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Category: Adoption

Can Adoptive Parents Lose Their Kids When They Divorce?

Adoptive parents cannot lose custody of the children they adopted merely because they divorce. The children of adoptive parents are treated no differently in divorce than children who are issue of the marriage (“issue of the marriage” means the children are the biological children of the married couple). Divorcing parents who are not unfit parents cannot be deprived of the legal and physical custody of their children merely because they divorce. Instead, the court will award custody to one or both of the parents (such as “sole custody,” which means that the children live primarily with one parent and the other parent exercises “visitation” with the children on weekends, holidays, and in the summertime; or joint custody, which means that the children reside with each of the parents a portion of the year, year after year).

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In Re A.H. – 2022 UT App 114 – Termination of Parental Rights

2022 UT App 114

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF

A.H., J.H., J.H., L.H., N.H., S.H., AND E.H., PERSONS UNDER EIGHTEEN YEARS OF AGE.

N.J.H. AND S.H., Appellants, v. STATE OF UTAH, Appellee.

Opinion

Nos. 20210353-CA and

20210354-CA

Filed October 6, 2022

Fourth District Juvenile Court, Provo Department

The Honorable Suchada P. Bazzelle No. 1145453

Alexandra Mareschal, Attorney for Appellant N.J.H.

Kirstin H. Norman, Attorney for Appellant S.H.

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYA N M. HARRIS authored this Opinion, in which

JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY concurred.[1]

HARRIS, Judge:

¶1 After a bench trial, the juvenile court terminated S.H.’s (Mother) and N.J.H.’s (Father) (collectively, Parents) parental rights regarding the two youngest of their seven children: A.H. and L.H. (the Subject Children). The court did not terminate Parents’ rights regarding their other five children; it accepted the parties’ stipulation that the best interest of those children would be served by placing them in a guardianship with relatives. But despite those same relatives being willing to take and care for (by either adoption or guardianship) the Subject Children as well, the court determined that the Subject Children’s best interest would be served by termination of Parents’ rights and adoption by their foster parents. In separate appeals that we consider together in this opinion, Parents challenge that decision, asserting that termination of their rights was neither strictly necessary nor in the best interest of the Subject Children. We agree and reverse.

BACKGROUND

¶2 Mother and Father are the parents of seven children (the Children), each born approximately two years apart. The eldest (E.H.) was born in 2005, and the two youngest (A.H. and L.H.) were born in February 2015 and December 2016, respectively. Mother is the biological parent of all seven of the Children. Father is the biological parent of the six youngest Children and the legal parent of all of them; he adopted E.H. when E.H. was an infant. Mother and Father met in New Mexico, which is where the parents of E.H.’s biological father (Grandparents) live.[2] Parents moved to Utah, with the Children then born, in 2007.

¶3 Over the years, Grandparents developed a close relationship not only with E.H.—their biological grandson—but with the other Children as well. They made trips to Utah on at least an annual basis during which they spent time with the Children, and they engaged in regular telephonic contact as well. After L.H. was born in 2016, he required a lengthy stay in the newborn intensive care unit, and Grandmother took three weeks off from her job as a nurse to come to Utah and help.

¶4 In June 2017, the Division of Child and Family Services (DCFS) filed a petition for protective supervision, asserting that Father had physically abused N.H., one of the older sons, and that L.H.—who was then just a few months old—was malnourished and failing to thrive. DCFS’s plan, at that point, was to leave the Children in the home and provide supportive services. After adjudicating N.H. abused as to Father and the other Children neglected as to Father, the juvenile court granted DCFS’s requested relief and ordered that Father have only supervised contact with the Children. For the time being, the Children remained in the home under Mother’s care.

¶5 In August 2017, however, DCFS filed a petition seeking custody of the Children, citing not only the issues raised in its previous petition but also a more recent incident involving Mother and L.H. In response to a report of reckless driving, police found Mother slumped over the steering wheel of her parked car with L.H. in the backseat, and a search of the vehicle turned up several prescription medications in a container not intended for prescriptions, as well as a red straw with “white powder” inside it. Police arrested Mother on suspicion of, among other things, impaired driving; she was later able to provide prescriptions for all the medications found in the car.

¶6 After a hearing, the court granted DCFS’s requested relief and placed the Children in the temporary custody of DCFS. The Children were removed from Mother’s care later that same day and, when caseworkers went to the home to effectuate the court’s order, they observed Mother “wobbling back and forth” and having “a hard time keeping her eyes open.” Initially, DCFS caseworkers—with Mother’s agreement—arranged a safety plan in which Mother would leave the home and the Children would stay there, in their familiar environment, cared for by Mother’s brother. But Mother knowingly failed to follow that plan, and returned to the home without permission two days later. As a result of Mother’s actions, DCFS removed the Children from the home and placed them in a group home for children.

¶7 But that placement was temporary, and DCFS eventually needed to move the Children to foster care placements. But because no available foster care placement could accommodate all seven Children, DCFS found it necessary to split the Children up into three different placements. The oldest two were placed in one foster home, the next three in a second, and the Subject Children in a third. Three months later, the oldest two were placed with a paternal aunt. For almost a year, the seven Children were separated into these three groups, and the different groups saw each other only during Parents’ supervised parent-time; they were sometimes permitted to call each other, but DCFS did not facilitate any in-person sibling visitation during this period.

¶8 At later hearings, the juvenile court adjudicated the children neglected as to Mother. The court noted L.H.’s “failure to thrive” and the incident involving the parked car, as well as Mother’s criminal history—which involved both drug crimes and retail theft—and her “history of mental health issues that [could] place the [C]hildren at risk of harm.” Despite these concerns, however, the goal remained reunification and, over the ensuing months, Parents complied with the court’s direction well enough that, by July 2018, the family was able to reunify in the home. For the next nine months, the family was together—for the most part[3]—and doing reasonably well, and DCFS anticipated that it might be able to close the case in the spring of 2019. But three events occurred in early 2019 that prompted DCFS to reconsider.

¶9 First, in March 2019, Father injured two of the older Children, and DCFS made a supported finding of physical abuse by Father. In the wake of this incident, and in an effort to avoid a second removal of the Children from the home, Father agreed to move out and to have only supervised visits with the Children. When caseworkers visited the home following Father’s departure, they became concerned about Mother’s ability to care for the Children on her own; in particular, caseworkers observed several incidents in which Mother left the younger Children unattended.

¶10 Second, in late April 2019, police were called to the home at 1:54 a.m. and found L.H., then just two years old, alone in the family car, which was parked in front of the house. Mother explained that she had been out shopping, gotten home late, and then taken a phone call while L.H. was still out in the car asleep.

¶11 Third, in early May 2019, Mother had an encounter with police while in her car at a fast-food restaurant. Officers observed Mother responding quietly and slowly to questions, and they discovered in the car a plastic bag and an unlabeled prescription bottle containing pills later identified as controlled substances. In addition, officers found a razor blade with white residue and a rolled-up dollar bill in the vehicle, evidence that suggested Mother had been misusing the drugs. Mother passed a field sobriety test, and officers later determined that she had valid prescriptions for the pills.

¶12 Following these incidents, DCFS filed a new petition, again seeking to remove the Children from the home and place them in state custody. The juvenile court again adjudicated the Children abused and neglected as to each Parent, and again placed them into the custody of DCFS. The Children were extremely emotional when they learned of the court’s order removing them from the home for a second time; in fact, officials even had to use physical force to restrain two of the older sons when the time came to take them into custody. This time, the seven Children were sent to four placements: one of the older sons was placed in a short-term behavioral health facility because of his aggressive behavior during the removal; two of the older sons were placed together; and the two next-oldest sons and the Subject Children were returned to their respective previous foster placements. Just a few weeks later, six of the Children—all but the oldest—were placed together with a single foster family in a different county, but this short reunion lasted only about two months.

¶13 In August 2019, with the school year approaching, Parents requested that the Children be returned to Utah County, a request that again required the Children to be split up. This time, the two oldest were placed together; the next three were placed together in a new placement; and the Subject Children were—for the first time—placed with the family (the Foster Family) who now wishes to adopt them.[4] The Subject Children bonded very quickly with Foster Family, calling the parents “mom and dad” within just a few weeks of being placed with them. Still, the primary goal remained reunification, and the court ordered additional reunification services. However, DCFS still did not facilitate any sibling visitation, but “left that mostly up to [the] foster parents.” Although the foster families initially managed “a few meet-ups on their own,” these efforts diminished over time, despite the absence of any indication that the Children—including the Subject Children—did not want to see each other.

¶14 At a court hearing in July 2019, shortly after the second removal, Mother’s attorney requested that Grandparents—who were and remain willing to take all seven of the Children—be considered as a possible placement. The court was open to this suggestion but, because Grandparents reside in New Mexico, the court ordered DCFS to “initiate an ICPC[5] as to” Grandparents. But DCFS delayed acting upon the court’s order for nearly four months, until late October 2019. DCFS attributed the delay, in part, to inadvertence related to a caseworker switch that was occurring right then, but the new caseworker later testified that her “understanding” of the situation was that DCFS “made a decision not to proceed” with the ICPC process “because reunification services were still being offered.” Owing at least in part to the four-month delay in getting it started, the ICPC report was still not completed by the beginning of the eventual termination trial in October 2020. On the third day of trial, a DCFS witness explained that New Mexico had just finished its end of the process and had given its “approval” the day before, and that DCFS had filled out its final form the night before.

¶15 The ICPC report, when it was finally completed, raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. Indeed, one of the DCFS caseworkers testified at trial that she had “no concerns directly about [Grandparents] and their ability to be a safe home.” But none of the Children were actually placed with Grandparents until October 2020, due in large part to the delays associated with completion of the ICPC report.

¶16 For several months following the second removal of the Children from the home, the primary permanency goal remained reunification, and DCFS continued to provide reunification services to the family. But in the fall of 2019, after yet another substance use incident involving Mother, DCFS became dissatisfied with Parents’ progress and asked the court to change the primary permanency goal. At a hearing held at the end of October 2019, the court agreed, terminated reunification services, and changed the primary permanency goal to adoption with a concurrent goal of permanent custody and guardianship. A few weeks later, the State filed a petition seeking the termination of Parents’ rights with regard to all seven Children.

¶17 The court originally scheduled the termination trial to occur at the end of February 2020, but the State requested a continuance because it was working on placing the Children with Grandparents, was waiting for the ICPC report, and wanted “to ensure [that] the Grandparents kn[ew] what they [were] getting into.” The court granted the State’s requested continuance and rescheduled the trial for the end of March 2020. On March 12— the day before all “non-essential” court hearings in Utah were postponed by administrative order[6] due to the emerging COVID19 pandemic—all parties filed a stipulated motion asking that the trial be postponed yet again because there was “an ICPC request pending approval” and it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” The court granted the stipulated motion and continued the trial, but did so without date because the termination trial was deemed “to be a non-essential hearing.” Eventually, after the COVID-related administrative order was amended to allow some non-essential hearings to go forward, the court rescheduled the trial for October 2020, to take place via videoconference.

¶18 In the meantime, despite the fact that the ICPC report was not yet completed, the five oldest Children visited Grandparents in New Mexico for several weeks during the summer of 2020. DCFS did not allow the Subject Children to participate in that visit, not based on any concern about Grandparents’ ability to provide appropriate care for them, but because caseworkers believed that such a lengthy visit away from Foster Family would be “scary and upsetting” to the Subject Children.

¶19 During this time, the parties and their attorneys were preparing for trial. From the beginning of the case, Parents had each been provided with a court-appointed lawyer (collectively, Appointed Counsel) to represent them. But toward the end of July 2020, Parents asked a private lawyer (Private Counsel) to represent them at trial.[7] Private Counsel agreed, and Parents paid him a retainer. Parents informed Private Counsel of upcoming pretrial disclosure deadlines, and even gave him a list of fifteen witnesses Parents wanted to call at trial; Private Counsel told them that he would file the appropriate documents and that they did not need to contact their Appointed Counsel. Eventually, Parents discovered that no pretrial disclosures had been made and no motions for extensions of the deadlines had been filed.

¶20 The trial was finally held in October 2020. The first day was spent solely trying to clear up confusion about who was representing Parents. Appointed Counsel appeared for trial, but they indicated that they were unprepared to proceed given the lack of communication from Parents over the weeks leading up to trial. Private Counsel appeared as well, even though he had not filed a notice of appearance, and requested that the trial be continued. The court—not knowing the full picture of what had happened behind the scenes with Parents’ attempts to change counsel—chastised Private Counsel for the “very, very late notice and request” and denied the continuance, expressing concern that eleven months had already passed since the trial had originally been set. The court then recessed for the day to allow the parties to confer and negotiate about possible permanency options short of termination of Parents’ rights.

¶21 Those negotiations bore fruit, at least in part. With Private Counsel assisting Parents, the parties were able to reach a stipulation that it was in the best interest of the oldest five Children to be placed with Grandparents under an order of permanent custody and guardianship. But the parties were unable to reach a similar stipulation with regard to the Subject Children, and therefore the trial went forward as to them. At that point, Private Counsel withdrew from representing Parents, leaving Appointed Counsel to handle the trial even though they had not—given the lack of communication with Parents—made many of the usual preparations for a trial.

¶22 In support of its case, the State presented testimony from four DCFS caseworkers, two therapists, Mother’s former and current probation officers, and the mother from the Foster Family (Foster Mother). Foster Mother testified that the Subject Children had developed a strong bond with Foster Family and “love[d] spending time with [them].” She also stated that the Subject Children refer to her three children as “their brother and sisters,” that “[n]obody is ever left out amongst the kids,” and that L.H. “believes he is part of [their] family” and “has said, on multiple occasions, that he’s already adopted.” The two therapists testified that the Subject Children did indeed have a strong bond with Foster Family; one of them stated that it was “the most secure attachment [she had] ever witnessed . . . between a foster parent and a foster child,” and offered her view that it would be “hugely devastating” for them if they were removed from Foster Family.

¶23 Several of the caseworkers testified about the strength of the bond between the Subject Children and their older siblings, and they painted a picture in which those bonds were originally very strong but had begun to weaken over time as the Subject Children spent less time with their siblings and became more attached to Foster Family. One of the first caseworkers to work with the family testified that the bonds had been strong among all the Children, including the Subject Children. Another testified about how emotional the older children were upon learning that they were to be removed from the home a second time and again separated from most of their siblings. But another caseworker— who had been assigned to the family in 2019—testified that the Subject Children’s bond to their older siblings was weakening as they became more attached to Foster Family. In general, the caseworkers voiced concerns about separating siblings, offering their view that ordinarily “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”

¶24 Parents were prohibited from introducing many of their witnesses because they had failed to make their required pretrial disclosures. In particular, Parents were prepared to call one of the Subject Children’s former foster parents as well as some of the older Children, who would each have apparently testified that the bonds between the Subject Children and their siblings had been, and still remained, very strong. But the court refused to allow Parents to call these witnesses because they had not been timely disclosed. The court did, however, allow Parents to offer testimony of their own, and to call Grandparents to testify.

¶25 For their part, Parents testified about how closely bonded the Children had been before DCFS became involved. Father testified that the older siblings had expressed a desire to all be together and noted that, if they were placed with Grandparents, the Subject Children would not only be with siblings, but also with cousins, and would have a large network of familial support. Mother testified that she, too, wanted the Children to be kept together and stated that she knew she was “not what [the Children] deserve” “right now,” but offered her view that, at some point in the future, after she has “[gotten] [her]self together,” she “will be what’s best for them.”

