This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of the Welfare of: J.O.

Filed June 8, 1999


Davies, Judge

Clay County District Court

File No. JX9850520

Allen P. Eskens, P.O. Box 3412, Mankato, MN 56002-3412 (for appellant father)

Lisa Nelson Borgen, Clay County Attorney, Brian J. Melton, Assistant County Attorney, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent county)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Anderson, Judge.


DAVIES, Judge Appellant challenges termination of his parental rights, arguing that he was deprived of due process by receiving only a seven-day continuance and that the evidence was insufficient to support the stated statutory grounds for termination of his parental rights. We affirm.


J.O. was born on March 9, 1986, and lived with his mother until February 1997, when she became ill. In March 1997, the mother died, leading to J.O.'s current placement in a foster home.

Appellant Eric Oldag, J.O.'s biological father, lives in Nevada and had not seen J.O. except for about a month in 1992 and once when J.O. visited in Nevada. But then, in January 1998, appellant contacted social services and requested that J.O. be allowed to live with him in Nevada. Social services determined, however, that appellant would be an unsuitable placement for J.O. and petitioned to terminate appellant's parental rights.

A termination hearing was scheduled. Appellant contacted the court two days before the hearing, requesting a 30-day continuance because his car broke down on the way from Nevada. The court held the hearing as scheduled but told appellant's attorney (who attended the hearing) that appellant would have an opportunity to be heard within seven days. After appellant failed to avail himself of that opportunity, the district court terminated appellant's parental rights. This appeal followed.


Termination of parental rights requires great caution to see that the evidence clearly mandates termination of those rights. In re Welfare of Kidd, 261 N.W.2d 833, 835 (Minn. 1978). We must determine whether the district court addressed the statutory criteria and whether the court's findings are supported by substantial evidence so that they are not clearly erroneous. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). Statutory grounds for termination must be established by clear and convincing evidence. In re Welfare of L.A.F., 554 N.W.2d 393, 397 (Minn. 1996).


Appellant claims he was deprived of his constitutional right to due process when the trial court denied his request for a 30-day continuance of the termination proceeding. We will not reverse the district court's decision concerning a continuance absent an abuse of discretion. Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977). In reviewing due process rights, the court must balance the countervailing interests. In re Welfare of H.G.B., 306 N.W.2d 821, 825 (Minn. 1981). To balance the interests means that competing interests must be considered, not that all parties' interests are weighed equally. Id. at 826.

Appellant had a substantial interest in this hearing, but his interests were represented by his attorney's attendance at the proceeding. See In re Welfare of A.Y.-J., 558 N.W.2d 757, 759-60 (Minn. App. 1997) (due process does not necessarily require parent's physical presence at termination hearing and attendance of counsel is considered in determining whether due process rights were violated), review denied (Minn. April 15, 1997). Further, appellant failed to offer documentary evidence through his attorney. See H.G.B., 306 N.W.2d at 826 (opportunity to present deposition or interrogatories considered when balancing due process interests).

J.O. had an interest in finalizing these difficult proceedings expeditiously. That interest would have been jeopardized by delay. Appellant told the court his only reason for not appearing was car trouble. It was reasonable for the court to determine that seven days from the hearing (nine days from appellant's telephone call) would be sufficient for appellant to find alternate transportation or to make other arrangements with the court, and appellant does not explain why the seven-day continuance was insufficient.

Appellant has not shown that the district court clearly abused its discretion in granting a seven-day, rather than a 30-day, continuance.


The district court terminated appellant's parental rights on four statutory grounds: abandonment, failure to pay child support, appellant's palpable unfitness to be a parent, and the failure of reasonable efforts to reunite the family. See Minn. Stat. § 260.221, subd. 1(b)(1), (3), (4), (5) (1998) (grounds for termination of parental rights). Appellant argues that the evidence is insufficient to support termination on these grounds.

