, 2013

DAVID S., Appellant,
JARED H. and Connie H., Appellees.

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Jason A. Weiner, Gazewood & Weiner, P.C., Fairbanks, for Appellant.

Joseph W. Miller, Law Offices of Joseph Miller, LLC, Fairbanks, for Appellees.

Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.


STOWERS, Justice.


The superior court granted a grandfather and grandmother's petition to adopt their grandchild without the consent of the biological father. The superior court found that the father's consent was not required because he failed significantly without justifiable cause to communicate meaningfully with the child for a period of at least one year. On appeal, the father does not challenge the superior court's finding that he failed to communicate meaningfully with the child for at least the year-long period; he instead argues that this failure was justified by: (1) his incarceration; (2) an agreement he allegedly had with the child's biological mother; (3) alleged interference by the grandparents; and (4) the totality

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of the circumstances. The father also argues that the superior court abused its discretion by failing to consider visitation rights and by awarding attorney's fees against him.

Because the record does not support the father's argument that his failure to communicate meaningfully with the child was justified, the superior court did not clearly err in finding that this failure was unjustified, and we affirm the superior court's finding that the father waived his right to consent to the adoption. Because the issue of visitation rights was not raised before the superior court, we hold that the superior court did not abuse its discretion in failing to consider the issue. Finally, because the superior court did not abuse its discretion in awarding attorney's fees against the father, we affirm that award.


A. Facts

Katie Howard [1] was born to Alicia Howard and David Smith in December 2003. Alicia was listed as the mother on the birth certificate, but David was not listed as the father. At the time of Katie's birth David was incarcerated; he has been incarcerated for the majority of Katie's life. David has never met or spoken to Katie.

David lived with Alicia in her parents' home in Fairbanks for a brief period prior to Katie's birth, but moved out in early 2003 after a dispute with Alicia's father. In September 2003 David was arrested and incarcerated in Fairbanks on forgery charges relating to an incident in Idaho. Soon after David was incarcerated Alicia obtained a domestic violence protective order against him. The protective order remained effective only for three weeks, as Alicia successfully requested to dissolve the order so that she could " try to build a friendship [with David] and work things out for me and the baby to be."

David was extradited to Idaho just prior to Katie's birth, and he and Alicia initially maintained contact by sending letters to one another and by talking on the telephone. Alicia sent seven letters to David in December 2003 that varied in subject matter and in tone. In one she told David she was " sick of the [b.s.]" and accused him of having an affair before he went to jail; in another she expressed her love for David and described Katie's bedroom and the birthing plan to him. In her final letter to David, sent in April 2005, Alicia told David that she still loved him but she needed to keep him " gone."

David sent three letters to Alicia in early 2004 and two in 2005, all of which were returned to sender. In the letters David expressed his excitement over Katie's birth and requested pictures of her. But David also grew frustrated over Alicia's failure to communicate and blamed her family for this lack of communication, stating, " I guess that your parents have spoken and you are listening to them." David also sent a letter directly to Katie on April 6, 2004, in which he told her that he loved her and wanted to meet her, but that he needed to get out of prison and get his act together first; this letter was also returned to sender. David mailed his final two letters to Alicia in 2005 to a post office box, noting he never received any response to the first three letters mailed to Alicia's parents' house.

Alicia and David resumed limited contact via telephone and internet in 2006 and 2008 when David was temporarily released on parole. In July 2009 Alicia sent David a message on a social networking site in which she gave him her telephone number and asked him to call her because she had " a couple of very important questions" for him. In that same message Alicia also told David she was no longer mad at him and requested he " look [her] up" on a social networking site so he could see pictures of Katie. David did not respond or resume contact with Alicia until December 31, 2010, when he sent her a " friend" request via the social networking site. David also had contact with Alicia over a different social networking site in January or February 2011. This interaction was the last time David and Alicia ever communicated.

Alicia and Katie resided with Alicia's parents, Jared and Connie Howard, after Katie

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was born. Alicia married in 2005, at which point she and Katie moved out of the Howards' home. Alicia's marriage lasted just over three years, and in 2008 she and Katie moved into their own home. In 2009 Alicia was diagnosed with bipolar disorder.

