I would reverse and remand this case for two reasons. First, the trial court ordered dismissal of the adoption petition without regard for the procedural requirements of Rule 41(b), Alaska R.Civ.P. The plurality opinion does not address this procedural error. Second, the trial court did not apply the correct decisional law regarding what constitutes justifiable cause for noncommunication. The plurality glosses over this error by ignoring our decision in In re J.J.J., 718 P.2d 948 (Alaska 1986). The plurality's suggestion that D.L.'s failure to communicate was justified by the emotional difficulty of visiting his child in the home of his ex-wife and her new husband is diametrically opposed to our holding in J.J.J., Id. at 953. Furthermore, I cannot agree with the plurality's inference that a child's absence from the state automatically tolls the one-year statutory period.
I. After L.A. and her husband had testified, the trial court asked the natural father's counsel if he wished to have D.L. testify. D.L.'s counsel did not, as the plurality states, "decline to present any evidence." Rather, counsel did not answer the court's question but instead moved for a "directed verdict." Since this was a non-jury proceeding and the petitioner had completed his case in chief, counsel's motion should have been termed one for involuntary dismissal under Civil Rule 41(b).1
The trial court erred in granting the motion and dismissing the petition for adoption. Our decisions under Civil Rule 41(b) hold that the motion should be denied if the petitioner has made out a prima facie case based on unimpeached evidence. King v. AlaskaState Housing Authority, 512 P.2d 887, 890 (Alaska 1973);Trusty v. Jones, 369 P.2d 420, 422 (Alaska 1962); Rogge v.Weaver, 368 P.2d 810, 813 (Alaska 1962). The trial court is to view petitioner's evidence in its most favorable light. King, 512 P.2d at 890. Where the petitioner has presented a prima facie case, the trial court should not grant the motion even though it, as the trier of fact, may think the petitioner has not, at that point, sustained his ultimate burden of proof.2 Rogge, 368 P.2d at 813.
In an adoption case based on AS 25.23.050(a)(2)(A), the petitioner only need show *Page 772 that the natural parent failed significantly to meaningfully communicate with his or her child for a period of over one year to avoid an involuntary dismissal. The natural parent then must come forward with evidence of a justifiable cause for such omissions. S.M.K. v. R.G.G.,702 P.2d 620, 624 n. 11 (Alaska 1985), citing D.L.J. v. W.D.R.,635 P.2d 834, 838 (Alaska 1981). Thereafter, the adoptive parent must prove by clear and convincing evidence that the natural parent's omissions were not justified. Id. Even if the evidence establishes that the failure to communicate was not justified and the natural parent's consent to adoption is therefore unnecessary, the court still may decline to order an adoption if it would not be in the child's best interests.3 The trial court, however, did not reach this issue because it found that justifiable cause existed for D.L.'s failure to communicate. SeeJ.J.J., 718 P.2d at 956; D.L.J., 635 P.2d at 838; In reL.A.H., 597 P.2d 513, 517 n. 14 (Alaska 1979).
Here, viewing the uncontested evidence in the light most favorable to the petitioners, a prima facie case clearly was made out that D.L. had failed significantly to meaningfully communicate with L.R.A. for a period in excess of one year. The adoption petition was filed November 15, 1984. During the trial held in March 1985 petitioners testified that D.L.'s last physical contact with his daughter was on October 29, 1983. Since that date he had not visited L.R.A., talked with her on the telephone or sent any birthday or Christmas cards. The time from October 29, 1983 to November 15, 1984 was a period of one year and two weeks.
Because the trial court's role in deciding the Rule 41(b) motion was limited to determining whether petitioners had presented evidence sufficient to establish a prima facie case of noncommunication, the court erred in granting a dismissal. The case should be remanded for the purpose of completing the trial or, if necessary, for a new trial. See Trusty, 369 P.2d at 422.
II. Notwithstanding the procedural error, a remand is necessary in any event because the trial court did not apply the correct decisional law. The court held that petitioners had not shown that D.L.'s failure to communicate was without justifiable cause, citing several reasons. The reasons included: the child's absence from the state for three months of the year, which made it less reasonable for the natural father to exercise his visitation rights; the child's young age, which made meaningful communication through phone calls or letters difficult; and the emotionally difficult situation of D.L. visiting his child in the home of his ex-wife and her new husband.
The plurality affirms these findings as not clearly erroneous and holds that petitioners did not prove that the natural father failed to meaningfully communicate without justifiable cause for a period of one year. Maj.Op. at 770. In so holding, the plurality flatly contradicts controlling decisional law. InJ.J.J. we specifically stated that
J.J.J., 718 P.2d at 953 (emphasis added in last sentence). *Page 773in order for a noncustodial parent to block a stepparent adoption, he or she must have maintained meaningful contact with a child, . . . unless prevented from doing so by circumstances beyond the noncustodial parent's control. Circumstances resulting from the noncustodial parent's own conduct cannot excuse such a parent's significant failure to provide support or maintain meaningful communication. Moreover, failure to support or to maintain contact with a child should not be excused by the emotional antagonism or awkwardness that may exist between former spouses.
We recognize the emotional trauma that may be involved when a noncustodial parent visits a child in the home of a former spouse who has remarried. However, there are ways to avoid this situation, such as visitation in a neutral setting. A child's need for parental contact is simply too important to justify a parent's failure to meaningfully communicate for this reason. Under our case law, the trial court clearly erred in considering this factor as justification for D.L.'s noncommunication.
I also am troubled by the plurality's treatment of the issue of the child's absence from the state. To the extent that the plurality infers that such an absence could automatically toll the one-year statutory period, I strongly disagree. If the statute is tolled automatically when a custodial parent takes a child from the state, a stepparent in many instances could never adopt a stepchild even though the noncustodial natural parent remaining in Alaska had essentially forgotten about the child.
A court could, however, properly consider a child's absence from the state when determining whether there was justification for a parent's noncommunication. If the custodial parent concealed the child's location or otherwise affirmatively hindered visitation, or the noncustodial parent lacked the financial ability to travel to visit his or her child, these factors could properly be considered when deciding the justification issue.
Here, the record is silent as to whether D.L. knew his daughter's address in Arizona, whether he had inquired, or whether the information had been withheld. Therefore, the proper disposition of this case would be to remand with instructions for the court to consider such factors when deciding whether D.L.'s failure to communicate was justified.
After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.
If at the conclusion of the hearing the court determines that the required consents have been obtained or excused and that the adoption is in the best interest of the person to be adopted, it may issue a final decree of adoption.
(Emphasis added.)