Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER

. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email

corrections@akcourts.gov.

THE SUPREME COURT OF THE STATE OF ALASKA

In the Matter of the Adoption of )

) Supreme Court No. S-18052

J.R.S. )

) Superior Court No. 3AN-20-00655 PR

)

) O P I N I O N

)

) No. 7585

– March 4, 2022

Appeal from the Superior Court of the State of Alaska, Third

Judicial District, Anchorage, Yvonne Lamoureux, Judge.

Appearances: John J. Sherman, Sherman Law Office, LLC,

Anchorage, for Appellants Randi B. and Bradley B.

Jennifer M. Coughlin, Landye Bennett Blumstein, LLP,

Anchorage, for Appellee Dale S.

Before: Winfree, Chief Justice, Maassen, Carney,

Borghesan, and Henderson, Justices.

WINFREE, Chief Justice.

I. INTRODUCTION

A maternal aunt and uncle sought to adopt a child over the father’s

objection; after finding that the father’s consent was required, the superior court

dismissed the adoption petition. The aunt and uncle contend the superior court erred by

finding that: (1) the father had justifiable cause for his failure to communicate with the

child for one year or more; (2) the father did not abandon the child for six months or

more; and (3) the father did not fail to support the child for one year or more.Following oral arguments we issued a brief order affirming the superior

court’s decision dismissing the adoption petition. This opinion sets forth the reasons for

our earlier order.

II. FACTS AND PROCEEDINGS

A. Background

J.R.S. was born in August 2016. 1 Her parents, Dale S. and Samantha S.,

have a history of substance abuse, including heroin and methamphetamine.

B. Proceedings

1. Proceedings generally

In April 2019 J.R.S.’s maternal aunt and uncle, Randi and Bradley B.,

petitioned for sole legal and primary physical custody of J.R.S. They alleged “that

[J.R.S.] ha[d] lived with them continuously since July . . . 2018, that the . . . parents’

rights have been suspended by circumstances (specifically due to substance abuse

issues), and that the . . . parents had abandoned [J.R.S.]” Dale responded to the petition

and requested that he and Samantha be awarded custody. The court held an initial status

hearing in May; only Randi, Bradley, and Samantha participated. The court granted

Randi and Bradley’s unopposed motion for interim custody of J.R.S.

In December Dale attempted to mediate the custody dispute with Randi and

Bradley. Dale later testified that the mediation was unsuccessful because he was

unwilling to “sign over [his] daughter.” Dale explained that Randi and Bradley had

offered to allow visitation with J.R.S. if Dale agreed to grant them custody and to attend

substance abuse treatment. Dale acknowledged that he had tested positive for

1 We use initials to protect the child’s privacy. The petition was captioned

In the Matter of the Adoption of J.R.B.

, using the aunt and uncle’s last initial. Because

the adoption petition was denied, the child will keep her birth name; we accordingly refer

to her as J.R.S.

-2- 7585methamphetamine and heroin in June and that he had not attended substance abuse

treatment.

In March 2020 Randi and Bradley petitioned to adopt J.R.S. The court

ordered that the custody and adoption cases be heard together and bifurcated the trial; the

first part took place in December and addressed whether the adoption required the

parents’ consents. Randi and Bradley sought to prove that consent was not required

because the parents had: (1) failed to communicate meaningfully with J.R.S. without

justifiable cause for one year or more; (2) abandoned J.R.S. for six months or more; and

(3) failed to provide for J.R.S.’s care and support as required by law or judicial decree

without justifiable cause for one year or more. 2 The court found that Samantha’s consent

to adoption was not required but that Dale’s consent to adoption was required, and it

accordingly dismissed the adoption petition.

Randi and Bradley appeal, asserting that the superior court erred by finding

that Dale’s consent was required.

2.	 Testimony and superior court findings about whether Dale

failed to communicate without justifiable cause or abandoned

J.R.S.

a.	 August 2016 through April 2018

Tria l testimony indicated that after J.R.S.’s August 2016 birth she lived

with Dale and Samantha until about June 2017. Samantha’s mother testified that

Samantha and J.R.S. lived with her from June until November 2017. Samantha’s father

testified that J.R.S. then lived with him until approximately April 2018.

