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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Osterkamp v. Stiles (6/25/2010) sp-6482

Osterkamp v. Stiles (6/25/2010) sp-6482, 235 P3d 193

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

KENNETH M. OSTERKAMP, )
) Supreme Court No. S- 13497
Appellant,)
) Superior Court No. 3AN-08- 00693 PR
v. )
) O P I N I O N
KATTARYNA STILES, )
) No. 6482 June 25, 2010
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon Gleason, Judge.

          Appearances:  Mary A. Gilson and  Allison  E.
          Mendel,  Mendel & Associates, Anchorage,  for
          the  Appellant.  Robert C. Erwin and  Roberta
          C.  Erwin,  Robert C. Erwin, LLC,  Anchorage,
          for the Appellee.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree, Christen, and Stowers, Justices.

          CHRISTEN, Justice.

I.   INTRODUCTION
          Kenneth Osterkamp appeals the denial of his petition to
adopt   Simon1  on  the  grounds  that  Simons  adoptive  mother,
Kattaryna  Stiles, should be equitably estopped from  withholding
her  consent.   Because  it is undisputed  that  Kattaryna  never
unconditionally agreed that Ken could adopt Simon, we affirm  the
superior courts denial of the petition for adoption.
II.  FACTS AND PROCEEDINGS
          Kenneth  Osterkamp and Kattaryna Stiles lived  together
as  domestic  partners from 2003 until they  separated  in  March
2007.   Simon was born on August 25, 2005 and is an Indian  child
          under the Indian Child Welfare Act (ICWA).2  On September 1,
2005,  the  Office of Childrens Services (OCS)  placed  Simon  in
foster care with Kattaryna and Ken.
          Ken and Kattaryna began taking steps to adopt Simon  in
early  2006, though they had begun to experience difficulties  in
their  relationship.  They dispute whether they initially decided
to  adopt  Simon as a couple, but it is undisputed  that  a  home
study  for  joint adoption was conducted in the spring  of  2006.
Kattaryna  claims  she and Ken initially agreed  that  she  would
adopt  Simon  on  her  own and that the possibility  of  a  joint
adoption arose after a social worker advised her to put Kens name
on  the  home study in case they later decided to adopt together.
Kattaryna admits that Ken wanted to jointly adopt Simon  by  late
2005.   Ken  claims  that he and Kattaryna   mutually  agreed  to
jointly  adopt  Simon in late 2005 and that  the  possibility  of
Kattaryna adopting Simon by herself came up in the summer of 2006
after  a  period of conflict in their relationship.  The  parties
agree that Kattarynas concern regarding a joint adoption was that
if their relationship did not work out, Simon would grow up in  a
broken home.
          The  adoption process moved forward in Kattarynas  name
only.   Ken understood that he would adopt Simon at a later  date
if  the parties relationship improved; Kattaryna claims that  the
agreement  was  that Ken would only adopt Simon  if  the  parties
eventually got married.  Both parties understood that  Ken  would
continue  to have an important role in Simons life as  a  beloved
uncle whether or not Ken adopted him.  And both parties testified
that  Kattaryna never unconditionally consented to  Ken  adopting
Simon.
          On  December 28, 2006, a hearing was held on Kattarynas
adoption petition and Superior Court Judge Sharon Gleason granted
it.3   At the time of this hearing, Simon was sixteen months  old
and  had  spent all but one week of his life living with Ken  and
Kattaryna.  Ken attended the adoption hearing and did  not  raise
any  objections  to  Kattaryna adopting Simon in  her  individual
capacity.   Nor  did  Ken  attempt to reserve  any  post-adoption
rights.
