In re D.J.A.

MOORE, Justice,

with whom COMPTON, Justice, joins, dissenting.

Under Alaska law, the consent of the natural parent to an adoption is not an absolute prerequisite. A natural parent’s consent to the adoption is not required, for example, if she fails to communicate meaningfully with her child for at least one year.1 Implicit in AS 25.23.050 is “the legislative judgment that a parent who has manifested an inability or unwillingness to discharge the rights and duties of a parent shall be considered to have forfeited his right to obstruct an adoption.” Delgado v. Fawcett, 515 P.2d 710, 713 (Alaska 1973). I agree with the court that AS 25.23.050 must be construed to protect the rights of natural parents. As we held in Delgado, parents should not be deprived of their rights to their child “except for grave and weighty reasons.” 515 P.2d at 712. This is why a custodial parent must prove by clear and convincing evidence that the elements of AS 25.23.050(a)(2)(A) are satisfied. D.L.J. v. W.D.R., 635 P.2d 834, 838 (Alaska 1981). At the same time, we must not lose sight of the fact that the primary goal of AS 25.23.050 is to maximize the potential for a stable, secure family relationship for the child.

Although we have held that the best interests of a particular child are not relevant to the superior court’s determination of whether his natural parent’s rights can be terminated without consent, D.L.J., 635 P.2d at 838, that does not mean that we must ignore the interests of children in *1040interpreting AS 25.23.050. In fact, in interpreting AS 25.23.050 we have recognized the interests of children in three ways. First, we have held that “in order for a noncustodial parent to block a stepparent adoption, he or she must have maintained meaningful contact with a child....” In re J.J.J., 718 P.2d 948, 953 (Alaska 1986). As Chief Justice Matthews has written, “[i]n distinguishing between meaningful and non-meaningful communications it is evident that the legislature intended that the mere symbolic observation of birthdays and holidays would not be enough to maintain the rights of parenthood.” In re K.M.M., 611 P.2d 84, 89 (Alaska 1980) (Matthews, J., dissenting). Second, in cases where the noncustodial parent has failed to communicate meaningfully with her child, such a failure is justified only if she was prevented from communicating by circumstances beyond her control. 718 P.2d at 953. Third, even when prevented from communicating by such circumstances, a noncustodial parent still has the duty to make reasonable efforts to communicate with her child. In re B.S.L., 779 P.2d 1222, 1224 (Alaska 1989). A noncustodial parent’s failure to communicate meaningfully is justified “only if her efforts to communicate were objectively reasonable in light of the existing circumstances.” Id.

The court holds that the superior court clearly erred in finding that P.E. lacked justifiable cause for failing to communicate with D.J.A. As the court notes, a clearly erroneous finding is “one which leaves [it] with a definite and firm conviction on the basis of the entire record that a mistake has been made, although there may be evidence to support the finding.” Frontier Saloon, Inc. v. Short, 557 P.2d 779, 781-82 (Alaska 1976) (per curiam). The court identifies two facts that it believes gives rise to a definite and firm conviction that the superior court erred in concluding that P.E. lacked justifiable cause for failing to communicate with D.J.A.: (1) P.E. was denied visitation rights with D.J.A. for at least six months by court order;2 and (2) P.E. suffered under a disturbed mental-emotional condition. Supra p. 1039. In treating the court decree as justifiable cause, the court ignores the two requirements necessary to transform an obstacle to communication into a justification for a failure to communicate. In treating both the decree and P.E.’s mental condition as justifiable cause, the court fails to give due regard to facts supportive of the superior court’s determination and inappropriately emphasizes facts supportive of its result. The record in this case does not even come close to giving rise to the definite and firm conviction that a mistake has been made that is required to reverse the superior court’s finding. Effectively, the court has placed the natural parent’s interests over that of the child. For this reason, I respectfully dissent.

The court finds most persuasive P.E.’s claim that she “was effectively denied communication with her child for at least 6 months” because the superior court decree denied her visitation rights. Supra pp. 1037-1038. By its terms, the decree was not an obstacle to communication at all since it denied P.E. visitation rights, not communication rights. The court’s conclusion that the decree constituted a justification for failing to communicate appears to be based on the theory that P.E. was confused about the effect of the decree. Even if P.E.’s alleged confusion might be sufficient to justify her failure to communicate, the court cites no evidence indicating that she was confused.3 In fact, P.E. admitted that she knew that she could communicate with D.J.A. without violating the decree. At trial, P.E.’s counsel asked her “[w]ere you trying to communicate and learn about *1041your son without violating the decree?” P.E. answered, “[y]es, I have.” As the court points out, P.E. made numerous telephone calls to almost every person who had contact with D.J.A. to find out about him. Supra p. 1035. Yet at no time did she ever ask any of them to let her talk to D.J.A. and only once did she ask anyone to relay a message to him. Id. Since the record shows that P.E. was under no misconception about the effect of the decree with regard to communication, the decree did not prevent her from communicating with D.J.A.