The parties dispute whether Dale had contact with J.R.S. between June

2017 and spring 2018. Dale testified that he had several video chats with J.R.S. between

See AS 25.23.050(a)(1)-(2) (enumerating exceptions to requirement for

biological parents’ consent to child’s adoption).

-3- 7585 2June and November, but Samantha’s mother testified that, although Dale and Samantha

had been in contact, she could not remember seeing or hearing from Dale while J.R.S.

lived with her. Dale testified that in January 2018 he started an oilfield job in North

Dakota, working a varying schedule of weeks in the field and returning to Alaska for his

time off. Dale testified that in late January or early February 2018 he had visited

Samantha and J.R.S. a few times and that they went to a park or shopping, but

Samantha’s father testified that he did not see Dale from November 2017 to April 2018.

The superior court found that Dale had contact with J.R.S. prior to April 2018.

b. April 2018 through November 2018

Samantha was undergoing cancer treatment throughout 2018. Samantha’s

mother testified that in April she picked up J.R.S. from Samantha’s father’s home and

that she offered to care for J.R.S. until Samantha got better. Randi testified that J.R.S.

began living with her and Bradley in July.

Testimony reflected that Dale had multiple visits with J.R.S. during the

summer and fall of 2018. Samantha’s mother testified that Dale attended a family

gathering at a restaurant in May. Samantha’s mother further testified that Dale also

attended a family gathering for J.R.S.’s birthday in August. Randi testified that early in

the summer J.R.S. lived with Samantha and Dale at Samantha’s father’s home when Dale

was in town but that around August they agreed it would be best for J.R.S.’s sleep

schedule for her to spend days with Samantha and Dale and return to Randi and

Bradley’s home at night. Randi testified that in October and November she twice told

Samantha and Dale that future visits with J.R.S. needed to be supervised because of their

fighting. Randi also testified that at the end of November she blocked calls from Dale’s

number and told Samantha that Dale could coordinate supervised visits with J.R.S.

through Samantha’s mother.

-4- 7585c. November 2018 through trial

Dale testified that he tried contacting Samantha’s mother and Randi

multiple times in early 2019 and that neither one responded. Samantha’s mother testified

that in March she exchanged texts and phone calls with Dale; he wanted to take J.R.S.

to Wasilla to visit his family, but he would not agree to supervision. Randi testified that

she unblocked Dale’s calls in March and that she told him she knew he had been trying

to contact her. She testified that Dale indicated he wanted to take J.R.S. to Wasilla to

visit his family and his brother would be willing to supervise. Randi asserted that she

told Dale she wanted to meet his brother, that she tried to arrange a meeting, but that

Dale did not follow through and the meeting never happened.

Randi testified that in March she went to see Samantha; the superior court

found that Dale and Samantha were both living at Samantha’s father’s home at this time.

Randi testified that she observed bruising on Samantha and drug paraphernalia in the

home. Randi said that shortly after this visit, she made a report to the Office of

Children’s Services (OCS). 3 Randi and Bradley also filed a petition for legal custody of

J.R.S., and in April the court granted them temporary custody of J.R.S.

Randi testified that Dale contacted her in April after she made the OCS

report and filed the custody petition; he asked to see J.R.S., and Randi told him he would

3 OCS’s mission is to “[e]nsur[e] the safety, permanency and well-being of

children by strengthening families, engaging communities, and partnering with Tribes.”

Office of Children’s Services: Mission, Vision, Guiding Principles and Values

, A LASKA

D EP ’ T OF H EALTH & S OC

. S ERVS

., https://dhss.alaska.gov/ocs/Pages/aboutus/default.aspx

(last visited Dec. 16, 2021).

An OCS caseworker later testified that: OCS received a report alleging that

Dale and Samantha neglected J.R.S.; the caseworker talked to Samantha on the phone

once but never talked to Dale; the caseworker never met with either parent; O CS was

“not legally involved or setting up visits”; and because the child was in someone else’s

temporary custody and there was an open custody case, OCS closed its file.

