Announcement

Collapse
No announcement yet.

Too little, too late?

Collapse
This topic is closed.
X
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • Too little, too late?

    A decision released today by the Minnesota Court of Appeals, regarding a
    father's failure to commence a paternity action within the time required by
    this state's putative father registry act.

    Catch 22 lives. It seems to me that inability to retain counsel should be good
    cause, when the statute provides for appointment of counsel for an indigent
    father and he's not been advised of that right. He apparently qualified.

    The statutory notice also seems deficient to me, although that's a matter for
    the legislature rather than the court, IMO.

    Sorry for any formatting problems; I had to copy the text from a pdf file.

    J.


    STATE OF MINNESOTA
    IN COURT OF APPEALS

    A03-1207

    In the Matter of the Petition of T.D. and his wife, J.D.,
    to adopt N.T.K., and B.L.W.,
    as mother and natural guardian of D.J.F., a minor,
    and D.J.F., individually,
    Appellants,

    vs.

    A.K., as mother and natural guardian of J.M.K., a minor,
    and J.M.K., indivi dually,
    Respondents.


    Filed April 6, 2004

    Affirmed

    Peterson, Judge
    Stearns County District Court

    File Nos. F00350047, F30252266

    Sharon G. Benson, Benson Law Office, P.O. Box 661, St. Cloud, MN 56302 (for
    appellant D.J.F. and B.L.W.)

    Wright S. Walling, Walling & Berg, P.A., 121 South Eighth Street, Suite 1100,
    Minneapolis, MN 55402-2823 (for intervenors T.D. and J.D.)

    Amy S. Silberberg, c/o 15511 Afton Hills Drive South, Afton, MN 55001 (for
    respondent A.K.)

    Daniel A. Tollefson, Neils, Franz and Chirhart, P.A., 1011 North Second Street,
    P.O. Box 307, St. Cloud, MN 56302 (for respondent J.M.K.)

    Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and
    Forsberg, Judge.*

    * Retired judge of the Minnesota Court of Appe als, serving by appointment
    pursuant to Minn. Const. art. VI, § 10.2

    S Y L L A B U S

    To show good cause for failing to commence a paternity action within the 30-day
    period required under Minn. Stat. § 259.49, subd. 1(b)(8) (2002), and Minn.
    Stat.
    § 259.52, subd. 10 (2002), a putative father must show that he lacked the
    necessary power, authority, or means to initiate a paternity action within the
    30-day period.

    O P I N I O N

    PETERSON, Judge

    This appeal is from a judgment dismissing appellant’s paternity action
    because appellant did not show that he had good cause for failing to initiate
    the action within 30 days after receiving notice to registered putative father.
    We affirm.

    FACTS

    During February 2002, appellant D.J.F. learned that respondent J.M.K. was
    pregnant and that he might be the father of the child. During August 2002,
    D.J.F. learned
    that J.M.K. was considering placing the child for adoption. The child, N.T.K.,
    was born on October 14, 2002. On October 23, 2002, D.J.F. became aware that the
    child had been born, and on October 29, 2002, he registered with the father’s
    adoption registry as a putative father

    1.
    1 “Putative father” means a man who may be a child’s father, but who:
    (1) is not married to the child’s mother on or before the date that the child
    was
    or is to be born; and
    (2) has not established paternity of the child according to section 257.57 in a
    court proceeding before the filing of a petition for the adoption of the child.
    “Putative father” includes a male who is less than 18 years old.
    Minn. Stat. 259.21, subd. 12 (2002).


    On November 6, 2002, D.J.F. was served with a notice to registered putative
    father, an intent-to-claim-parental-rights form, a denial-of-paternity form,
    and a consentto-
    adoption form as permitted under Minn. Stat. § 259.52, subd. 9 (2002). D.J.F.
    completed the intent-to-claim-parental-rights form and filed it with the court
    administrator for Stearns County on November 18, 2002, in accordance with Minn.
    Stat. § 259.52, subd. 10 (2002). On December 27, 2002, respondents T.D. and
    J.D., the proposed adoptive parents, requested a pre-adoptive custody order
    with respect to N.T.K. On December 28, 2002, D.J.F. commenced a paternity
    action with respect to the child. On January 8, 2003, the district court
    granted T.D. and J.D. temporary pre-adoptive custody of the child.