¶26 Grandfather testified that he and Grandmother told DCFS, right from the start, that they were willing to take all seven children. He explained that they were accustomed to large families, having raised eight children of their own; he noted that two of those children lived nearby, meaning that the Children, if they lived with him, would have aunts, uncles, and cousins in the vicinity. Grandfather testified that he and Grandmother had renovated their house to accommodate all seven children and that they were able, financially and otherwise, to take on the responsibility. He acknowledged that raising seven children was not how he had originally envisioned spending his retirement years, but he offered his view that “no matter what else I could be doing in the next ten or twenty years,” what mattered most to him was “that [he] could be doing something to make a difference in the lives of these kids.” Grandmother testified that she had bonded with A.H. during her three-week stay with the family after L.H. was born, and she offered her view that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit to New Mexico.

¶27 After trial, the court took the matter under advisement for six months, issuing a written decision in May 2021. In that ruling, the court terminated Parents’ rights as to A.H. and L.H. It found sufficient statutory grounds for termination of Parents’ parental rights, including Father’s physical abuse of some of the older sons, Parents’ neglect of L.H. when he was malnourished and failing to thrive as an infant, and neglect of the Children for failing to protect them from Mother’s substance use. Similarly, the court found that Mother had neglected the Children by failing to properly feed L.H., insufficiently supervising the Subject Children, and improperly using drugs. Moreover, the court found that Mother’s “substance abuse and criminal behavior” rendered her unfit as a parent.

¶28 The court next found that DCFS had made “reasonable efforts towards the permanency goal of reunification.” It noted that DCFS has been involved with the family since April 2017 and, “during the arc of the case, circumstances changed frequently and there were many setbacks in the attempts to reunify the children with the parents.” The court concluded that “reunification efforts were not successful through no fault of DCFS.”

¶29 Finally, as to best interest, the court determined—in keeping with the parties’ stipulation—that, with regard to the oldest five siblings, “a permanent custody and guardianship arrangement” with Grandparents “would serve their best interests as well as, or better than, an adoption would.” But the court saw it differently when it came to the Subject Children, concluding that their best interest would be best served by the facilitation of an adoption by Foster Family, and that termination of Parents’ rights was strictly necessary to advance that interest. The court reached that decision even though it meant permanently separating the Children, and even though the court acknowledged that Grandparents were “certainly appropriate caregivers.” The court offered several reasons for its decision. First, it noted that the Subject Children were very young—A.H. was two-and-a-half years old, and L.H. was eight months old, when they were first removed from the family home—and that, as a result, they “had a very short time to be with their older siblings.” Second, the court concluded that the strength of the bond between the Subject Children and their siblings was not particularly strong, opining that the Subject Children “have little beyond a biological connection” to their siblings. In this vein, the court downplayed any positive effects that might come from keeping the Children together, describing the older siblings as “a large and unruly group” that “cannot be depended upon to protect” the Subject Children. Third, the court discussed the unquestionably strong bond that the Subject Children had formed with Foster Family. Fourth, the court concluded that disruption of the Subject Children’s “placement at this time would be very detrimental” and would “put them at unnecessary risk for future emotional and mental health issues.” Fifth, the court expressed concern that, absent termination, Parents would retain some level of parental rights and might attempt “to regain custody of the [C]hildren in the future,” an eventuality the court believed would “pose a risk to” the Subject Children. And finally, the court emphasized the importance of stability, stating that “the [Subject Children] and [Foster Family] deserve, and indeed need, the highest level of legal protection available, which would be achieved through adoption.” For these reasons, the juvenile court terminated Parents’ rights with regard to the Subject Children.

ISSUE AND STANDARD OF REVIEW

¶30 Parents now appeal the juvenile court’s order terminating their parental rights, but their appeal is narrowly focused. Parents do not challenge the juvenile court’s determination that statutory grounds exist for terminating their parental rights. However, Parents do challenge the court’s determination that termination of their parental rights was strictly necessary and in the best interest of the Subject Children. We review a lower court’s “best interest” determination deferentially, and we will overturn it “only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶¶ 22, 31, 496 P.3d 58 (quotation simplified). But “such deference is not absolute.” Id. ¶ 32. We do not afford “a high degree of deference” to such determinations; rather, we simply apply “the same level of deference given to all lower court findings of fact and ‘fact-like’ determinations of mixed questions.” Id. ¶¶ 29–30. In addition, our deference must be guided by the relevant evidentiary standard applicable in termination of parental rights cases: the “clear and convincing” evidence standard. See In re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867. “Although we defer to juvenile courts’ [best-interest] determinations, in reviewing their conclusions we do so with an exacting focus on the proper evidentiary standard,” and “we will not only consider whether any relevant facts have been left out but assess whether the juvenile court’s determination that the ‘clear and convincing’ standard had been met goes against the clear weight of the evidence.” Id.[8]

ANALYSIS

¶31 The right of parents to raise their children is one of the most important rights any person enjoys, and that right is among the fundamental rights clearly protected by our federal and state constitutions. See Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (stating that “the interest of parents in the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests” the court recognizes); see also In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (“A parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child.” (quotation simplified)). Our legislature has expressed similar sentiments, declaring that “[u]nder both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child,” see Utah Code Ann. § 80-4-104(1) (LexisNexis Supp. 2022), and that this interest “does not cease to exist simply because . . . a parent may fail to be a model parent,” id. § 80-4-104(4)(a)(i).

¶32 The “termination” of these fundamental “family ties . . . may only be done for compelling reasons.” See id. § 80-4-104(1). Under our law, a parent’s rights are subject to termination only if both parts of a two-part test are satisfied. First, a court must find that one or more statutory grounds for termination are present; these include such things as abandonment, abuse, or neglect. See id. § 80-4-301(1). Second, a court must find that termination of the parent’s rights is in the best interest of the children. See In re B.T.B., 2020 UT 60, ¶¶ 19–20, 472 P.3d 827. The party seeking termination of a parent’s rights bears the burden of proof on both parts of this test. See In re G.D., 2021 UT 19, ¶ 43, 491 P.3d 867 (stating that “petitioners in termination proceedings must prove termination is warranted”). And that party must make this required showing “by clear and convincing evidence.” Id.see also Santosky v. Kramer, 455 U.S. 745, 769–70 (1982) (concluding that the U.S. Constitution requires application of a “clear and convincing evidence” standard in parental termination proceedings).

¶33 As noted, Parents do not challenge the juvenile court’s determination that statutory grounds for termination exist in this case. Their challenge is limited to the second part of the test: whether termination of their rights is, under the circumstances presented here, in the best interest of the Subject Children.

¶34 “The best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights,” although it is not “the sole criterion.” In re J.P., 648 P.2d at 1368. The assessment of what is in a child’s best interest is, by definition, “a wide-ranging inquiry that asks a court to weigh the entirety of the circumstances” surrounding a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified). Because children inhabit dynamic environments in which their “needs and circumstances” are “constantly evolving,” “the best-interest inquiry is to be undertaken in a present-tense fashion,” as of the date of the trial or hearing held to decide the question. See In re Z.C.W., 2021 UT App 98, ¶¶ 12–13, 500 P.3d 94 (quotation simplified).

¶35 Our legislature has provided two related pieces of important guidance on the best-interest question. First, it has expressed a strong preference for families to remain together, establishing something akin to a presumption that a child’s best interest will “usually” be served by remaining with the child’s parents:

It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. A child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.

Utah Code Ann. § 80-4-104(8). In that same statutory section, our legislature also emphasized that, “[w]herever possible, family life should be strengthened and preserved.” See id. § 80-4-104(12). And the “family” includes the child’s parents as well as the child’s siblings; indeed, in the related child custody context, our legislature has specifically identified “the relative benefit of keeping siblings together” as a factor that the court “may consider” when evaluating “the best interest of the child.” See id. § 30-3-10(2)(o) (LexisNexis 2019).[9]

¶36 Second, our legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” See id. § 80-4-301(1). Our supreme court has interpreted this statutory requirement to mean that “termination must be strictly necessary to promote the child’s best interest.” See In re B.T.B., 2020 UT 60, ¶ 60. Indeed, a court’s inquiry into the strict necessity of termination should take place as part of the bestinterest inquiry that comprises the second part of the termination test. See id. ¶ 76 (stating that, “as part of [the best-interest inquiry], a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest”).

¶37 In assessing whether termination is strictly necessary to promote a child’s best interest, courts “shall consider” whether “sufficient efforts were dedicated to reunification” of the family, and whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” See Utah Code Ann. § 80-4-104(12)(b). Indeed,

this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less permanent arrangements might serve the child’s needs just as well.

In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). Courts that order termination of parental rights without appropriately exploring “feasible alternatives to termination” have not properly applied the second part of the two-part termination test. See, e.g.In re H.F., 2019 UT App 204, ¶ 17, 455 P.3d 1098 (reversing and remanding a juvenile court’s termination order because, among other things, “the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination”).

¶38 In this case, Parents challenge the juvenile court’s best interest determination, including its subsidiary conclusion that termination of their rights was strictly necessary to promote the best interest of the Subject Children. As discussed herein, we find merit in Parents’ challenge. We recognize that we are reviewing the juvenile court’s determinations deferentially, and we do not lightly reverse a court’s best-interest determination. But the facts of this case simply do not amount to strict necessity, and therefore the best-interest requirement is not met. Stated another way, the evidence presented at trial did not constitute clear and convincing evidence that termination of Parents’ rights to the Subject Children would be in the best interest of those children. Under the specific circumstances of this case, the juvenile court’s determination was against the clear weight of the evidence, and on that basis we reverse.

¶39 In its written decision, the juvenile court set forth several reasons for its conclusion that termination of Parents’ rights was strictly necessary to promote the Subject Children’s best interest.[10] We discuss those reasons, in turn. Although the topics that the juvenile court focused on are certainly appropriate topics to consider when examining best interest, we conclude that the facts underlying those topics—in this case—do not support a determination that termination was strictly necessary to promote the best interest of the Subject Children.

¶40 The court began its best-interest examination by discussing the ages of the Subject Children and, relatedly, the fact that the bonds between the Subject Children and their siblings had deteriorated. The Subject Children are, as noted, the youngest of the seven Children and were very young—A.H. was two-and-ahalf years old, and L.H. was eight months old—when they were first removed from the family home. The juvenile court noted that, as a result, they “did not have the opportunity to live with their parents for as long as their older siblings” and “had a very short time to be with their older siblings.” These facts are unquestionably true, and one of the consequences of these facts is that the Subject Children had less-developed bonds with Parents and with their siblings than the other Children did. But this will almost always be true when children are removed from their homes as newborns or toddlers, and courts must be careful not to overemphasize the significance of the deterioration of familial bonds—particularly sibling bonds—when that deterioration is the result of court-ordered removal from the home at an early age. See, e.g.In re N.M., 186 A.3d 998, 1014 n.30 (Pa. Super. Ct. 2018) (vacating an order terminating parental rights in part because the lower court’s decisions during the case had been “designed to affect the bond between” the parents and the child “so that termination would be the natural outcome of the proceedings”).

¶41 The facts of this case present an interesting case study. The next-oldest of the Children was born in April 2013, and is less than two years older than A.H. He was only four years old at the time of the first removal, and yet the juvenile court determined that it would not be in his best interest for Parents’ rights to be terminated. Many of the differences—especially in terms of the strength of the sibling bonds—between the Subject Children’s situation and that of their barely-older brother are largely the result of decisions made by DCFS and the court during the pendency of these proceedings. In a situation like this, a court must be careful not to ascribe too much weight to circumstances that are of the court’s own making.

¶42 We do not doubt the juvenile court’s finding that, by the time of trial, the bonds between the Subject Children and the other Children were not as strong as the bonds between the five oldest Children. We take at face value the court’s statement that the Subject Children, at the time of trial, had “little beyond a biological connection” to their older siblings. But even the biological connection between siblings matters. The connection between siblings is, for many people, the longest-lasting connection they will have in life. Indeed, “the importance of sibling relationships is well recognized by . . . courts and social science scholars,” because “a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other.” In re D.C., 4 A.3d 1004, 1012 (N.J. 2010) (quotation simplified); see also Aaron Edward Brown, He Ain’t Heavy, He’s My Brother: The Need for a Statutory Enabling of Sibling Visitation, 27 B.U. Pub. Int. L.J. 1, 5 (2018) (noting that “[t]oday’s children are more likely to grow up with a sibling than a father,” and that “[t]he sibling relationship is generally regarded to be the longest relationship a person will have because the relationship will typically last longer than a relationship with a parent or spouse”). Such bonds are often especially important “to children who experience chaotic circumstances” like abuse or neglect, because “in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” In re D.C., 4 A.3d at 1013 (quotation simplified); see also In re Welfare of Child of G.R., No. A17-0995, 2017 WL 5661606, at *5 (Minn. Ct. App. Nov. 27, 2017) (“The sibling relationship is especially important for a young child with an unstable family structure as these siblings can provide secure emotional attachment, nurturing, and solace.”). Indeed, trial testimony from the DCFS caseworkers mirrored these sentiments, with the caseworkers stating that “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”

¶43 And there is nothing in the record before us that indicates significant trouble among the sibling ranks. To the contrary, by all accounts the Children are quite loyal to one another, as best exemplified by their collective reaction—outrage—to being removed from the family home, and from each other, a second time in 2019. The juvenile court referred to them as a “large and unruly group,” but that description would seem to fit almost any group of seven siblings. The court also appeared concerned about “significant sibling rivalr[ies]” among some of the older Children but, again, we would be surprised to find a seven-member sibling group that didn’t have significant sibling rivalries. The court also offered its view that “[t]he older boys cannot be depended upon to protect” the Subject Children, but we think that’s an unfair expectation, as the court itself noted. And there are no allegations (for example, of intra-sibling abuse) about or among this sibling group that would counsel against keeping the group together.

¶44 We are also troubled, under the unusual circumstances of this case, by the fact that the deterioration of the Subject Children’s bonds with their siblings was due, in not-insignificant part, to the way this case was litigated, even apart from the removal and placement decisions. Notably, DCFS did not take any systematic steps to facilitate visitation between the three (and sometimes four) sibling groups that were placed in different homes, but instead “left that mostly up to [the] foster parents.”[11] In particular, DCFS did not allow the Subject Children to visit Grandparents with the rest of the Children during the summer of 2020. And Grandmother offered her perception that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit. Under these circumstances, it is no wonder that the Subject Children’s bond with their siblings began to wane. It is intuitive that relationships can become more distant without meaningful contact. To at least some degree, the deterioration of the sibling bonds is attributable to DCFS’s (and the various foster parents’) actions in failing to facilitate regular sibling visitation.

¶45 In addition, DCFS’s delay in starting the ICPC process appears to have also played a role in the way this case turned out. In July 2019, the juvenile court ordered that “an ICPC” be conducted to explore the possibility of placing the Children with Grandparents in New Mexico. But DCFS—perhaps intentionally, according to one of the caseworkers—delayed acting upon the court’s ICPC order for nearly four months, until late October 2019. Delays in obtaining ICPC reports are not necessarily uncommon, and can be just an unfortunate part of the process of communicating between agencies of different states. But such delays are troubling when they are attributable to a state agency’s refusal to even get the process started, despite a court order requiring it to do so. Although DCFS could not have known it at the time, its failure to timely initiate the ICPC process may have mattered more in this case than in others, because of the eventual emergence, in early 2020, of the COVID-19 pandemic.

