This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0497
In re: the Petition of K. P. W. and J. L. H. to Adopt S. Q.-B. W., a Minor Child.
Filed November 2, 2015
Affirmed
Reilly, Judge
Hennepin County District Court
File No. 27-JV-FA-13-29
Lucas J.M. Dawson, Lubov Anderson, LLC, Golden Valley, Minnesota (for appellant
father)
Jody Ollyver DeSmidt, Walling, Berg & Debele, P.A., Minneapolis, Minnesota (for
respondent adoption petitioners)
David C. Gapen, Gapen, Larson & Johnson, LLC, Minneapolis, Minnesota (for
respondent mother)
Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and Minge,
Judge.*
UNPUBLISHED OPINION
REILLY, Judge
Appellant-father E.A.K. challenges the petition of respondents K.P.W. and J.L.H.
to adopt minor-child S.Q.-B.W., arguing that the district court erred in determining that
he was not entitled to notice of the adoption and further arguing that portions of the
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
adoption statute unconstitutionally deprive appellant of due process of law. Because the
record supports the district court’s grant of the adoption petition and the contested
sections of the adoption statute are not unconstitutional, we affirm.
FACTS
Appellant-father E.A.K. and respondent-mother E.M.F. are the biological parents
of a minor child born in October 2011. Appellant is not listed on the child’s birth
certificate. On October 24, 2011, appellant and E.M.F. signed a Recognition of
Parentage form (ROP) and the hospital submitted it to the Minnesota Department of
Health. The ROP contained an error and it was rejected. The state returned the ROP to
E.M.F., and did not notify father of the ROP’s rejection. Because the ROP was not
properly filed with the state, appellant was not added to the child’s birth record.
Appellant last saw the child in July 2012. In August 2012, E.M.F. voluntarily placed the
child for adoption. Appellant was made aware of E.M.F.’s intent to place the child for
adoption in August 2012. The child was placed in the care of the petitioners in October
2012 and has remained in their exclusive care since that time. In November 2012,
appellant registered with the Minnesota Fathers’ Adoption Registry (FAR), over one year
after the child’s birth. In December 2012, appellant filed a paternity action.
On February 14, 2013, petitioners filed a petition to adopt the child. Appellant
moved to dismiss the adoption petition and intervene as a party. In July 2013, the district
court dismissed the adoption petition on the “sole basis” that a valid ROP existed, and
declined to address appellant’s constitutional arguments. Petitioners moved for a stay
pending appeal, which the district court granted. Petitioners thereafter appealed the
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dismissal of their adoption petition. On March 3, 2014, this court reversed the district
court’s dismissal of the adoption petition, finding that “the juvenile court erred in
determining that the rejected ROP document is sufficient to create a valid ROP.” In re
K.P.W., No. A13-1754, 2014 WL 802557, at *3 (Minn. App. Mar. 3, 2014), review
denied (May 20, 2014). We determined that because the state rejected the ROP, “there
was no filing and registration of the ROP document to create a valid ROP.” Id. We
remanded to the district court for consideration of appellant’s motion to intervene and his
constitutional challenge. Id. at *6.
In November 2014, petitioners filed a motion to finalize the adoption. E.M.F.
supported the petition but appellant requested dismissal. The district court issued an
order in February 2015, finding that appellant did not spend time with the child, was
“completely absent for significant periods of time,” and had not provided “substantial
support to the child.” In terms of financial support, the district court found that appellant
sent E.M.F. $200 and helped buy groceries on one occasion, but concluded that the funds
provided by appellant for the child’s benefit “cannot be construed to be substantial.” The
district court further found that: (1) appellant was not listed on the child’s birth
certificate, (2) no one had been adjudicated to be the child’s father, (3) no putative father
had filed a paternity action within 30 days of the child’s birth, and (4) no putative father
had filed with FAR within 30 days of the child’s birth. The district court concluded that
appellant was not an adjudicated father or “a party whose consent is necessary to allow
the adoption to proceed.” The district court therefore determined that “[p]etitioners may
proceed to finalize their adoption . . . as soon as possible without further notice to any
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individual.” The district court granted the adoption petition on March 5, 2015, and this
appeal followed.