    T.D. and J.D. moved to dismiss D.J.F.’s paternity action. Following a
    hearing, the district court consolidated D.J.F.’s paternity action and the
    adoption proceeding for
    N.T.K. The court found that based on the evidence before it, there was no good
    cause shown for extending the 30-day period during which D.J.F. was to initiate
    a paternity action pursuant to Minn. Stat. § 259.52, subd. 10. The court
    ordered that if D.J.F. desired an evidentiary hearing on the issue of good
    cause, he should contact the court within 15 days of the order and schedule a
    hearing, and, if no hearing was scheduled, the paternity action shall be
    dismissed.

    The child was in the custody of T.D. and J.D. for approximately two weeks
    during October 2002. At the beginning of November 2002, the child was returned
    to the custody of J.M.K. and remained in her custody until January 2003.

    An attorney was appointed for D.J.F., and an evidentiary hearing on the issue
    of good cause was scheduled. Following the evidentiary hearing, the district
    court
    concluded that D.J.F. failed to meet his burden to prove that he had good cause
    for failing to commence his paternity action within the 30-day statutory
    period. Because there was no good cause shown for failing to commence the
    action within the 30-day period, the court dismissed the paternity action.

    ISSUE

    Did the district court abuse its discretion when it concluded that D.J.F.
    failed to meet his burden to prove that he had good cause for failing to
    commence his paternity
    action within the 30-day statutory period?

    ANALYSIS

    One of the statutory requirements that apply to adoption proceedings is that
    “[n]o child shall be adopted without the consent of the child’s parents . .
    .. except . . . [c]onsent shall not be required of a parent not entitled to
    notice of the [adoption] proceedings.” Minn. Stat. § 259.24, subd. 1(a)
    (2002). A putative father can be a parent who is not entitled to notice of
    adoption proceedings.

    Minn. Stat. § 259.49, subd. 1(b) (2002), contains eight clauses that describe
    who must be given notice of the hearing upon a petition to adopt a child. The
    last of these
    eight clauses applies to a putative father and requires notice if the putative
    father:

    (i) is not entitled to notice under [section 259.49, subdivision1(b)] clauses
    (1) to (7);

    (ii) has registered with the fathers’ adoption registry;

    (iii) after receiving a fathers’ adoption registry notice, has timely filed
    an intent to retain parental rights with entry of appearance form under section
    259.52; and

    (iv) within 30 days of receipt of the fathers’ adoption registry notice has
    initiated a paternity action, unless, for good cause shown, he is unable to do
    so within the 30 days;

    a paternity action must be initiated by the putative father in district court;
    application to the public authority for paternity establishment services does
    not constitute initiation of an action. Minn. Stat. § 259.49, subd. 1(b)(8)
    (2002). Under the plain language of this statute, a putative father who meets
    the requirements of the statute is entitled to notice of adoption proceedings
    even though he has not yet established that he is a parent of the child. But a
    putative father who does not meet the requirements of this statute, and who is
    not otherwise entitled to notice under section 259.49, subdivision 1, paragraph
    (a) or (b),clauses (1) to (7), is not entitled to notice of the adoption
    proceedings, and the child may be adopted without his consent even if he is a
    parent of the child.

    The fathers’ adoption registry was established for the purpose of determining
    the identity and location of a putative father interested in a minor child who
    is, or is
    expected to be, the subject of an adoption proceeding, in order to provide
    notice of the adoption proceeding to the putative father who is not otherwise
    entitled to notice under section 259.49, subdivision 1, paragraph (a) or (b),
    clauses (1) to (7). Minn. Stat. § 259.52, subd. 1 (2002). The statutory
    procedure for using the fathers’ adoption registry includes a 30-day period
    for a putative father to initiate a paternity action that is consistent with
    the 30-day period in Minn. Stat. § 259.49, subd. 1(b)(8)(iv). The fathers’
    adoption registry statute states:


    Within 30 days of receipt of the notice to registered putative father, the
    intent to claim parental rights form, the denial of paternity form, and the
    consent to adoption form, the putative father must file a completed intent to
    claim parental rights form with the court administrator in the county in which
    the adoption petition will be filed as provided by the petitioner, stating that
    he intends to initiate a paternity action within 30 days of receipt of the
    notice to registered putative father in order to preserve the right to maintain
    an interest in the child and receive notice during the pending adoption
    proceeding. Failure to initiate a paternity action within 30 days of receipt of
    the notice to registered putative father does not act as a bar to receiving
    notice under section 259.49. If good cause is shown, the putative father must
    be allowed
    more time to initiate the paternity action. Minn. Stat. § 259.52, subd. 10
    (2002).