¶46 Recall that, in the fall of 2019 and early 2020, after DCFS filed its termination petition, all parties were on the same page: they were working toward placing the Children—all of them— with Grandparents in New Mexico. Indeed, it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” But before a placement with Grandparents could happen, the ICPC report needed to be completed, and the parties twice stipulated to continuances of the termination trial specifically so that the ICPC report could be finished, and so that they could “ensure [that] the Grandparents kn[ew] what they [were] getting into.” These continuances resulted in the trial being rescheduled for late March 2020, which in turn resulted in the trial being postponed again because of the emergence of the pandemic. The ICPC report was not completed until October 2020, and by then, the Subject Children had been with Foster Family for more than a year and had begun to develop meaningful bonds there. Under these circumstances, it is hard not to wonder what might have happened if DCFS had begun the ICPC process in July 2019, as it had been ordered to do.[12]

¶47 Next, the court—appropriately—discussed at some length the Subject Children’s bond with Foster Family. There is no doubt that Foster Family is an appropriate adoptive placement, and that Foster Parents are doing a wonderful job caring for the Subject Children. The court made unchallenged findings in this regard, noting that Foster Parents are the ones “who care for them on a daily basis, feed them, hug them, and put them to bed,” and that, from the Subject Children’s point of view, Foster Parents “are their parents.” We do not minimize the significance of these findings. They are important, and are a necessary condition to any adoption-related termination of parental rights. After all, if an adoptive placement is not working out, an adoption into that placement is very unlikely to be finalized.

¶48 But while the existence of an acceptable adoptive placement is a necessary condition to any adoption-related termination, it is not a sufficient one. At some level, we certainly understand the impulse to want to leave children in—and perhaps make permanent—a putative adoptive placement in which the children are thriving. And we recognize—as the juvenile court observed here—that taking a child out of a loving adoptive placement in order to reunite the child with family can be detrimental to the child, at least in the short term. But in order to terminate parental rights to facilitate an adoption, a court must have before it more than just a loving and functional adoptive placement from which it would be emotionally difficult to remove the child. Termination of parental rights must be “strictly necessary to promote the . . . welfare and best interest” of the children in question. See In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827. And in order to reach that conclusion, a court must do more than make a finding about the acceptability of the adoptive placement—it must examine potential options, short of termination, that might also further the best interest of the children in question. Id. ¶¶ 66–67. In particular, and especially in light of our legislature’s guidance that families should be kept together whenever possible, see Utah Code Ann. § 80-4-104(8), (12), courts must investigate kinship placement possibilities, including options for permanent guardianship. And if one of those placements turns out to be an option that can promote the child’s best interest “just as well,” then it is by definition not “strictly necessary” to terminate the parent’s rights. See In re B.T.B., 2020 UT 60, ¶¶ 66–67.

¶49 Moreover, in this context courts must keep in mind the “clear and convincing” evidentiary standard. See In re G.D., 2021 UT 19, ¶ 44, 491 P.3d 867. If there exists a completely appropriate kinship placement through which the family can remain intact, the “strictly necessary” showing becomes significantly more difficult to make. We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights. But in such cases, the proponent of termination must show, by clear and convincing evidence, that the adoptive placement is materially better for the children than the kinship placement is. After all, if the two placements can each “equally protect[] and benefit[]” the child’s best interest, then by definition there does not exist clear and convincing evidence in favor of terminating a parent’s rights. See In re B.T.B., 2020 UT 60, ¶ 66. And in this case, the necessary showing was not made.

¶50 Perhaps most significantly, there is not a hint of any evidence in the record before us that placement with Grandparents is flawed. The ICPC report (finally) came back clean; that report raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. The five older siblings had a lengthy visit with Grandparents in the summer of 2020, and all went well. And just before trial, the parties stipulated that the five oldest

Children should be placed with Grandparents on a long-term basis, subject to a permanent custody and guardianship arrangement. The court approved this stipulation, agreeing with the parties “that a permanent custody and guardianship arrangement” would serve the best interest of the five oldest Children. It even found that Grandparents are “certainly appropriate caregivers.” And on appeal, all parties agree that Grandparents are acceptable and loving caregivers; no party has even attempted to take issue with Grandparents’ ability to provide a loving and stable home for the Children. There is no dispute that Grandparents have the capacity and ability, from a financial standpoint as well as otherwise, to care for all seven Children, and stand ready and willing to do so, regardless of whether that takes the form of an adoption or a permanent guardianship arrangement.

¶51 The juvenile court opted to go in a different direction, primarily for three related reasons. First, it emphasized how “detrimental” and “destabilizing” it would be for the Subject Children to be removed from Foster Family. Second, the court emphasized that the Subject Children need stability and permanency, and determined that adoption—as opposed to guardianship—could best provide that stability. Third, the court expressed concern that, absent an adoption, Parents might attempt—at some later point in time—to get back into the lives of the Subject Children, and perhaps even “regain custody,” an eventuality the court believed would “pose a risk to” the Subject Children. In our view, these stated reasons do not constitute clear and convincing reasons to terminate Parents’ rights.

¶52 With regard to permanency and stability, our supreme court has recently clarified that the mere fact that adoptions—as a category—provide more permanency and stability than guardianships do is not enough to satisfy the statutory “strictly necessary” standard. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. In that case, the court held that the lower court fell into legal error in concluding that [a guardianship option] would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard.

Id. The court then noted that, as part of the “strictly necessary” analysis, a court “must assess whether a permanent guardianship can equally protect and benefit the children in the case before it.” Id. ¶ 25 (quotation simplified). The court made clear that the statutory requirements were “not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption,” and instead “require[] analysis of the particularized circumstances of the case before the court.” Id.

¶53 As applied here, this recent guidance renders insufficient—and more or less beside the point—the juvenile court’s apparent belief that an adoption was better than a guardianship simply because it was more permanent and more stable. All adoptions are at least somewhat more permanent than guardianships, and therefore that conclusion, standing alone, is not enough to constitute clear and convincing evidence supporting termination. It is certainly appropriate for courts in termination cases to discuss the potential need for permanency and stability. But in doing so, and when selecting an adoptive option over a guardianship option, a court in a termination case must articulate case-specific reasons why the added layer of permanency that adoptions offer is important and why adoption would better serve the best interest of the children in question than the guardianship option would.

¶54 The court’s concern about the possibility of Parents reentering the Children’s lives is, on this record, not an adequate case-specific reason. As an initial matter, it—like the lack of permanency—is a feature of the entire category of guardianships. It will always be true that, in a guardianship, a parent retains what the juvenile court here referred to as “residual rights,” while in an adoption the parent’s rights are terminated forever. This kind of categorical concern is not enough to constitute clear and convincing evidence in support of termination.

¶55 Moreover, we question whether—in many cases, including this one—a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it. Here, we return to the statutory guidance offered by our legislature: that “family life should be strengthened and preserved” “[w]herever possible,” and that it is usually “in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” See Utah Code Ann. § 80-4-104(8), (12). We note our own observation that, “[i]n many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them.” See In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827. And we acknowledge Parents’ point that a parent whose child has been placed in a permanent guardianship arrangement in a child welfare proceeding has no independent right to petition to change or dissolve the guardianship. See Utah Code Ann. § 78A-6-357(3)(d) (LexisNexis Supp. 2022). Only the guardian has that right. See id. And there is no evidence, in this record, that Grandparents will be particularly susceptible to inappropriate pressure from Parents to seek a change in the terms of any guardianship arrangement. In addition, there is no evidence that, if the Subject Children were placed into a guardianship with Grandparents, it would be harmful to them for Parents to retain the possibility of maintaining some form of contact with them (as they have with regard to the other Children), as supervised by court order and by Grandparents acting as guardians.[13] In other words, the juvenile court did not emphasize any case-specific issues that make us especially concerned about the possibility of Parents attempting to re-enter the Children’s lives at some point in the future.

¶56 We are thus left with the court’s concern—shared by the Subject Children’s therapists—about the disruption in the Subject Children’s lives that would be caused by removing them from Foster Family and placing them with Grandparents, alongside their siblings. This is of course a legitimate concern, and one that courts should take into account in situations like this. If and when the Subject Children are ever placed into a guardianship with Grandparents, and taken from Foster Family, that will no doubt be traumatic for them, at least in the short term. We acknowledge the validity of such concerns, and do not intend to minimize them. But in this case, focusing too much on this more-present possibility of emotional trauma risks minimizing the longer-term emotional trauma that permanent severance of the sibling bonds will likely someday trigger. In this specific and unique situation, the juvenile court’s discussion of potential emotional trauma associated with removal from Foster Family does not constitute clear and convincing evidence supporting termination.

¶57 For all of these reasons, we conclude that the juvenile court’s best-interest determination was against the clear weight of the evidence presented at trial. The State failed to prove, by clear and convincing evidence, that termination of Parents’ rights to Subject Children was strictly necessary, especially given the presence of another available and acceptable option—permanent guardianship with Grandparents, alongside their five siblings— that would not require permanent severance of familial bonds and that would serve the Subject Children’s best interest at least as well as adoption. See In re G.D., 2021 UT 19, ¶ 75 (“[W]hen two placement options would equally benefit a child, the strictlynecessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.”). Under the unique circumstances of this case, termination of Parents’ rights is not strictly necessary to promote the Subject Children’s best interest.

CONCLUSION

¶58 Accordingly, we reverse the juvenile court’s order of termination, and remand the case for further proceedings consistent with this opinion. We offer a reminder that best-interest determinations are to be conducted in present-tense fashion, as of the date of the trial or hearing convened to consider the matter. See In re Z.C.W., 2021 UT App 98, ¶ 14, 500 P.3d 94. Our holding today is that, based on the evidence presented at trial in October

2020, termination of Parents’ rights was not strictly necessary to promote the Subject Children’s best interest. On remand, the juvenile court should re-assess best interest. If nothing has materially changed since October 2020, then we expect the court to enter orders designed to work (perhaps quite gradually, in the court’s discretion) toward integration of the Subject Children into a placement with Grandparents, alongside their siblings. But if there is evidence that matters have materially changed since October 2020, the court may need to consider that evidence in some fashion, see id. ¶ 15, and re-assess best interest based on the situation at the time of the hearing.

 

[1]Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

[2] In this opinion, for ease of reference, we refer to E.H.’s paternal grandparents as “Grandparents,” and we refer to them individually as “Grandmother” and “Grandfather,” even though any biological relationship exists only with E.H. and not with the other six Children.

 

[3] L.H. was removed from the home for a one-month period during this time, again because of concerns that he was malnourished and “failing to thrive.”

[4] These arrangements were a bit fluid during this period—at one point, the oldest four Children were combined into one placement, and the fifth-oldest was placed with Foster Family along with the Subject Children. However, the mother of the Foster Family testified at trial that, after a while, the fifth child often got upset at how his younger siblings were becoming so attached to Foster Family, and so she eventually asked that he be placed elsewhere.

 

[5] The abbreviation “ICPC” refers to the Interstate Compact on the Placement of Children, an interstate agreement that has been adopted by all fifty states. See Utah Code Ann. § 62A-4a-701 (LexisNexis 2018). The ICPC allows child welfare agencies from different states to more easily cooperate regarding placement of children across state lines.

 

[6] See Administrative Order for Court Operations During Pandemic, Utah Supreme Court (Mar. 13, 2020), https://www.utcourts.gov/alerts/docs/20200311%20-%20Pandem ic%20Administrative%20Order.pdf [https://perma.cc/3EGH-3V3Z].

[7] The facts recited in this paragraph regarding Parents’ communications with their various attorneys are not in the record, but are included in the materials submitted on appeal in support of Parents’ claim of ineffective assistance of counsel.

[8] Parents also raise other issues, including an assertion that Private Counsel rendered deficient performance that prejudiced them at the termination trial. Although we acknowledge the strength of Parents’ assertion that Private Counsel rendered ineffective assistance, and discuss in passing the problems they had with him, we need not reach the merits of that claim or any of their other claims because we reverse on the merits of their main claim.

[9] A court’s consideration of the importance of sibling relationships is arguably even more important in the termination/adoption context than it is in the child custody context, simply because of the permanency of termination and adoption. When split custody is ordered in a domestic case, the children will not live together all the time, but their overarching family relationship remains intact; they will remain siblings and, depending on visitation schedules, they will likely see each other several times each month. But when—as in this case—siblings are separated for purposes of adoption, the familial bonds, including the sibling bonds, are more permanently affected.

[10] Parents assert that the juvenile court erred by limiting its best interest inquiry to the Subject Children, rather than considering whether termination of Parents’ rights to the Subject Children was in the best interest of all the Children. Although we are far from persuaded by Parents’ assertion, we need not further concern ourselves with it, because for purposes of our analysis we assume, without deciding, that the juvenile court properly focused on the Subject Children when conducting the best-interest inquiry. Even assuming the propriety of that more limited focus, we nevertheless find the court’s ultimate best-interest determination unsupported by clear and convincing evidence.

[11] DCFS’s actions in this regard were arguably contrary to statute. See Utah Code Ann. § 62A-4a-205(12)(a) (LexisNexis Supp. 2022) (stating that DCFS must “incorporate reasonable efforts to . . . provide sibling visitation when siblings are separated due to foster care or adoptive placement”); see also id. § 80-3307(12)(a) (requiring DCFS to “incorporate into the child and family plan reasonable efforts to provide sibling visitation if . . . siblings are separated due to foster care or adoptive placement”).

[12] The juvenile court addressed this issue in its written ruling, and downplayed the significance of the delayed ICPC report. It expressed its view that, even if DCFS had timely requested the ICPC report, the case would not have come out differently. First, it assumed that the ICPC process would have taken a year to complete even if the report had been requested in July 2019. We wonder about that, and in particular wonder whether any of the delays in completing the ICPC report were due to the emergence of the pandemic. But more to the point, the court indicated that it would have made the same termination decision in July 2020 as it made in October 2020. However, the court does not account for the fact that all parties to the case, including DCFS, were on the same page at least as late as March 12, 2020, and anticipated placing all the Children with Grandparents as soon as the ICPC report came back. Had the ICPC report come back significantly earlier, while the parties were still in agreement, things almost certainly would have been different. We doubt that the juvenile court would have rejected the parties’ stipulation on that point, just as it did not reject the parties’ October 2020 stipulation regarding the five oldest Children.

[13] Indeed, concerns about Parents potentially getting back into the lives of the Subject Children appear especially overblown under the facts of this case, given the fact that the juvenile court approved the stipulation for a permanent guardianship arrangement for the other five Children. The court does not convincingly explain why it is concerned for the Subject Children and not the others, stating only that the potential for the Parents to “regain custody . . . might not be devastating for the older children, but it will certainly be devastating to” the Subject Children. Presumably, this is a reference to the fact that the Subject Children are younger and have less of a pre-existing relationship with Parents and the other Children, an aspect of this case that we have already discussed.

