In re J.J.J.

MATTHEWS, Justice,

joined by RABI-NO WITZ, Chief Justice, dissenting.

I.

This case involves the meaning of our forfeiture of consent statute, AS 25.23.-050(a)(2), which provides:

(a) Consent to adoption is not required of
(2) a parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause, including but not limited to indigency,
(A) to communicate meaningfully with the child, or
(B) to provide for the care and support of the child as required by law or judicial decree; ....

The issue presented is whether the superior court erred in concluding that subpart (B) of this statute applied, thus making unnecessary the consent of the father.1

The facts are as follows. The dissolution decree required the payment of $200 in child support for each month beginning June 1, 1982. Nineteen installments of $200 each, a total of $3,800, should have been paid between the date of the decree *958and the date of the petition for adoption, December 19, 1983. According to the records of the Child Support Enforcement Agency, the father paid $200 on September 8, 1982; an order to withhold and deliver $1,000 of the father’s wages under AS 47.-23.250 netted $971.53 on April 27, 1983 and $28.47 on May 11, 1983; a payment of $1,800 was made on November 15, 1983; and a payment of $250 was made on November 29,1983. Thus, the father had paid $3,250 of the total support due of $3,800 and was less than three months behind in child support when the petition for adoption was filed.

Two questions of statutory interpretation concerning the meaning of AS 25.23.-050(a)(2)(B) are presented. They are:

(1) Does the period of at least one year referred to in the statute mean any period of one year or that period which immediately precedes the filing of the petition for adoption?

(2) Should the amounts obtained by the Child Support Enforcement Agency from the father’s employer be taken into account as part of the provision of support by the father?

Only if one concludes that the statute refers to any year rather than the year which precedes the filing of the petition for adoption and that the withheld wages cannot be counted as the provision of support, can the conclusion be drawn that the father in this case has waived his right to withhold consent to the adoption of his son.

A. The One Year Period

I would construe AS 25.23.050(a)(2) to refer to the year immediately preceding the filing of the petition for adoption. This interpretation is reasonable, in accordance with the decisions of courts in other jurisdictions construing similar statutes, and required under the rule of construction favoring the rights of the parent which we have adopted concerning this statute. Further, interpreting the statute to refer to the year immediately preceding the filing of the petition for adoption avoids the harsh and unjust results which are distinctly possible under the majority’s interpretation of the statute.

In First National Bank of Fairbanks v. Taylor, 488 P.2d 1026, 1032 (Alaska 1971), we were faced with a problem of interpretation like that which is presented here. At issue was Civil Rule 41(e) which provided that cases “which have been pending in a court for more than one year without any proceedings having been taken therein” may be dismissed “at any time on motion of any party....” The plaintiff had let more than a year lapse between answering interrogatories and moving for a pre-trial conference. Subsequently, defendant moved to dismiss and his motion was granted. Id. at 1027-28. On appeal defendant sought to justify the dismissal on the basis that it was authorized under Rule 41(e) because of the one year lapse. We rejected this argument, holding that the one year period referred to in the rule was the period immediately preceding the motion to dismiss. Id. at 1031-32. First National Bank thus demonstrates that it is reasonable to construe language which refers to a period of delinquency without specifying when it takes place to mean a current period of delinquency rather than one which has been ended by intervening affirmative action.

Statutes similar to our forfeiture of consent statute have been construed by courts in several jurisdictions. As noted in the majority opinion, some courts have concluded that the one year period, or its analog, should be read to mean any such period rather than the period which comes just before the petition for adoption.2 Maj. Op. at 954, n. 17. However, other courts have *959concluded that the period intended is that which immediately precedes the petition for adoption. E.g., Sale v. Leachman, 218 Ga. 834, 131 S.E.2d 185 (1963); In re Adoption of Sharp, 197 Kan. 502, 419 P.2d 812, 814-15 (1966); Petition of R.H.N., 673 P.2d 805, 806 (Colo.App.1983), appeal after remand, 678 P.2d 1070 (1984), aff'd 710 P.2d 482 (1985). This result has been reached because it is reasonable,3 and because termination of one’s parental rights is a drastic action4 requiring that statutes like the present one be narrowly construed.5

Like the authorities which have construed similar statutes to refer to the period immediately preceding the petition for adoption, we have adopted a strict rule of construction in favor of parental rights with reference to AS 25.23.050(a)(2)(B). We stated in D.L.J. v. W.D.R., 635 P.2d 834, 837 (Alaska 1981):

In interpreting AS 20.15.050(a)(2), we have required that it be strictly construed in favor of a natural parent. In re Adoption of K.M.M., 611 P.2d 84, 87 (Alaska 1980). We have consistently held that
adoption consent provisions are designed to protect the natural rights of parents to custody, society, comfort, and services of the child. ... [Parents should not be deprived of the fundamental rights and duties inherent in the parent-child relationship except for “grave and weighty reasons.”

