Rogelio Francisco DELGADO, Appellant, v. John M. FAWCETT and Barbara Jean Fawcett regarding the Adoption of Angela Joan Delgado, et al., Appellees.
No. 1594.
Supreme Court of Alaska.
Oct. 29, 1973.
One other aspect of the case should be mentioned. At oral argument, this court, on its own motion, questioned counsel concerning the validity of the sentence the superior court entered upon its revocation of Trumbly‘s probation. Specifically, our questioning focused upon the fact that initially Trumbly was sentenced to 120 days imprisonment, service of which was was suspended and Trumbly placed upon probation for a two-year period. In revoking Trumbly‘s probation, the superior court imposed a longer period of incarceration than was called for in the original sentence. More particularly, the superior court imposed a sentence of 6 months with all but 30 days suspended upon probation. In view of the fact that Trumbly did not question the legality of this sentence, we think it appropriate that this question be remanded to the superior court for the purpose of permitting the parties to present arguments regarding the validity of the sentence in question, and to permit the trial court to review the sentence it imposed.
Remanded.
ERWIN and FITZGERALD, JJ., not participating.
William H. Timme, Alaska Legal Services, Ketchikan, for appellees.
OPINION
Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.
RABINOWITZ, Chief Justice.
This is an appeal from adoptive decrees.
On May 17, 1968, Rogelio Delgado and his wife, Barbara Jean, separated. Barbara Jean left California, where she and her husband had been living, and returned with the three Delgado children to her former home in Metlakatla, Alaska. Rogelio and Barbara Jean Delgado were divorced on November 18, 1969, by a California court. The court awarded Barbara Jean custody of the three children, but reserved to Rogelio reasonable visitation rights. The court also directed Rogelio to pay $150 per month for the support of the children.
Following her divorce from Rogelio Delgado, Barbara Jean married appellee, John M. Fawcett. After their marriage, Fawcett filed petitions with the Superior Court of the First Judicial District in Ketchikan, Alaska, to adopt the three children. Although Rogelio Delgado received notice of the proceedings, he neither consented to the adoptions nor participated in the hearings. After holding hearings, the superior court granted the petitions for adoption. Delgado appeals from separate decrees of adoption entered by the superior court, arguing that the superior court had no authority to grant the adoptions without his prior consent.
The effect of an adoption is to permanently terminate the legal relationship of parent and child, except when the natural parent is the spouse of the adopting parent.1 Under our adoption statutes,
Written consent to adoption shall be filed before a hearing on the petition . . . if the person to be adopted is a minor of legitimate birth or a minor
whose birth has been subsequently legitimatized, then by each of his living parents, except as otherwise provided;2
However,
Consent for adoption of a minor is not required . . . from a divorced parent who was not awarded full or part-time custody of the child;3 (Emphasis added.)
One of the questions presented by this appeal is whether the rights granted appellant under the California divorce decree amounted to “full or part-time custody” within the meaning of
The requirement of parental consent as a prerequisite to adoption is hardly unique to Alaska. It is a part of the adoption law of nearly all jurisdictions.4 In this regard, the Supreme Court of Minnesota said in construing a consent statute similar to Alaska‘s:
The correlative rights and duties inherent in the parent-child relationship are natural rights of such fundamental importance that it is generally held that parents should not be deprived of them “except for grave and weighty reasons.” In an adoption proceeding, where an absolute severance of this relationship is sought, the consent provisions are designed to protect the natural rights of a parent to the custody, society, comfort, and services of the child.5
We are of a like opinion.
