This opinion will be unpublished and

may not be cited except as provided by

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




Petition of Justin Lee Fossen and Amy Jo Fossen,

his wife, to adopt M.E.F., child


Filed August 3, 1999

Reversed and remanded

Toussaint, Chief Judge

Hubbard County District Court

No. FX-97-050289

John M. Stuart, State Public Defender, Cathryn Young Middlebrook, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Gregory D. Larson, P.O. Box 486, Park Rapids, MN 56470 (for respondent)


Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Jesse Ellingson challenges the adoption of his daughter by her natural mother and stepfather. Four hearings were held that are relevant to the adoption issue. In October of 1997, a hearing was held giving Ellingson and the mother joint custody and requiring Ellingson to pay $133 a month in child support. A December 23, 1997, hearing appeared to deal with the termination of Ellingson’s parental rights because of abandonment. But, no such determination was ever made. On June 3, 1998, a follow-up hearing was held. Ellingson was not present at the follow-up hearing, but the adoption was granted. Ellingson later argued he did not receive notice of the June 3, 1998, hearing because he had been unexpectedly transferred to another prison. The district court then held another hearing on June 26, 1998. Ellingson, present by phone, contested the adoption and requested an attorney. The district court stated that it would "continue this matter and proceed from there," but never vacated the adoption. Because of the lack of notice of the June 3, 1998, hearing and because the district court did not make a determination that Ellingson abandoned his child, as required by Minn. Stat. § 259.24, subd. 1 (1998), we reverse and remand.


The district court’s interpretation of adoption statutes is reviewed de novo. In re Adoption of C.H., 554 N.W.2d 737, 742 (Minn. 1996). The Minnesota statute regarding parental consent for adoption states:

No child shall be adopted without the consent of the child’s parents and the child’s guardian, if there be one, except in the following instances:

    1. Consent shall not be required of a parent not entitled to notice of the proceedings.
    2. Consent shall not be required of a parent who has abandoned the child, * * *.

* * * *

Minn. Stat. § 259.24, subd. 1 (1998). Under our adoption statutes, appellant’s consent is required unless his paternity has been terminated. Eggert v. Van De Weghe, 279 Minn. 31, 35-36, 155 N.W.2d 454, 457-58 (1967). We have held this provision to mean that the consent of a natural parent may be dispensed with only in those cases where the issue of the alleged unfitness underlying his parental rights is raised and adjudicated and his paternal rights are extinguished. Id. Here Ellingson, who was entitled to notice of the adoption proceedings, did not consent to the adoption of his daughter by Justin Fossen. Therefore, before the district court could grant the adoption, it had to find that Ellingson abandoned his child.

Ellingson did not have contact with M.E.F. for approximately one year prior to his imprisonment and his only involvement in her upbringing was disruptive. In fact M.E.F. does not know who Ellingson is and would not recognize him. Further, Ellingson has failed to pay child support required of him by the October order. These facts taken together may support a finding of good cause for termination of the father's rights. In re Welfare of S.F., 482 N.W.2d 500, 503 (Minn. App. 1992) (noting parent's lack of contact with child and non-participation in financially supporting child). But the district court did not make a determination that Ellingson abandoned his child and did not terminate his parental rights before granting the adoption. While the December 23, 1997, hearing appears to have addressed the abandonment issue, no finding of abandonment was made. A 14-day notice of an adoption hearing must be given to child’s adjudicated parent. Minn. Stat. § 259.49, subd. 1 (b)(5)(1998). Here, Ellingson did not receive proper notice of the June 3, 1998, hearing when the adoption petition was granted. Due process is required to allow a parent to prepare, appear, and protect their parental rights. We therefore, reverse and remand.

Reversed and remanded.