Heidbreder v. Carton

PAGE, Justice

(dissenting).

I respectfully dissent because the court’s decision (1) improperly applies Minn.Stat. § 259.52, subd. 8 (2000), to the facts of this case and (2) as a result violates Heidbre-der’s right to due process.

Before and during the majority of Carton’s pregnancy, Heidbreder and Carton lived in Iowa. At that time, Heidbreder was 19 and Carton was 18. At some point during the early stages of Carton’s pregnancy, Heidbreder and Carton discussed adoption, and Heidbreder unequivocally stated that he was opposed to the idea. Carton agreed that she would not place the child up for adoption. Eventually, He-idbreder and Carton tried living together, which they did for a short period. Ultimately, Heidbreder and Carton separated because, according to Carton, she and He-idbreder could not get along.1

Upon separating, Carton left Iowa and moved to Minnesota, living in various places. She did not tell Heidbreder where she moved. ’ She moved to Minnesota, living first with her grandparents in St. Cloud and then at a home for unwed pregnant teenagers. Carton and Heidbreder maintained contact via e-mail but she continued to refuse to tell him where she was. Carton also directed her family and friends not to reveal her whereabouts to Heidbre-der. Heidbreder attempted to find Carton by asking her relatives and friends where she was, but they refused to tell him anything. In addition, Heidbreder attempted to contact Carton’s grandparents in Minnesota to ask them where Carton *378might be, but was unable to do so because he did not know the grandparent’s last name and people who knew would not tell him.

The record indicates that, in an effort to protect his rights, Heidbreder consulted an attorney in Iowa to discuss “setting up child support payments and visitation rights.” Heidbreder Dep. Tr. at 37. He-idbreder told the attorney that he did not believe that Carton would consider adoption for their child and, therefore, the two did not discuss Heidbreder’s parental rights in that context. The attorney told Heidbreder that, in any event, his consent was necessary for adoption under Iowa law. Heidbreder and the attorney considered hiring a private investigator to locate Carton, but did not do so. Heidbreder and the attorney also considered instituting a paternity action, but Heidbreder testified that, because they did not know where Carton was, the attorney was unsure of where to commence such an action. Heidbreder and the attorney decided to wait for Carton to contact them with information about her location.

Carton began adoption proceedings with the Children’s Home Society (CHS) while at the home for pregnant teenagers. Carton told a CHS representative that she knew Heidbreder would not want her to go through with the adoption. A CHS representative told Carton that, if she omitted Heidbreder’s name from the birth certificate, Heidbreder would not be able to stop the adoption unless he registered with the Minnesota Fathers’ Adoption Registry within 30 days of the child’s birth.

Carton gave birth to K.M.C. on August 12, 2000. Carton omitted Heidbreder’s name from the birth certificate, and K.M.C. was placed in an adoptive home two days later. Thirty-one days after K.M.C.’s birth, Heidbreder learned that K.M.C. had been born in Minnesota. That same day, Heidbreder found a website for the Minnesota Fathers’ Adoption Registry and registered.

I.

To receive notice of an adoption proceeding, putative fathers whose names are not included on the child’s birth certificate and who are not otherwise entitled to notice pursuant to Minn.Stat. § 259.49, subd. 1 (2000), must register with the Fathers’ Adoption Registry within 30 days of the child’s birth unless excused. Minn.Stat. § 259.52 (2000). Failure to register within that time period may be excused if the putative father proves 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.” Minn.Stat. § 259.52, subd. 8. Lack of knowledge of pregnancy or birth is not an excuse under the statute. Id. The court concludes that Heidbreder did not show that it was not possible for him to register or that his failure to register was through no fault of his own. Based on the facts presented, however, Heidbreder’s failure to file within 30 days of KM.C.’s birth was excused under section 259.52, subdivision 8.

