This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Stephen T. Sundboom,
Elizabeth M. Keul,
Filed July 23, 2002
Washington County District Court
File No. FX0150530
Thomas B. Olson, Daniel M. Fiskum, Olson, Usset & Weingarden, P.L.L.P., Suite 300, 4500 Park Glen Road, Minneapolis, MN 55416 (for respondent)
Wright S. Walling, Jessica J.W. Maher, Walling & Berg, P.A., Suite 1550, 121 South Eighth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
In a consolidated adoption and paternity action, the district court adjudicated Stephen Sundboom the father of Elizabeth Keul’s child. Keul does not dispute that Sundboom timely registered with the Minnesota Fathers’ Adoption Registry and also timely filed a notice of his intent to retain parental rights. But Keul challenges the district court’s decision not to dismiss Sundboom’s paternity action, filed more than 30 days after receipt of the registry notice, and the court’s order that Sundboom receive notice of the adoption proceeding. On the facts of this case, we conclude that the district court did not abuse its discretion, reserved under the statute, to order that Sundboom receive notice, and we affirm.
F A C T S
Elizabeth Keul and Stephen Sundboom were involved in a sexual relationship in the spring of 2000. Shortly after Keul ended the relationship, she learned she was pregnant. In May 2000, Keul notified Sundboom of her pregnancy and also told him that she planned to place the child for adoption. Initially, Sundboom did not oppose Keul’s decision, but later indicated disagreement and, when Keul and Sundboom met with the Children’s Home Society in November 2000, Sundboom objected to the plans for adoption. Sundboom offered no assistance to Keul for living expenses or costs related to the birth of the child.
On November 14, 2000, Sundboom registered with the Minnesota Fathers’ Adoption Registry maintained by the Minnesota Department of Health. One month later, on December 11, 2000, Keul provided Sundboom with a notice of her intent to place the baby for adoption, an intent-to-claim-parental-rights form, a denial-of-paternity form, and a consent-to-adoption form. The notice-of-adoption form stated that if Sundboom wished to retain his parental rights, he must file the intent-to-claim-parental-rights form with the Olmsted County Court Administrator and bring a paternity action within 30 days. The intent-to-claim-parental-rights form, however, stated that Sundboom could file his paternity action up to 30 days after the birth of the child if the child had not yet been born. This provision is without statutory support and, although the form was provided by the health department, it is apparently incorrect.
Sundboom filed his intent-to-claim-parental-rights form with the Olmsted County Court Administrator in December 2000. On January 11, 2001, the prospective adoptive parents filed an uncontested motion in Washington County for preadoptive custody of Keul’s child. Under the court’s order, the prospective parents took custody of the child after Keul gave birth on January 15, 2001.
On February 15, 2001, thirty-six days after the expiration of the statutory deadline for filing a paternity action and one day after the expiration of the erroneous deadline contained in the intent-to-claim-parental-rights form, Sundboom served Keul with his paternity petition and a motion for DNA paternity testing. Seven days later, Sundboom filed the paternity action and the motion for DNA testing in Goodhue County. In response, Keul filed a motion to dismiss Sundboom’s paternity action as untimely. The Goodhue County district court transferred the paternity proceedings to Washington County district court to allow coordination with the adoption proceedings.
After a hearing on Keul’s motion to dismiss and Sundboom’s motion for DNA paternity testing, the district court consolidated the paternity and adoption proceedings. The court issued an order holding that Keul’s notice to Sundboom was defective because it erroneously identified Olmsted County as the jurisdiction for the adoption proceedings and, thus, did not trigger the running of the deadline for filing a paternity action; Sundboom was entitled to notice of pending adoption proceedings under the court’s statutory power to require discretionary notice; and Sundboom’s paternity action was timely because he did not receive the required notice of the correct jurisdiction until March 8, 2001. The district court ordered that Keul have temporary custody of the child pending the outcome of Sundboom’s paternity action, and this court declined Keul’s petition for discretionary review.
When it became clear that the adoption proceedings would not move forward while Sundboom’s paternity action was pending, the prospective adoptive parents relinquished custody of the child to Keul to await the court’s final determination before proceeding forward on the adoption. Relying on the results of DNA testing, the district court adjudicated Sundboom the father of Keul’s child in December 2001. Keul appeals four interrelated orders in the consolidated proceedings.
As a preliminary matter we address Sundboom’s argument that the adoption statutes do not apply to this appeal because neither a petition nor Keul’s consent to the adoption has been filed. He argues that only the statutes governing paternity determination apply. We reject this argument as contrary to the structure and language of the adoption statutes.
In a direct adoptive placement, the potential adoptive parents must file a motion for preadoptive custody before a child may be placed in their home. Minn. Stat. § 259.47, subd. 3 (2000). This motion “may be considered by the court ex parte, without a hearing.” Id. Between 72 hours after the child’s birth and 60 days after the child’s placement in the adoptive home, the birth parent must execute consent to the adoption. Id., subd. 7 (2000). If consent is not executed, the court issues an order determining the continued placement of the child and directing the local social services agency to consider whether to begin proceedings for termination of the biological parent’s parental rights on grounds of abandonment. Id., subd. 8 (2000). The deadline for filing an adoption petition is contained in Minn. Stat. § 259.22, subd. 4 (2000), which states, “A petition [for adoption] shall be filed not later than 12 months after a child is placed in a prospective adoptive home.”