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In Re J.E. 2023 UT App 3, Voluntary Declaration of Paternity

2023 UT App 3

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF J.E.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

D.E., Appellant, v. STATE OF UTAH, Appellee.

Opinion

No. 20210921-CA

Filed January 20, 2023

Third District Juvenile Court, Salt Lake Department

The Honorable Annette Jan No. 1198329

D.E., Appellant Pro Se

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

Julie J. Nelson, Debra M. Nelson, Alexandra

Mareschal, and Kirstin Norman, Attorneys for

Amicus Curiae Utah Indigent Appellate Defense Division

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.

HARRIS, Judge:

¶1 D.E. (Father) obtained—at least for a while—parental rights regarding J.E. (Child) when he and Child’s mother (Mother) duly signed and filed a voluntary declaration of paternity (the VDP). Later, however, genetic testing revealed that Father is not Child’s biological father. Based on those test results, the guardian ad litem (the GAL) appointed to represent Child raised a challenge to the VDP, which the juvenile court sustained, later issuing an order invalidating the VDP and declaring it “void.”

¶2 Father now challenges that order, asserting that the GAL (on behalf of Child) had no right under applicable law to challenge the VDP. We first determine that we have jurisdiction to consider Father’s appeal. And on the merits, we conclude that the juvenile court correctly determined that, under the circumstances presented here, Child has statutory standing to challenge the VDP. On that basis, we affirm the court’s decision to reach the merits of Child’s challenge and to sustain that challenge. But the court should not have declared the VDP “void,” and we remand for correction of the language used in the court’s order and for such other proceedings as might be appropriate.

BACKGROUND[1]

¶3 In 2021, Father and Mother were residing together—but not married—with three children: then-one-year-old Child and his two older siblings. All three children are Mother’s biological children, and Father’s paternity had been established as to the older two children. At the time, both Mother and Father were uncertain whether Father was the biological father of Child, because they were both aware that Mother had engaged in sexual activity with both Father and another man in 2019, around the time Child had been conceived. But neither Father nor any other man had established paternity with regard to Child.

¶4 In early 2021, Father was arrested and charged with aggravated assault involving domestic violence, as well as commission of domestic violence in front of a child, related to an incident in which Mother accused him of attempting to smother her with a pillow in front of the children. The charging document labeled Father a “habitual violent offender,” explaining that he had previously been convicted of domestic violence against Mother in connection with a 2019 incident. Father remained incarcerated on these new charges for several weeks. Mother also obtained a civil protective order against Father, which remained in effect for several months, until she asked for it to be dismissed.

¶5 A few weeks after Father’s arrest, Mother was arrested and incarcerated on charges of drug possession. Mother later admitted that she had been using methamphetamine. At that point, the Department of Child and Family Services (DCFS) filed a petition seeking custody of the children, and the court granted that request at a subsequent shelter hearing.

¶6 A month later, in May 2021, Mother remained incarcerated—she was eventually released in August—but Father had been released from jail after the criminal charges against him were dismissed. The record before us does not disclose the reasons for the dismissal of the criminal case, but the dismissal occurred on the date set for preliminary hearing, and it was entered without prejudice. Neither the State nor the juvenile court viewed the dismissal of the criminal charges as an exoneration of Father; indeed, the court eventually scheduled an evidentiary hearing to consider whether Father had committed domestic violence against Mother and, at the conclusion of that hearing, found that all three children were “neglected by” Father.

¶7 After his release from jail, Father requested that the children be returned to his custody. The court denied that request, but did order that Father be allowed supervised visitation with at least some of the children.

¶8 At another hearing a couple of weeks later, the GAL first raised the issue of Child’s paternity, and asked that the court order genetic testing to determine whether Father was indeed Child’s biological father. Neither Father nor Mother opposed this request, and the court therefore ordered that genetic testing take place, an order that necessarily required that Father, Mother, and Child all separately submit to genetic testing.

¶9 On August 5, 2021, Father submitted a biological sample for genetic testing. Mother and Child, however, did not submit biological samples until August 19. On August 18, the day before Mother and Child submitted their samples, Father and Mother signed and filed the VDP. On that form, they both swore that they “believe[d]” that Father was Child’s biological father. And Father answered “no” to a question asking whether “the birth mother, child, and biological father” had “submitted to genetic testing.” The Utah Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father.

¶10 Following the filing of the VDP, Father (through counsel) filed a motion seeking visitation with Child, alleging that DCFS had been “not allowing” him to have visitation because the GAL “is opposed to the visits.” The GAL filed a response that asked the court to postpone its decision on visitation with Child until the results of the genetic testing were known. In that same opposition memorandum, the GAL raised a challenge to the VDP, specifically invoking sections 78B-15-302 and -307 of the Utah Code. In particular, the GAL asserted that Father had fraudulently answered some of the questions on the VDP, and asserted that, if the pending genetic testing excluded Father as Child’s biological father, the VDP could also be challenged on the ground that there had been a material mistake of fact. In reply, Father asserted that the VDP, which had been accepted by the Office of Vital Records and Statistics, gave him parental rights as Child’s father, and that he was therefore entitled to visitation. He also requested a hearing regarding the GAL’s challenge to the VDP.

¶11 In late September 2021, while Father’s motion for visitation was pending, the genetic test results came back and demonstrated that Father is not Child’s biological father.

¶12 Eventually, the court held an evidentiary hearing to consider Father’s motion for visitation. At that hearing, the court heard brief testimony, under oath, from both Father and Mother. After their testimony, the GAL asserted that Father should be denied visitation because, among other reasons, Father was not Child’s biological father. In connection with that argument, the GAL pressed the challenge to the VDP that she had raised in her opposition brief and asked for the VDP to “be declared void and be rescinded,” specifically asking for that relief to be “entered pursuant to [section] 78B-15-623” of the Utah Code (referred to herein as “Section 623”), a statutory provision the GAL had not mentioned in her opposition brief. Section 623 provides, in relevant part, that “[a] child is not bound by a determination of parentage” unless “the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing.” See Utah Code Ann. § 78B-15-623 (LexisNexis 2018). The GAL asserted that the VDP was subject to a challenge by Child because the results of the genetic testing indicated that Father was not Child’s biological father. In addition, the GAL pressed the arguments that had been raised in her brief, asserting that the VDP was fraudulent because Father had allegedly been less than candid when he stated that he “believe[d]” that he was Child’s father and when he answered “no” to the question on the form about genetic testing.

¶13 At the conclusion of the hearing, and after a brief recess, the court in an oral ruling granted the GAL’s request to invalidate the VDP, relying on Section 623 and on the fact that the genetic testing had conclusively determined that there was no biological relationship between Father and Child. Addressing Father, the court stated, “[Y]ou are not the father of [Child] at this point.” And the court declined Father’s invitation to order that he receive visitation with Child but, given Father’s established biological relationship with the other two children and given the fact that Father was “probably the only parental figure on the male side that [Child] has know[n],” the court nevertheless left the door open for DCFS to “allow” Father to have visitation with Child if DCFS believed that visitation would serve Child’s best interest. The court later signed a minute entry reflecting its oral ruling, therein declaring that the VDP “is void.”

ISSUES AND STANDARDS OF REVIEW

¶14 Father appeals the juvenile court’s decision to invalidate the VDP and to declare it void. At the center of Father’s challenge is his assertion that Child, by and through the GAL, does not possess statutory standing to challenge the VDP. This question is one of statutory interpretation, and on such matters we afford no deference to trial courts’ decisions. See State v. Outzen, 2017 UT 30, ¶ 5, 408 P.3d 334 (“We review questions of statutory interpretation for correctness, affording no deference to the [trial] court’s legal conclusions.” (quotation simplified)).

¶15 But before reaching the merits of Father’s appeal, we must first determine whether we have jurisdiction to adjudicate it.[2]

“Questions about appellate jurisdiction are questions of law” that, by definition, arise for the first time in the appellate setting. See Zion Village Resort LLC v. Pro Curb U.S.A. LLC, 2020 UT App 167,

¶ 21, 480 P.3d 1055 (quotation simplified); see also Powell v. Cannon, 2008 UT 19, ¶ 9, 179 P.3d 799 (“The question of whether an order is final and appealable is a question of law.” (quotation simplified)).

ANALYSIS

I. Jurisdiction

¶16 Before we may reach the merits of Father’s appeal, we must first assess whether we have jurisdiction to adjudicate it. For the reasons discussed, we conclude that we do.

¶17 “As a general rule, an appellate court does not have jurisdiction to consider an appeal unless the appeal is taken from a final order or judgment that ends the controversy between the litigants.” Copper Hills Custom Homes LLC v. Countrywide Bank, FSB, 2018 UT 56, ¶ 10, 428 P.3d 1133 (quotation simplified); see also Williams v. State, 716 P.2d 806, 807 (Utah 1986) (noting that one of the “traditional principles of appellate review” is “the final judgment rule,” which generally (subject to a few exceptions) prevents appellate courts from reviewing an appeal unless it comes “from a final judgment concluding all of the issues in the case”). The final judgment rule promotes efficiency by preventing the piecemeal litigation and seriatim appeals that would result if litigants were permitted, by right, to immediately appeal any adverse ruling by a trial court.

¶18 Conceptually, “the finality of an order in juvenile proceedings is determined the same way as the finality of an order in other courts.” In re A.F.,2007 UT 69, ¶ 3, 167 P.3d 1070 (quotation simplified). Indeed, in juvenile courts, as in other courts, a “final order is one that ends the current . . . proceedings, leaving no question open for further judicial action.” Id. (quotation simplified). Certainly, an order in a juvenile court case that completely resolved all matters as to all parties would be a final order, just as a similar order would be in a district court case.

¶19 But it is fair to say that, in appeals from juvenile court, finality is viewed somewhat more flexibly than in the district court context. “In the child welfare arena, the determining factor in deciding if an order is final and appealable is whether it effects a change in the permanent status of the child.” Id. Because a child’s status can change more than once, and because a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved,” see In re K.F., 2009 UT 4, ¶ 36, 201 P.3d 985 (quotation simplified), “in child welfare proceedings, unlike traditional civil cases, appeals may be heard from more than one final judgment,” In re A.F.,2006 UT App 200, ¶ 8, 138 P.3d 65, aff’d, 2007 UT 69, 167 P.3d 1070 (quotation simplified). Therefore, a determination of whether a juvenile court order is final and appealable “requires pragmatic analysis of the order itself.” Id. ¶ 9.

¶20 Under this “pragmatic analysis,” “it is the substance, not the form, of the . . . order that matters . . . because the determination whether an order is final and appealable turns on the substance and effect of the order.” Id. (quotation simplified). Any order that effects a “permanent change in the child’s status vis-à-vis the child’s parent” is considered final. See In re K.F., 2009 UT 4, ¶ 36. Particular types of orders that are considered final include those “entered upon disposition of an adjudicated petition of abuse, neglect, or dependency” and those “terminating parental rights,” see id. (quotation simplified), as well as “orders that otherwise relieve a party from further litigation,” see In re A.F., 2006 UT App 200, ¶ 10. On the other hand, shelter orders and orders that “merely terminate reunification services and change the child’s permanency goal to adoption” are not considered final because they contemplate “further judicial action” regarding the parent and the child. See In re K.F., 2009 UT 4, ¶ 37.

¶21 Father asserts that the juvenile court’s order declaring the VDP void is final and appealable because it “effectively terminated the parental rights statutorily conferred upon him” through the VDP. We agree with Father, as does the State. From a finality perspective, the court’s order declaring the VDP void is analogous to an order terminating parental rights, because the order canceled theretofore-valid parental rights that Father had (at least temporarily) acquired by virtue of filing a voluntary declaration of paternity that was accepted by the Office of Vital Records and Statistics. See Scott v. Benson, 2021 UT App 110, ¶ 22 n.4, 501 P.3d 1148 (“A [voluntary declaration of paternity] is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”), cert. granted, 509 P.3d 196 (2022). In analogous contexts, we have determined that similar orders are final and appealable. See In re A.S., 2007 UT App 72U, para. 1 (per curiam) (holding that an order dismissing a putative father “from the termination case and denying a motion for genetic testing” was final and appealable because it “dismissed [the putative father] as a party and relieved him from further litigation”); see also In re A.F., 2006 UT App 200, ¶ 10 (stating that “orders that otherwise relieve a party from further litigation” are appealable).

¶22 The fact that litigation regarding Child continues in the juvenile court is not dispositive of the question of appealability of the subject order. See In re E.L.F., 2011 UT App 244, ¶ 5, 262 P.3d 1196 (recognizing that a “juvenile court’s retention of jurisdiction over a child does not necessarily defeat finality”); see also In re K.F., 2009 UT 4, ¶ 36 (stating that a “juvenile court frequently retains jurisdiction over cases [even] after some of the issues have been finally resolved” (quotation simplified)). The fact that the juvenile court left the visitation door slightly ajar for Father likewise does not defeat finality, under the unique circumstances presented here; the court’s order deprived Father of all parental rights, leaving DCFS with sole discretion to determine whether, and to what extent, Father may visit Child.

¶23 Applying a pragmatic analysis here, we conclude that the subject order, by eliminating all of Father’s claimed parental rights, effected a “permanent change in the child’s status vis-à-vis” Father, see In re K.F., 2009 UT 4, ¶ 36, and effectively ended Father’s involvement in the case. Under these circumstances, the order from which Father appeals must be considered final, and we therefore have jurisdiction to consider the merits of his appellate challenge.

II. The Merits of Father’s Appeal

¶24 We begin our analysis of the merits of Father’s appeal with a discussion of voluntary declarations of paternity, and by explaining how Father did—at least for a time—secure valid parental rights regarding Child. We then list some of the ways in which voluntary declarations of paternity can be challenged, and conclude that Child (through the GAL) had standing to raise one such challenge, and that Child’s challenge has merit. Accordingly, we conclude that the juvenile court correctly sustained Child’s challenge to the VDP, but should not have referred to it as “void.”

A

¶25 There are a number of ways for a parent to establish a legally valid parent-child relationship, many of which are “based on the notion that parents should generally have parental rights regarding their biological children.” See Scott v. Benson, 2021 UT App 110, ¶ 18, 501 P.3d 1148, cert. granted, 509 P.3d 196 (2022); see also Lehr v. Robertson, 463 U.S. 248, 256–57 (1983) (recognizing “[t]he intangible fibers that connect parent and child”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (holding that a biological father’s interest “in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest,” constitutional protection). “In most cases, parental status is established, based on an assumed biological connection, simply by presumption of circumstance.” Scott, 2021 UT App 110, ¶ 19. For example, in the absence of a valid gestational agreement, a mother establishes a parental relationship with any child to whom she gives birth. See Utah Code Ann. § 78B-15-201(1)(a)(i) (LexisNexis 2018).

¶26 Some fathers also obtain parental rights by presumption of circumstance. For instance, a father-child relationship is established when a man “and the mother of the child are married to each other” when the child is born. Id. §§ 78B-15-201(2)(a), -204(1)(a). But a father who is not married to the mother of the child must take additional steps to establish his paternity.

