Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge. Superior Court Nos. 3PA-07-02189 CI, 3PA-08-00145 PR.
Christi A. Pavia, Pavia
Law Office LLC, Anchorage, for Appellant Connie J.
Lisa B. Nelson, Law
Office of Lisa B. Nelson, LLC, Anchorage, for Appellants William Ebert and Holly
Ann L. DeArmond, Sterling & DeArmond P.C., Wasilla, for Appellee Bruce L.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, andBolger, Justices.
A married couple sought to adopt an Indian child over the objection of the biological father, who wished to maintain visitation rights. The couple and the biological mother appeal the superior court's denial of the adoption, claiming that the biological father's consent to the adoption was unnecessary. Under AS 25.23.050(a)(2)(B), the consent of a noncustodial parent is not required for adoption if that parent unjustifiably fails to support the child. But the superior court did not clearly err by concluding that the biological father had justifiable cause for his failure to support the child. We affirm.
II. FACTS AND PROCEEDINGS
Bruce L. and Connie J. began a relationship in August 2006.  Their relationship was somewhat tumultuous, with at least one period of separation during the fall of 2006. In November Connie told Bruce that she was pregnant and was considering giving up the child for adoption. Bruce objected to the adoption. After a final attempt to repair their relationship, Bruce and Connie separated permanently in January 2007.
Sometime in early 2007, Connie approached Holly and William Ebert, a married couple she knew from church, about adopting her child. Connie wanted the Eberts to adopt her child because she thought they would be loving parents and because they shared her religious values. The Eberts agreed to the adoption.
In June 2007, before the child was born, the Eberts met with Bruce " to discuss a consent to adopt." Under AS 25.23.040(a)(2), a biological father must typically grant written consent before an adoption can proceed. However, there are a number of exceptions to this consent requirement, including AS 25.23.050(a)(2), which allows an adoption to proceed without a noncustodial parent's consent in cases where the parent has failed to " communicate meaningfully with the child" or " provide for the care and support of the child" for at least one year. Bruce refused to consent and announced his intent to take custody of the child when he returned from working on a commercial fishing boat in August. He also suggested two other men might be the child's father, though he later testified that he made this statement only to " put a hitch in the adoption."
Timothy was born in July 2007. The Eberts took custody of him immediately and filed an adoption petition in late August 2007. In September Bruce, acting pro se, filed a
document in the adoption proceeding, asserting that he was the child's biological father and asking the court for " full physical and legal custody." The court denied Bruce's motion for custody without prejudice but made Bruce a party to the adoption proceeding.
Bruce, then represented by appointed counsel, filed a motion to establish paternity in December 2007. Soon thereafter the Eberts voluntarily dismissed their adoption petition. As a result of this dismissal, Bruce lost his right to appointed counsel. When later ...