June 19, 2020
After two and a half years of litigation, a biological father has been recognized as a legal parent of his child who was placed for adoption without his consent, according to the Minnesota Supreme Court’s recent decision in T.G.G. v. H.E.S.
Although the father did not register with the Father’s Adoption Registry within 30 days of the child’s birth, he had executed a Recognition of Parentage (ROP) with the mother, started a paternity action, and obtained a temporary restraining order prohibiting the adoption, all before the adoption petition was filed. The mother attempted to revoke the ROP after the temporary restraining order was granted, but the Supreme Court held that the revocation was ineffective.
Under Minn. Stat. § 257.75, subd. 2, an ROP can only be revoked “within the earlier of 60 days after the recognition is executed or the date of an administrative or judicial hearing relating to the child in which the revoking party is a party to the related action.” Relying on the legislative history of Minn. Stat. § 257.75, subd. 2, which showed an intent to comply with federal law allowing a party to revoke within 60 days or before a “judicial proceeding” occurs, the Court held the grant of a temporary restraining order was a “judicial hearing” which made the ROP irrevocable.
By this holding the Court avoided the need to address constitutional arguments regarding a father’s due process rights to a parental relationship with his child, but despite the lack of constitutional discussion, the opinion will still have a significant impact on adoptions in Minnesota.
Importantly, after the Court concluded the ROP had not been revoked, it addressed the argument made by the mother and the adoptive parents that the Fathers Adoption Registry statute prohibited the father from executing an ROP after he failed to register within 30 days of the child’s birth. The statute states, “a putative father who fails to timely register with the fathers’ adoption registry . . . is barred thereafter from bringing or maintaining an action to assert any interest in the child during the pending adoption proceeding concerning the child.” Minn. Stat. § 259.52, subd. 8(1). The Court held that an adoption proceeding is not “pending” until the adoption petition is filed, rejecting the argument that an adoption proceeding is pending when the child is placed for adoption. Because no adoption petition had been filed, the father could execute the ROP despite his failure to timely register.
This holding is significant because it allows fathers who fail to timely register for the Father’s Adoption Registry to bring an action at any time before the adoption petition is filed. Adoptive parents will now need to be advised to file the adoption petition as quickly as possible if they want to avoid the possibility of a father asserting his rights. Meanwhile, fathers should be informed that not all hope is lost on the 31st day after the child’s birth.