248 Or App 22
February 8, 2012
The Child appeals the trial court's denial of child's motion for non-paternity of a man alleged to be Child's biological father.
There are two ways that paternity can be established - either by filing a voluntary acknowledgment of paternity or by other provisions of law. When a child subject to a dependency proceeding does not have a legal father, the court is authorized to enter a judgment of paternity or nonpaternity under 419B.395.
In this case, DHS initially attempted to have paternity established via a voluntary acknowledgment of paternity (VAP). However, the first VAP was an old form and rejected by the vital statistic department. Alleged Father signed the second VAP, but Mother's whereabouts were unknown so the agency was unable to obtain her signature. The court did not have knowledge of this issue and defaulted dad, who was alleged to be the putative father in the petition. Subsequently, termination petitions were filed. After the termination petitions were filed Child filed a motion for judgment of nonpaternity as a VAP had not been filed and the child had no legal father. Even though termination petitions were pending, the child wanted the judgment of nonpaternity to ensure that the alleged Father's relatives would not be given priority in the adoption selection. DHS responded that paternity had not been established by any of the statutory processes, but that the alleged Father was in fact the biological father and that Child waited too long to raise the issue of paternity. The trial court denied the Child's motion because it was untimely.
The court noted that alleged father had only attempted to establish paternity and the trial court did not seek to establish paternity via other means. When the court defaulted the alleged Father, the court did so under the mistaken assumption that paternity had been established via a validly filed VAP. The fact is that under the statute, Child had no legal father. The court remanded the case to the trial court to determine the merits of Child's motion.
Cited Cases and Statutes
- State v. S.T.S., 236 Or App 646 2010 Jackson County
- DHS v. Three Affiliated Tribes of Fort Berthold Reservation, 236 Or App 535 2010 Wasco County