    On November 6, 2002, D.J.F. was served with a notice to registered putative
    father, an intent-to-claim-parental-rights form, a denial-of-paternity form,
    and a consentto-
    adoption form. The parties do not dispute that D.J.F.: (1) is not entitled to
    notice of the adoption proceeding under section 259.49, subdivision 1(a) or
    (b)(1)-(7); (2) registered with the father’s adoption registry; (3) timely
    filed an intent to retain parental rights; and (4) did not initiate a paternity
    action within 30 days after receiving the notice to registered putative father.
    Therefore, D.J.F. is not entitled to notice under section 259.49, subdivision
    1(b)(8), unless he can show good cause why he was nable to initiate a
    paternity action within 30 days after he received the notice. If he cannot show
    good cause, D.J.F. is not entitled to notice of the hearing on the adoption
    petition, and, under Minn. Stat. § 259.24, subd. 1(a) (2002), his consent to
    the adoption is not required even if he is a parent of N.T.K.


    D.J.F. initiated a paternity action on December 28, 2002, which was 52 days
    after he received the notice to registered putative father. The district court
    dismissed D.J.F.’s paternity action because the court determined that D.J.F.
    failed to meet his burden of proving that he had good cause for not commencing
    his action within the 30-day period. Permitting a party to serve or file a
    pleading after a time limit has expired is within a trial court’s discretion,
    and the trial court’s decision will not be reversed unless there has been an
    abuse of discretion. Coller v. Guardian Angels Roman Catholic Church of Chaska,
    294 N.W.2d 712, 715 (Minn. 1980) (“A trial court’s action permitting a
    party to serve or file a pleading after expiration of a time limit is
    discretionary and will not be
    reversed unless the discretion has been abused.”).

    Because Minn. Stat. § 259.49, subd. 1(b)(8)(iv), required D.J.F. to initiate a
    paternity action within 30 days of receipt of the fathers’ adoption registry
    notice, “unless,
    for good cause shown, he is unable to do so within the 30 days,” the good
    cause that D.J.F. needed to show is not simply a cause that made it difficult
    for him to initiate a paternity action, it is a cause that made him unable to
    initiate an action. “Unable” means “[l]acking the necessary power,
    authority, or means; not able; incapable.” The American Heritage Dictionary
    1940 (3rd ed. 1992). This means that to show good cause, D.J.F. needed to show
    that he was not able to initiate a paternity action within the 30-day period
    because he lacked the necessary power, authority, or means to do so. See Minn.
    Stat. § 645.08(1) (2002) (in construing statutes, words and phrases are
    construed according to their common and approved usage).


    However, this does not mean that D.J.F. needed to show that it was literally
    impossible for him to initiate the action within 30 days. In ascertaining the
    intention of
    the legislature, we may assume that the legislature does not intend a result
    that is unreasonable. Minn. Stat. § 645.17(1) (2002). It would be unreasonable
    to permit a
    failure to meet the 30-day filing requirement to be excused for good cause and
    then limit good cause to circumstances where it is impossible to meet the
    filing requirement. If the legislature had intended to allow a putative father
    more time to initiate a paternity action only when the putative father could
    show that it was impossible to initiate the action within 30 days, it would not
    have used the broader phrase “good cause.”

    D.J.F. argues that he had good cause for not initiating a paternity action
    within the 30-day period because the district court’s wrongful denial of
    counsel and failure to
    correctly inform him about his rights created a substantial barrier to his
    exercising any of his rights as a parent. D.J.F. contends that he had a right
    to appointed counsel, and if he had been appointed counsel, he could have
    easily brought the paternity action within the 30-day period. But, apparently
    because D.J.F. was not aware of his statutory right to appointed counsel, no
    request for appointed counsel was presented to the court within the 30-day
    period.
    The fathers’-adoption-registry statute provides for appointed counsel.
    “Upon

    proof of indigency, a putative father who has registered with the fathers’
    adoption registry, has received a notice to registered putative father, and has
    timely filed an intent to claim paternal rights form with the court
    administrator, must have counsel appointed at public expense.” Minn. Stat. §
    259.52, subd. 12 (2002). D.J.F. argues that this statutory requirement that he
    have counsel appointed implies that the district court had a duty to inform him
    about his right to appointed counsel because he could not exercise his right if
    he was not aware of it. But we have found no provision in the
    fathers’-adoption-registry statute thatrequires the district court to inform
    a putative father about his rights under the statute. The statute provides that
    “[t]he commissioner of health may establish informational material and public
    service announcements necessary to implement” the fathers’ adoption
    registry. Minn. Stat. § 259.52, subd. 1 (2002). But this provision is
    permissive. See
    Minn. Stat. 645.44, subd. 15 (2002) (“‘May’ is permissive.”). It does
    not suggest that a putative father’s lack of knowledge about his rights under
    the fathers’-adoption-registry statute is good cause for the putative
    father’s failure to comply with the statute.

