dissenting.
In my view, the trial court’s finding that R.N.T. failed significantly without justifiable cause to communicate meaningfully with his children is not clearly erroneous. I accordingly believe the judgment should be affirmed.
As this court notes, R.N.T. “contended that during his incarceration and parole[,] constraints were imposed on him which effectively prevented any contact with his children. Having established the existence of those constraints, he argued that he had borne his burden of producing a justifiable cause for failing to communicate . . . . ” 666 P.2d at 1038. Using an abbreviated analysis, this court uncritically accepts R.N.T.’s argument and summarily rejects the trial court’s conclusion that it is without merit. When R.N.T.’s argument is subjected to full analysis, however, its in-sufficiencies become apparent.
The analysis used by this court is as follows: (1) parental conduct resulting in the loss of the right to consent to an adoption must be wilful; (2) neglect of parental duties caused by imprisonment is not necessarily wilful and thus does not inevitably result in the loss of a parent’s right to consent; (3) imprisonment does not necessarily preclude a parent from communicating with his or her children; and (4) where it does, however, the failure to communicate is properly considered non-wilful and thus justifiable cause. I do not dispute the first three steps in this analysis. I do take issue, however, with the fourth.
The authorities cited by this court properly stand for the proposition that a parent’s imprisonment is basically a neutral factor in determining whether that parent’s consent is necessary for the adoption of his or her child by a third party. Under Alaska’s statute, a parent’s imprisonment cannot be used ipso facto to hold as a matter of law that the parent’s consent is not necessary; on the other hand, however, the imprisonment also cannot be used ipso facto to hold as a matter of law that the parent was justified in not communicating with or supporting his or her children during the course of the imprisonment. See Annot., 78 A.L.R.3d 712 (1977). This is because imprisonment does not inherently and necessarily preclude a parent from continuing to communicate with and support his or her children.
R.N.T. states that the terms of his imprisonment and parole effectively prevented him from having any contact with his children. This should not be the end of the analysis, as it is for this court, but only the beginning. Not all parents who are incar*1041cerated or on parole are precluded from communicating with their children; it simply is not an automatic condition of imprisonment or parole. The issue that must be addressed is whether the constraints imposed on R.N.T. were the result of his own conduct, in which case his failure to communicate would not be justifiable, or were instead the result of circumstances over which he had no control.
Constraints on a parent’s ability to communicate with his or her children may be the result of either that parent’s own conduct or the result of circumstances beyond his or her control, as the following possibilities illustrate. At one extreme, imagine a parent who was one of the unfortunate hostages in Iran or was a POW in Viet Nam. These persons were obviously unable to communicate with their children for a substantial period of time because of circumstances beyond their control. There would be no doubt that their failure to communicate was justifiable. At the other extreme, however, imagine a parent who has been specifically ordered by a court not to communicate with his or her children because of past incidents of violence or other forms of abuse. The constraints placed upon this parent are the direct result of his or her own conduct. If the restraining order were in effect for a year or more, this parent’s consent to the adoption of his or her children would not be necessary. It would be ludicrous to permit this parent to argue that his or her failure to communicate was justified because he or she was required to comply with the court order precluding such communication. The underlying fact would remain that the restraints imposed by “outside forces” were the direct result of the parent’s wilful conduct.
The superior court concluded that R.N.T. did not meet his initial burden of producing evidence that his failure to communicate with the children was justifiable. I would agree. R.N.T. merely stated that the circumstances of his incarceration and parole prohibited him from communicating with his children. This was insufficient. It was incumbent upon R.N.T. to also produce evidence that these constraints were the result of circumstances beyond his control. In view of his failure to produce such evidence, the superior court did not err in concluding that his consent to the adoptions was unnecessary.
The record before this court indicates that the constraints imposed upon R.N.T. were the result of his own conduct. In a report filed with the trial court, which was not objected to, the guardian ad litem for the children stated as follows:
Apparently both before and after their separation, the relationship of [R.N.T.] and [M.I.G.] was relatively unstable and there were several incidents of violence including at least one that resulted in the hospitalization of [M.I.G.] and which have led to a medical condition which still exists. Both children have memories of violence and abusive language and treatment from [R.N.T.]. Following the separation both children for some period of time attended counseling sessions with either Dr. Rothrock or Dr. Roland of Fairbanks Community Mental Health.
These circumstances, which were within R.N.T.’s control, would justify restricting R.N.T.’s freedom to communicate with his children.
R.N.T.’s children have filed consents to the adoption by J.R.G.1 According to the guardian ad litem, “[b]oth children stated individually and freely that they wished to be adopted by the petitioner.” It is true, as noted by this court, that we held in In re K.M.M., 611 P.2d 84, 87-88 (Alaska 1980), that the adoption statutes must be strictly construed in favor of the natural parent. We did not, however, judicially abrogate the provision by which the consent of a parent is not required if the parent has failed significantly without justifiable cause *1042to communicate meaningfully with the children.2 This court concludes that anytime a parent is precluded from communicating with his or her children, whether or not the constraints are a result of the parent’s own conduct, “the failure to communicate is properly considered non-wilful and thus justifiable cause.” 666 P.2d at 1039. Such a result can frequently reward the guilty and punish the innocent. This is certainly not mandated by Alaska’s statutes.
I would affirm the judgment of the superior court.
. AS 20.15.040(a)(5) required consent from minors more than 10 years of age, unless dispensed with by the court. This consent is now required by AS 25.23.040(a)(5). At the time that the Petition For Adoption was filed, R.I.T. was 12 years of age and L.N.T. was 11 years of age.
. In In re K.M.M., this court did not excuse a failure to communicate. Rather, under the circumstances of the case, we held that there in fact had been meaningful communication. 611 P.2d at 88.