DECISION
Appellant raises three arguments on appeal. First, appellant claims that the district
court erred by determining that he was not entitled to notice of the adoption petition and
his consent was not required for the adoption to proceed. Second, appellant argues that
the district court erred by determining that he failed to timely register under FAR. Lastly,
appellant claims that if he was not entitled to notice of the adoption, then the ROP statute,
Minn. Stat. § 257.75 (2014), and related provisions of the adoption statute, Minn. Stat.
§ 259.49, subd. 7 (2014), are unconstitutional because they deprived him of due process
of law. We address each argument in turn.
Standard of Review
Appellant’s challenge raises mixed questions of law and fact. The supreme court
describes a mixed question of law and fact “as one that requires an appellate court to
apply the controlling legal standard to historical facts as determined by the trial court.”
Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 804 (Minn. 2013) (citation
omitted). Findings of fact are reviewed for clear error. In re Welfare of Child of D.L.D.,
865 N.W.2d 315, 321-22 (Minn. App. 2015), review denied (July 20, 2015). “A finding
is clearly erroneous only if there is no reasonable evidence to support the finding or when
an appellate court is left with the definite and firm conviction that a mistake occurred.”
Id. at 322 (citation omitted). However, the interpretation and construction of statutes are
questions of law reviewed de novo. Lewis-Miller v. Ross, 710 N.W.2d 565, 568 (Minn.
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2006) (citation omitted). “Whether a statute violates the Constitution is a question that
we review de novo.” In re Welfare of Child of R.D.L., 853 N.W.2d 127, 131 (Minn.
2014) (citation omitted).
I.
Appellant argues that the district court erred by ruling that he was not entitled to
notice of the adoption petition and by failing to obtain his consent to the adoption.
Minnesota statute articulates that “[n]o child shall be adopted without the consent of the
child’s parents” who are entitled to notice. Minn. Stat. § 259.24, subd. 1(a) (2014).
Notice of a hearing for an adoption petition must be given to a child’s parent if:
(1) the person’s name appears on the child’s birth record, as a
parent;
(2) the person has substantially supported the child;
(3) the person either was married to the person designated on
the birth record as the natural mother within the 325 days
before the child’s birth or married that person within the ten
days after the child’s birth;
(4) the person is openly living with the child or the person
designated on the birth record as the natural mother of the
child, or both;
(5) the person has been adjudicated the child’s parent;
(6) the person has filed a paternity action within 30 days after
the child’s birth and the action is still pending;
(7) the person and the mother of the child have signed a
[ROP] which has not been revoked or vacated; or
(8) the person: (i) is not entitled to notice under clauses (1) to
(7) [and] (ii) has registered with [FAR].
5
Minn. Stat. § 259.49, subd. 1(b)(1)-(8).
The district court addressed each factor and concluded that appellant was not
entitled to notice. Because appellant failed to satisfy any of the eight statutory factors
entitling him to notice, the district court did not err in its ruling.
Substantial Support
Appellant challenges the district court’s finding that “[n]o birth father has
substantially supported the child.” The district court construed the facts in the light most
favorable to appellant and determined that, even if appellant sent $200 to the child’s
mother and bought groceries on one occasion, “the funds provided . . . cannot be
construed to be substantial.” Appellant faults the district court for basing this finding
“solely upon the amounts that [appellant] contributed” and claims the district court
should have more broadly considered “emotional, physical, and academic support.” But
the record reveals that the district court considered nonmonetary factors as well as
financial contributions, and found that appellant “did not spend time with the child alone
and was completely absent for significant periods of time” and that it was “impossible to
conclude that [appellant] provided substantial support to the child.” The record supports
the district court’s conclusion that appellant failed to make an adequate showing that he
substantially supported the child. Appellant spoke to the child’s mother in December
2011 but did not see the child again until April 2012. Appellant saw the child briefly in
May 2012 and last saw the child in July 2012. The record does not contain evidence that
appellant provided substantial support, either financial or emotional, to the child, and the
district court did not err by determining that these brief interactions and minimal financial
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contributions fail to constitute “substantial support” entitling appellant to notice of the
petition.