-5- 7585need to go through OCS to coordinate a visit. Randi further testified that Dale contacted

her again in June asking to see J.R.S. and that she again told him he would need to

coordinate visits through OCS. Randi also stated that on J.R.S.’s b irthday in August,

Dale left a message asking her to say happy birthday to J.R.S. Randi testified that was

the last time she heard from Dale.

Dale testified that he first learned about the custody petition when his

mother called him in North Dakota to let him know that Randi and Bradley had been

awarded temporary custody. Dale explained that he had not received notice because the

paperwork had been sent to Samantha’s father’s address, Dale then was working in

North Dakota, and when he was not working he was not living at Samantha’s father’s

house. Dale stated that as soon as he got back to Alaska he went to the courthouse and

filed an answer. He also testified that h e worked overtime for several months to save

enough money to hire an attorney. Dale asserted that, despite repeated requests, his

attorney refused to file a request for interim visitation and that the attorney advised him

not to contact Randi and Bradley directly. The superior court found Dale’s testimony

on this issue credible, noting: “Dale

. . . followed the advice of his attorney and stopped

contacting the maternal relatives in order to facilitate visitation with [J.R.S.]”

The superior court found that during 2018 J.R.S. had not lived with either

of her parents since spring, that J.R.S. had been in Randi and Bradley’s physical custody

since July, and that Dale had not had contact with J.R.S. since November.

3. Evidence and findings about whether Dale failed to support

J.R.S.

The court found: “[J.R.S.]’s extended maternal family members have been

supporting [J.R.S.] her entire life. They have been providing housing, food, diapers, and

clothes for [J.R.S.]” Samantha’s father, Samantha’s mother, and Randi all testified that

-6- 7585during the periods when J.R.S. was living with each of them they financially supported

her. Randi further testified that Dale never purchased anything “of substance” for J.R.S.

In May 2017 Samanthaobtained an administrativechild support order from

the Alaska Department of Revenue, Child Support Services Division (CSSD). The order

required Dale to pay Samantha monthly child support starting in June, including arrears

fromOctober 2016 through May 2017. CSSDrecords show that Dale made 20 payments

between February 2018 and February 2021. Dale testified that he believed the child

support payments were going to Randi and Bradley after J.R.S. began living with them.

III. STANDARD OF REVIEW

“A finding that a parent’s failure to communicate or support a child was

without justifiable cause is a finding of fact that we review for clear error.” 4 Whether a

parent abandoned a child for at least six months is also a finding of fact that we review

for clear error. 5 “A factual finding is clearly erroneous ‘when a review of the record

leaves the court with a definite and firm conviction that the superior court has made a

mistake.’ ” 6 “The superior court’s ‘factual findings enjoy particular deference when they

are based “primarily on oral testimony, because the trial court, not this court, performs

the function of judging the credibility of witnesses and weighing conflicting

evidence.” ’ ” 7

4 Bruce L. v. W.E.

, 247 P.3d 966, 973 (Alaska 2011).

5 See In re Adoption of S.F.

, 340 P.3d 1045, 1048 (Alaska 2014) (reviewing

superior court’s abandonment finding for clear error).

6 Id. at 1047 (quoting Fardig v. Fardig

, 56 P.3d 9, 11 (Alaska 2002)).

7 Id. (quoting William P. v. Taunya P.

, 258 P.3d 812, 814 (Alaska 2011)).

-7- 7585IV. DISCUSSION

Under AS 25.23.040, both parents’ consent is required for the adoption of

their child unless an enumerated exception applies. The three exceptions at issue in this

case are set out in AS 25.23.050(a)(1)-(2), which provides that consent is not required

if a parent has: (1) failed without justifiable cause to communicate meaningfully with

the child for one year or more; (2) abandoned the child for six months or more; or

(3) failed without justifiable cause to provide for the care and support of the child as

required by law or judicial decree for one year or more. Trial courts are to “strictly

construe AS 25.23.050 in favor of the natural parent.” 8 “[A]doption consent provisions

are designed to protect the natural rights of parents to custody, society, comfort, and

services of the child. . . . [P]arents should not be deprived of the fundamental rights and

duties inherent in the parent-child relationship except for ‘grave and weighty reasons.’ ” 9

“The long-established and continuing rule in Alaska is that absent the element of

willfulness, a parent does not lose the right to consent under AS 25.23.050(a)(2).” 10

A. The Superior Court Did Not Clearly Err By Finding That Dale Made

Reasonable Efforts To Communicate With J.R.S.