¶27 One avenue open to unmarried biological fathers is to establish paternity by declaration, an option that—crucially— requires the written consent of the child’s mother. See id. §§ 78B15-301, -302. A successful declaration of paternity, “duly signed and filed, has the same effect as a judicial determination of paternity.” In re S.H., 2005 UT App 324, ¶ 15, 119 P.3d 309. To be effective, both the mother and declarant father must sign the declaration “in the presence of two witnesses” and make several statements “under penalty of perjury.” See Utah Code Ann§ 78B15-302(1). Of particular relevance here, the parties must also attest that the child “whose paternity is being declared” does not have a presumed, adjudicated, or declarant father, and they must “state whether there has been genetic testing and, if so, that the declarant man’s paternity is consistent with the results of the testing.” See id. § 78B-15-302(1)(d), (e). “A declaration of paternity shall be considered effective when filed and entered into a database established and maintained by the Office of Vital Records.” Id. § 78B-15-302(9).

¶28 Father chose this avenue; he and Mother jointly signed and filed the VDP on August 18, 2021, after answering several written questions under penalty of perjury. As already noted, they both averred that they “believe[d]” Father to be Child’s biological father, and Father answered “no” to a question asking whether “the birth mother, child, and biological father [had] submitted to genetic testing.” The Office of Vital Records and Statistics accepted the VDP as valid, and that same day issued an amended birth certificate for Child, listing Father as Child’s father. At that point, Father’s parental rights regarding Child were definitively established. See id. § 78B-15-305(1) (LexisNexis 2018) (stating that “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent”); see also Scott, 2021 UT App 110, ¶ 22 n.4 (“A declaration is valid and effective if it meets all the basic statutory requirements and is accepted by the Office of Vital Records.”); In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”).

B

¶29 Declarations can, however, be challenged after they have been accepted by the Office of Vital Records and Statistics. See Scott, 2021 UT App 110, ¶ 23 (“Voluntary declarations of paternity are, however, subject to challenge.”). Applicable statutes permit several different types of challenges to validly filed declarations. For example, a declaration may be challenged as “void” if it fails to meet certain threshold criteria regarding the existence of another potential father. See Utah Code Ann. § 78B15-302(3) (referred to herein as “Section 302”). Alternatively, a “signatory” of a declaration may rescind it within sixty days, without specifying any reason. Id. § 78B-15-306(1) (referred to herein as “Section 306”). Further, after the rescission period has expired, a declaration may be challenged by certain parties “on the basis of fraud, duress, or material mistake of fact.” See id. § 78B-15-307 (referred to herein as “Section 307”). And as relevant here, Section 623 provides that “[a] child is not bound by a determination of parentage . . . unless . . . the determination was based on an unrescinded declaration of paternity and the declaration is consistent with genetic testing.” See id. § 78B-15-623(2).

¶30 Before the juvenile court, the GAL raised a challenge to the VDP and, by the time of the hearing, had elected to ground that challenge largely in Section 623.[3] The court accepted the GAL’s Section 623 argument, and Father challenges that decision here on appeal. For the reasons that follow, we conclude that the juvenile court correctly found merit in the GAL’s Section 623 challenge.

¶31 Section 623 begins by stating that “a determination of parentage is binding on . . . all signatories to a declaration . . . of paternity . . . and . . . all parties to an adjudication [of parentage] by a tribunal.” Id. § 78B-15-623(1). The next section of the statute provides as follows:

(2) A child is not bound by a determination of parentage under this chapter unless:

(a) the determination was based on an unrescinded declaration of paternity and the declaration is consistent with the results of genetic testing;

(b) the adjudication of parentage was based on a finding consistent with the results of genetic testing and the consistency is declared in the determination or is otherwise shown; or

(c) the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.

Id. § 78B-15-623(2). The precise question presented is whether Section 623 gives a child the right to challenge a putative father’s duly filed declaration of paternity on the basis that the declaration is inconsistent with genetic testing results. We hold that it does.

¶32 The question before us is, at root, one of statutory interpretation. “When interpreting a statute, our primary objective is to ascertain the intent of the legislature, the best evidence of which is the plain language of the statute itself.” Taylor v. Taylor, 2022 UT 35, ¶ 28, 517 P.3d 380 (quotation simplified). In examining the language of a statute, “we do not view individual words and subsections in isolation; instead, our statutory interpretation requires that each part or section be construed in connection with every other part or section so as to produce a harmonious whole.” Penunuri v. Sundance Partners Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (quotation simplified); see also State v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157 (“We read the plain language of the statute as a whole and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” (quotation simplified)). And if this exercise “provides a workable result, we need not resort to other interpretive tools, and our analysis ends.” Torrie v. Weber County, 2013 UT 48, ¶ 11, 309 P.3d 216 (quotation simplified). In accordance with these principles, we begin our analysis with an overview of the relevant statute’s structure.

¶33 The statute in question is the Utah Uniform Parentage Act (the Act), codified at Title 78B, Chapter 15 of the Utah Code. See Utah Code Ann. §§ 78B-15-101 to -902 (LexisNexis 2018). Section 623’s reference to “a determination of parentage under this chapter,” then, refers to any determination of parentage made under any of the various parts of the Act. See id. § 78B-15-623(2) (emphasis added). Part 3 of the Act governs voluntary declarations of paternity, see id. §§ 78B-15-301 to -313, and Part 6 of the Act governs judicial adjudications of parentage, see id. §§ 78B-15-601 to -623. Indeed, the term “determination of parentage,” as used in Section 623, has a specific statutory definition: our legislature has provided that a “determination of parentage” means either (a) “the establishment of the parent-child relationship by the signing of a valid declaration of paternity under Part 3,” or (b) “adjudication [of parentage] by a tribunal” under Part 6. See id. § 78B-15-102(9).

¶34 In this case, any parental rights claimed by Father are derived not from any judicial adjudication of paternity but, rather, from the VDP. Indeed, the Act is clear with regard to the effect of a properly filed declaration of paternity: “a valid declaration of paternity filed with the Office of Vital Records is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent,” without the necessity of initiating judicial proceedings or obtaining a court order. See id. § 78B-15-305(1); see also In re S.H., 2005 UT App 324, ¶ 15 (stating that a declaration of paternity “duly signed and filed, has the same effect as a judicial determination of paternity”). Phrased in the language of Section 623, then, the “determination of parentage” at issue here took place pursuant to Part 3, not Part 6, and it occurred not in any courtroom but at the front counter (or its metaphorical online equivalent) at the Office of Vital Records and Statistics.

¶35 As noted, Section 623 provides that “[a] child is not bound by a determination of parentage” unless at least one of three criteria are met. See Utah Code Ann. § 78B-15-623(2). With regard to the specific “determination of parentage” at issue here, none of the three listed criteria are met.

¶36 First, the “determination of parentage” at issue in this case was not “based on an unrescinded declaration of paternity” that is “consistent with genetic testing.” See id. § 78B-15-623(2)(a). To be sure, the determination of parentage here was based on an “unrescinded declaration of paternity”; after all, Father’s only claim to paternity was made through the VDP, and neither Father nor Mother had exercised any rights they had, pursuant to Section 306, to rescind the VDP within sixty days of signing it. See id. § 78B-15-306. But the unrescinded VDP at the heart of Father’s paternity claim turned out to be entirely inconsistent with the genetic test results that came back in September 2021. For this reason, the “determination of parentage” at issue here was not based on a declaration of paternity that was “consistent with the results of genetic testing.” Id. § 78B-15-623(2)(a) (emphasis added). Thus, the first criterion is inapplicable.

¶37 The second criterion is likewise inapplicable, for two reasons. First, this criterion applies only to an “adjudication of parentage,” see id. § 78B-15-623(2)(b), and no such adjudication occurred here, where Father’s parental rights, if any, are derived under Part 3, from the VDP, rather than through a judicial process. And second, this criterion also depends upon “genetic testing” being “consistent with” the adjudication of parentage and, as already noted, the genetic testing in this case excluded Father from any biological relationship with Child. See id.

¶38     Finally, the third criterion has no application either. That criterion applies if “the child was a party or was represented in the proceeding determining parentage by a guardian ad litem.” Id. § 78B-15-623(2)(c). To be sure, Child was represented by the GAL in the proceedings before the juvenile court, and is represented by the GAL in this appeal. But Child was not involved, in any way, in the “proceeding determining parentage” at issue here. Again, that “proceeding” occurred on August 18, 2021, when Father and Mother appeared at the Office of Vital Records and Statistics to fill out the VDP, and when that office accepted the VDP they filed. That proceeding took place entirely outside of court, and Child had no voice or representation therein. Accordingly, the third criterion is likewise inapplicable.

¶39 Because none of the three exceptional criteria apply here, Section 623 provides that Child is “not bound by [the] determination of parentage” in this case. See id. § 78B-15-623(2) (emphasis added). In our view, this language must necessarily mean that Child has the right to challenge the VDP.[4]

¶40 The words “not bound by” are not defined in the Act. In such a situation, we “interpret the statutory language according to the plain meaning of its text.” See O’Hearon v. Hansen, 2017 UT App 214, ¶ 24, 409 P.3d 85 (quotation simplified). And in doing so, we give the words the meaning they are given in ordinary daily usage. See State v. Rincon, 2012 UT App 372, ¶ 10, 293 P.3d 1142 (“When construing a statute, words that are used in common, daily, nontechnical speech, should, in the absence of evidence of a contrary intent, be given the meaning which they have for laymen in such daily usage.” (quotation simplified)).

¶41 In our view, the words “not bound by” must include a right to challenge the determination of parentage. A child who has no right to challenge the determination in question, even in a case where none of the three statutory criteria applied, would effectively be bound by it. Stated another way, in order to be “not bound by” something, there must exist a way to get out from under its obligations. After all, the words “not bound by” would be deprived of all effective meaning if a child had no right to challenge the determination of parentage at issue. Even Father and the amicus curiae both acknowledge, in recently filed briefs, that Child has statutory standing to challenge the VDP under Part 6. For these reasons, we conclude that Section 623 provides Child the right to challenge the VDP—an unrescinded declaration of paternity upon which Father’s claim to paternity is based—on the ground that the declaration is inconsistent with “the results of genetic testing.” See Utah Code Ann. § 78B-15-623(2)(a).

¶42 Once it is established that Child has the right to mount a challenge to the VDP, we must turn to the merits of that challenge. And Father, here on appeal, does not seriously contest the merits of Child’s attack on the VDP. Father instead acknowledges, as he must, that the genetic testing excluded him as Child’s biological father, and that the genetic testing is, therefore, inconsistent with his claims to paternity under the VDP. Accordingly, the juvenile court correctly determined that Child’s Section 623 challenge to the VDP was meritorious.

¶43 But while the juvenile court’s ruling is correct on its merits, the court used incorrect nomenclature to describe the effect of its ruling. The court ruled that the VDP “is void,” thereby apparently purporting to invalidate it ab initio and render it without force or effect from the date it was filed. This was incorrect. A challenge to a declaration of paternity based on inconsistency with genetic testing is a challenge alleging “a material mistake of fact.” See id. § 78B-15-307(5) (stating that “genetic test results that exclude a declarant father . . . constitute a material mistake of fact”). And as we explained in Scott, the effect of a successful challenge on this basis—as opposed to a challenge grounded in Section 302 or Section 306—is “not that the declaration of paternity is rendered void from its inception” but, instead, that the “declaration will be set aside, on a going-forward basis.” See 2021 UT App 110, ¶ 40.

¶44 In our view, a challenge brought by a child under Section 623 alleging that genetic testing is inconsistent with a declarant father’s declaration is substantively similar to the type of challenge we examined in Scott. Neither challenge is grounded in Sections 302 or 306, statutory provisions that expressly provide that voidness will result from a successful challenge. And both challenges arise from the same set of circumstances, namely, genetic testing that does not match a putative father’s claims to paternity. We therefore hold that, where a child makes a successful Section 623 challenge to a declaration of paternity, the result is that the declaration “will be set aside, on a going-forward basis,” and will not be declared void from the date of its inception. See id. As applied to this case, these principles dictate that Father had legal parental rights for some three months, from August 18 through November 16, 2021, but that his parental rights ended, prospectively, with entry of the court’s order sustaining Child’s Section 623 challenge.

¶45 Finally, both Father and the amicus curiae—in recently filed supplemental briefs—raise the potential applicability of section 78B-15-608 of the Utah Code (referred to herein as “Section 608”), a statutory section that allows a court, under certain conditions, to “disregard genetic test results that exclude the . . . declarant father.” Father asserts, for the first time in his supplemental brief, that he should be entitled to a hearing to determine whether the genetic test results eliminating him as Child’s biological father should be “disregarded” pursuant to Section 608. But Father makes this request for the first time in this recent brief; he did not raise a Section 608 defense to the GAL’s challenge before the juvenile court, nor did he mention Section 608 in either his opening or reply brief on appeal. Under these circumstances, Father has raised this legal theory far too late for us to consider it in the context of this appeal. Cf. Viertel v. Body Firm Aerobics LLC, 2022 UT App 96, ¶ 11, 516 P.3d 791 (“Appellants are not permitted to raise matters for the first time in a reply brief.” (quotation simplified)).

¶46 The amicus curiae, for its part, asserts that it was “mandatory” for the juvenile court to have conducted a Section 608 inquiry, including a “best interest of the child” analysis, even in the absence of a request by Father for it to do so; in this vein, the amicus curiae argues that the juvenile court committed plain error by not engaging in that analysis sua sponte. In particular, the amicus curiae rests its argument on statutory language stating that the court “shall consider the best interest of the child.” See Utah Code Ann. § 78B-15-608(2) (emphasis added). But in our view, the amicus curiae overreads the statute.

¶47 As we interpret it, Section 608 does not compel a juvenile court, in every instance in which any challenge to a VDP is sustained, to undertake a Section 608 analysis even if none of the parties request it. Litigants are entitled to select the specific defenses they raise to an opponent’s claim. The general rule, applicable in both district and juvenile courts, is that parties must request specific relief in order for a court to award it. Our judicial process ordinarily does not require courts to step in and examine legal theories that the parties have not themselves raised. See State v. Johnson, 2017 UT 76, ¶ 14, 416 P.3d 443 (“Under our adversarial system, the parties have the duty to identify legal issues and bring arguments before an impartial tribunal to adjudicate their respective rights and obligations.”). In this case, Father—who was represented by counsel at the time—elected to defend against the GAL’s challenge to the VDP by calling into question the GAL’s (or

Child’s) right to even mount the challenge. Father did not raise Section 608 as a possible defense, and he did not ask the juvenile court—in the event it concluded that the GAL had standing to challenge the VDP—to disregard the results of the genetic testing pursuant to Section 608.

¶48 We take the amicus curiae’s point that, whenever a party does specifically invoke Section 608 and ask a court to disregard genetic test results, that court must “consider the best interest of the child” in determining whether to do so. See Utah Code Ann. § 78B-15-608(2). But courts do not have an obligation to sua sponte raise Section 608, and undertake its concomitant best-interest analysis, in every case in which they are asked to consider a challenge to a VDP.[5] See Utah Stream Access Coal. v. VR Acquisitions, LLC, 2019 UT 7, ¶ 41, 439 P.3d 593 (stating that “judges are neutral arbiters—not advocates,” and that judges “keep [themselves] out of the business of second-guessing the pleading decisions of the parties”); cf. Scott, 2021 UT App 110, ¶ 43 (noting that the lower court, in that case, turned to a Section 608 analysis only at the “request” of one of the parties). If a putative parent wants a court to take the rather drastic and unusual step of disregarding the results of genetic testing, it will ordinarily be the parent’s responsibility to raise the issue.