Openly Living with Child or Natural Mother
A child’s parent is entitled to notice of an adoption petition if the parent has been
“openly living” with the child’s mother. Minn. Stat. § 259.49, subd. 1(b)(4). Appellant
claims he is entitled to notice because he “made [the child] a part of his family by
temporarily residing with Mother and [child], for however brief of a period of time.” The
district court found that the child “was in the exclusive care of [birth mother] for nearly a
year after his birth” and the record supports this finding. The district court did not err in
determining that appellant was not “openly living” with the biological mother or child.
Paternity Action
A parent who has filed a paternity action within 30 days after the child’s birth, and
whose action is still pending, is entitled to notice of an adoption petition. Minn. Stat.
§ 259.49, subd. 1(b)(6). Appellant claims he is entitled to notice because he “is the
presumed father” and “received [the child] into his home and openly held [the child] out
as his biological child.” The district court determined that “[n]o putative father filed a
paternity action within 30 days of the child’s birth.” Appellant filed a paternity action in
December 2012, over one year after the child’s birth and four months after the child’s
adoption placement. Appellant’s paternity filing falls outside the plain language of the
statute and the district court did not err in determining that the putative father did not file
a paternity action within 30 days of the child’s birth.
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Recognition of Parentage
A parent is entitled to notice of an adoption petition if there is a valid ROP. Minn.
Stat. § 259.49, subd. 1(b)(7). This issue has been extensively litigated in the present case.
In October 2011, appellant and E.M.F. signed an ROP but it was rejected by the state and
was not considered to be properly filed. The district court originally held that the state
improperly rejected the ROP. On appeal, we reversed and remanded concluding that the
district court erred in its interpretation of the statutory provisions governing the validity
of ROPs. The Minnesota Supreme Court declined further review. The district court
stated on remand that “[a]ll issues relative to the Recognition of Parentage have already
been resolved previously” and we do not revisit the issue again here, except the
constitutional due process consideration discussed in Part III.
FAR Registration
A parent is entitled to notice of an adoption petition if he has complied with the
provisions of FAR. Minn. Stat. § 259.49, subd. 1(b)(8). The district court noted that
appellant “did not register with the Minnesota Fathers’ Adoption Registry until
November 19, 2012, a period in excess of one year after the child’s birth.” The record
supports the district court’s finding and appellant is not entitled to relief under this factor.
Remaining Factors
The district court made additional factual findings, including that: (1) other than
the birth mother, “no other parent is listed on the child’s birth certificate”; (2) that
appellant was not married to the birth mother; and (3) that “[n]o one has been adjudicated
to be the child’s father.” See Minn. Stat. § 259.49, subds. 1(b)(1), (3), (5). The factual
8
record supports each of these findings and appellant does not contest them on appeal.
The district court performed a careful analysis of the statutory factors and determined that
appellant’s consent was not necessary to proceed with the adoption. We agree, and
conclude that the record supports the district court.
II.
Appellant contends that the district court erred in concluding that he failed to
timely register with FAR because such registration was not required. Appellant raises
three separate arguments: (1) that FAR does not apply to a child of S.Q.-B.W.’s age;
(2) that he was not required to register with FAR; and (3) that if he was required to
register with FAR, his failure to timely register is excused on the basis of fraud.
First, appellant claims that FAR does not apply to children over one year of age at
the time of the adoption. The statute does not contain an age limitation. If the legislature
intended to limit FAR to adoptions of children over one year of age, we must assume it
would have done so by inserting language to that effect into the statute. It is not the
function of this court to “supply that which the legislature purposely omits or
inadvertently overlooks.” State v. Wenthe, 865 N.W.2d 293, 304 (Minn. 2015). There is
no basis for this court to interpret FAR as narrowly as appellant suggests.
Next, appellant argues that because he signed an ROP, he was not required to also
register with FAR. The district court correctly noted that appellant “had the power and
authority to protect his interests in the child completely separate and apart from . . .
signing the ROP” by registering with FAR “within the time frame established by
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statute.”1 FAR provides a mechanism for identifying putative fathers and giving them
notice of adoption proceedings. Heidbreder v. Carton, 645 N.W.2d 355, 369 (Minn.