Nonetheless, the Alaska Legislature did not make the right of parental consent absolute and unqualified. Under
“Custody” has no fixed legal signification. It involves a variety of parental rights and duties which vary according to the circumstances of the relationship of
It may be argued that whenever one parent is awarded full custody of a child and the other visitation rights, under our statute, the consent of the parent possessing visitation rights is not necessary for adoption. We think that such a reading of
Implicit in
A number of other jurisdictions have adoption statutes which, like Alaska‘s, dispense with the necessity of consent from a parent who does not have “custody.” The Supreme Court of Minnesota has construed its statute to mean that the natural parent must consent to an adoption unless it appears that his unfitness as a parent has been adjudicated in the divorce proceedings, and that his right to custody has been extinguished.11 In Nelson v. Bye,12 the same court observed that:
In the absence of evidence of unfitness which would warrant severance of the parent-child relationship in the interest of the child‘s welfare, the right of the natural parent who initially loses custody of a child as a result of a divorce decree should not be extinguished so as to prevent such parent from seeking custody in the event of death, subse-
quent divorce, or other changes in circumstances of the prevailing party.13
The court in Nelson held that visitation rights were sufficient to reserve to a parent the right to veto a proposed adoption. Similar positions have been taken by other courts in construing their consent statutes.14
In Hammer v. Hammer,15 however, the District Court of the Territory of Alaska concluded that under the territorial precursor to
This does not mean, however, that a parent who has been awarded visitation may forever obstruct adoption, regardless of his conduct and the best interests of the child. A divorce decree may be modified. If it is shown that since the entry of judgment, circumstances have changed so as to require a modification of the decree in the best interests of the children, a court may terminate parental rights of visitation.17
We therefore conclude that the trial court erred in holding that written consent of the father was not required.18 Accordingly, we reverse the judgment of the superior court and direct it to vacate the decrees of adoption which it entered.
ERWIN, Justice (dissenting).
I dissent from the views expressed by the majority. The majority has equated the concept of visitation rights with the legal definition of custody and, in the process, has deprived the Alaska courts of the ability to grant adoptions in cases where adoption may, in fact, be in the best interest of the child or children involved.
I feel strongly that biological parenthood should never be used as a device to deprive children properly before the Alaska courts of a judicial determination on whether or not adoption is in their best interest. While I understand the fears of separated and divorced parents that they may be somehow deprived of their children by unjust means, I do not regard the denial of hearing in court on such an issue the better method of safeguarding against such occurrence.1
While Roman law and the civil law derived from it have long provided for legal adoption, no such procedure developed within the English common law.2 Massachusetts, in 1851, was the first state in the nation to provide by statute for adoption; other states followed shortly thereafter. In 1865, Charles Dudley Field, Chief of the Code Commissioners appointed by the New York Legislature to draft a “civil code“, presented to them his final draft. Included among the provisions of that code, in chapter 2, were a number of sections devoted to adoption. The Code Commissioner‘s comments appended to section 107 of that Act are quite instructive:
The total absence of any provision for the adoption of children is one of the most remarkable defects of our law. Thousands of children are actually, though not legally, adopted every year; yet there is no method by which the adopting parents can secure the children to themselves except by a fictitious apprenticeship, a form which, when applied to children in the cradle, becomes absurd and repulsive. It is, indeed, so inappropriate in every case, that it is rarely resorted to. The consequence is almost invariably, that if the real parents of the child live to see it grow to an age of usefulness and intelligence, they are certain to attempt to reclaim it, sometimes through the mere selfishness of natural affection, but more commonly from base and sordid motives. The chances of an adopting parent for the retention of the child upon which, perhaps, his whole heart is centered, are therefore in the inverse ratio to the degree of his benevolence in its selection, and of his care and affection in its training. Benevolence dictates a choice from among children whose parents are least able or willing to take care of them. To relieve a child from a cruel and heartless parent is a greater mercy than to take even an orphan. Yet these are the parents who are, of all others, most likely to reclaim the child as soon as any money can be made out of it. Affection will give the child such a training as will develop its beauty and intelligence to the highest degree. Yet every grace of the child is but a premium upon the extortion of its heartless parents. This is not mere theory. Facts within the knowledge of almost every one justify these statements. There are very many childless parents who would gladly adopt children, but for
their well founded fears that they could never hold them securely.3
These sentiments, so modern in expression, unfortunately did not lead to the widespread protection of dependent and neglected children envisioned by the commentators.4 Partly from too great a dependence on legalistic niceties so common in the late nineteenth century, and partly because of an unrealistic conception of parent-child relationships, courts consistently refused to grant adoptions that would have protected children in deference to the sensibilities of natural parents who would play little part in the growth and development of the affected children.5 Thus, thousands of children throughout the United States found themselves in the bleak surroundings of frequently understaffed and ill-accommodated institutions simply because their parents, having no responsibility for them, nevertheless (whether through the “mere selfishness of natural affection or the base and sordid motives” mentioned by the code commentators) refused to “consent” to adoption.6
The problem of consent arises because children were originally viewed as chattels and adoptions were viewed as a contractual relationship between the natural parent or other custodian surrendering parental rights and duties, and the prospective adoptive parents assuming those rights and duties. Thus, since a contract cannot be executed in the absence of mutual agreement, an adoption could not be effected without the consent of the natural parents.7
From the beginning, however, in order to carry out the intentions of the statute, a number of circumstances were set forth under which a parent‘s consent could be dispensed with. Illustrative is the Field Code provision:
Sec. 110. A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery or of cruelty, and for either cause divorced, or adjudged to be a habitual drunkard, or who has been judicially deprived of the custody of the child, on account of cruelty or neglect.
