People in Interest of O.S-H., 2021 COA 130

In this appeal of an adjudication, the Court of Appeals held that a paternity adjudication within a dependency and neglect proceeding constitutes a child custody proceeding under the Indian Child Welfare Act (ICWA), and the juvenile court was required to conduct an ICWA inquiry as to the presumptive biological father in this case.

The department initiated a dependency and neglect case in this matter on the basis that the child’s mother was deceased, the child’s biological father was in prison, and the child’s stepfather did not have appropriate housing for the child. Once served, the biological father asserted he was the child’s biological parent (which testing later confirmed), and that he was named as the father on the child’s birth certificate. Subsequently, stepfather filed a motion to determine paternity on the basis that he held the child out as his own. The court set a paternity hearing, and following the hearing, the court determined stepfather was the child’s parent and dismissed biological father from the case.

In its opinion, the Court of Appeals first held that, because a dependency and neglect case is a child custody proceeding under ICWA, a paternity matter which arises in the context of a dependency and neglect case is also a child custody proceeding under ICWA. Next, the Court of Appeals analyzed the “unwed father” provision in ICWA, 25 U.S.C. § 1903(9) (which exempts an unwed father where paternity has not been acknowledged or established) and determined that, despite this provision, ICWA was applicable to the biological father in this case. Applying a reasonableness standard rather than state law on paternity, the Court found that the biological father acknowledged and established paternity of the child by being named on the child’s birth certificate, asserting his paternity in the filings in this case, and completing genetic testing.

Because the Court of Appeals determined that ICWA applied to the biological father, it reversed the court’s paternity adjudication and remanded the case so the juvenile court could specifically inquire with the biological father as to whether the child was a member of or eligible for membership in an Indian tribe. The Court of Appeals also reversed and remanded the juvenile court’s paternity adjudication to allow the court to make two findings under the Uniform Parentage Act (UPA): (1) whether the birth certificate constituted a legal finding of paternity sixty days after it was filed with the registrar of vital statistics; and (2) whether a prior adjudication in a dependency and neglect case was effectively a determination that the biological father is the child’s parent under the UPA.

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