Paternity and ICWA Decision out of Colorado Court of Appeals

This is part of a small collection of state court decisions (In re B.B., Utah, Bruce L., AK) interpreting ICWA’s paternity definition, and also applying ICWA to paternity proceedings. It also addresses the issue of biological father (required by ICWA) and presumed father (defined by the Uniform Parentage Act).

Supreme Court Cert Stage Briefing in R.K.B. v. E.T.

As a reminder, this is the cert petition regarding the very long Utah Supreme Court decision which held there is a federal reasonableness standard for determining whether an unwed father is a parent under ICWA. That decision is here.

Another reminder–there are generally no cert stage amicus briefs filed in opposition to a cert petition. And a cert petition is just asking the Supreme Court to take the case. It doesn’t mean the Court has taken the case.

RKB Petition for Certiorari

R.K.B. NCFA Amicus ISO Cert Final


Amicus Brief- Utah Adoption Council

Amicus Curiae Brief Goldwater

R.K.B v. E.T. Brief in Opposition

Major Utah Supreme Court ICWA Case

In a case that has been pending for just under two years (oral arguments were a year ago May), the Utah Supreme Court found for the biological Indian father in the case, and reversed and remanded the trial court’s decision denying his intervention in the voluntary adoption case involving his child.

The decision is a contentious bear of an opinion, at 103 pages with a very split court (Justices Himonas [writing], Durham, Pearce were the majority for Parts II.B, II.D, and III; Justices Lee [writing], Durrant, Pearce were the majority for Part I. I’m still trying to sort out what the deal is Part II.A).

Here is the opinion. Warning: this post got a little long.

In this case, birth mother lied about the paternity of her baby. When birth father found out, he attempted to stop the adoption proceedings in Utah state court. The detailed facts are laid out in the opinion. The trial court found he had not established paternity, and also that he could only intervene in involuntary proceedings, not voluntary ones. The Supreme Court wrote:

The court is not of one mind on the issues. With respect to issue 1, a minority of this court would hold that where, as here, neither biological parent has validly consented to the adoption nor had their parental rights otherwise terminated, our courts lack subject matter jurisdiction to go ahead with adoption proceedings. With respect to issue 2, the minority would further hold that Birth Father has standing under our traditional approach to standing, and the right, under section 1914 of ICWA, to challenge Birth Mother’s consent and the termination order and to argue the lack of subject matter jurisdiction. And with respect to issue 3, which is separate from the jurisdictional questions, a majority of this court holds that Birth Father is a “parent” under ICWA and, as such, is entitled to participate in the proceedings below on remand. The decision of the district court is therefore reversed and the matter remanded for proceedings consistent with this opinion.

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. It does not include the unwed father where paternity has not been acknowledged or established” 25 U.S.C. 1903(9). There is no federal definition of “acknowledged or established”.

Because of the lack of a definition, we look instead to the plain meaning of the terms “acknowledge” and “establish.” We conclude that the plain meaning of the terms is so broad that it offers little guidance, so we then address the question of whether the procedures and timing for acknowledging or establishing paternity are defined by state law or are subject to a tribal or federal standard.

¶ 51 The district court determined that “Congress intended for ICWA to defer to state and/or tribal law standards for establishing paternity” and that Birth Father failed to comply with Utah or South Dakota requirements for establishing paternity. We disagree. Instead, we hold that Congress intended that a federal standard apply. We also hold that Birth Father’s actions were timely and sufficient to acknowledge paternity under ICWA.


By arguing that the definition of paternity in the context of Indian affairs is a state issue, the dissent’s position largely ignores the federal government’s plenary powers over Indian affairs, not to mention the purpose and text of ICWA as a whole. We are loath to pour state law back into ICWA when ICWA’s whole reason for being is to drain what, in Congress’s view, is an inequitable swamp—displacing state law on the matters on which ICWA speaks.


Applying state law to determine who is a parent under ICWA would, in some cases, provide a lower level of protection of parental rights than ICWA intends. Utah law serves as the perfect example of this problem. Whereas ICWA provides that an unmarried biological father may “acknowledge[] or establish[]” paternity, id. § 1903(9) (emphasis added), Utah law provides no viable procedure for acknowledging paternity in cases where the mother wants to place the child for adoption at birth and does not consent to the acknowledgment.