This policy of strict construction means that where two interpretations of the statute are reasonably possible, that interpretation which is most protective of the rights of the natural parent is to be selected. Since interpreting this statute to refer to the one year period immediately preceding the petition is reasonable, and since that interpretation is more protective of the rights of the natural parent than construing the statute to refer to any one year period, the former interpretation should be adopted.

*960Further, construing the one year period to be that which immediately comes before the filing of the petition for adoption seems more reasonable than the rule which permits forfeiture of the right to withhold consent for any year of dereliction. Under a strict “any year” interpretation, if a parent did not support his children for one year long before the filing of a petition for adoption, but since that year had been faithful in supporting them and had made up all arrearages, his consent would nonetheless not be required under the statute. Such a result would be extremely unjust in many cases. This harshness may be tempered to some extent by the majority’s declaration that “courts shall consider a parent’s entire history of support” in determining waiver. Majority Op. at 955 (emphasis in original). The trouble with this is that it cuts us completely adrift from the statute. The purpose of the statute was to provide a relatively simple means by which waiver could be determined,6 in contrast to the often difficult questions of intent which are encountered when the question is whether a child has been abandoned. See Commissioners Note, Uniform Adoption Act § 6, 9 U.L.A. 27 (1979). This purpose will be frustrated under the court's “entire history” test.7

B. Provision of Support

The majority concludes that only payments which are made without compulsion should count as provision of support by the parent. There are several reasons why this construction should not be adopted.

First, the requirement of non-compulsion is not expressed in the statute, nor may it reasonably be implied. We have construed the statute to require that non-compliance be willful, R.N.T. v. J.R.G., 666 P.2d 1036, 1038 (Alaska 1983), but no rule of law or principle of logic requires that compliance be uncompelled. All that the statute calls for is support. It is neutral on the question of the providing parent's state of mind when this is accomplished. “Whatever his motive, the not insignificant payment operate[s] to bar application of the statute.” Haynes v. Mangham, 375 So.2d 103, 106 (La.1979).

Second, the rule of construction that the statute be interpreted in the manner most protective of the rights of parents indicates that a requirement of non-compulsion should not be read into the statute.

Third, there is no certainty what the terms “compulsion” or “voluntary” mean in the context of court ordered child support. All payments of support under such an order are compelled. Indeed, one of the cases relied on by the majority suggests that no payment made under an order of support can be considered voluntary. Mortenson v. Tangedahl, 317 N.W.2d 107, 114 (N.D.1982) quoting with approval Lambertus v. Santino, 608 S.W.2d 502, 506 (Mo.App.1981).

The majority tells us that “the purpose of the waiver of consent statute was to *961provide an objective measure of when a parent has, in the practical sense, forsaken a child.” Majority Op. at 954 (emphasis in original). I agree. It does not follow, however, that coerced payments necessarily indicate abandonment or lack of parental concern. An aggressive former spouse can garnish wages after only a slight delay in payment, and a non-custodial parent may be passively content to provide support in that way. That might be seen as a character flaw on the part of the non-custodial parent, but following a divorce people do not always behave with perfect rationality. So long as the non-custodial parent visits with his children it can not be said that, in a practical sense, he has forsaken them.

II.

Because I would hold that the father did not forfeit his right to withhold consent to the adoption of his son, I would not reach the question of whether the adoption was in the best interest of the son. D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981). I thus express no view as to whether the best interest determination made by the trial court is clearly erroneous.

I will, however, observe that the majority opinion’s discussion of this issue is unbalanced. It does not mention the fact that the mother in this case for nearly a year prevented communication between the father and his son and the fact that the father in this case, like the father in Adoption of A.J.N., 525 P.2d 520 (Alaska 1974), sought the aid of the courts in an effort to enforce his visitation rights. I quote from the decision of the Master which was adopted by the superior court:

The undersigned believes that J.B. did attempt to re-establish contact with his son commencing in January 1983 but that his attempts thereafter in February, April, and July were resisted by B.J. [the mother] a situation which forced J.B. to take legal action to enforce his visitation rights in September of that year.