Was it possible for Heidbreder to register with the Minnesota Fathers’ Adoption Registry within the 30 days, such that his failure to register was his fault? The answer is unquestionably no. It is true in theory that Heidbreder could have attempted to protect his parental rights in each of the 50 states, but such a legal requirement would be inefficient and unreasonable. As a practical matter, it was “not possible” for Heidbreder to register in any state, given that he did not know and had no way of knowing where Carton *379was living after she left Iowa. Because he did not know that she was in Minnesota, he had no reason to attempt to protect his parental rights in Minnesota as opposed to some other jurisdiction. As such, I would conclude that it was “not possible” for Heidbreder to register within the required 30-day time period and that his failure to register was “through no fault of his own.” Finally, because Heidbreder registered within 10 days of when it became possible for him to do so, I would conclude that Heidbreder demonstrated by clear and convincing evidence that his failure to timely register was excused under section 259.52, subdivision 8.

Based on the statutory provision that “lack of knowledge of pregnancy or birth does not excuse a putative father’s failure to timely register,” the court asserts:

[I]t is clear that the legislature intended to foreclose the argument that the birth mother’s concealment of any information relating to the pregnancy or birth, including her location during pregnancy or at the time of birth, excuses a putative father’s failure to register, regardless of whether the concealment made it “not possible” for the putative father to timely register and his failure to timely register “no fault of his own.”

Interestingly, the court provides no support for this statement. The bald assertions contained in this statement have no basis in fact or in law. Moreover, there is no logical stopping point to the court’s line of reasoning. Based on the court’s interpretation of the “lack of knowledge” provision, it is not clear that there is any circumstance that would make it “not possible” to register and thereby qualify as an excuse under sub-parts (i)-(iii) of section 259.52, subdivision 8. By stating that, “[i]n the absence of evidence to support a finding of fraud or fraudulent nondisclosure, there is no reason to address whether either would make it ‘not possible’ for a putative father to register or make the putative father’s failure to register ‘no fault of his own,’ ” the court suggests that either fraud or fraudulent nondisclosure would excuse a putative father’s untimely registration. This suggestion rings hollow, however, given the court’s subsequent conclusion that a claim for fraud or fraudulent nondisclosure cannot exist because a birth mother has no fiduciary duty to inform a father of the child’s place of birth. In the process, the court has emasculated section 259.52, subdivision 8(i)-(iii), and violated Minn. Stat. § 645.16 (2000) (“Every law shall be construed, if possible, to give effect to all its provisions.”). Although lack of knowledge of pregnancy or birth is not an acceptable reason for failure to register, the issue here is lack of knowledge of where to register.

The court states that it would be “absurd to conclude that a putative father who knew of the pregnancy but did not know the birth mother’s location is entitled to greater protection under the statute than a putative father who was ignorant of both the pregnancy and the birth mother’s location.” This interpretation of section 259.52, subdivision 8, strips it of all meaning by leaving no group of fathers to whom the exception can apply. The only fathers entitled to protection under subdivision 8 are fathers who in fact knew of the pregnancy or birth, given that lack of knowledge of pregnancy or birth is not an excuse. The court’s conclusion that fathers who know and fathers who do not know of the birth or pregnancy are excluded from protection under subdivision 8 is not only absurd, but legally impermissible. See Minn.Stat. §§ 645.16, 645.17(1), (2) (2000).

The court also states, “while Heidbreder did not know with certainty where Carton was, he had sufficient information to put *380him on notice that it was possible she was in Illinois or Minnesota.” This statement is speculative,2 at best, and overly simplistic, given the ease and frequency with which people moved from state to state at the end of the 20th century. The court’s statement implies that a putative father must attempt to protect his rights in every state where the birth mother might be.

That Heidbreder did not register in Illinois, where he believed Carton was, or in Iowa, where he believed Carton was not, is irrelevant to the analysis. Registration in either state would not have saved Heidbre-der under Minnesota law. Registration in either Illinois or Iowa would not have entitled Heidbreder to notice under Minnesota’s statutory scheme. Nor is it true that Heidbreder’s registration in another state would have been clear and convincing evidence that it was not possible for him to register in Minnesota or that his failure to register in this state was through no fault of his own.

What matters here is that Heidbreder did not know where Carton was when K.M.C. was born, did not find out where she was until the 31st day after KM.C.’s birth, and then immediately registered with the Minnesota Fathers’ Adoption Registry. Therefore, I would conclude that Heidbreder demonstrated by clear and convincing evidence that it was not possible for him to register within the period of time provided in Minn.Stat. § 259.52, subd. 7 (2000), and that his failure to do so should be excused.