A. Reasonable Efforts to Reunite

Appellant challenges termination on the grounds of his palpable unfitness and the failure of reasonable efforts to reunite, arguing that the court erred by finding that reasonable efforts had failed to reunite the family. When terminating parental rights under subdivision 1(b)(4) or (5), the court must determine whether the social services agency made reasonable efforts to reunite the family. Id., subd. 5 (1998). The social services agency bears the burden of proving that it put forth a reasonable effort. Minn. Stat. § 260.012(b) (1998).

Appellant argues that social services made no real effort to reunite the family and, thus, the record cannot support the court's finding that reasonable efforts failed. But the record indicates that after appellant initiated contact with social services he hindered its efforts by refusing to supply the requested information. Appellant's lack of cooperation played a significant part in the failure to reunite. The record supports the finding that social services made reasonable efforts to reunite the family.

B. Abandonment

A presumption of abandonment arises when: (1) the parent has not had contact with the child or shown consistent interest in the child for six months; and (2) the social services agency has made reasonable efforts to facilitate contact. Minn. Stat. § 260.221, subd. 1a(a)(1) (1998).

The record supports the district court's finding that social services established the presumption of abandonment. J.O. testified that appellant did not contact him for extended periods of time. Social services staff testified that appellant seemed to know little about J.O. and his interests. Further, the record indicates that social services followed all available leads in trying to contact appellant but was unsuccessful.

Appellant correctly points out that abandonment must be an intentional act. L.A.F., 554 N.W.2d at 398. This intent requirement looks to whether the acts constituting abandonment were taken intentionally and voluntarily or were merely caused by misfortune or unrelated misconduct. Id. Nothing in the record indicates that misfortune, rather than intentional acts, caused appellant to have little or no contact with J.O. Appellant argues that an order forbade him to contact J.O.'s mother, but there is no indication that it hindered him from at least calling J.O. on the telephone.

Appellant argues that he lacked the subjective intent to abandon J.O., as evidenced by his current interest in re-establishing contact with J.O. and fighting termination of his parental rights. But a recent change of heart, following an extensive pattern of unconcern and a general lack of effort, is insufficient to reverse the presumption created by appellant's inattention to J.O. See In re Welfare of Walker, 287 N.W.2d 642, 644 (Minn. 1979) (termination for abandonment upheld where recently imprisoned father "showed no concern" for child and did not "develop a real interest" in child until incarcerated).

C. Failure to Pay Child Support

Appellant argues that the district court erred by terminating his parental rights for failure to pay child support. Parental rights may be terminated when

a parent has been ordered to contribute to the support of the child or financially aid in the child's birth and has continuously failed to do so without good cause.

Minn. Stat. § 260.221, subd. 1(b)(3).

The record indicates that appellant did not pay any child support from 1995 to 1998 and is $17,081 in arrears. He has not paid even one-half of his child support obligation in any year. Appellant concedes he failed to pay court-ordered child support but argues that respondent did not prove that he lacked good cause for not paying.

Appellant clearly controls access to information regarding his financial status and, despite social services' ultimate burden of proof, appellant cannot claim good cause for nonsupport without some factual basis. Appellant produced no evidence of good cause but simply argues that the statute requires respondent to prove the negative. Where the social services agency, as here, has shown that appellant failed to make payments during a period when appellant was employed, it has offered prima facie evidence of failure to contribute without good cause. If appellant had raised any specific facts tending to show good cause, social services would have had the burden to overcome those facts. See Elk River Concrete Prods. Co. v. American Cas. Co., 268 Minn. 284, 292, 129 N.W.2d 309, 315 (1964) (prima facie evidence is sufficient to

establish fact, unless rebutted). Because appellant did not offer any indication of good cause, the prima facie evidence satisfies the burden.[1]


[1] Because only one statutory ground is needed, Minn. Stat. § 260.221, subd. 1, we do not address the court's determination that appellant was palpably unfit to be a parent.