Although the custody decree may have limited the means by which P.E. was able to communicate with D.J.A., the decree cannot constitute a justification for P.E.’s absolute failure to communicate for two reasons. First, P.E.’s loss of visitation rights was not the result of circumstances beyond her control. J.J.J., 718 P.2d at 953. In D.A.’s custody action, the superior court denied P.E. visitation rights because of her improper and illegal conduct.4 In fact, D.A. commenced the custody action only after P.E. had abandoned D.J.A. in Visalia, California. If P.E. had not abandoned her role as D.J.A.’s parent, she might not have lost visitation rights to D.J.A. in the first place. She should not now be able to use her loss of visitation rights as a justification for her failure to communicate with D.J.A. Second, P.E.’s loss of visitation rights cannot justify her failure to communicate because P.E. has not made any objectively reasonable attempts to communicate with D.J.A. B.S.L., 779 P.2d at 1224. P.E. has failed to come forward with any evidence that she reasonably attempted any meaningful communication with D.J.A. In addition, at no time since the court entered its decree in October 1986 has P.E. moved for reinstatement of her visitation rights. Whether or not the custody decree denying visitation rights constituted an obstacle to communication, it cannot constitute justifiable cause for P.E.’s failure to communicate.

The court’s second justification for P.E.’s failure to communicate with D.J.A. is that “throughout the entire period in question P.E. suffered under a disturbed mental-emotional state.” Supra p. 1039. In some cases, a noncustodial parent’s mental-emotional condition may present justifiable cause for failing to communicate with her child. A noncustodial parent may offer evidence that her mental condition impaired her ability to communicate with her child. However, P.E. neither has offered such evidence nor even alleged that her mental condition impaired her ability to communicate with D.J.A.

Dr. J. Ortiz, M.D., and Dr. James Harper, a licensed clinical psychologist, diagnosed P.E.’s mental condition as “[bjorder-line personality disorder.” The criteria for this diagnosis are “[a] pervasive pattern of instability of mood, interpersonal relationships, and self image_” In P.E.’s discharge summary from the Alaska Psychiatric Institute, Dr. Ortiz wrote that P.E. had “[n]o evidence of psychosis,” that “her mood was mildly distressed,” and that “[h]er cognitive functioning was intact.” There is no evidence linking P.E.’s borderline personality disorder to her failure to communicate. Without such evidence, I cannot conclude that the superior court clearly erred in failing to find that P.E.’s mental condition constituted a justification for failing to communicate with D.J.A. To rule otherwise on these facts would excuse a failure to communicate on grounds of any slight mental-emotional disturbance regardless of whether such condition affected her ability to communicate.

In sum, in reversing the superior court, the court ignores not only the record but also our interpretation of “justifiable cause” under AS 25.23.050 to protect the child’s right to a stable, secure family relationship. P.E. failed to communicate mean*1042ingfully with D.J.A. for fifteen months. The court claims that P.E. was justified in failing to communicate with D.J.A. because of her mental-emotional condition. However, P.E. does not allege that this condition impaired her ability to communicate with D.J.A., nor is there any evidence to support such a finding. The court also claims that P.E. was justified in failing to communicate with D.J.A. because she was denied visitation rights. However, the facts show that she was not denied communication rights and that she was not under the misconception that she was denied such rights. Moreover, even if the court’s decree denying visitation rights presented P.E. with an obstacle to communication, it cannot constitute justifiable cause for P.E.’s failure to communicate because (1) the decree was imposed because of P.E.’s own conduct, and (2) P.E. never made a reasonable attempt either to communicate with D.J.A. or to reinstate her visitation rights. In light of the entire record, the superior court’s finding that P.E. had no justifiable cause for failing to communicate with D.J.A. was not clearly erroneous. In fact, the record shows that the superior court was correct. Therefore, I would affirm the decision of the superior court granting L.A.’s petition for adoption.

. AS 25.23.050(a)(2)(A). Consent also is not required of a parent who has abandoned a child for at least six months or of a parent who fails to provide for the care and support of a child as required by law or judicial decree. AS 25.23.-050(a)(1); AS 25.23.050(a)(2)(B).

. The court also finds that the court order was ambiguous and P.E. was confused as to the requisite therapy she had to undergo before she could reinstate her visitation rights. Supra p. 1039. These facts are irrelevant to the question whether the court order constituted a justification for P.E.’s failure to communicate with D.J.A.

. The court cites P.E.’s testimony that she was confused as to what she had to do in order to reinstate her visitation privileges. This confusion is no justification for P.E.’s failure to communicate with her child.

. The court found:

[P.E.'s] severe, erratic behavior under stress has resulted in impermissible and inappropriate social behavior. She has twice defied this court by refusing to comply with its visitation order and by refusing to disclose the whereabouts of the child, [D.J.A.], after taking him from Clare House. She has continually harassed and threatened the lives of [D.A. and] his parents. She admits but cannot explain or apparently understand the impropriety of this behavior.