II.

If, as the court concludes, Heidbreder’s failure to register is not excused under section 259.52, subdivision 8, then Heidbreder’s interest in maintaining his parental rights has been denied protection under the Due Process Clause. See Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). A father is entitled to due process when he “demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child.’ ” Id. (quoting Caban v. Mohammed, 441 U.S. 380, 392, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979)).

Here, Heidbreder demonstrated a full commitment to the responsibilities of parenthood. Heidbreder clearly communicated to Carton that he supported their having the child and that he was opposed to *381adoption.3 In his deposition, Heidbreder testified:

Q. Did you put her on your checking account?
A. I talked to her about it.
Q. Did you do it?
A. No. She didn’t want to.
[[Image here]]
Q. [I] told her she had more support and she didn’t need to do that.
Q. So you didn’t tell her that you would support whatever decision she would make?
A. I would not support adoption or abortion.
* * *
Q. And you said earlier that you indicated to her she had a lot of support for having the child?
A. Right.
Q. Working with you, right?
A. Right.

Heidbreder Dep. Tr. at 25, 39, 55. Heid-breder also went to Carton’s medical appointments with her and they lived together for a period of time during Carton’s pregnancy. At a minimum, this signifies Heidbreder’s effort to provide emotional and moral support to Carton and his intention to establish a personal relationship with K.M.C. Evidently, the court counts the fact that they did not remain together as a strike against Heidbreder.

According to the court, “[t]he record is also void of any evidence that Heidbreder provided, or attempted to provide, financial support to Carton during her pregnancy or to K.M.C. following her birth.” This assertion relies on a mischaracterization of the record and is, at least in part, misleading. In fact, Heidbreder could not have provided financial support to Carton and K.M.C. following the birth for the same reason he could not timely register under section 259.52, subdivision 7. He did not know where they were and, given Carton’s family’s rejection of Heidbreder’s involvement in Carton’s life, there was no viable vehicle for providing financial support. More important, however, is the fact that K.M.C. was placed for adoption two days after her birth and, according to the court, Heidbreder’s parental rights were terminated 30 days after her birth.

With respect to the time period before KM.C.’s birth, the court fails to recognize that, while Carton provided the money for the first month’s rent and security deposit for their apartment, Heidbreder also signed the lease, thereby making himself financially responsible for the rent each month. Heidbreder testified that he talked with Carton about putting her name on his checking account, but Carton did not want this. Heidbreder testified, “I generally felt that my money was her money [].” Together, they shared the cost of the food and groceries and Heidbreder’s mother and family bought maternity clothes for Carton. Thus, the record does not support the assertion that Heidbreder did not provide or attempt to provide financial support to Carton during her pregnancy.

When Carton left Iowa, Heidbreder maintained contact with her via e-mail, while also attempting to locate her through Carton’s family and friends. Although only 19 years of age, Heidbreder talked *382with an attorney about child support and visitation rights. Heidbreder wasted no time in registering with the Minnesota Father’s Adoption Registry once he learned where Carton was located. In sum, Heid-breder did nothing to avoid the responsibilities of parenthood; rather, each action he took had the effect of embracing those responsibilities. When viewed without hostility toward this father, the only reasonable conclusion based on the record before us, is that Heidbreder took steps that evince a clear effort on his part to come forward to participate in the rearing of his child.

The court relies heavily on Lehr to conclude that “the statutes, as applied to He-idbreder, adequately protected his opportunity to establish a relationship with K.M.C.” In Lehr, the Court determined that the father, who was a New York resident, was presumptively capable of asserting and protecting his own rights, but faded to do so having waited 2 years before coming forward to assert paternity. 463 U.S. at 262-65, 103 S.Ct. 2985. Unlike the father in Lehr, Heidbreder made sure that Carton knew that he wanted to participate in the rearing of K.M.C. even before KM.C.’s birth. Heidbreder, however, had no knowledge of where Carton lived and, thus, was not capable of protecting his rights. Because Lehr did not involve a father who tried at every turn to grasp the opportunity to develop a relationship with his offspring and accept some measure of responsibility for his child’s future, the court’s reliance on Lehr’s holding is misplaced.