III.

The majority opinion contains statements which do not bear on the approach I would use in deciding this case, but with which I disagree. I will note them here.

A. At footnote 19 the majority opinion states:

Even if we pretend that the garnished $1,000 was voluntary support, the fact would remain that during the period from May 1982 through October 1983 J.B. owed $3,600 for the boy’s support, but he significantly failed to pay $2,400 of that amount. During this prolonged period of well over one year, J.B.’s unjustified failure to provide two-thirds of the necessary support cannot be considered insignificant. The controlling statute, AS 25.23.050 clearly states that a parent loses the right to withhold consent to adoption if there has been a 12-month period of significant and unjustified nonsupport, as in J.B.’s case.

(Emphasis in original).

Setting aside as a mere quibble the fact that the obligation of support under the decree did not begin until June of 1982, the substance of this statement is that payment of $1,200 when $3,600 is owed is not the significant provision of support. This is in conflict with the view taken by the courts of other jurisdictions concerning similar statutes. Some jurisdictions hold that payment of even one installment over the relevant period is enough to avoid forfeiture.8 Others require more. For example, in Louisiana it is thought that payment of between 20% and 30% of the amount owed will suffice to avoid forfeiture.9 However, in no jurisdiction that I have found would payment of one-third of the amount due fail to constitute significant *962support. Thus the substance of the majority’s statement in footnote 19 is unique in its harshness.

B. On pages 952 through 953 the majority opinion disapproves of four of our decisions, R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983); D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981); Matter of Adoption of K.M.M., 611 P.2d 84 (Alaska 1980); and Matter of Adoption of A.J.N., 525 P.2d 520 (Alaska 1974). In my view this discussion is in large part wrong and completely unnecessary.

In reference to these four cases, the majority says they stand for the proposition that so long as the noncustodial parent has “made a few perfunctory communications or an occasional gesture of support” his consent will not be dispensed with. Majority Op. at 952. This is demonstrably wrong because in three of the cases the issue was not whether the parent had complied with the statutory requirements, but whether his non-compliance was excused. Only in K.M.M. was the question one of compliance.

The support question in K.M.M. was whether regular payments to a trust established for the children was a permissible method of discharging the parent’s support obligation. K.M.M., 611 P.2d at 85-86. There was no question of “an occasional gesture of support.” There was a legitimate question in K.M.M. as to whether the father’s communications were meaningful or, as today’s majority would have it, perfunctory. The resolution of that factual question has no bearing on this case because the issue here is not the sufficiency of communication, but support.

The majority takes special pains to disapprove of R.N.T. Majority Op. at 952-953. In that case one issue was whether imprisonment of the father which resulted in his inability to maintain meaningful communication with his children was a justifiable cause for failing to communicate. R.N.T., 666 P.2d at 1038-39. We noted that not all imprisonment would preclude a parent from communicating with his children, but where it did it would be justifiable cause under the statute. We further concluded that as a factual matter the circumstances of the father’s incarceration and parole had prevented him from communicating with his children. Id. at 1039. Justice Compton dissented on the basis that it was not the imprisonment and parole as such which had precluded the father from communicating, but special restraints which had properly been imposed because of his abusive conduct. Id. at 1041. Thus, the difference between the majority in R.N. T. and the dissenting opinion of Justice Compton was based on the weight to be given to certain facts unique to that case. There are no similar facts in the present case. Further, the issue here is as to the sufficiency of support rather than whether lack of communication was justified. For the present majority to adopt the dissenting opinion in R.N.T. is thus wholly gratuitous.

. Despite the references in the majority opinion to the father’s failure to communicate with his son, Majority Op. at 953, 955, 956), this case does not involve application of subpart (A) of the statute, relating to an unjustified significant failure to communicate. The master found that the mother, for a period of nearly a year before the petition for adoption, had interfered with communications between father and son so that the father’s lack of communication had not been proven to be unjustified. This finding is not challenged on appeal.

The trial court’s finding is amply supported by the testimony of the mother that she refused visitation between father and son when it was requested in January of 1983 and suggested instead that the father write letters to the son. The father did so, but to no avail because the mother did not read the letters to the son or let him know that they had been sent. After a series of further visitation refusals the father in September of 1983 filed a motion to enforce his visitation rights. Specific visitation was ordered by the court on November 23, 1983, but the mother refused to comply with the order. She did not permit visitation until after the petition for adoption was filed.