The original Alaska statute8 was in form essentially the same as this Field
Consent not required. Consent for adoption of a minor is not required . . . (5) from a divorced parent who was not awarded full or parttime custody of the child; but the parent shall be personally served with a copy of the petition and notice of hearing inside or outside the state not less than 20 days before the date of the hearing . . .
Appellant additionally argued that it would be a denial of equal protection to require consent of the non-custodial parent in the absence of gross unfitness on his part on the theory that since divorce has nothing to do with moral obliquity, there is nothing in the grant of custody in a divorce action which terminated the right of either parent.11 Thus, any subsequent adoption proceeding can only advance to full hearing when “gross neglect” of the noncustodial parent can be established.
It is my opinion that each of these positions is too narrow an interpretation of the various constitutional rights involved and, if followed to the logical conclusion, would make the rights of the parents paramount over the rights of the children. While
In order to give effect to the views expressed in all of these cases, I would find that the veto power expressed in the consent statute,
It must be emphasized that availability for adoption, coupled with the noncustodial parent‘s loss of a veto of that adoption, does not mean that an adoption will be allowed. In many cases, a parent who is unable to provide support and care to a child could nevertheless maintain a relationship with him such that an adoption terminating that relationship would be unwise and not in the child‘s best interest.14
By the same token, many children may have reached an age at which they do not wish to be adopted. Adoption is of primary value almost in indirect proportion to the age of the child. The younger the child, the more he would be served by establishing a permanent new parental relationship.15
A further caution should be interjected. This interpretation of
The interpretation placed on
Superficial factors, such as social and economic status and prestige are essen-
tially unimportant to the young child. These kinds of things are important only to adults in our society . . . It can be emphasized that the child will be most comfortable and most secure where he is honestly loved and respected, no matter what the social or economic situation is. His ability to adapt is almost unlimited, provided he feels secure. In concrete terms, it is better for a child to be loved and respected by poor people than to be rejected and not accepted by rich people.16
But, it is equally true that love and affection are not necessarily synonymous with a natural parent-child relationship:
In light of the above factors, it is fair to say that biological parenthood is of less importance to the maturing child than psychological parenthood. As far as the child is concerned, he need not essentially care who loves him as long as someone does. Biological factors may lay the groundwork for future physical development, but the future personality development is conditioned by people who may or may not be biological parents. There is no a priori reason why a child should love and respect biological parents more than anyone else. He will like and learn from the people who are kind and helpful no matter what the blood relation. With this factor in mind, we need not be concerned with the child‘s reaction to new parents if the new parents are equally helpful to and accepting of him. The child will certainly have to adjust to new people under any circumstances of adoption but he will not consider the factor of blood relationship except as others emphasize its importance.17
The courts of Alaska are clearly able to determine what the best interests of the children are in cases such as the one at bar. Conversely, it is too important an issue to be left to the possible whim of an absent parent.
In this case, the trial court held two separate hearings, where it heard the testimony of the mother and one of the children. It heard testimony concerning appellant‘s very infrequent communications with the children, the one seemingly unhappy visit made by the children to their father in California, the child‘s feeling of rejection by his natural father, and the strong family ties to their prospective father. The testimony also indicated a failure by the natural father to meet support obligations while the prospective adoptive father has been supplying most of the children‘s needs for a period in excess of four years.
While appellant was notified of his right to appear he chose not to come forward or present testimony bearing on the issue, apparently on the advice of legal counsel.18
Under these circumstances, I would uphold the findings of the trial court that adoption would be in the best interests of the children.19
The only alternative to such veto is to have extensive hearings at the time of birth with opportunities to be present by the natural father. The practical problems of such a course are almost limitless. What is to be done when the natural father is unknown or the mother refuses to disclose his name? What is to be done in those cases where there is a possibility the natural father is unaware of the birth? What happens to the baby during such a period? Are adoptions granted without consent of the natural father invalid? Since a great share of adoptive proceedings take place in this context, the weight of the present opinion is impossible to determine. The alternative court hearing in all cases avoids such problems.
I would affirm the decision of the trial court.