          From  the time OCS placed Simon with Ken and Kattaryna,
Kattaryna encouraged a parent-child relationship between Ken  and
Simon.  She referred to Ken as Dad when speaking around Simon and
encouraged Ken to see himself as Simons father and to  develop  a
parental bond with him.  Kattaryna and Ken held themselves out to
be a family before the adoption.  In a 2005 photo album Kattaryna
put  together entitled A Year of Change, there are photo captions
such  as  Bath  time with Dad and multiple photos depicting  Ken,
Kattaryna, and Simon as a family.  Another photo album  Kattaryna
made  includes  references to Kens nieces and nephews  as  Simons
cousins  and  captions such as [Simon] Joined our family  .  .  .
Lucky,  Lucky, us, Reading with dad, and [Simon] with  Dad.   Ken
also  received  a  2006 Fathers Day card made  by  Simon  at  his
daycare.
          The  parties  continued  to  live  together  after  the
adoption, Kattaryna continued to refer to Ken as Simons dad,  and
Simon began calling Ken daa.  In January 2007, Kattaryna executed
          a will naming Ken as Simons guardian and conservator in the event
of  her death and describing her immediate family as Simon and my
domestic  partner  Ken.  According to Kens brother  Tom,  nothing
following  the  adoption indicated that  Kens  relationship  with
Simon  had changed.  But Kattaryna claims that on more  than  one
occasion after the adoption she asked Ken to help with Simon  and
he responded, [H]es not my son, I dont have to help.
          Kattaryna  separated  from  Ken  in  March  2007.   The
parties  initially agreed Ken would have visitation  with  Simon,
but this ended not long after their separation.
          Ken  filed  a complaint for joint custody  of  Simon  a
month  after  the parties separated.  Superior Court  Judge  Jack
Smith  held  a bench trial and ruled that Ken had not established
psychological parent status as of the time he filed his complaint
for  custody, and did not prove by clear and convincing  evidence
that  denying him custody would be clearly detrimental to  Simon.
Judge Smith did not reach the issue of visitation and Ken has had
no  contact with Simon since Judge Smith entered his decision  in
the  custody  action in August 2008.  Ken appealed  Judge  Smiths
decision,  and  we  affirmed.4  We also concluded  that  ordering
third  party  visitation over Kattarynas  objection  was  not  in
Simons best interests.5
          Shortly  before  the custody case went  to  trial,  Ken
filed  the  petition  for adoption that is the  subject  of  this
action.   The petition alleged that Kattaryna previously provided
verbal  consent  [to Kens adoption of Simon] and  that  she  took
actions   consistent   with  giving   consent.    Kens   petition
acknowledged that the consent of a childs parent would  typically
be  required in order for an adoption to proceed,6 but he  argued
that  under AS 25.23.050(a)(8) Kattarynas consent should not have
been required because she was unreasonably withholding it.7
          Kattaryna  filed  a  motion  to  dismiss  the  adoption
petition  on  the  grounds that her consent  is  required  by  AS
25.23.040(a)(1) and that the exception in AS 25.23.050(a)(8) does
not  apply  to  adoptive  parents.  Ken  opposed  the  motion  to
dismiss,  primarily arguing that the court should  dispense  with
the  requirement  for  Kattarynas consent on  equitable  estoppel
grounds.8   Judge  Gleason denied Kattarynas motion  to  dismiss,
reasoning  that  if  Ken  could  prove  the  allegations  in  his
petition, he might be entitled to a ruling that Kattaryna  should
be  equitably  estopped  from withholding  her  consent  to  this
adoption.  After requesting supplemental briefing on the issue of