In Lehr, the Court stated:

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.

Id. at 262, 103 S.Ct. 2985. It is clear, as discussed above, that Heidbreder grasped the opportunity and has demonstrated a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child.4 For this reason, Minnesota’s statutory scheme, as interpreted by today’s decision, does not adequately protect Heidbreder’s parental rights and results in a denial of due process. Put bluntly, section 259.52, subdivision 8, exists to protect any father who is not otherwise entitled to notice under section 259.49, subdivision 1, and who did not register before the expiration of the 30-day period set forth in section 259.52, subdivision 7, if the father can demonstrate by clear and convincing evidence that it was not possible for him to register, that it was not his fault for having failed to register, and that he registered within 10 days after it became possible to do so. If subdivision 8, on the facts presented here, is read, as the court does, to exclude a father such as Heidbreder from its protection, then the statutory scheme fails to protect a father’s opportunity to form the parent-child relationship and, consequently, violates due process.

*383A father’s biological connection with his child equips him to make uniquely valuable contributions to the child’s development. See Lehr, 463 U.S. at 262, 103 S.Ct. 2985. By its arrogance,5 today’s decision forecloses the possibility that the best interests of a child can be met by having a permanent and stable relationship with the child’s natural father. In doing so, the decision exposes the inadequacies of a system that fails in protecting both the rights of fathers and the best interests of the children who, absent some unfitness on the father’s part, need them.

. The court states, "Carton and Heidbreder argued during the time they lived together.” While accurate, it seems that the court’s motive in pointing this out is to suggest that, because they argued, Heidbreder engaged in conduct making him either unfit to parent or unwilling to parent his child. The record does not, however, support the conclusion that he is either unfit or unwilling to do so. Moreover, the fact that Heidbreder and Carton argued and could not get along does not support the conclusion that Heidbreder's failure to register within 30 days after birth was not excused.

. The court takes umbrage at the suggestion that its statement is speculative and asserts that Heidbreder had sufficient information to believe that Carton was in Minnesota because, of course, a "scared and confused” pregnant teenager would return to her mother despite their bad relationship. This, too, is pure speculation. Moreover, the record makes it clear that Heidbreder knew that Carton had a bad relationship with her mother and had been told by Carton that she would "never move to Minnesota with her mother.” Heid-breder Dep. Tr. at 32, 49-50; Carton Dep. Tr. at 32-33. Heidbreder testified:

Because for one thing, I didn't think she — I didn’t — she told me she would never want to live up there because when we were together I told her if she wanted to be around her brothers and sisters that maybe I could transfer, and she said no, I’m not going to follow her. And she said she would never ever move with her mom. And her mom and her barely got along at all. And she told me she didn’t like the family — she loved them, but she didn't like the family up here because her grandparents and her were estranged and no one would accept her pregnancy. And she said they wouldn’t let her — anybody up here wouldn't — her mom kicked her out of the house in the first place, so I wouldn't think that she would move up here with her mom. And she said she just didn’t like the people up here.

Heidbreder Dep. Tr. at 49-50. Thus, Heid-breder had every reason to believe that Carton was not in Minnesota.

. The court disdainfully dismisses Heidbre-der’s opposition to adoption because he believed it was "not right.” Is the court saying that it will tell a father, or even a mother, what reasons he or she may have for not wanting his or her child adopted? It seems to me that any father or mother sincerely desiring to take on the responsibility of being a parent would believe that adoption was "not right” for his or her children. One wonders what point the court is trying to make.

. The court asserts that Heidbreder’s actions did not "unequivocally indicate an intent to assume full custody” of his child. Whether he indicated an intent to assume "full custody” is not the question to be answered. The correct question is whether he "demonstrate[d] a full commitment to the responsibilities of parenthood by 'com[ing] forward to participate in the rearing of his child.’ ” Lehr, 463 U.S. at 261, 103 S.Ct. 2985 (quoting Caban, 441 U.S. at 392, 99 S.Ct. 1760). I conclude, and the record supports, that he did.

. The court’s arrogance lies in its hostility to putative fathers generally, and to this father specifically, as well as in its reading out of Minnesota’s statutory scheme section 259.52, subdivision 8.