Alaska Statute 25.23.050(a)(2)(A) provides that a parent’s consent to

adoption is not required if the parent “has failed significantly without justifiable cause

. . . to communicate meaningfully with the child” for a period of at least one year. This

exception is analyzed using a burden-shifting test:

8 In re Adoption of A.F.M.

, 960 P.2d 602, 604 (Alaska 1998) (quoting

S.M.K. v. R.G.G.

, 702 P.2d 620, 623 (Alaska 1985)).

9 Id. (alterations in original) (quoting D.L.J. v. W.D.R.

, 635 P.2d 834, 837

(Alaska 1981)).

10 Ebert v. Bruce L.

, 340 P.3d 1048, 1055 (Alaska 2014) (quoting In re Adoption of J.M.F.

, 881 P.2d 1116, 1118 (Alaska 1994)).

-8- 7585The burden falls on the adoptive parents . . . to prove by clear

and convincing evidence that communication . . . did not

occur for that one-year period. Once this showing is made,

the burden shifts to the biological parent to produce evidence

of justifiable cause for the failure in communication . . . . If

the biological parent meets the burden of production, the

adoptive parents then must show by clear and convincing

evidence that the failure in communication . . . was without

justifiable cause. [ 11 ]

The superior court found that Dale had failed to communicate with J.R.S.

for longer than one year. Under AS 25.23.050(a)(2)(A) the burden shifted to Dale to

“produce evidence of justifiable cause”; Randi and Bradley then were required to

establish “by clear and convincing evidence that the failure . . . was without justifiable

cause.” 12

“A parent’s failure to communicate with his child is justified only if his

‘efforts to communicate were objectively reasonable in light of the existing

circumstances.’ ” 13 We also have noted that “[s]eeking the assistance of a court can

indicate a parent’s interest in preserving his relationship with his child” and can thus

constitute reasonable efforts. 14 In Bruce L. v. W.E. the father had no contact with the

11 Bruce L. v. W.E.

, 247 P.3d 966, 979-80 (Alaska 2011) (footnotes omitted).

12 See id.

13 David S. v. Jared H.

, 308 P.3d 862, 868 (Alaska 2013) (footnote omitted)

(quoting In re Adoption of B.S.L.

, 779 P.2d 1222, 1224 (Alaska 1989)).

14 Bruce L.

, 247 P.3d at 980-81; see also S.M.K. v. R.G.G.

, 702 P.2d 620, 624

(Alaska 1985) (“[The mother] showed her interest in preserving her relationship with

[her son] by seeking the assistance of

. . . the

. . . courts, as well as several attorneys.

These efforts were reasonable and practical given the facts of this case.”).

-9- 7585child for the first year of the child’s life. 15 But during that year the father “commenced

pro se legal proceedings by moving to be a party in the . . . initial adoption case and to

be granted custody”; “represented himself at a hearing on the initial adoption petition to

request custody” of the child; acquired court-appointed counsel and moved for paternity

testing; filed a pro se custody suit; and requested a hearing in the custody suit. 16 We

determined that the father had “clearly made reasonable efforts to obtain custody and to

develop a relationship with” the child and that the prospective adoptive parents had not

met their burden of proving by clear and convincing evidence that the father had

unjustifiably failed to communicate with the child for one year. 17

When deciding whether efforts to communicate were reasonable, we also

consider the child’s age; we have found justifiable cause for a parent’s failure to

communicate if “the child is too young to read or [to] communicate over the

telephone.” 18 In D.L.J. v. W.D.R. , for example, we upheld a determination that a father’s

failure to communicate for two and a half years with his daughter —who was three years

old when he last visited — was justified because, among other things, the father could

not meaningfully communicate with such a young child “by letter or telephone without

the mother’s cooperation.” 19 And in D.A. v. D.R.L. we upheld a similar determination

15 247 P.3d at 980.