whether the doctrine of equitable estoppel can dispense with  the
statutory  requirement  that  a  mother  consent  to  her  childs
adoption,  Judge Gleason ruled that equitable estoppel  might  be
applicable  in  this  context.  She  then  held   an  evidentiary
hearing  on the narrow issue of whether Kattaryna had,  in  fact,
consented to Kens adoption of Simon.
            Judge Gleason heard testimony offered by both parties
and found that Kattaryna never made an unconditional statement or
assertion that she would consent to Ken adopting Simon.  On March
27,  2009,  Judge  Gleason dismissed the  adoption  petition  and
awarded Kattaryna attorneys fees pursuant to Alaska Civil Rule 82
in the amount of $5,688.75.  Ken appeals.
III. STANDARD OF REVIEW
          We  review  questions  of law de  novo,9  applying  our
independent judgment and adopting the rule of  law that  is  most
persuasive in light of precedent, reason and policy.10
          In  an  adoption  case, we review the  superior  courts
factual  findings  under  the clearly  erroneous  standard.11   A
finding  is clearly erroneous when a review of the entire  record
leaves us firmly convinced that a mistake has been made.12
IV.  DISCUSSION
     A.   Equitable Estoppel
          The  general  elements required for the application  of
the  doctrine  of  equitable estoppel  are  the  assertion  of  a
position  by  conduct  or word, reasonable  reliance  thereon  by
another  party, and resulting prejudice.13  We have  not  decided
whether  this  doctrine applies in the context of a petition  for
adoption,14 though this question was presented in C.T. v.  J.S.15
There,  the  superior  court ruled that a  mother  was  equitably
estopped from withholding her consent to the stepfathers petition
to adopt her child.16  The basis for the superior courts estoppel
ruling  was the mothers history of representations to  the  child
that  the stepfather was the childs biological father.17  We  did
not reach the legal question of whether equitable estoppel can be
applied  to  prevent  a  parent from withholding  consent  to  an
adoption  petition  because  the evidence  established  that  the
mother   never  represented  that  she  would  consent  to   [the
stepfather] adopting [her biological son].18
          We  reach  the same result in this case, for  the  same
reason.19  It is uncontested that Kattaryna never unconditionally
represented to Ken that she would consent to him adopting  Simon.20
To  the contrary, both Ken and Kattaryna understood that if their
relationship  did not improve  which it has not   then  Kattaryna
would not consent to Ken adopting Simon.21
          Ken  presents substantial evidence that Kattaryna  held
him out to be Simons father, but this is insufficient to meet the
required showing for equitable estoppel.  As was the case in C.T.
v.  J.S., no one suggests that [the legal mother] represented, at
any  time,  that  she would consent to [the petitioner]  adopting
[her  child].22   Uncontradicted evidence  established  that  Ken
always  understood  that adopting Simon was  contingent  on  Kens
relationship  with  Kattaryna improving.  The evidence  does  not
support Kens equitable estoppel argument.23
          B.   Attorneys Fees
          Kens only argument against the superior courts award of
attorneys  fees  is that its underlying decision  was  erroneous.
Because we affirm the superior courts denial of Kens petition for
adoption we also affirm its award of attorneys fees.
V.   CONCLUSION
          We  AFFIRM  the superior courts denial of the  petition
for custody and its award of attorneys fees.
_______________________________
     1     This  opinion uses a pseudonym to protect  the  minors
privacy.

