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People in the Interest of O.S-H.

2021 COA 130. No. 18CA1391.  Dependency and Neglect—Paternity Adjudication—Indian Child Welfare Act of 1978—Uniform Parentage Act.

October 28, 2021

The Washington County Department of Human Services (Department) obtained temporary custody of the child and initiated a dependency and neglect case. The Department asserted that the child’s mother was deceased, biological father was in prison, and stepfather did not have appropriate housing for the child. The juvenile court adjudicated the child dependent and neglected as to stepfather, adopted a treatment plan for stepfather, and placed the child in his care. Biological father was served with notice of the proceeding and promptly asserted that he was the biological parent and was named as the father on the child’s birth certificate. Testing later confirmed biological father’s genetic relationship to the child. After a hearing, the court adjudicated stepfather the child’s parent and dismissed biological father from the case.

On appeal, biological father contended that the juvenile court failed to comply with the Indian Child Welfare Act of 1978 (ICWA) because it did not ask him whether he knew or had reason to know that the child is an Indian child. ICWA applies to child custody proceedings, which include actions for foster care placement; termination of parental rights; and dependency and neglect proceedings, including paternity adjudications in a dependency and neglect proceeding. Here, biological father met ICWA’s definition of a parent, and the paternity adjudication was determined within the dependency and neglect proceeding. However, the record did not show ICWA compliance.

Biological father also argued that the juvenile court lacked authority to adjudicate paternity because his paternity had been previously established when he was named on the child’s birth certificate and when an adjudication was entered against him in a 2011 dependency and neglect case. Here, the court did not determine whether either the birth certificate or the previous adjudicatory order was effectively a paternity determination, nor did it apply the Uniform Parentage Act standards for setting such a determination aside.

The judgment was reversed and the case was remanded with instructions.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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