STATE OF MINNESOTA

IN COURT OF APPEALS

A06-801

In the Matter of the Custody of

T.L.L.

Filed April 3, 2007

Affirmed

Ross, Judge

Le Sueur County District Court

File No. 40-F2-03-000966

Jela D. Jones, OID #207024, MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767-9449 (pro se appellant)

Vicki Fay, 35780 311th Avenue, Le Sueur, MN 56058 (pro se respondent)

Considered and decided by Kalitowski, Presiding Judge; Ross, Judge; and Collins, Judge.*

U N P U B L I S H E D O P I N I O N

ROSS, Judge

On appeal from an order denying his motion for parenting time without an evidentiary hearing, Jela Jones argues that he was denied due process and equal protection. Because Jones did not present any changed circumstances to the district court to support the modification or suggest that the modification would be in his child’s best interests, we affirm.

FACTS

This appeal arises from a noncustodial father’s belated objection to the custodial placement of his son, T.L.L., and his efforts to establish contact with the child. Jela Jones was convicted of two counts of criminal sexual conduct in May 2001. He was sentenced as a patterned sex offender and is scheduled to be conditionally released in September 2010, with the conditions in force for ten years.

In January 2002, the county filed a petition alleging that T.L.L. was a child in need of protection or services, and the court later determined him as such. Jones was adjudicated the father of T.L.L. in February 2003. While in prison, Jones had sporadic contact with T.L.L. by mail and by phone. But in April 2003, a case worker for the department of corrections ordered Jones to cease all forms of communication with T.L.L.

In August 2003, the county filed a permanency petition, and in October, the district court transferred physical and legal custody of T.L.L. to the child’s maternal grandmother. Jones then moved to establish contact with his son. In April 2004, the court denied Jones’s motion for parenting time, after considering a guardian ad litem’s recommendation that contact with Jones was not in T.L.L.’s best interests.

Jones again moved to establish contact with his son in January 2006. The court interpreted Jones’s motion as also challenging the earlier child-protection and custody proceedings. The court found that Jones was estopped from challenging T.L.L.’s placement with his grandmother because Jones had actual knowledge of the child-protection and transfer-of-custody proceedings but failed to timely intervene or participate. The court, however, took Jones’s motion for parenting time under advisement and accepted submissions from the county and T.L.L.’s grandmother. Each recommended denying the motion. In March 2006, the district court denied Jones’s motion without holding an evidentiary hearing. It found that no change in circumstances had occurred since its 2003 and 2004 orders to warrant a modification of parenting time. The court held that Jones did not meet his burden of establishing a prima-facie case to hold an evidentiary hearing on his motion. Jones appeals, arguing that he has been denied due process and equal protection.

D E C I S I O N

We must first address the untimeliness of several of Jones’s challenges. He attempts to appeal the procedure surrounding the district court’s April 2004 order, but the time for this appeal has expired. See Minn. R. Civ. App. P. 103.03(h) (stating that order granting or denying modification of custody or visitation is immediately appealable), 104.01, subd. 1 (requiring appeal within 60 days after appealable order is filed). Next, although Jones also challenges the district court’s findings that he had actual knowledge of the child-protection and transfer-of-custody proceedings, Jones did not appeal from the January 2006 order in which the court made these findings. Jones is therefore left with the March 2006 order in which the district court denied, without an evidentiary hearing, his motion to reestablish contact with T.L.L.

A district court must modify an earlier parenting-time decision if the modification will serve the best interests of the child and would not change the child’s primary residence. Minn. Stat. § 518.175, subd. 5 (2004). A modification requires changed circumstances, and the district court has broad discretion to determine how parenting time by a parent serves a child’s best interests. Matson v. Matson, 638 N.W.2d 462, 468 (Minn. App. 2002) (stating that modification of parenting time requires changed circumstances); Anderson v. Archer, 510 N.W.2d 1, 5 (Minn. App. 1993) (stating that district court has broaddiscretion in area of visitation). Although a substantial modification to parenting time requires an evidentiary hearing, a hearing is not necessary for an insubstantial change. Matson, 638 N.W.2d at 468. The district court did not abuse its discretion by denying Jones’s motion without an evidentiary hearing. Jones’s motion did not allege any change of circumstances or offer any explanation of how a modification would serve T.L.L.’s best interests.

Jones’s constitutional argument rests only on his biological link to T.L.L., which he argues requires that he have parenting time or at least an evidentiary hearing. The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property without due process of law. Article I, section 7, of the Minnesota Constitution provides the same protection. To support his argument, Jones relies primarily on the Supreme Court’s decision in Lehr v. Robertson, 463 U.S. 248, 103 S. Ct. 2985 (1983). Lehr presented a materially different circumstance, however, and neither its holding nor reasoning supports Jones’s constitutional argument. The primary concern in Lehr was whether the state of New York had adequately protected a father’s opportunity to form a parent-child relationship when the father did not seek to establish a legal tie until after the child was two years old. Id. at 262-63, 103 S. Ct. at 2994. The Court held that the state provided due process to the putative father who did not register his name with the state and tried unsuccessfully to stay an adoption of his child. Id. at 264, 103 S. Ct. at 2995. The Court emphasized that “‘[p]arental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.’” Id. at 260, 103 S. Ct. at 2992 (quoting approvingly Caban v. Mohammed, 441 U.S. 380, 397, 99 S. Ct. 1760, 1770 (1979) (Stewart, J., dissenting, and emphasis added by Lehr Court). The Court held that an unwed father acquires substantial due process protection by demonstrating a full commitment to his parental responsibilities and “com[ing] forward to participate in the rearing of his child.” Id. at 261, 103 S.Ct. at 2993 (quotation omitted).

We recognize the general presumption favoring placement of a child with a parent rather than a third-party. In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002) (recognizing presumption that child should be placed with parent instead of third-party unless “grave and weighty” reasons support separation). But Jones has never sought custody of T.L.L., and this appeal arises in the context of a motion to modify his parenting time. In his motion to the district court, Jones did not assert any relationship, other than biological, with T.L.L., who was almost five years old when Jones filed his motion. He did not suggest any changed circumstances since the court’s April 2004 order. The district court did not make any change to Jones’s parenting time, and he therefore was not entitled to an evidentiary hearing. It cannot be determined that Jones was denied due process when he did not present the district court with any basis for holding a hearing or granting his motion. The decision did not unconstitutionally interfere with Jones’s opportunity to form a parent-child relationship.

Jones also relies on Lehr for his equal protection challenge. In Lehr, the Court concluded that New York’s statutes providing a mother, but only some putative fathers, the opportunity to object to a child’s adoption did not violate principles of equal protection because the appellant had not established a substantial relationship with his child and therefore was not similarly situated with the child’s mother. Lehr, 463 U.S. at 266-67, 103 S. Ct. at 2996 (observing that appellant had never established custodial, personal, or financial relationship with his child). Jones does not suggest how the state has accorded him different legal rights or treatment than someone with whom he is similarly situated. His equal protection argument therefore fails.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.