¶49 And even assuming, for the purposes of the discussion, that plain error review is available here, see Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 42 n.10, 507 P.3d 357 (suggesting that plain error review may be available in certain types of civil cases, including termination of parental rights cases), we reject the amicus curiae’s assertion that, on the record before us, the juvenile court committed plain error by not invoking Section 608 sua sponte. Plain error occurs only when a court commits an obvious prejudicial error. See Johnson, 2017 UT 76, ¶ 20. Here, the juvenile court committed no obvious error. Nothing in Section 608 indicates that it is to be applied in every case, even sua sponte, regardless of whether any party ever invokes it. And the amicus curiae cites no appellate court case that so indicates. Where the law is not clear, a court does not commit obvious error. See State v. Dean, 2004 UT 63, ¶ 16, 95 P.3d 276 (“To establish that the error should have been obvious to the trial court, [a litigant] must show that the law governing the error was clear at the time the alleged error was made.”).

¶50 For these reasons, the juvenile court did not plainly err by not sua sponte undertaking an analysis pursuant to Section 608. And because Father did not raise that issue either before the juvenile court or in his initial brief, we decline to address Father’s argument that the court should have conducted such an analysis. We offer no opinion, however, regarding whether the issue could properly be raised after remand, especially given the fact that the juvenile court left the door open to Father’s involvement in the case going forward.

CONCLUSION

¶51 We have jurisdiction to consider the merits of Father’s appeal, because the juvenile court’s order canceled the parental rights that Father had temporarily acquired by filing the VDP and thereby effected a permanent change in Child’s status regarding Father. But on the merits of that appeal, we conclude that the juvenile court correctly sustained the GAL’s Section 623 challenge to the VDP, even if the court should not have used the word “void” to describe the result of its ruling. We therefore affirm the juvenile court’s decision to sustain the GAL’s challenge to the VDP, but remand with instructions for the court to modify its order to indicate that it has prospective effect only, and for such other proceedings as may be appropriate.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] “We recite the facts in a light most favorable to the juvenile court findings.” In re K.J., 2013 UT App 237, ¶ 2 n.2, 327 P.3d 1203 (quotation simplified).

[2] After recognizing this jurisdictional question, we issued a Sua Sponte Motion for Summary Disposition, explaining that this appeal was being considered for summary disposition “on the basis that this court lacks jurisdiction because the order appealed from was not a final, appealable order.” We then ordered the parties to submit briefing on the jurisdictional question, which they did. Later, we also provided the parties the opportunity to submit supplemental briefing on the statutory standing question. Father and the GAL submitted supplemental briefs, and an amicus curiae submitted a brief on this topic as well. We appreciate the assistance of the parties and the amicus curiae in submitting supplemental briefing.

[3] As noted already, the GAL’s pre-hearing briefing before the juvenile court invoked Sections 302 and 307, but not Section 623. In their briefing on appeal, the parties include some discussion of other potential avenues for challenge. No party invokes Section 306, and both the State and the GAL appear to concede that the GAL—apparently because Child is not a “signatory” to the VDP—does not have statutory standing to challenge the VDP under Section 307. But the State does appear to invoke Section 302 in connection with its argument that the VDP was “fraudulently executed,” and on that basis appears to ask us to affirm the juvenile court’s ruling on this alternative ground. We have serious doubts about the merits of this argument, primarily because none of the three criteria for voidness set forth in Section 302 are present here, but also because any evidence of fraud on the part of Father or Mother is thin at best: they were not sure whether Father was Child’s biological parent, but had a basis to “believe” that he was, and Father’s answer about the state of genetic testing was technically correct, because on August 18 neither Mother nor Child had yet submitted samples for genetic testing. But we need not delve deeper into the State’s alternative argument, because we affirm the substance of the court’s ruling under Section 623.

[4] After all, Part 6 of the Act expressly provides that “the child” may maintain “a proceeding to adjudicate parentage,” and thereby challenge a parent’s paternity. See Utah Code Ann. § 78B-15-602(1). All parties to this appeal agree that a child has statutory standing under Part 6 to challenge a parent’s paternity.

[5] The amicus curiae runs into the same problem with its other best-interest related argument. It points out that guardians ad litem have authority created by statute, and that they are appointed “to represent the best interest of a minor.” See Utah Code Ann. § 78A-2-803(1)(a)(i) (LexisNexis Supp. 2022). It asserts that the GAL in this case, by challenging Father’s paternity, acted outside Child’s best interest, pointing out that Child has no other father figure in his life, and offering its view that “it is difficult to see how it can be in a child’s best interest to challenge the paternity of the only father figure participating in the case.” We acknowledge this argument, and agree with the amicus curiae that guardians ad litem have a statutory obligation to carefully consider whether the actions they take on a child’s behalf are in the child’s best interest. But ordinarily any challenge to a guardian ad litem’s actions as being outside a child’s best interest must come from one of the parties rather than from a court sua sponte, and must be raised in the first instance in the district or juvenile court. No such challenge was levied here by any party before the juvenile court, rendering the merits of any such challenge inappropriate for appellate review.

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In re Adoption of E.M.F. – 2022 UT App 43 time in which to appeal

In re Adoption of E.M.F… – 2022 UT App 43

THE UTAH COURT OF APPEALS

IN THE MATTER OF

THE ADOPTION OF E.M.F. AND M.S.F.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

S.S. AND B.S.,

Appellants,

v.

J.F.,

Appellee.

Opinion

No. 20200490-CA

Filed March 31, 2022

Second District Court, Ogden Department

The Honorable Joseph M. Bean

No. 182900024

Jason B. Richards, Attorney for Appellants

Emily Adams and Sara Pfrommer, Attorneys

for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY concurred.

POHLMAN, Judge:

¶1        In this stepparent adoption case, B.S. (Mother) and S.S. (Stepfather) appeal the district court’s order denying their petition to terminate the parental rights of J.F. (Father), with whom Mother shares two children, E.M.F. and M.S.F. (collectively, the Children). We do not reach the merits of the case, however, because we dismiss this appeal for lack of jurisdiction. Although Mother and Stepfather contend that the court rule dictating this result is unconstitutional on its face and as applied, we conclude that Mother and Stepfather have not demonstrated that exceptional circumstances exist for us to consider their constitutional argument.

BACKGROUND

¶2        Mother and Father were involved in a relationship between 2009 and 2014, during which time the Children were born. Mother has always had full physical custody of the Children since her separation from Father. Later, Mother married Stepfather. Mother and Stepfather then petitioned for Stepfather to adopt the Children and to terminate Father’s parental rights.

¶3        The matter proceeded to a two-day bench trial in December 2018. After hearing the evidence, the district court concluded that Mother and Stepfather had “not met their burden by clear and convincing evidence of any of the statutory requirements for terminating [Father’s] rights,” and the court accordingly denied the petition for adoption. The court announced its findings of fact and conclusions of law in court, explaining, “That will be the order of the Court.” It further announced that it did not “inten[d] to do written findings of fact and conclusions of law” but that “[c]ertainly anybody who would like to can do it themselves and submit it to the Court for approval.”[1] Similarly, the court’s December 11, 2018 minute entry from trial states, “The court does not intend on issuing written findings of facts and conclusions of law, either party may submit their own consistent with the court’s ruling for approval if they wish.” That minute entry was signed electronically and designated as an order of the court on December 13, 2018.

¶4        Neither side chose to submit findings and conclusions consistent with the court’s decision,[2] and neither side submitted a proposed judgment pursuant to rule 58A(c)(1) of the Utah Rules of Civil Procedure. Aside from the court’s exhibit tracking record filed a few days after trial, nothing more was filed in the case until Father, acting pro se, moved to release the trial transcripts on March 11, 2019. In his motion, Father asserted that the “records and transcripts [were] required for [him] to prepare findings of fact and conclusions of law requested by [the district court judge].” One month later, the court entered a certificate of destruction, stating that the court clerk had destroyed the exhibits on April 4, 2019.

¶5        Nothing else was entered on the court’s docket until December 2019, when Mother and Stepfather’s attorneys withdrew, and then Mother and Stepfather, acting pro se, filed an objection to a proposed findings of fact, conclusions of law, and order prepared by Father.[3] Among other objections, Mother and Stepfather complained that Father “failed to properly provide a copy of the proposed order to [them] before filing the document with the Court.” The court held a telephone conference the next month during which it indicated that the proposed findings “will be held due to the pending objection.” At a later hearing, the court decided to “sustain[]” Mother and Stepfather’s objection and ordered Father to submit amended findings with two specific revisions.

¶6        As ordered, Father then filed a proposed amended findings of fact, conclusions of law, and order. Finally, on June 9, 2020, the district court signed the amended findings of fact, conclusions of law, and order. The court reiterated its conclusion—rendered 546 days earlier—that, as a matter of law, Mother and Stepfather had “not met their burden to show by clear and convincing evidence any of [the] statutorily required bases for terminating [Father’s] parental rights,” and the court thus denied the petition for adoption. On June 22, 2020, Mother and Stepfather filed a notice of appeal.

ISSUES AND STANDARDS OF REVIEW

¶7        On appeal, Mother and Stepfather challenge the district court’s denial of their adoption petition. But Father contends that this court lacks jurisdiction to consider the merits of the appeal, arguing that Mother and Stepfather did not timely file a notice of appeal in light of rule 58A of the Utah Rules of Civil Procedure. In response, Mother and Stepfather insist that they timely appealed under their view of the relevant timeline and rule 58A. “Whether appellate jurisdiction exists is a question of law.” Greyhound Lines, Inc. v. Utah Transit Auth., 2020 UT App 144, ¶ 22, 477 P.3d 472 (cleaned up). Likewise, the interpretation of a rule of civil procedure is a question of law. See Ghidotti v. Waldron, 2019 UT App 67, ¶ 8, 442 P.3d 1237.

¶8        In the event that this court agrees with Father on the correct operation of rule 58A, Mother and Stepfather assert that the rule is unconstitutional on its face and as applied to the facts of this case. Constitutional challenges present “questions of law.” Menzies v. State, 2014 UT 40, ¶ 27, 344 P.3d 581, abrogated on other grounds by McCloud v. State, 2021 UT 51, 496 P.3d 179. But when, as here, an issue was not preserved in the district court, “the party must argue that an exception to preservation applies.” State v. Johnson, 2017 UT 76, ¶ 27, 416 P.3d 443.

ANALYSIS

¶9        We begin by addressing Father’s contention that this court lacks appellate jurisdiction over this matter. We then address Mother and Stepfather’s constitutional argument aimed at defeating Father’s jurisdictional contention.

I. Appellate Jurisdiction

¶10 Father contends that this court does not have appellate jurisdiction to consider this appeal. According to Father, because a separate judgment was not filed after the district court announced its findings and order from the bench on December 11, 2018, the decision was considered final and appealable 150 days after that date under rule 58A(e)(2)(B) of the Utah Rules of Civil Procedure and any notice of appeal should have been filed within thirty days of May 10, 2019. Father asserts that the court’s amended findings of fact, conclusions of law, and order—entered on June 9, 2020—could not “restart the period for filing a notice of appeal” and that Mother and Stepfather’s June 22, 2020 notice of appeal was therefore untimely. In contrast, Mother and Stepfather contend that the June 9, 2020 order constituted the required separate judgment and that they timely filed their notice of appeal from that order.[4] We agree with Father.

¶11      This case turns on the application of rule 58A of the Utah Rules of Civil Procedure to determine when the time to appeal began to run. Rule 58A(a) provides that “[e]very judgment and amended judgment must be set out in a separate document ordinarily titled ‘Judgment’—or, as appropriate, ‘Decree.’” Utah R. Civ. P. 58A(a). Of particular import here, rule 58A(e) states,

(e) Time of entry of judgment.

(e)(1) If a separate document is not required, a judgment is complete and is entered when it is signed by the judge and recorded in the docket.

(e)(2) If a separate document is required, a judgment is complete and is entered at the earlier of these events:

(e)(2)(A) the judgment is set out in a separate document signed by the judge and recorded in the docket; or

(e)(2)(B) 150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.

Id. R. 58A(e). This provision “makes explicit the time of entry of judgment” and resolves the problem of “endlessly hanging appeals.” Griffin v. Snow Christensen & Martineau, 2020 UT 33, ¶¶ 12, 14, 467 P.3d 833 (cleaned up).

¶12 The parties agree that “a separate document” was required in this case, so they therefore agree that rule 58A(e)(1) does not apply here. See Utah R. Civ. P. 58A(a); see also Griffin, 2020 UT 33, ¶ 17 (stating that a judgment “must be set out in a separate document that is prepared by the prevailing party and signed and docketed by the court”). Accordingly, this case falls under rule 58A(e)(2).

¶13      Rule 58A(e)(2) sets forth two events, the earlier of which will trigger the time when a judgment becomes complete and entered. The first occurs when “the judgment is set out in a separate document signed by the judge and recorded in the docket.” Utah R. Civ. P. 58A(e)(2)(A). In Griffin, the Utah Supreme Court explained that when rules 58A(a) and 58A(e)(2)(A) are “properly implemented, the separate judgment signals clearly that the case is over and the appeal and post-judgment motion clock has started to run.”[5] 2020 UT 33, ¶ 17.

¶14      Alternatively, “when the prevailing party fails to prepare a separate judgment, rule 58A(e)(2)(b) creates a backstop by establishing that the ‘entry of judgment’ occurs once ‘150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.’” Id. (quoting Utah R. Civ. P. 58A(e)(2)(B)); see also id. ¶ 25 n.5; Utah R. Civ. P. 58A advisory committee notes to 2015 amendments (“[I]f a separate document is required but is not prepared, judgment is deemed to have been entered 150 days from the date the decision—or the order confirming the decision—was entered on the docket.”). Indeed, the current version of rule 58A(e)(2) was adopted in response to the supreme court’s direction for the rule to “set a maximum time . . . for filing an appeal in cases where the district court’s judgment has not otherwise been finalized.” Central Utah Water Conservancy Dist. v. King, 2013 UT 13, ¶ 27, 297 P.3d 619; see also Utah R. Civ. P. 58A advisory committee notes to 2015 amendments (explaining that the current rule addressed “the ‘hanging appeals’ problem” that the supreme court identified in King); Griffin, 2020 UT 33, ¶¶ 9–11, 14.

¶15      Here, at the end of the bench trial, the district court ruled in favor of Father and announced its findings of fact and conclusions of law on the record on December 11, 2018. Neither side prepared a separate judgment, and thus rule 58A(e)(2)(A) did not apply. See Griffin, 2020 UT 33, ¶ 17. Nevertheless, the clerk “record[ed] the decision, however designated, that provides the basis for the entry of judgment” when the clerk recorded the court’s December 11, 2018 minute entry. See Utah R. Civ. P. 58A(e)(2)(B). The “backstop” of rule 58A(e)(2)(B) therefore kicked in to “establish[] that the ‘entry of judgment’ occur[red] once ‘150 days ha[d] run from the clerk recording the decision.’” See Griffin, 2020 UT 33, ¶ 17 (quoting Utah R. Civ. P. 58A(e)(2)(B)). We thus agree with Father that the court’s judgment was complete and entered in May 2019—after 150 days had transpired since the clerk recorded the court’s minute entry in December 2018. See Utah R. Civ. P. 58A(e)(2)(B).

