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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
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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