16 Id. at 981.

17 Id.

18 David S.

, 308 P.3d at 872 (quoting D.A. v. D.R.L.

, 727 P.2d 768, 770

(Alaska 1986)).

19 635 P.2d 834, 836, 839 (Alaska 1981).

-10- 7585because “the child was too young to talk on the telephone or understand gifts or letters

from her father.” 20

The superior court found Dale’s participation in the custody and adoption

cases constituted “reasonable efforts to obtain custody and to reunite with his daughter.”

The court also found reasonable Dale’s focus on in-person visitation over phone calls or

video chats, noting that there was “a clear disagreement likely since approximately

November 2018, but definitely since March 2019, about whether [J.R.S.]’s contact with

Dale . . . must be supervised. Dale . . . reasonably assumed that these court cases would

resolve that disagreement.” And the court found that Dale was advised by his attorney

to stop contacting J.R.S.’s maternal relatives about visitation pending the court

proceedings’ outcome. The superior court determined that there was “not clear and

convincing evidence that . . . [Dale’s] failure to communicate meaningfully with [J.R.S.]

was without justifiable cause.”

Randi and Bradley contend the superior court erred by finding that Dale’s

participationin thelegal proceedings constituted reasonable efforts to communicatewith

J.R.S. Seeking to distinguish the parent’s efforts in Bruce L.

, 21 a case Randi and Bradley

characterize as the parent having “actively pursued custody or visitation from the

beginning of the child’s life” and taken “proactive steps towards securing contact with

the child,” they contend Dale merely filed an answer to the custody petition, his “case

was plagued by his failure to communicate with his attorneys,” and he did not seek

visitation while the case was pending. They assert that Dale’s testimony about his

attorney being unwilling to request visitation or interim custody was not credible. They

also assert that Dale acted unreasonably by failing to accept supervised visitation and

20 727 P.2d at 770.

21 See 247 P.3d at 980-81 (describing father’s efforts).

-11­ 7585failing to coordinate visits through OCS, pointing out that until May 2019 nothing

prevented Dale from legally taking custody of J.R.S. Randi and Bradley analogize this

case to In re Adoption of B.S.L. and David S. v. Jared H. , cases in which we upheld

findings that a parent had failed to make reasonable efforts to communicate with a

child. 22 They argue that, like in those cases, Dale had “avenues open to establish

meaningful contact” with J.R.S., but he “failed to . . . avail [himself] of those avenues.”

Randi and Bradley’s burden to show a lack of justification by clear and

convincing evidence and our deferential standard of review set a high bar for them to

overcome the superior court’s determination. 23 The court’s findings are factual in nature

and will not be overturned unless clearly erroneous. 24 We have on several occasions

emphasized this deferential standard of review in upholding determinations regarding

22 In re B.S.L.

, 779 P.2d 1222, 1224-26 (Alaska 1989) (upholding finding that

mother did not make reasonable efforts to communicate; mother did not attempt to

contact child because she believed attempts to communicate would be blocked by child’s

father’s family, with whom child lived, and, although mother spoke to attorneys about

obtaining custody, she did not initiate proceedings); David S.

, 308 P.3d 862, 869-70,

872-73 (Alaska 2013) (upholding finding that father did not make reasonable efforts to

communicate; he made no real attempts to contact child, alleged no active interference

with communication by custodial relatives, and despite incarceration he maintained

communication with people other than child).

23 See Bruce L.

, 247 P.3d at 979-80 (explaining that adoptive parents must

prove “by clear and convincing evidence” failure of communication or support for one

year, that biological parent then must provide justifiable cause for the failure, and that

“the adoptive parents then must show by clear and convincing evidence that the failure

in communication or support was without justifiable cause”).

24 See, e.g.

, David S.

, 308 P.3d at 867 (“We review the superior court’s factual

findings in an adoption proceeding for clear error.”).

