702 P.2d 620 (Alaska 1985), S-460, S.M.K. v. R.G.G.

Docket Nº:S-460.
Citation:702 P.2d 620
Opinion Judge:BURKE, Justice.
Party Name:S.M.K. and A.M.K., Appellants, v. R.G.G., Appellee.
Attorney:Michael G. Briggs, Ely, Guess & Rudd, Anchorage, for appellants. Janet D. Platt, Bendell, Bendell & Platt, Anchorage, for appellee.
Judge Panel:Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
Case Date:June 14, 1985
Court:Supreme Court of Alaska
 
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Page 620

702 P.2d 620 (Alaska 1985)

S.M.K. and A.M.K., Appellants,

v.

R.G.G., Appellee.

No. S-460.

Supreme Court of Alaska

June 14, 1985

Michael G. Briggs, Ely, Guess & Rudd, Anchorage, for appellants.

Janet D. Platt, Bendell, Bendell & Platt, Anchorage, for appellee.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

OPINION

BURKE, Justice.

The single issue presented in this appeal is whether the superior court erred in affirming a master's report which recommended denial of a petition for adoption of child by S.M.K. and A.M.K. The petition for adoption was denied on the ground that the natural mother, R.G.G., did not consent to the adoption. We affirm the superior court's decision.

BACKGROUND

The child, S. [hereinafter referred to as "Stuart"], 1 was born on March 2, 1979, to mother R.G.G. ["Ruth"] and father D.R.G. ["Dennis"], and lived with his parents in Phenix City, Alabama, for the first year of

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his life. Shortly after Stuart's first birthday, Ruth and Dennis experienced marital difficulty. In late May, 1980, following an argument, Dennis left the family home without advising Ruth of his plans, and went to his mother's residence in Seale, Alabama, taking Stuart with him. Later that day, when Ruth went to her mother-in-law's [Mrs. Willis's] house to see if Stuart was there, she was denied entry into the house. When she tried to force her way through the door, her mother-in-law pulled a gun and told her to leave.

Ruth sought help from the sheriff's office in the return of her son. She was informed that the sheriff could not help her unless she had a custody order. Ruth secured a temporary custody order from an Alabama Circuit Court, awarding her custody of Stuart pending further order of the court. When the sheriff arrived at Mrs. Willis's home to enforce the custody order, Mrs. Willis informed the sheriff that Stuart was not there and that she did not know where either the child or the father were. Ruth testified that she went to Mrs. Willis's home every day for the following two weeks hoping to see her child, and checked with friends to see if anyone had seen her husband or Stuart. Her attorney advised her that there was nothing she could do until she located her child. Ruth left the family home and moved in with her sister, because she could not afford to pay the rent on the house.

In the hearing of this case, Mrs. Willis admitted that Dennis and Stuart had stayed with her for approximately one week after leaving Ruth, and that Dennis left with Stuart when he learned that Ruth had commenced a custody proceeding. She also admitted that she knew Dennis and Stuart were heading to the Houston, Texas, area and that they would be in touch with relatives. Dennis and Mrs. Willis both testified that they had decided it was best that Mrs. Willis not know exactly where Dennis and Stuart were living, because Mrs. Willis would be pressured to tell the authorities and Ruth. Dennis admitted that he had learned of the Alabama court order within two weeks of its issuance.

Dennis first went to live in Pasedena, Texas, with his aunt and uncle, whom Ruth had never met. Dennis admits that he made no effort to contact Ruth for the next year and a half, aside from sending three postcards without a return address, 2 because he did not know what he wanted to do and did not want a custody squabble.

Stuart lived with Dennis for approximately a year, until the summer of 1981, when Dennis sent Stuart to live with Mrs. Willis, who had moved to Houston, Texas. Less than six months thereafter, A.M.K. ["Anne Kaye"] and S.M.K. ["Sam Kaye"], the appellants, were contacted in Alaska and were asked to take custody of Stuart. Anne Kaye is Dennis's sister, and Sam Kaye is Anne Kaye's husband. The Kayes agreed, and in February, 1982, they removed Stuart from Texas and brought him to Alaska. Anne Kaye testified that at the time she gained possession of Stuart, she was aware of the Alabama court order which granted temporary custody of Stuart to his mother, but that she did not believe she was violating that order when she brought Stuart to Alaska. Anne Kaye further testified that even if she knew in February, 1982, where Ruth was, she would have kept Stuart rather than return him to his mother. Stuart resided with the Kayes in Alaska from February, 1982, until April, 1984, when the superior court ordered that he be returned to his mother.

Ruth testified that her first contact with Dennis after he left Alabama occurred in the spring of 1982, more than 1 1/2 years after he had left with Stuart, and when Stuart was presumably already in Alaska. According to Ruth, Dennis telephoned stating that he wanted a divorce so that he could marry his girlfriend. Ruth agreed, if Dennis would allow Stuart to live with her. Dennis refused, and informed Ruth that

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Stuart wasn't living with him and that he wasn't sure where he was. Dennis gave Ruth his phone number. Later that evening Ruth called Dennis and the return of Stuart was discussed again, to no avail.

Ruth testified that when she went to call Dennis the following day, she was unable to find the piece of paper upon which she had written Dennis's phone number. The only other information Dennis had given her was that he was living with his girlfriend in Brownsville...

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