2002) (citing Minn. Stat. § 259.52, subd. 1). It is designed to balance the putative
father’s interests with those of the child, the birth mother, and the adoptive parents and
promote the “permanence and stability” of the child. Id. at 369-70. While the law does
not require appellant to both register with FAR and sign an ROP, registering with FAR in
a timely manner would have protected his interests. Id.
Lastly, appellant argues that if he was required to register with FAR, he is
“excused from timely filing.” This argument is unavailing. A putative father must
register with FAR within 30 days after a child’s birth. Minn. Stat. § 259.52, subd. 7. A
putative father who fails to timely register under subdivision 7 “is considered to have
waived and surrendered any right to notice of any hearing in any judicial proceeding for
adoption of the child, and consent of that person to the adoption of the child is not
required[.]” Id., subd. 8. An exception exists if the putative father can prove by clear and
convincing evidence that: “(i) it was not possible for him to register within the period of
time specified in subdivision 7; (ii) his failure to register was through no fault of his own;
and (iii) he registered within ten days after it became possible for him to file.” Id.
Appellant claims it was impossible to register within the statutory time period
because he was not notified that the ROP had been returned, and cites to Heidbreder for
1
The district court “fe[lt] compelled to note” that appellant had the “power and
authority” to independently protect his interests in the child by timely registering with
FAR, requesting a copy of the child’s amended birth certificate from the state to ensure
that it had been properly amended to reflect that appellant was the father, or by initiating
a paternity action within the appropriate time frame.
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the proposition that fraud or fraudulent nondisclosure may excuse a putative father’s
untimely registration. 645 N.W.2d at 379. The Heidbreder court stated that:
[T]here is no need to impose such a duty on the birth mother
in the interest of protecting a putative father’s interests
because the legislature has provided a means for the putative
father to assert his interest in his child independent of the
birth mother through registration with [FAR].
645 N.W.2d at 368. Although appellant argues that the birth mother and the state had a
fiduciary obligation to inform him of the ROP’s rejection, the record indicates that
mother reported that rejection to father’s family and that father was aware of that
information. The statute does not preclude notification of father. It is simply silent in
that regard. Here, the record indicates that the department of health had father’s address
and such notification was possible and perhaps prudent. In light of mother’s
communication, we do not need to reach the question of whether the state’s failure to
notify was constitutionally fatal.
Moreover, appellant has not established that he is the victim of fraud. Appellant
learned in August 2012 that the ROP was ineffective but failed to register with FAR until
November 2012, well beyond the ten-day statutory time period. The district court
determined that:
[Appellant] did not prove that it was not possible for him to
register within the period of time specified in Minnesota
Statute § 259.52. Even if the Court assumes that it was
impossible for [appellant] to register within the 30 days after
the child’s birth, [appellant] was made aware of the birth
mother’s intent to place the child for adoption around August
2012. [Appellant] did not register with [FAR] for well over
two months after he discovered birth mother’s intent to place
the child for adoption.
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The evidentiary record supports the district court’s ruling. Appellant knew by
August 2012 that he was not listed on the birth certificate, that E.M.F. intended to place
the child for adoption, and that the ROP was ineffective. Appellant neglected to take
action in a timely manner. Indeed, the district court noted that appellant “did not take any
action to claim paternity or an interest in his child for almost a year.” Appellant has not
demonstrated by clear and convincing evidence that it was impossible for him to register
with FAR within the statutory time frame.
III.
Appellant claims the ROP statute is unconstitutional because it fails to protect a
father’s due-process rights. The United States and Minnesota Constitutions prohibit the
government from depriving an individual of life, liberty, or property without due process
of law. U.S. Const. amend. XIV § 1; Minn. Const. Art. 1, § 7. Whether the state has
violated appellant’s due-process rights is a question of law subject to de novo review.
Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012) (citation omitted).
A reviewing court conducts a two-step analysis in a due-process challenge by
(1) “identify[ing] whether the government has deprived the individual of a protected life,
liberty, or property interest,” and, if the government’s actions have deprived an individual
of a protected interest, (2) determining “whether the procedures followed by the
government were constitutionally sufficient.” Id. (citations and quotations omitted).