¶16      Further, because a party’s notice of appeal “shall be filed . . . within 30 days after the date of entry of the judgment or order appealed from,” Utah R. App. P. 4(a), and because Mother and Stepfather’s June 22, 2020 notice of appeal was filed more than thirty days after May 2019, we conclude that their appeal was untimely,[6] see Serrato v. Utah Transit Auth., 2000 UT App 299,

¶ 11, 13 P.3d 616 (indicating that deadlines for notices of appeal “must be adhered to in order to prevent cases from continually lingering and to ensure finality in the system”). “Where an appeal is not properly taken, this court lacks jurisdiction and we must dismiss.” Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649. Accordingly, we have no choice but to dismiss Mother and Stepfather’s appeal without reaching its merits. See id.

II. The Constitutionality of Rule 58A

¶17 Notwithstanding, Mother and Stepfather contend that if rule 58A operates to deprive this court of jurisdiction over their appeal, rule 58A is unconstitutional on its face and as applied to the facts of this case because the rule “fails to provide notice to parties when an order is final for the purposes of appeal.” At the outset, Mother and Stepfather concede that they did not preserve this issue and that they are thus raising it for the first time on appeal. Given this lack of preservation, Mother and Stepfather further recognize that this court “generally will not consider an issue, even a constitutional one, which the appellant raises on appeal for the first time.” (Quoting State v. Webb, 790 P.2d 65, 77 (Utah Ct. App. 1990).) Yet they suggest this court should reach the constitutional issue under either the plain error or the exceptional circumstances exception to the preservation rule.

¶18 Mother and Stepfather “must establish the applicability” of an exception to the preservation rule to raise the issue on appeal. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443. But appellants will not carry their burden of persuasion on an unpreserved issue if they do not supply “a plain error or exceptional circumstances analysis because, in failing to do such an analysis, [they] will have necessarily failed to explain why we should reach the issue of which [they] complain[].” Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512. We conclude that Mother and Stepfather have not established that either exception applies, and thus we decline to reach this constitutional issue on its merits.

¶19      Although Mother and Stepfather mention the plain error exception to the preservation rule, they have not applied the elements of plain error to this case. See Johnson, 2017 UT 76, ¶ 20 (“To demonstrate plain error, a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” (cleaned up)). They thus have not engaged in a plain error analysis, much less shown that the district court plainly erred by not sua sponte declaring rule 58A unconstitutional. As a result, they have not carried their burden to establish the applicability of this exception. See Baumann, 2017 UT 80, ¶ 25; State v. Padilla, 2018 UT App 108, ¶ 19, 427 P.3d 542 (rejecting a plain error claim when the appellant “made no attempt to develop or establish” the claim).[7]

¶20 Mother and Stepfather alternatively suggest that the exceptional circumstances exception should apply, warranting our consideration of the constitutional issue for the first time on appeal. But they similarly offer little analysis on this score. They contend only that the constitutionality of rule 58A presents “a unique constitutional question, because it directly pertains to the time set to appeal” and “there is no method to preserve a constitutional challenge that only becomes an issue of controversy on appeal.” We are not persuaded.

¶21 Our supreme court has directed that the “exceptional circumstances doctrine is applied sparingly, reserving it for the most unusual circumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice.” Johnson, 2017 UT 76, ¶ 29 (cleaned up). Courts “apply this exception . . . where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so.” Id. (cleaned up). And once a party shows that a rare procedural anomaly exists, it “opens the door to a deeper inquiry” in which “additional factors must be considered to determine whether an appellate court should reach an unpreserved issue.” Id. Such factors include whether our failure to consider the issue “would result in manifest injustice,” whether “a significant constitutional right or liberty interest is at stake,” and judicial economy. Id. ¶ 37 (cleaned up). This exception thus requires a “case-by-case assessment.” Id. ¶ 38. But it cannot be used “as a free-floating justification for ignoring the legitimate concerns embodied in the preservation and waiver rules.” Id.

¶22 Mother and Stepfather have not met their burden of establishing that exceptional circumstances are present here. This is so because they have not analyzed whether they encountered a rare procedural anomaly and they have not engaged in any “deeper inquiry” of the additional factors relevant to this exception. See id. ¶ 29.

¶23      Without putting it in terms of a rare procedural anomaly, Mother and Stepfather suggest that the constitutional question regarding rule 58A became relevant only on appeal and that they were unable to complain to the district court about notice not being built into the rule. But rule 58A was in operation and became applicable once the district court announced its ruling in court on December 11, 2018.

¶24      Rule 58A(a) requires that “[e]very judgment . . . be set out in a separate document ordinarily titled ‘Judgment,’” and, as the prevailing party, Father should have, “within 14 days . . . after the court’s decision,” “prepare[d] and serve[d] on the other parties a proposed judgment for review and approval as to

form.” See Utah R. Civ. P. 58A(c)(1). But when Father did not timely serve a proposed judgment, rule 58A(c) gave Mother and Stepfather the option of preparing a proposed judgment themselves. See id. (“If the prevailing party or party directed by the court fails to timely serve a proposed judgment, any other party may prepare a proposed judgment and serve it on the other parties for review and approval as to form.”). They did not exercise that option.

¶25 Because the parties did not avail themselves of the opportunity to prepare a proposed judgment that would lead to the judgment being entered under rule 58A(e)(2)(A), the parties’ inaction meant that, by default, the backstop of rule 58A(e)(2)(B) applied, meaning that a judgment was entered once “150 days ha[d] run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.” See id. R. 58A(e)(2)(B). In other words, time was ticking toward the second event—entry of judgment under rule 58A(e)(2)(B). If Mother and Stepfather wished to appeal the district court’s decision and were concerned that they did not know when judgment would be entered (and thus when they could file a notice of appeal), they had reason to raise that concern with the district court. Parties “cannot sleep on [their] rights and just hope for a favorable outcome.” See Dahl v. Harrison, 2011 UT App 389, ¶ 28, 265 P.3d 139, abrogated on other grounds by R.O.A. Gen., Inc. v. Chung Ji Dai, 2014 UT App 124, 327 P.3d 1233.

¶26      And while it would have been unusual, it is not obvious to us that Mother and Stepfather could not have asked the district court for a declaration that rule 58A(e)(2) was unconstitutional on the ground that it did not provide for enough notice of the events relating to entry of judgment. See State v. Van Huizen, 2019 UT 01, ¶ 27, 435 P.3d 202 (stating that appellants “[have] the burden to show that [they were] unable to object . . . at the proper time”). Mother and Stepfather contend that their constitutional challenge only became “an issue of controversy on appeal.” But their complaint lies with an alleged uncertainty that materialized once the district court recorded its decision without entering a separate document to memorialize its finality, and that complaint materialized long before Mother and Stepfather filed their appeal. Under these circumstances, it is inadequate for them to simply assert that they were unable to preserve their constitutional claim. See In re X.C.H., 2017 UT App 106, ¶ 31, 400 P.3d 1154 (requiring parties invoking the exceptional circumstances exception to “demonstrate how the actual circumstances [they] encountered in the [district] court process prevented [them] from raising the [unpreserved] claim”); see also Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 21 n.3 (refusing to apply the exceptional circumstances exception when the appellant did “not discuss the threshold inquiry of the exceptional circumstances exception” and thus did not establish that a rare procedural anomaly existed).

¶27      Moreover, Mother and Stepfather have not engaged in the “deeper inquiry” this court must carry out to determine whether to reach an unpreserved issue under the exceptional circumstances exception. See Johnson, 2017 UT 76, ¶ 29. For example, they have not explained why our failure to consider the constitutional issue “would result in manifest injustice.” See id. ¶ 37 (cleaned up). And based on the record before us, it is far from apparent that it would be unjust for us not to consider Mother and Stepfather’s constitutional challenge to the application of rule 58A, for a couple of reasons.

¶28 First, Mother and Stepfather cannot demonstrate on this record that they did not receive notice of the entry of the district court’s decision. There is a signed minute entry in the court’s docket dated two days after the court announced its decision from the bench. Yet Mother and Stepfather make no mention of this order on appeal; instead, they focus on an unsigned minute entry and ask us to assume they did not receive notice of its entry because no certificate of service is attached. Because Mother and Stepfather do not account for the court’s signed minute entry, and because their argument depends on assumptions, the alleged injustice about which they complain is far from manifest.[8]

¶29 Additionally, even if we were to accept Mother and Stepfather’s invitation to assume they did not receive notice of the minute entry recording the district court’s decision, Mother and Stepfather (while still represented by counsel) had ways to easily resolve their claimed problem of lacking notice of when the clerk recorded the court’s decision. They were present when the court announced its decision from the bench and informed the parties that its pronouncement would stand as the order of the court. Surely, counsel understood that the court’s decision would be recorded in the docket within a few days. But if Mother and Stepfather desired even more certainty, they could have submitted a proposed judgment and, upon its entry, been confident that their time to appeal was running. See Utah R. Civ. P. 58A(e)(2)(A). And at any time during the months following the court’s announcement of its decision from the bench, Mother and Stepfather could have checked the docket[9] or called the court clerk to determine the date on which the court’s decision was recorded. But Mother and Stepfather forwent all these opportunities. In light of these missed opportunities, we do not believe that it would be manifestly unjust for us to decline to reach the unpreserved constitutional issue.[10] Cf. Dahl, 2011 UT App 389, ¶ 28 (stating that parties “cannot sleep on [their] rights”). For these reasons, we will not apply the exceptional circumstances exception here.

CONCLUSION

¶30 We agree with Father that we lack jurisdiction over this appeal, and we thus dismiss it. We also conclude that Mother and Stepfather have not established the applicability of any exception to the preservation rule and that we therefore may not reach the merits of their constitutional challenge to rule 58A of the Utah Rules of Civil Procedure.


 

[1] Mother and Stepfather filed proposed findings of fact and conclusions of law on the second day of trial, prior to the court announcing its decision. Their filing did not reflect the district court’s announced decision, and the court did not sign that document.

[2] Rule 52(a)(1) of the Utah Rules of Civil Procedure provides, “In all actions tried upon the facts without a jury or with an advisory jury, the court must find the facts specially and state separately its conclusions of law. The findings and conclusions must be made part of the record and may be stated in writing or orally following the close of the evidence. Judgment must be entered separately under Rule 58A.” And rule 54(a) specifies that “‘Judgment’ as used in these rules includes a decree or order that adjudicates all claims and the rights and liabilities of all parties or any other order from which an appeal of right lies.” Utah R. Civ. P. 54(a).

[3] This proposed document is not in the record. Mother and Stepfather assert that Father submitted this proposed order to the court on or about December 16, 2019—more than a year after the court announced its ruling from the bench.

[4] Mother and Stepfather assert that Father’s “failure to oppose the entry of the [June 2020] order should be deemed a waiver” of Father’s challenge to appellate jurisdiction. But “because subject matter jurisdiction goes to the heart of a court’s authority to hear a case, it is not subject to waiver and may be raised at any time, even if first raised on appeal.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702 (cleaned up); see also Widdison v. State, 2021 UT 12, ¶ 100 n.26, 489 P.3d 158 (Lee, J., concurring in judgment) (“Jurisdiction is not an argument that can be waived or ignored by the parties.”). We therefore reject this argument.

[5] We recognize that because Griffin v. Snow Christensen & Martineau, 2020 UT 33, 467 P.3d 833, was not issued until June 10, 2020, the parties did not have the benefit of its analysis until then. Nevertheless, the parties still should have been aware of the relevant court rules bearing on the events that would trigger the thirty-day period for filing an appeal. Cf. Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 9, 13 P.3d 616 (stating that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect” (cleaned up)).

[6] Father originally raised his jurisdictional argument in a motion for summary disposition, which a judge on this court denied on the ground that the June 2020 order was “the proper order used for determining appellate jurisdiction.” Mother and Stepfather now assert that because this court already rejected Father’s “exact same argument” when his motion for summary disposition was denied, the doctrine of claim preclusion bars Father from raising the issue again in his appellate brief. We disagree.

The doctrine of claim preclusion “bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously.” Haskell v. Wakefield & Assocs. Inc., 2021 UT App 123, ¶ 13, 500 P.3d 950 (emphasis added) (cleaned up); see also IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 26 n.20, 196 P.3d 588 (explaining that res judicata, of which claim preclusion is a branch, “is more appropriately used to describe the binding effect of a decision in a prior case on a second case”). Because Father is not seeking to prosecute a claim that was adjudicated in a prior action, the doctrine of claim preclusion does not apply. Instead, Father seeks reconsideration of the conclusion, rendered in this case, that this court has jurisdiction over this appeal. This panel has the discretion to entertain Father’s request.

This court’s previous order was signed by a single judge, and rule 23(e) of the Utah Rules of Appellate Procedure “allows a panel of this court to review the actions of the single judge.” Envirotech Corp. v. Callahan, 872 P.2d 487, 501 n.12 (Utah Ct. App. 1994); see also Utah R. App. P. 23(e)(3) (“[T]he action of a single justice or judge may be reviewed by the court.”). Further, while an appeal is pending, this court “remains free” to reconsider its decisions. Cf. IHC Health Services, 2008 UT 73, ¶¶ 26–27 (explaining that the law of the case doctrine generally “allows a court to decline to revisit issues within the same case once the court has ruled on them”). Under the law of the case doctrine, this court enjoys the discretion not to reconsider a prior ruling, id. ¶ 26, but the doctrine “does not prohibit a judge from catching a mistake and fixing it,” Gillmor v. Wright, 850 P.2d 431, 439 (Utah 1993) (Orme, J., concurring).

Here, we exercise our discretion to reconsider the fundamental issue of appellate jurisdiction. See State v. Brown, 2021 UT 11, ¶ 10, 489 P.3d 152 (“Jurisdiction is the blood in our judicial system. Because of its vitalness, we have an independent obligation to ensure that we have it over all matters before us.” (cleaned up)).

[7] After this case was briefed and argued, this court issued Kelly v. Timber Lakes Property Owners Ass’n, 2022 UT App 23, in which we held that plain error review is not available in ordinary civil cases. Id. ¶ 44. Whether plain error review is available in this adoption proceeding is an unanswered question. Mother and Stepfather have not engaged on that question, and for purposes of our analysis, we assume, without deciding, that plain error review is available in this case.

[8] Preserving an issue in the district court is important because, among other things, “it allows an issue to be fully factually, procedurally, and legally developed in the district court.” Baumann v. Kroger Co., 2017 UT 80, ¶ 25, 416 P.3d 512. And “[w]ithout the benefit of a fully developed record illustrating both the district court’s thinking and the factual development bearing on the issue at hand, an appellate court is necessarily handicapped in reaching a well-considered decision.” True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 25, 427 P.3d 338. Here, the parties dispute whether the district court “ever provided notice or a copy of the clerk’s minute entry to the parties.” This is the type of factual dispute that could and should have been fleshed out in the district court, and the fact that it wasn’t hinders our ability to analyze the merits of Mother and Stepfather’s constitutional argument. See id.cf. Diversified Equities, Inc. v. American Sav. & Loan Ass’n, 739 P.2d 1133, 1136 (Utah Ct. App. 1987) (“Whether a party should be charged with ‘actual notice,’ either in the sense of having actual knowledge or being on inquiry notice, turns on questions of fact.”).