Having rejected the application of state law to define the procedures and timing for acknowledging or establishing paternity under ICWA, we hold that a federal standard applies.24 We acknowledge that ICWA does not explicitly define the procedures and timing required, but in light of the congressional findings and the purpose of ICWA as discussed above, as well as its protectiveness of parental rights pertaining to Indian children, we conclude that the requirements must be less exacting than those for establishing paternity under Utah law. Instead, we conclude that a reasonability standard applies to the time and manner in which an unwed father may acknowledge or establish his paternity.

Because biological dad established his paternity, he can bring a challenge under 25 U.S.C. 1914:

Because we conclude that Birth Father is a “parent” under ICWA, we now look to language in section 1914 that arguably requires not just that a person bringing a challenge to a termination action be a “parent” but also that he be a parent “from whose custody such child was removed.” Birth Father may bring an action under this section because, as a parent, he had legal custody of the Child, and to the extent he did not have physical custody of the Child, it was because of Birth Mother’s misrepresentations.

The opinion also addresses the Existing Indian Family exception:

Where, as here, a father took every reasonable step to obtain physical custody but was thwarted by the mother’s misrepresentations, we hold that he is not barred from challenging an action under section 1914.

¶ 83 We also note that the majority of courts, including our court of appeals, have adopted a similar view in rejecting the idea that ICWA’s language about “the removal of Indian children from their families” requires an existing Indian family for the child to be removed from.


To hold that a parent who has never had physical custody—through no fault of his own—could not bring an action under section 1914 would have the same baffling effect of barring the very people the Act is intended to benefit.

Finally, the opinion finds that the proceedings were not voluntary proceedings as to father:

We disagree with the district court’s characterization of “involuntary proceedings” as “state sponsored proceedings” and “voluntary proceedings” as “proceedings initiated by an Indian parent seeking to terminate her parental rights.” Rather, we hold that proceedings to terminate a parent’s parental rights against his or her will are involuntary proceedings under ICWA.

The question of whether Mother’s consent was done legally under ICWA was the subject of supplemental briefing. The implications of the decision in this area is not entirely clear. The issue seems to be that the question of mother’s consent was not presented to the court on appeal (the procedural posture of this case was kind of a mess, as it went straight up from the trial court’s decision about the father’s right to intervene to the Supreme Court with no stop at the Court of Appeals), and the court is split on the issue of subject matter jurisdiction.

We have no quarrel with Justice Himonas’s assertion that our court has a duty to make a sua sponte assessment of our own subject matter jurisdiction. See supra ¶ 19. But upon review of the supplemental briefing, we see no basis for the conclusion that the district court lacked jurisdiction to decide E.T.’s motion to intervene. We see at least four independent grounds for rejecting Justice Himonas’s determination of a subject-matter jurisdiction defect.

Part I continues for 25 pages and I will leave it to you to read it.

On a side note, it’s difficult to read the Justices’ concern about the length of time this adoption has been held in limbo, given that it took their court nearly two years to issue a decision in the matter.


Two Recent State Supreme Court Oral ICWA Arguments

Here is the argument for In re B.B. case in the Utah Supreme Court, where the unmarried Native father appealed the trial court’s decision denying him intervention in a voluntary adoption case, primarily based on Utah’s definition of paternity. Father is asking the state to interpret “acknowledge and establish” under ICWA broadly. The Utah Court of Appeals sent it on directly to the Supreme Court with no decision.

Here is the argument for In re T.A.W. in the Washington Supreme Court, addressing the issue of applying WICWA to step-parent adoption proceedings, particularly the requirement of active efforts. Here is the decision being appealed.

North Dakota Supreme Court Decides Child Support Jurisdiction Case


15] B.B. argues that because custody has already been determined in the tribal court, the tribe has continuing and exclusive jurisdiction over paternity and support.

16] We specifically held in Kelly, 2009 ND 20, ¶ 22, 759 N.W.2d 721, that custody can be bifurcated from other proceedings in marriage. “Thus, even if the district court determines that the reservation is the child’s home state and that the tribal court therefore has jurisdiction over child custody, the district court retains concurrent jurisdiction over the remaining incidents of the marriage and may choose to exercise that jurisdiction . . . .” Id. Although B.B. and A.T.H. never married, the bifurcation principle of Kelly nevertheless applies in this case because multiple parties and jurisdictions are involved and each has an interest in the outcome of the proceedings. We conclude that under Kelly, the paternity and support claims brought against B.B. in state court can be bifurcated from the custody action brought in Standing Rock Sioux Tribal Court.

17] Recognizing that paternity and support claims are divisible from custody determinations, and in view of the factual similarities between this case and Doe, we conclude the state court has subject matter jurisdiction in this case.