David S. v. Jared H., 308 P.3d 862

Background

Katie (b. 2003) lived with maternal grandparents Jared and Connie after mother Alicia’s death in 2011; biological father David S. was incarcerated for much of Katie’s life and never met her.
Jared and Connie petitioned to adopt Katie; adoption normally requires parental consent, but AS 25.23.050(a)(2)(A) removes the need for consent if a parent "for at least one year has failed significantly without justifiable cause . . . to communicate meaningfully with the child."
The master and superior court found David failed to communicate meaningfully with Katie for a one-year period beginning in 2005; David did not dispute this factual finding on appeal.
David claimed his failure to communicate was justified by (1) incarceration, (2) an alleged agreement with Alicia not to contact Katie, (3) interference by the grandparents, and (4) the totality of circumstances; he also argued the court should have considered post-adoption visitation and that the award of attorney’s fees against him was improper.
The superior court (adopting most master findings) held David had legitimated the child but that his consent was unnecessary because he failed to communicate meaningfully without justifiable cause; the court approved the adoption and awarded the Howards reduced attorney’s fees under Civil Rule 82.

Issues

Issue	Plaintiff's Argument (Howards)	Defendant's Argument (David)	Held
Whether David waived consent by failing to communicate for one year	Howards: Clear & convincing evidence David had no meaningful communication for one year, so consent not required.	David: Does not dispute lack of communication; argues it was justified.	Held: David failed to communicate for one year; burden shifted and Howards proved lack of justifiable cause.
Whether incarceration justified lack of communication	Howards: Incarceration did not objectively prevent reasonable efforts to communicate.	David: Incarceration made meaningful contact impossible or non-willful; R.N.T. supports justification.	Held: Court rejected justification — David’s own conduct produced incarceration constraints and he maintained other prison contacts, so incarceration did not excuse failure.
Whether an agreement with mother excused noncommunication	Howards: No credible evidence of agreement; letters and grandparents’ testimony contradict it.	David: He and Alicia agreed he would not contact Katie while incarcerated to protect Alicia’s housing/financial support and until he was ready.	Held: Court rejected existence/credibility of agreement; letters and testimony showed no such agreement.
Whether grandparents interfered with communication	Howards: No evidence of active interference.	David: Alleged grandparents’ interference prevented contact (returned letters, lack of cooperation).	Held: Rejected — no specific evidence grandparents blocked contact; mere lack of relationship is not interference.
Whether totality of circumstances justified noncommunication	Howards: Even considering circumstances, David made no reasonable efforts after 2005 and failed to act when opportunities arose.	David: Combined factors (age of child, incarceration, mother’s bipolar disorder, family hostility) made communication futile or unreasonable.	Held: Rejected — precedent relaxing meaningful-communication where child is too young does not apply here given David’s inaction and opportunities in 2009–2011.
Whether court abused discretion by not addressing post-adoption visitation	Howards: N/A (adoption petitioners).	David: Court should have considered preserving visitation rights.	Held: Waived — David never requested visitation in superior court; statutes permit but do not guarantee post-adoption visitation.
Whether attorney’s fees against David were improper	Howards: Entitled to fees under Civil Rule 82; reduced award appropriate.	David: Indigent; constitutional interests and reasonable defenses counsel against fee award.	Held: No abuse of discretion — court applied Rule 82 factors and reduced award to avoid chilling indigent litigants.

Key Cases Cited

In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009) (standard for reviewing adoption findings)
In re Adoption of Missy M., 133 P.3d 645 (Alaska 2006) (adoption precedent cited)
In re Adoption of B.S.L., 779 P.2d 1222 (Alaska 1989) (strict construction of abandonment/communication provisions in favor of parent)
In re D.J.A., 793 P.2d 1033 (Alaska 1990) (burden-shifting on justifiable cause for failure to communicate)
R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983) (imprisonment may justify nonwillful failure to communicate depending on prison/parole constraints)
In re J.J.J., 718 P.2d 948 (Alaska 1986) (limits R.N.T.; asks whether incarceration constraints were a result of the parent’s conduct)
D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981) (parent’s efforts to comply with mother’s request not to reveal paternity relevant to justification)
S.M.K. v. R.G.G., 702 P.2d 620 (Alaska 1985) (active interference by family can justify noncommunication)
D.A. v. D.R.L., 727 P.2d 768 (Alaska 1986) (relaxed meaningful-communication requirement where child too young and barriers exist)
In re Adoption of K.M.M., 611 P.2d 84 (Alaska 1980) (consideration of circumstances affecting parent’s communication)
C.L. v. P.C.S., 17 P.3d 769 (Alaska 2001) (statutory allowance for visitation between adopted person and biological relatives)
Adoption of V.M.C., 528 P.2d 788 (Alaska 1974) (supports awarding attorney’s fees in contested adoptions)
Prentzel v. State, Dep’t of Pub. Safety, 169 P.3d 573 (Alaska 2007) (awarding fees against indigent litigant may be permissible with adjustments)
In re K.L.J., 813 P.2d 276 (Alaska 1991) (appointment of counsel required for indigent parent in parental-rights-termination context)