Alicia died unexpectedly on March 1, 2011. Katie has lived with her grandparents, Jared and Connie, ever since. Following Alicia's death, David sent Jared and Connie a letter in which he asked to talk to them about Katie and expressed concern over Katie's " welfare and this new transition that we are all about to incur." It appears that David was released from jail in April 2012.

B. Proceedings

Soon after Alicia's death, Jared petitioned the superior court to be appointed Katie's temporary guardian. Jared stated in his petition that he had been Katie's father figure for her entire life and that he and Connie planned to adopt Katie. Jared also informed the court that David was incarcerated and that David was not listed as Katie's father on her birth certificate. The court held a hearing and found that David's parental rights had been terminated or suspended because he had never had contact with Katie, had denied his paternity, and was incarcerated in another state. On March 25, 2011, the superior court appointed Jared as Katie's temporary guardian.

On May 2, 2011, while a long-term guardianship hearing was pending, the Howards petitioned to adopt Katie. Such a petition normally requires written consent from the child's father, but consent is not required if the father has failed to legitimate the child or if consent is not required under AS 25.23.050.[2] The Howards argued that David's consent was not required and moved for summary judgment on the issue of abandonment. David was found to be indigent and was appointed counsel.

In August 2011 Master Bethany S. Harbison held a two-day evidentiary hearing on the issue of whether David had waived his right to consent to the adoption. The master heard testimony from David, David's girlfriend, David's mother, and from Jared and Connie.

David testified that, although he had failed to communicate meaningfully with his daughter, he never waived his right to consent to the adoption because this failure was justified. David acknowledged that he had occasionally gone a year or more without talking to Alicia, attributing the lack of regular contact to his incarceration in a medium-security facility, to the high costs of long-distance phone calls in prison, and to the fact that his letters were returned.

David also cited an additional reason for his failure to communicate directly with Katie: according to David, he and Alicia had agreed that he would not communicate with his daughter while he was incarcerated. David testified that he and Alicia began discussing the agreement in September or October 2003 and " finalized" it in January of the following year. David stated that this agreement prevented him from contacting Katie or taking formal steps to legitimate her.

David provided two distinct rationales for this agreement. First, David testified that he and Alicia agreed that he would not be involved in Katie's life until he could be an active father, " [a]nd being in jail wasn't being an active father." David stated that he and Alicia decided he could have contact with Katie when he " could pay [his] own bills" and when he " grew up." Second, David explained that he and Alicia agreed that he would not have contact with Katie in order to prevent Alicia's parents from " cut[ting] her off" financially and emotionally, leaving her with no place to live. David testified that he had a poor relationship with Alicia's parents, so much so that they had threatened to " cut [Alicia] out" if she had anything to do with

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David. According to David, Alicia was " completely dependent on her parents" both financially and mentally because of her mental health issues.

David's girlfriend, Amanda, testified that David had not had any contact with Katie because he was incarcerated and because the letters he had sent to Alicia had been returned to sender, but that it was his " strong desire" to be in Katie's life. Amanda also testified about her own relationship and communication with David. Amanda testified that she and David met in 1993 and began dating soon after he reinitiated contact with her via internet in late 2010 while he was on work release from prison. Amanda stated that the amount of contact she had with David varied depending on his level of incarceration: when David was on work release, they communicated by internet several times a week and by telephone every other day; when David was incarcerated in the medium-security facility, they communicated by telephone at least every other week and by letter every four days or so.

David's mother, Jane, testified that she met Alicia in 2002 before Alicia became pregnant. Jane described a brief conversation she had with Alicia during which Alicia stated that she was angry at David and did not want his name to appear on the birth certificate. Jane also asserted that Alicia called her several years later to ask her to pass along the message to David that she was going to be married to another man, she did not want David to contact her, and she did not want any interference from David's family. Jane testified that Alicia had additionally stated that she was afraid that, if she continued to see David, her parents would kick her out of the house and stop providing her with financial support. Jane testified she had never heard firsthand from Alicia that she and David had an agreement that he would not contact Katie, but that David had mentioned the agreement to her by November 2003. Jane stated she did not personally feel that she could contact Katie and that Alicia was very volatile because of her mental disorder.

Jane also testified about her own contact with David. Jane stated that she talked to David at least once a week throughout his incarceration, and the only time she was completely ...

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