-12- 7585AS 25.23.050(a)’s consent exceptions. 25 Dale’s efforts are not unlike those of the father

in Bruce L. 26 Upon learning that Randi and Bradley were seeking custody of J.R.S., Dale

promptly went to the courthouse and filed an answer. Dale testified that he worked

overtime to save enough money to hire an attorney to help him contest the custody

proceedings. After Randi and Bradley petitioned for adoption, Dale requested courtappointed counsel to contest the adoption proceedings. Dale participated in the

December 2019 custody mediation and, with one exception, allofthescheduled hearings

relating to J.R.S.’s custody. The superior court acknowledged that J.R.S. was old

enough to recognize voices on the telephone and participate in video chats. But the

record does not suggest that Dale would have been successful even had he attempted to

engage in video chats or phone calls; Dale testified that he had frequently tried

contacting both Samantha’s mother and Randi but received no responses, and Randi

testified that she blocked Dale’s number for over three months. As in D.L.J. , meaningful

25 We have noted that superior courts may properly reach different

conclusions on similar sets of facts without erring. In re B.S.L.

, 779 P.2d at 1225 n.3

(“[E]ven if the facts

. . . were identical it would not follow that the trial court’s finding

in this case should be set aside as clearly erroneous. The trial court heard lengthy, incourt testimony

. . . [and] it rendered a careful and thoughtful decision. The clearly

erroneous standard demands that we defer to the trial court in this matter

. . . .”); cf.

D.L.J. v. W.D.R.

, 635 P.2d 834, 839 (Alaska 1981) (“Though the natural f ather could

have been more enterprising, in the circumstances of this case we cannot say that the

master’s determination that his f ailure to communicate with his daughter was justified

was clearly erroneous.”).

26 See Bruce L.

, 247 P.3d at 980-81 (finding that father did not unjustifiably

fail to communicate because he was actively involved in court proceedings regarding

custody and adoption of his son).

-13- 7585communication with such a young child could not be accomplished without the custodial

party’s cooperation. 27

The record amply supports the determination that Dale’s failure to

communicate was not unreasonable or without justification, and the superior court did

not clearly err in its determination.

B. The Superior Court Did Not Clearly Err By Finding That Dale Did

Not Abandon J.R.S.

A parent’s consent to a child’s adoption is not required if the parent “has

abandoned a child for a period of at least six months.” 28 “Abandonment is established

[if] a parent’s ‘conscious disregard of the obligations owed by a parent to the child,

lead[s] to the destruction of the parent-child relationship.’ ” 29

The superior court found that Dale’s “actions do not rise to the level of a

conscious disregard of his parental responsibilities.” The court noted that “there have

been periods of time when Dale . . . was an absent parent, [but] none of those periods

lasted six consecutive months.”

Randi and Bradley contend that Dale abandoned J.R.S. from November

2018 until the date of the trial, offering no arguments other than those previously

discussed in the context of Dale’s failure to communicate. They additionally contend

that Dale abandoned J.R.S. from June 2017 until April or May 2018. They point to

Samantha’s mother’s testimony that she did not see Dale during the period from June to

November 2017 and to Samantha’s father’s testimony that he did not see Dale from

27 See 635 P.2d at 839.

28 AS 25.23.050(a)(1).

29 In re Adoption of S.F.

, 340 P.3d 1045, 1047 (Alaska 2014) (second

alteration in original) (quoting D.M. v. State

, 515 P.2d 1234, 1237 (Alaska 1973)).

-14- 7585November 2017 to April 2018. Randi and Bradley assert that Dale’s testimony about

video chats and some in-person visits with J.R.S. during this time was not credible.

Dale testified that he made continual efforts t o see J.R.S. during the first

two years of her life, when she was living with Samantha and Samantha’s relatives.

Following Dale’s November 2018 visit with J.R.S., he periodically contacted Samantha’s

mother and Randi trying to arrange visits. Dale testified that he focused on

communicating with Randi because he “was under the assumption that [his] daughter

was living with Randi,” but Randi had Dale’s number blocked on her phone until March

2019. And, as discussed more fully above, Dale filed an answer to Randi and Bradley’s

custody petition in April 2019 and continued participating in the ongoing legal

proceedings regarding J.R.S.’s custody and adoption. The court found credible Dale’s

testimony that he had in-person and video visits with J.R.S. and that there was no six

month period when Dale “was an absent parent.”