[9] Mother and Stepfather contend that “pursuant to Utah Code Ann. § 78B-6-141(2),” adoption cases are “sealed upon decision and the docket is not readily available on the Utah court’s Xchange system.” Thus, they suggest, they could not have reviewed the docket to determine when the clerk recorded the court’s decision. But section 78B-6-141 does not, by its terms, apply to the court’s docket. And even if it did, it states that any sealed documents are “open to inspection and copying . . . by a party to the adoption proceeding (i) while the proceeding is pending; or (ii) within six months after the day on which the adoption decree is entered.” Utah Code Ann. § 78B-6-141(3)(a) (LexisNexis 2018). Here, where no separate judgment was entered by the court and the court’s signed minute entry is not designated as private or sealed on the docket, it is not apparent that Mother and Stepfather could not have accessed the docket within the 180 days before their appeal was due to ascertain the exact date on which the court’s decision was recorded.

[10] It is also not apparent that if we were to reach the unpreserved issue, we would conclude rule 58A is unconstitutional as written. Mother and Stepfather contend that rule 58A is unconstitutional because it does not require notice of when the court records the decision, and the Utah Rules of Civil Procedure do not otherwise “provide for the service of signed orders through the E-Filing system.” Although we do not resolve this constitutional challenge expressly, we note that Mother and Stepfather are mistaken. Rule 5(b)(3)(A) of the Utah Rules of Civil Procedure provides that “except in the juvenile court,” “[a] paper is served . . . by . . . the court submitting it to the electronic filing service provider, if the person being served has an electronic filing account.”

Utah Family Law, LC | divorceutah.com | 801-466-9277 

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In re J.L… 2022 UT 12 – termination of parental rights

2022 UT 12 

IN THE SUPREME COURT OF THE STATE OF UTAH 

STATE OF UTAH, in the Interest of J.A.L. and J.O.L.,
Persons Under Eighteen Years of Age 

J.L. and J.A.,
Appellants, 

STATE OF UTAH,
Appellee. 

No. 20200271 

Heard September 16, 2021
Filed February 24, 2022 

On Certification from the Court of Appeals 

Fifth District Juvenile, Iron County
The Honorable Troy A. Little
No. 1161641, 1161642 

Attorneys:1  

Alexandra Mareschal, J. Frederic Voros, Jr., Julie J. Nelson, Salt Lake
City, Christa G. Nelson, Cedar City, for appellant J.L. 

Colleen K. Coebergh, Salt Lake City, Candice N. Reid, Cedar City,
for appellant J.A. 

Sean D. Reyes, Att’y Gen., Carol L. C. Verdoia, John M. Peterson,
Asst. Att’ys Gen., Salt Lake City, for appellee 

Martha Pierce, Salt Lake City, Guardian ad Litem
for J.A.L. and J.O.L. 

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined. 

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court: 

¶1 This is an appeal from a juvenile court order terminating the parental rights of the mother and father of two children. The Division of Child and Family Services has been engaged with this family since at least July 2018. A range of support services has been provided over time. The children were removed from the mother’s custody in December 2018 and placed in foster care. And at various times both the father and mother have been subject to a court order prohibiting contact between them and to orders requiring treatment for domestic violence, substance abuse, and mental health issues. 

¶2 The Division initially pursued a permanency goal of reunification with the parents. When reunification failed, the Division petitioned to change the goal to adoption. After a hearing and an order granting the new permanency goal, the children were moved to a kinship placement with the father’s brother in Arkansas. The uncle had agreed to adopt the children. And after a subsequent hearing on the termination of parental rights, the juvenile court entered an order terminating the parental rights of both the mother and father. 

¶3 In the termination proceeding, the juvenile court found that both parents were “unfit” and had “neglected” the children. The court based its determination on factors listed in Utah Code section 78A-6-508(2)—concluding that the children were “abused and neglected” by “[t]he domestic violence perpetrated by the Father and the Mother’s failure to protect the children,” and that the parents’ substance abuse “render[ed] [them] unable to care for the children.” 

¶4 After finding statutory grounds to terminate, the court determined that termination was “strictly necessary” in the “best interest” of the children. It concluded that the children could not be returned home “today”—or “at this point”—because the mother and father had failed to sufficiently rehabilitate themselves. And it held that the children’s “tremendous need for permanency and stability” could not be met while preserving the parents’ rights within a permanent custody and guardianship arrangement. 

¶5 Six weeks after the termination order was entered, the adoptive placement with the uncle failed. The children returned to state custody in Utah. 

¶6 After the kinship placement failed, the father and mother filed motions for post-judgment relief. The mother sought 60(b)(6) relief in light of the “extraordinary circumstances” of the failure of the kinship placement. The father filed a 60(b)(6) motion on the same grounds. He also sought relief under 60(b)(5), asserting that the failed kinship placement meant that the judgment was “no longer equitable.” The juvenile court denied the motions. 

¶7 The mother and father appealed. The court of appeals certified the matter to this court based on a perceived need for our review of “a challenge to the current appellate standard of review in child welfare proceedings” and to consider “an issue regarding the effect of statutory changes on supreme court case law.” 

¶8 The mother and father raise different claims of error on appeal. The mother challenges only the juvenile court’s findings, made at an evidentiary permanency hearing and allegedly at a subsequent review hearing, that she appeared “under the influence” at various hearings. She asserts that a judge is not qualified to make such findings without expert testimony. And she contends that the court denied her due process of law by making the findings without giving her notice and an opportunity to be heard. 

¶9 The father challenges the juvenile court’s best interest determination2 and the court’s denial of his motions for post-judgment relief. As an initial matter, the father asks us to conduct de novo review of termination proceedings—and overturn the deferential standard of review established in State ex rel. B.R., 2007 UT 82, 171 P.3d 435. He also asks us to require specific factual findings and legal conclusions in parental rights termination orders. Regardless of our decision on the appropriate standard of review, the father contends that the juvenile court erred in concluding that termination of the father’s rights was “strictly necessary” to promote the “best interest” of the children. 

¶10 We affirm in part and reverse and vacate in part. First, we note that the mother’s claims are unpreserved and hold that she has failed to carry the burden of establishing plain error. Second, we reject the father’s request that we abandon a deferential standard of review of a best interest determination but find threshold legal errors in the juvenile court’s best interest analysis—in the assessment of whether the father had made sufficient progress in his rehabilitation under Utah Code section 78A-6-509(1)(b), and in the assessment of whether termination of parental rights is “strictly necessary” under Utah Code section 78A-6-507. Third, we vacate and remand for a new best interest determination under the law as clarified in this opinion. In so doing, we note that the mother failed to highlight the legal errors identified by the father in her briefs on appeal but conclude that the mother’s rights should be on the table on remand in the unique circumstances of this case. 

I 

¶11 The mother challenges the juvenile court’s findings that she appeared “under the influence” at court hearings. She asserts that the judge is not qualified to make such findings without expert testimony. And she claims that the court infringed her right to due process by making these findings without notice that the observations were being made and without affording her an opportunity to respond. 

¶12 None of these points was preserved in the juvenile court, however. To succeed on appeal, the mother would therefore need to make a showing of plain error—that “(1) an error exists; (2) the error should have been obvious to the trial court; and (3) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (citations and internal quotation marks omitted).3 And the mother has failed to carry that burden. 

¶13 We have previously upheld a juvenile court’s legal conclusions based on observations of “outbursts” made in open court. In re T.E., 2011 UT 51, ¶¶ 44–45, 266 P.3d 739. And the juvenile court in this case did not even go so far as to make a legal conclusion. It relied on its observation of the mother in court to require her to be subjected to testing for substance use—a follow-up under a standing order requiring ongoing substance abuse testing.4 So we do not see how it could have been error—and certainly not an obvious error—for the court to use its observations as a basis for such testing where the mother’s sobriety was already at issue. 

¶14 Nor do we see a basis for concluding that any alleged error was prejudicial. In the termination order, the court refers to its “personal observations” of the mother only once—as a single consideration in a set of reasons supporting one of the five grounds for termination found by the court. And earlier in the proceedings, the court continued reunification services for the mother despite making a concurrent finding that “[t]hree quarters of the times the Mother is in court it appears she [is] under the influence of drugs”— and despite terminating reunification services as to the father in the same evidentiary permanency hearing. The mother has not established that there is any likelihood that her parental rights would not have been terminated if the juvenile court had not ordered testing on the basis of its observations, or if it had afforded the mother the right to respond that she asserts as a matter of due process. 

II 

¶15 The father challenges the termination of his parental rights on two grounds. He contends that the juvenile court erred in (a) concluding that termination of his rights was “strictly necessary” in the “best interest” of the children; and (b) denying his motions for post-judgment relief. We reverse on the first ground and decline to reach the second because it is mooted by our threshold decision. 

A 

¶16 The father prefaces his challenge to the juvenile court’s best interest analysis with a request that we overrule our longstanding case law on the standard of review of parental rights termination orders—requesting that we replace the established deferential standard of review with a de novo review for correctness. But we rejected parallel requests in two recent decisions. See In re G.D., 2021 UT 19, ¶¶ 1, 3, 491 P.3d 867; State ex rel. E.R., 2021 UT 36, ¶ 13, 496 P.3d 58. And the father has not identified a persuasive ground for reconsidering these decisions. 

¶17 In E.R. we clarified that the best interest inquiry is a fact-like “mixed determination of law and fact” that is subject to deferential review. 2021 UT 36, ¶¶ 17, 22. Appellate deference, of course, is not absolute. The juvenile court’s best interest analysis may be set aside if it is “against the ‘clear weight of the evidence.’” Id. ¶ 6. It is also subject to reversal where it is premised on a threshold legal error. See id. ¶ 16 (noting that we “afford [n]o deference” to the juvenile court’s “analysis of abstract legal questions” (alteration in original) (citation and internal quotation marks omitted)). 

¶18 We reverse the juvenile court’s termination of the father’s parental rights on this basis. The juvenile court’s order was infected by two legal errors. And those errors foreclose the usual basis for deference to the conclusion that termination of the father’s rights was “strictly necessary” in the “best interest” of the children under Utah Code section 78A-6-507(1) (2020).5 See Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 78, 469 P.3d 1003 (citation omitted) (holding that a district court’s findings were not owed deference where they were “infected by legal error”). 

1 

¶19 In terminating the father’s parental rights, the juvenile court concluded that it would be “neglectful” to “[r]eturn[] the children to the Father today.” (Emphasis added.) It also found that a reunification of the children with the father would introduce a significant “safety risk” “at this time.” (Emphasis added.) And it raised the concern that the father might not “be successful outside of treatment” given the lack of “any indication of future success” based on “the Father’s past.” 

¶20 These statements are premised on legal error. In a case where the child is not in the parent’s physical custody, the court must consider a set of “specific considerations” in assessing whether termination is strictly necessary in the best interest of children. UTAH CODE § 78A-6-509. And the listed considerations include “the effort the parent or parents have made to adjust their circumstances, conduct, or conditions to make it in the child’s best interest to return [the child to the] home after a reasonable length of time.” Id. § 78A-6509(1)(b) (emphasis added). 

¶21 The statute does not establish a specific timeframe for parents to “adjust their circumstances, conduct, or conditions.” But it does afford a parent a “reasonable length of time” to make any necessary adjustments. And that requires the court to consider whether any needed adjustments were made within a reasonable time. 

¶22 The court retains a measure of discretion in deciding on the length of the “reasonable” time.6 But by statute it must exercise that discretion. And the juvenile court failed to do so here. It held that the father “ha[d] failed to appropriately adjust” his “circumstances, conduct, or conditions to make return in the children’s best interest.” In so doing, it failed to consider whether he had had a “reasonable length of time” to do so.7 And it exacerbated the problem by focusing on static assessments that it would be “neglectful” to “[r]eturn[] the children to the Father today” and would introduce a significant “safety risk” if they returned to him “at this time.” 

2 

¶23 The juvenile court also premised its termination decision on concerns about the “tremendous need for permanency and stability” of the children. It considered the possibility of preserving the father’s legal rights while awarding permanent custody to a guardian. But it rejected that move on the ground that it “would not . . . offer the same degree of permanency as an adoption,” given that a permanent guardianship could be terminated at the request of the guardian or at least subject to visitation by the father. And it held that this “lack of stability would be harmful for the children.” 

¶24 This too was error. The court was right to consider the feasibility of a permanent guardianship. See In re B.T.B., 2020 UT 60, ¶¶ 66–67, 472 P.3d 827 (explaining that the “strictly necessary” analysis requires consideration of the possibility of “feasible options” like awarding custody to a permanent guardian (citation and internal quotation marks omitted)). But it fell into legal error in concluding that this option would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard. 

¶25 By statute, the juvenile court must assess whether a permanent guardianship can “equally protect[] and benefit[]” the children in the case before it. G.D., 2021 UT 19, ¶ 75 (citation omitted). That standard is not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption. It requires analysis of the particularized circumstances of the case before the court. No such analysis is presented here. And the court’s categorical dismissal of the possibility of a permanent guardianship is a further ground for reversal of the juvenile court’s decision. 

B 

¶26 The above legal errors undermine our confidence in the juvenile court’s basis for terminating the father’s parental rights. They also foreclose the need for us to consider the father’s challenge to the denial of his motions for post-judgment relief. The correctness of the denial of those motions is mooted by our decision to reverse in light of the legal errors in the parental termination order. 

III 

¶27 The father has established that the juvenile court’s termination order was infected by the above-noted legal errors. That leaves the question of the effect of those errors on our disposition on appeal. We conclude that a remand to the juvenile court is appropriate. And we hold that both parents’ legal rights should be on the table on remand. 

A 

¶28 The juvenile court’s threshold legal errors foreclose the usual basis for deference to its factual findings and mixed determinations. In the face of such errors, an appellate court has at least two options. It may reverse and remand to the lower court for rehearing under a correct legal standard.8 Or it may review the lower court’s findings under a non-deferential standard of review.9 We take the former course of action here in light of the important role that our juvenile courts play in applying a complex body of law to a matter encompassing an extensive factual and procedural record. 

B 

¶29 In the parties’ briefing on appeal, only the father identified the above-noted legal errors as a basis for reversal. The mother’s appeal was limited to her challenge to the juvenile court’s findings that she appeared “under the influence” in court. 

¶30 The father urges this as a basis for concluding that the mother is foreclosed from participating in the proceedings on remand, or from having her rights on the table in a new “best interest” analysis in line with the refinements in our law set forth above. See supra ¶¶ 21–22, 24–25. He notes that a claim is generally waived if not raised on appeal. See State v. Johnson, 2017 UT 76, ¶¶ 15–16, 416 P.3d 443. And he asks us to hold that the mother forfeited her stake in a remand under claims of legal error that she failed to advance on appeal. 

¶31 The father’s position finds some threshold footing in our law. As a general rule, our courts respect the prerogatives of the parties in deciding which claims to pursue (or forgo) in litigation. See Utah Stream Access Coalition v. VR Acquisitions, LLC, 2019 UT 7, ¶¶ 36–37, 439 P.3d 593. In deference to those prerogatives, and in the interest of judicial economy and repose, the parties are generally stuck with the moves they make in litigation. Patterson v. