People ex rel. O.S-H.

• Decision Date: 28 October 2021
• Docket Number: Court of Appeals No. 18CA1391
• Citation: 503 P.3d 884,2021 COA 130
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF O.S-H., a Child, and Concerning M.S.C., Respondent-Appellant.
• Court: Colorado Court of Appeals

503 P.3d 884

2021 COA 130

The PEOPLE of the State of Colorado, Petitioner-Appellee,

IN the INTEREST OF O.S-H., a Child, and Concerning M.S.C., Respondent-Appellant.

Court of Appeals No. 18CA1391

Colorado Court of Appeals, Division I.

Announced October 28, 2021

Bauer & Furman, P.C., Steven M. Furman, Fort Morgan, Colorado, for Petitioner-Appellee

Barry Meinster, Guardian Ad Litem

Debra W. Dodd, Office of Respondent Parents’ Counsel, Berthoud, Colorado, for Respondent-Appellant

Opinion by JUDGE HAWTHORNE^*

¶ 1 In this dependency and neglect proceeding, M.S.C. (biological father) appeals the juvenile court's judgment adjudicating S.W. (stepfather) to be the legal father of O.S-H. (the child).To resolve biological father's appeal, we must first decide an unanswered question in Colorado: Does a paternity adjudication within a dependency and neglect proceeding constitute a child-custody proceeding under the Indian Child Welfare Act of 1978 (ICWA)?We answer yes and conclude that the record does not show compliance with ICWA's inquiry provisions.

¶ 2We then turn to biological father's assertion that the juvenile court lacked authority to adjudicate the child's paternity because it had already been established.While the record shows that biological father was named on the child's birth certificate and had previously been subject to a dependency and neglect case involving the child, the court did not determine whether these circumstances constituted prior paternity determinations before it decided who should be declared the child's father.

¶ 3 For these reasons, we reverse the judgment and remand the matter to the juvenile court for further proceedings.

I.Background

¶ 4 In the late summer of 2017, 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.

¶ 5The juvenile court adjudicated the child dependent and neglected as to stepfather.And it granted the Department's request for genetic testing to determine whether biological father was the child's biological parent.It also adopted a treatment plan for stepfather and placed the child in his care.

¶ 6 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.

¶ 7 Still, stepfather filed a motion to determine paternity on the basis that he had held the child out as his own.The court adjudicated the child dependent and neglected as to biological father and set a paternity hearing.Soon after, as part of a request to continue the hearing, biological father reiterated that he was named as the father on the child's birth certificate.After a hearing, the court adjudicated stepfather the child's parent and dismissed biological father from the case.¹

II.The Indian Child Welfare Act

¶ 8 Biological father contends that the juvenile court failed to comply with ICWA because it did not inquire of him whether he knew or had reason to know that the child is an Indian child.The Department and guardian ad litem (GAL) argue that ICWA was not implicated because this was a paternity proceeding and not a child-custody proceeding.

A.The Legal Framework

¶ 9ICWA aims to protect and preserve Indian tribes and their resources and to protect Indian children who are members of or are eligible for membership in an Indian tribe.25 U.S.C. § 1901(2), (3);People in Interest of M.V. , 2018 COA 163, ¶ 10, 432 P.3d 628.ICWA recognizes that Indian tribes have a separate interest in Indian children that is equivalent to, but distinct from, parental interests.B.H. v.People inInterest of X.H. , 138 P.3d 299, 303(Colo.2006);see alsoMississippi Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 52, 109 S.Ct. 1597, 104 L.Ed.2d 29(1989).Accordingly, in a proceeding in which ICWA may apply, tribes must have a meaningful opportunity to participate in determining whether the child is an Indian child and to be heard on the issue of ICWA's applicability.B.H. , 138 P.3d at 303.

¶ 10 To determine whether ICWA applies to a case, the juvenile court must answer two fundamental questions.People in Interest of K.R. , 2020 COA 35, ¶ 4, 463 P.3d 336.First, is the proceeding a child-custody proceeding as defined by ICWA?SeePeople in Interest of C.A. , 2017 COA 135, ¶ 8, 417 P.3d 909;see alsoPeople in Interest of L.L. , 2017 COA 38, ¶ 13, 395 P.3d 1209;25 U.S.C. § 1903(1).Second, is the child an Indian child?L.L. , ¶ 13;25 U.S.C. § 1903(4).

¶ 11We recognize that other divisions of this court and the federal guidelines implementing ICWA have posed these questions in the opposite order.SeeK.R. , ¶ 4;L.L. , ¶ 13;Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act(Dec. 2016), https://perma.cc/3TCH-8HQM (2016 Guidelines);see alsoNotice of Guidelines, 81 Fed. Reg. 96,476(Dec. 30, 2016).But we agree with the divisions of this court that have concluded that the first question to be answered should be whether ICWA applies to this type of proceeding.C.A. , ¶ 8, see alsoPeople in Interest of K.G. , 2017 COA 153, ¶ 10, 488 P.3d 304.If ICWA does not apply to a proceeding, there is no requirement for a court to determine whether a child is an Indian child.

¶ 12 The federal regulations and guidelines implementing ICWA impose a duty of inquiry and notice on juvenile courts.25 C.F.R. 23.107(a)(2020);2016 Guidelines.The court must ask each participant on the record at the beginning of every emergency, voluntary, or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child.25 C.F.R. § 23.107(a);see alsoL.L. , ¶ 19.All responses should be on the record.25 C.F.R. 23.107(a).These same requirements are incorporated into the Children's Code.§ 19-1-126(1)(a), C.R.S. 2020;see alsoPeople in Interest of K.C. v. K.C. , 2021 CO 33, ¶ 46, 487 P.3d 263.

¶ 13 It is "critically important" that the court inquire into whether a child is an Indian child because, if an inquiry is not made, "a child-custody proceeding may not comply with ICWA and thus may deny ICWA protections to Indian children and their families."2016 Guidelinesat 11;see alsoC.A. , ¶ 17.

¶ 14 If the court has reason to know that a child involved in a child-custody proceeding is an Indian child, the petitioning party must send notice of the proceeding to the potentially concerned tribe or tribes.B.H. , 138 P.3d at 302;see also25 U.S.C. § 1912(a);§ 19-1-126(1)(b).However, notice cannot be accomplished without conducting an inquiry in the first place.

¶ 15 Whether ICWA applies to a dependency and neglect case is a question of law that we review de novo.M.V. , ¶ 32.

B.Was the Paternity Adjudication a Child-Custody Proceeding?

¶ 16 The Department and GAL argue that ICWA does not apply because biological father is appealing from a paternity adjudication, which is not part of a child-custody proceeding.We disagree.

¶ 17 As discussed above, ICWA applies to a child-custody proceeding.As pertinent here, a child-custody proceeding includes actions for foster care placement and termination of parental rights.25 U.S.C. § 1903(1).This includes any action that may result in foster care placement.K.G. , ¶ 14;25 C.F.R. § 23.2(2020).A foster care placement is defined as

any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated[.]

25 U.S.C. § 1903(1)(i);see alsoM.V. , ¶ 33.

¶ 18 And placing a child in the care of a nonbiological parent constitutes a foster care placement under ICWA because ICWA defines a parent as "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom."25 U.S.C. § 1903(9);In re Marriage of Stockwell , 2019 COA 96, ¶¶ 18-21, 446 P.3d 957("A foster care placement, which here takes the form of an [allocation of parental responsibilities] to a person who is not a parent under ICWA, is a child custody proceeding under ICWA because the parent cannot have the child returned upon demand but must instead overcome procedural and substantive barriers to regain custody and control of the child.").Thus, although a nonbiological father may be declared a parent under state law, he is not a parent under ICWA.SeeStockwell , ¶¶ 17-18.

¶ 19 Also, this case originated as, and continues to be, a dependency and neglect case.Dependency and neglect cases are child-custody proceedings under ICWA.§ 19-1-126(1);see generallyL.L. , ¶ 17;People in Interest of A.R. , 2012 COA 195M, 310 P.3d 1007.Under the Children's Code, the juvenile court has exclusive, original jurisdiction in dependency and neglect proceedings.§ 19-1-104(1)(b), C.R.S. 2020.And, once a child has been adjudicated dependent and neglected, all matters related to the child's status, including paternity, must be addressed in the open dependency and neglect case.People in Interest of D.C.C. , 2018 COA 98, ¶ 16, 486 P.3d 1183;see alsoPeople in Interest of E.M. , 2016 COA 38M, ¶ 24, 417 P.3d 843, aff'd sub nom.People in Interest of L.M. , 2018 CO 34, 416 P.3d 875.

¶ 20 The paternity adjudication here was not an independent proceeding.Rather, it determined the child's father within the dependency and neglect proceeding.And, thus, biological father's parental rights could have been terminated and, in fact, the child was placed in a foster care placement with the...