Randi and Bradley ask us to reweigh evidence and reach a different factual

conclusion than the superior court. We will not reweigh evidence if the record provides

support for factual findings. 30 The court’s factual finding that Dale did not abandon

J.R.S. for six months is supported by the record and thus is not clearly erroneous.

30 In re Adoption of Hannah L.

, 390 P.3d 1153, 1156 (Alaska 2017) (“When

reviewing factual findings we ordinarily will not overturn a trial court’s finding based

on conflicting evidence, and we will not re-weigh evidence when the record provides

clear support for the trial court’s ruling; it is the function of the trial court, not of this

court, to judge witnesses’ credibility and to weigh conflicting evidence.” (quoting In re Adoption of S.K.L.H.

, 204 P.3d 320, 325 (Alaska 2009))); see also In re S.F.

, 340 P.3d

at 1047 (“The superior court’s ‘factual findings enjoy particular deference when they are

based “primarily on oral testimony, because the trial court, not this court, performs the

function of judging the credibility of witnesses and weighing conflicting evidence.” ’ ”

(quoting William P. v. Taunya P.

, 258 P.3d 812, 814 (Alaska 2011))).

-15- 7585C. The Superior Court Did Not Clearly Err By Finding That Dale Did

Not Willfully Fail To Support J.R.S.

Under AS25.23.050(a)(2)(B) aparent’s consent to adoptionis not required

if the parent has willfully and without justifiable cause failed significantly for a period

of at least one year “to provide for the care and support of the child as required by law

or judicial decree.” 31 The burden is on the person seeking to adopt the child to “prove

by clear and convincing evidence that the natural parent failed to support the child.” 32

Thesuperiorcourt foundthat “[J.R.S.]’sextendedmaternalfamilymembers

have been supporting [J.R.S.] her entire life” including by “providing housing, food,

diapers, and clothes.” The court nonetheless found that “there is not clear and

convincing evidence that Dale . . . failed to support [J.R.S.] as required by law or judicial

decree.” The court noted that Dale made numerous child support payments under an

administrative child support order and that those payments “do not reflect a failure to

provide support for a period of at least one year.” The court found: “Randi and Bradley

. . . never requested child support from Dale . . . and never filed an application for

services with CSSD. Dale . . . assumed that the payments which were made under the

administrative child support order were going to Randi and Bradley . . . .”

Randi and Bradley contend that Dale should have directed child support

payments to them after they began caring for J.R.S. in July 2018 and that his failure to

pay them support constitutes a failure without justifiable cause to provide support. They

assert: “It cannot be the rule that an adoptive parent must make efforts to force a

31 See Ebert v. Bruce L.

, 340 P.3d 1048, 1055 (Alaska 2014) (“The

long-established and continuing rule in Alaska is that absent the element of willfulness,

a parent does not lose the right to consent under AS 25.23.050(a)(2).” (quoting In re Adoption of J.M.F.

, 881 P.2d 1116, 1118 (Alaska 1994))).

32 In re J.M.F.

, 881 P.2d at 1118.

-16- 7585biological parent to support a child in their care.” But we have held that a parent does

not willfully fail to provide support without justifiable cause if the adoptive parents do

not ask for support. In In re Adoption of J.M.F. the adoptive parents did not ask for or

expect support payments, and the parent testified that she would have been willing to

provide support had the adoptive parents asked; we upheld the superior court’s

determination that failure to support the child was justifiable and not willful. 33 More

recently, in Ebert v. Bruce L. the adoptive parents “neither needed nor asked for any

support,” the father had minimal income but testified he would have paid support if

asked, and the father testified he was unaware he had any obligation to pay support to

the adoptive parents; we affirmed the superior court’s finding that the father did not fail

to support the child. 34

Like in J.M.F. and Ebert , Randi and Bradley did not ask Dale to pay

support nor did they filed an application with CSSD. And Dale was making child

support payments to CSSD; he testified that he believed CSSD “was doing [its] job and

making sure that money got to where it needed to be.” The superior court’s finding that

AS 25.23.050(a)(2)(B) did not apply to Dale thus is not clearly erroneous.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the superior court’s decision

dismissing the adoption petition.

33 Id.

34 340 P.3d at 1055.

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