    We recognize that initiating a paternity action without the services of an
    attorney would be a difficult task for most litigants, but failing to obtain an
    attorney is not good
    cause for failing to initiate the action within the 30-day statutory period.
    See Heinsch v.Lot 27, 399 N.W.2d 107, 109 (Minn. App. 1987) (stating pro se
    litigants are generally held to same standards as attorneys; unfamiliarity with
    procedural rules is not good cause to excuse untimely action). Furthermore, the
    record demonstrates that D.J.F. was able to obtain counsel to initiate his
    action. D.J.F.’s mother testified that before the 30-day period expired, she
    called four or five lawyers who all required retainer fees before initiating an
    action, and she did not feel that there was anything further that she couldhave
    done to obtain legal advice, other than have money. But D.J.F. obtained legal
    advice after the 30-day period expired, and he did not explain why the effort
    that he ultimately made to obtain counsel could not have been made within the
    30-day period.

    D.J.F. also argues that the forms that he received provided misleading and
    incomplete notice with respect to his parental rights. D.J.F. contends that the
    “Notice to
    Registered Putative Father and Notice of Jurisdiction” form that he received
    was not clear about the steps a father must take to preserve his rights and did
    not notify him that failing to bring a paternity action within 30 days would
    result in termination of his parental rights. But the form that D.J.F. received
    states that the mother of the child has indicated that she intends to place the
    child for adoption and that an adoption petition has been or will be filed. The
    form then states:
    If you claim to be the father of the child, you must bring a paternity action
    within 30 days. Fill out the “Intent to Claim Parental Rights.” If you do
    not file an “Intent to Claim Parental Rights” form, whatever legal rights
    you have with respect to the child may be terminated. You will not be entitled
    to notice of adoption proceedings.
    Although this form did not notify D.J.F. that failing to bring a paternity
    action within 30 days would result in termination of his parental rights, it
    did inform him that he
    must bring a paternity action within 30 days. Nothing in this form mislead
    D.J.F. with respect to the requirement that he bring a paternity action within
    30 days.
    D.J.F. also argues that the form indicates that he could lose his legal rights
    if he does not file the intent-to-claim-parental-rights form, but it does not
    mention how failure
    to timely file a paternity action will affect his rights, and the form seems to
    indicate that completing the intent-to-claim-parental-rights form will actually
    start a paternity action.


    But failing to inform D.J.F. about the consequences of not filing a timely
    paternity action was not misleading with respect to the need to bring a
    paternity action within 30 days, and any suggestion that completing the
    intent-to-claim-parental-rights form will actually start a paternity action was
    corrected by the intent-to-claim-parental-rights form that D.J.F. received.
    That form, which D.J.F. completed and filed with the court administrator,
    states:

    I further understand I must bring a paternity action under the
    Parentage Act (Minn. Stat. §§ 257.51 to 257.85) within 30
    days of receiving the adoption registry notice, or, if the child
    is not yet born, within 30 days after the birth of the child,
    unless I am unable to do so. I understand a paternity action
    is separate from the mailing of this form.

    The forms that D.J.F. received explicitly informed him about the steps that he
    needed to take to preserve his rights, which included initiating a paternity
    action within
    30 days. Although the forms did not specifically explain the consequences of
    failing to initiate a paternity action within 30 days, this omission could not
    have mislead D.J.F. about the need to initiate the action.

    Finally, D.J.F. contends that during the time that he was trying to figure out
    how to preserve his parental rights, he was dealing with a significant eye
    injury that occurred just before the child’s birth. However, the record
    demonstrates that this injury did not prevent D.J.F. from understanding that he
    needed to initiate a paternity action within the 30-day statutory period or in
    any way make him unable to initiate a paternity action.

    D E C I S I O N

    The district court did not abuse its discretion when it determined that D.J.F.
    did not show good cause for failing to commence his paternity action within the
    30-day
    period required under Minn. Stat. § 259.49, subd. 1(b)(8) (2002), and Minn.
    Stat. § 259.52, subd. 10 (2002). D.J.F. did not show that he lacked the
    necessary power,
    authority, or means to initiate a paternity action within the 30-day period.

    Affirmed.



    Reply to jmhjmd at aol.


Working...
X