     2    25 U.S.C.  1903(4) (2006).

     3      Simons   biological  mothers  parental  rights   were
terminated and his biological father voluntarily relinquished his
parental  rights.   The  tribes with which  Simon  is  affiliated
received  notice of the adoption hearing and filed no  objection;
the  court  found  good  cause to deviate  from  ICWAs  placement
preferences.

     4     Osterkamp  v.  Stiles,  ___ P.3d  ___,  Op.  No.  6481
(Alaska, June 25, 2010).

     5     Osterkamp  v.  Stiles,  ___ P.3d  ___,  Op.  No.  6481
(Alaska, June 25, 2010).

     6     AS  25.23.040(a)(1) provides that [u]nless consent  is
not  required under AS 25.23.050, a petition to adopt a minor may
be  granted only if written consent to a particular adoption  has
been executed by . . . the mother of the minor.

     7      AS  25.23.050(a)(8)  provides  that  (a)  Consent  to
adoption  is  not  required  of . .  .   (8)  [the]  guardian  or
custodian specified in AS 25.23.040(a)(3) or (4) . . . who, after
examination  of the guardians or custodians written  reasons  for
withholding  consent,  is found by the court  to  be  withholding
consent unreasonably.

     8     Ken  did  not  counter Kattarynas  argument  that  the
exception  to  requiring consent in AS 25.23.050(a)(8)  does  not
encompass adoptive parents.

     9    See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     10    Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002).

     11     See  In  re Adoption of L.E.K.M., 70 P.3d 1097,  1100
(Alaska 2003).

     12    Id. (internal citations and quotations omitted).

     13     Jamison  v. Consol. Utils., Inc., 576  P.2d  97,  102
(Alaska 1978).

     14     We  have held that equitable estoppel applies in  the
context   of   equitable  adoption  for  purposes  of   intestate
succession,  as well as in the context of establishing  paternity
for  child support purposes.  See Calista Corp. v. Mann, 564 P.2d
53, 61-62 (Alaska 1977) ([T]he doctrine of equitable adoption  is
an  appropriate  vehicle  which  can  be  utilized  in  intestate
succession  cases  to  avoid hardship  created  in  part  by  the
diversity of cultures found within this jurisdiction.); Wright v.
Black,  856  P.2d  477, 481 (Alaska 1993) (We conclude  that  the
application  of  equitable estoppel to paternity  cases  advances
sound policies in the law, and therefore adopt its application.),
overruled  on  other grounds by B.E.B. v. R.L.B.,  979  P.2d  514
(Alaska 1999).

     15    951 P.2d 1199 (Alaska 1998).

     16    Id.

     17    Id.

     18    Id. at 1200.

     19     We  do  not  reach the question of whether  equitable
adoption  can  be  applied to prevent a parent  from  withholding
consent  to an adoption petition both because it is not necessary
to  resolve  this case and because Kattaryna did not cross-appeal
on  this issue.  But we note that apparently no jurisdiction  has
applied  equitable  adoption to establish parental  rights.   Cf.
Hermanson v. Hermanson, 887 P.2d 1241, 1245 (Nev. 1994)  (holding
that  the  doctrine of equitable adoption does not  apply  in  an
action  to  determine custody); Pierce v. Pierce, 645 P.2d  1353,
1355  (Mont.  1982)  (holding  that  the  doctrine  of  equitable
adoption  has  no application to an action in which a  stepfather
seeks  custody against the wishes of the childs mother);  Trevino
v.  Garcia,  627  S.W.2d 147, 148-49 (Tex.  1982)  (holding  that
adoption  by  estoppel is inapplicable to establishing  custodial
rights).

     20     During  the evidentiary hearing, in response  to  the
question,  So Kattaryna never said to you unequivocally,  Ken,  I
con[sent]  to your adoption of [Simon]? Ken responded,  Kattaryna
has never said that.

     21     Ken  stated during the evidentiary hearing  that  his
agreement  with Kattaryna, both before and after her adoption  of
Simon, was that things were rocky, we would work to improve  them
and then if they didnt obviously that would be a problem, but  if
they  did then I would adopt. (Emphasis added.)  Ken also  agreed
that  Kattaryna  said  to  him, [W]ere  having  problems  in  our
relationship,  I  want  to  adopt  alone.   If  our  relationship
improves you can adopt [Simon] at a later date.

     22    951 P.2d at 1200.

     23    The parties also dispute which form of estoppel should
be  applied  in  this case  equitable estoppel or quasi-estoppel.
But  Kens  claim  fails under either form  of  estoppel.   Quasi-
estoppel  precludes  a party from taking a position  inconsistent
with  one  [s]he has previously taken where circumstances  render
assertion  of  the  second  position unconscionable,  Jamison  v.
Consol.  Utils.,  Inc., 576 P.2d 97, 102 (Alaska  1978).   It  is
uncontested  here  that Kattaryna never agreed  to  Ken  adopting
Simon unless the parties relationship improved.

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