Sundboom claims that the absence of both an adoption petition and Keul’s executed consent limits our review to the time limits contained in the statutes governing paternity actions. See Minn. Stat. § 257.57, subd. 3 (2000) (providing no deadline within which a putative father must bring a paternity action). As support for this argument, he relies on In re Welfare of A.M.P., 507 N.W.2d 616, 619 (Minn. App. 1993) (holding that because no adoption petition had yet been filed, father’s consent form operated only as a consent to terminate parental rights and not as a consent to adoption). Sundboom’s argument overlooks significant statutory changes between the time of the A.M.P. decision and this appeal, including the establishment in 1997 of the Minnesota Fathers’ Adoption Registry. See 1997 Minn. Laws ch. 218, § 8 (currently codified at Minn. Stat. § 259.49, subd. 1 (2000)) (requiring notice of adoption proceedings to be given to fathers who have registered with the fathers’ adoption registry); Heidbreder v. Carton, 645 N.W.2d 355, 363-66 (Minn. 2002) (tracing statutes and caselaw resulting in development of Minnesota Fathers’ Adoption Registry in 1997). Sundboom’s argument lacks current statutory or caselaw authority.
Under Minn. Stat. § 259.24, subd. 1(a) (2000), a father’s consent to an adoption is not required if he is not entitled to notice of the adoption proceedings. Among other circumstances that require notice, a biological father is entitled to notice when he (1) registers with the fathers’ adoption registry, (2) timely files an intent to retain parental rights form, and (3) initiates a paternity action within 30 days of receipt of the registry notice. Minn. Stat. § 259.49, subd. 1(b)(8)(i-iv) (Supp. 2001). It is this notice requirement that is at issue in this appeal.
If the father has completed the first requirement, registering with the fathers’ adoption registry, a biological mother who has decided to place the child for adoption must serve the registered father with a notice of intent to place the child for adoption, an intent to claim parental rights form, a denial of paternity form, and a consent to an adoption form. Minn. Stat. § 259.52, subd. 9 (2000). The statute further provides that the mother “shall provide notice of the jurisdiction in which the adoption petition will be filed.” Id., subd. 9(a). The mother must complete these requirements before she can proceed with the adoption without the father’s consent.
The legislature has also provided the district court with the discretion to require that certain people be given notice of adoption proceedings if justice so requires. Minn. Stat. § 259.49, subd. 2 (2000) (stating [i]f, in the course of the [adoption] proceedings, the court shall consider that the interests of justice will be promoted it may continue the proceeding and require that such notice as it deems proper shall be served on any person). In addition, any man adjudicated the father of the child is entitled to notice of any pending adoption under Minn. Stat. § 259.49, subd. 1(b)(5) (Supp. 2001).
The district court relied on the discretionary notice provision to hold that it had authority to “alter slightly the notice aspect of the adoption scheme.” The court found that Sundboom was entitled to discretionary notice of pending adoption proceedings, including specifically the proper jurisdiction as required by Minn. Stat. § 259.52, subd. 9(a). Because it was not until March 8, 2001, that Sundboom received actual notice of all required information, his February 15, 2001, paternity action filing occurred before the expiration of the 30-day deadline—in fact, before the deadline began to run—and was timely.
On these facts we conclude that the district court did not err in applying the discretionary notice provision after reasoning that Sundboom’s paternity action could be considered timely. First, Sundboom, despite his original reticence, repeatedly expressed to Keul during the pregnancy and after the birth his desire to parent the child. Sundboom also took the required steps to timely register with the Minnesota Fathers’ Adoption Registry and to timely file his notice of intent to claim parental rights in Olmsted County. See Lehr v. Robertson, 463 U.S. 248, 262, 103 S. Ct. 2985, 2993-94 (1983) (noting that the Federal Constitution only protects an unwed father’s right to have a relationship with his offspring if he takes affirmative action to protect that right). Sundboom’s demonstrated desire to parent his son, coupled with Keul’s erroneous listing of Olmsted County as the county of the adoption proceedings and the intent form’s erroneous statement that Sundboom had until 30 days after the birth of the child to file his paternity action, support the district court’s exercise of its statutory discretion to order that Sundboom receive notice of the adoption proceedings.
Finally, we note that, unlike the restricted circumstances in which a court can excuse a putative father’s failure to timely register with the Minnesota Fathers’ Adoption Registry, the legislature specifically allowed the courts to extend the 30-day limit for initiating a paternity action when good cause has been shown. Compare Minn. Stat. § 259.52, subd. 8 (listing limited reasons for excusing putative father’s failure to timely register), with Minn. Stat. § 259.52, subd. 10 (providing that failure to initiate paternity action within 30 days does not bar notice under section 259.49 and, when good cause is shown, the putative father must be allowed more time to initiate paternity action). See also Heidbreder, 645 N.W.2d at 369-70 (strictly applying requirement of putative father to register with Minnesota Fathers’ Adoption Registry to avoid disruption to the adoptive placement and promote permanence and stability for adopted children).