Under this second step, the court applies a three-part balancing test weighing “(1) the
private interest at stake, (2) the governmental interest, and (3) the availability of
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additional procedural safeguards.” Petition of Gaus, 578 N.W.2d 405, 407-08 (Minn.
App. 1998) (citation omitted).
A.
The first step is to determine whether the rejection of the ROP deprived appellant
of a protected life, liberty, or property interest. “In general, a parent has a liberty interest
in the care, custody, and control of his or her children.” Rew v. Bergstrom, 845 N.W.2d
764, 785 (Minn. 2014) (citations omitted). However, “[p]arental rights do not spring full-
blown from the biological connection between parent and child. They require
relationships more enduring.” Lehr v. Robertson, 463 U.S. 248, 260, 103 S. Ct. 2985,
2992 (1983) (quotation omitted). The record is replete with evidence that appellant failed
to establish “any custodial, personal, or financial relationship” with the child. Id., 463
U.S. at 249, 103 S. Ct. at 2987. Appellant did not establish a substantial relationship with
his child, regardless of the status of the ROP.
B.
The second step is a procedural due-process analysis to determine whether the
procedures followed by the government were constitutionally sufficient to limit father’s
liberty interest under a three-part balancing test. Sawh, 823 N.W.2d 627 at 633. Under
the first factor, the court reviews the private interest affected by the state’s action. State
v. Krause, 817 N.W.2d 136, 145 (Minn. 2012). As the district court recognized, the
private interest is the “undisputed parent and child relationship.” The district court stated
that a “parent’s interest in their child is paramount,” and a parent’s interest in the “care,
custody, and control of their children” is “perhaps the oldest of the fundamental liberty
13
interests” recognized in United States jurisprudence. See, e.g., SooHoo v. Johnson, 731
N.W.2d 815, 825 (Minn. 2007) (“A parent’s right to make decisions concerning the care,
custody, and control of his or her children is a protected fundamental right.”). Appellant
had a substantive private interest at stake. See Rew, 845 N.W.2d at 786 (stating that a
parent faced with the possibility of a “deprivation of an interest in the care, custody, and
control of his children” has demonstrated a substantial private interest).
Under the second factor, we review the governmental interests involved. The state
has an interest in completing adoption proceedings efficiently “so that quick and
permanent placement is provided to the child and administrative burdens are minimized.”
Gaus, 578 N.W.2d at 408. As the Heidbreder court recognized, a putative father does not
have an “an infinite amount of time” to claim an interest in a child. 645 N.W.2d at 370.
At some point, the father’s interest in raising his child “gives way to the child’s interest in
having a permanent and stable home.” Id. Here, appellant has not seen his child since
July 2012. The child has been in the exclusive care of petitioners from October 2012 to
the present date. The impact of removing the child from his adoptive parents at this point
would be severe. Section 259.49, discussed above, adequately balances appellant’s
interests with the state’s interest. Gaus, 578 N.W.2d at 408.
Under the final factor, we review the “the risk of an erroneous deprivation of a
protected interest under current procedures and the probable value, if any, of additional
safeguards.” Rew, 845 N.W.2d at 786. The district court found that the “risk of the
erroneous deprivation in this case resulted in Mother being able to place the child for
adoption without any notice to the Father.” The district court found that the probable
14
value of additional safeguards, such as sending a copy of the rejected ROP directly to
father, “would have been significant” and would “avoid future protracted litigation.” In
our de novo review, we note that despite the failure of the department of health to notify
father that the ROP was rejected and despite not being accorded party status, the district
court in this case fully and carefully considered father’s involvement with S.Q.-B.W. and
the rights and interests of mother and S.Q.-B.W. in this adoption proceeding. We
conclude that despite any unfortunate gap or slippage in the department of health’s
procedure, the district court’s thorough process accorded father adequate procedural
consideration of his interest. Thus, we hold that section 259.49 is not unconstitutional on
its face or as applied to the facts of appellant’s case. See Gaus, 578 N.W.2d at 407-08
(holding that section 259.49 was not unconstitutional where statute “requires only that
parents complete a minimal step to protect their parental rights”).
In sum, appellant was afforded due process under the statute and is not entitled to
any additional protections.
Affirmed.
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