. In Hawaii, one of the three jurisdictions relied on by the majority, the harshness of the "any year" rule is tempered by the judicially imposed "settled purpose” doctrine which requires as a condition to the loss of parental rights a settled purpose on the part of the parent to abdicate his parental rights. Woodruff v. Keale, 64 Hawaii 85, 637 P.2d 760, 767 (1981). This condition could not be met in this case as the father was actively engaged in litigation to enforce his visitation rights when the adoption petition was filed.

. The provision of the act ... which alludes to "twelve months or longer” transpiring subsequent to the entry or order requiring the father to pay a specified sum for the support of the children can “in the light of reason” be construed to mean twelve months immediately preceding the filing of the proceeding to adopt the minor child.

Sale v. Leachman, 131 S.E.2d at 188.

. The statute here construed imposes a harsh and severe penalty upon the father not abiding by and obeying the mandate of a decree or order previously entered requiring him to pay a designated amount periodically for the support of his minor children. The penalty is to take from his bosom his own children, blood of his blood and bone of his bone, and without his consent give them to another. Our laws abhor penalties and forfeitures, ... and a law imposing a penalty must be strictly construed.

Sale v. Leachman, 131 S.E.2d at 188 (citations omitted).

. [Ajdoption statutes are strictly construed in favor of maintaining the rights of natural parents in controversies involving termination of the parent-child relation, and especially is this true in those cases where it is claimed that by reason of a parent’s failure to fulfill parental obligations as prescribed by statute, his consent to the adoption is not required.

If the statute were construed to mean that any two-year period in which a parent failed or refused to assume parental duties was sufficient to dispense with consent, a parent, who through a change of heart or circumstances had attempted to reassume such duties after the two-year period, would be placed in the difficult position of proving there had been in fact repentance. While there appears to be authority permitting a repentant parent to show a resumption of parental obligations and thus reacquire the right to object to adoption, we believe that by limiting the two-year period of consideration to that next preceding the filing of the petition a natural parent is placed in a more advantageous position to uphold his rights. In other words, the fulfillment of parental duties and obligations is, in our thinking, more accurately gauged by the facts found to exist during the two-year period next preceding the initiation of the adoption proceedings.
In light of the foregoing rules of statutory construction, and the inclination of the court to uphold the rights of the natural parents, we are of the opinion that it was reasonably intended by the legislature that the failure or refusal to assume the duties of a parent for two consecutive years as provided in K.S.A. 59-2102(3) refers to the period next preceding the filing of a petition for adoption.

In re Adoption of Sharp, 419 P.2d at 814-15 (citations omitted) (emphasis in original).

. "[T]he purpose of the waiver-of-consent statute was to provide an objective measure of when a parent has, in the practical sense, forsaken a child.” Majority Op. at 954 (emphasis in original).

. No guidance is given as to what is and is not important in reviewing a parent’s entire history of support. We can not look to the decisions of courts in other jurisdictions interpreting similar statutes, because no other court, so far as I am aware, has taken such an approach. The majority opinion tells us on the one hand that "resumption of support payments ... before ... a petition for adoption is filed, will not act to ‘redeem’ the delinquent parent and start a new one-year period_”, Majority Op. at 955 n. 20, quoting Henson v. Money, 273 Ark. 203, 617 S.W.2d 367, 368 (1979), while on the other hand, resumption of support payments for three years after a one year period of non-support means that the parent "had not waived” his right to withhold consent. Majority Op. at 955 n. 21. The terminology is inconsistent. There can be no doubt but that if a petition for adoption had been filed immediately after the last of twelve monthly payments had been missed in the example given above, waiver by any reading of the statute would have to be found. It is not possible, therefore, to say after the three years of faithful support which follow that there has never been a waiver. It is possible to say that the waiver has been cured by subsequent conduct, and that is what the majority must mean. What that conduct is will be the subject of much future litigation.

. Mann v. Garrette, 556 P.2d 1003 (Okla.1976); Leithold. v. Plass, 505 S.W.2d 376 (Tex.Civ.App.1974).

. Haynes v. Mangham, 375 So.2d 103 (La.1979) ($1200 payment on $4800 annual obligation barred application of statute); In re May, 441 So.2d 500, 505 (La.App.1983); In re Adoption of Broussard, 469 So.2d 454, 456 (La.App.1985).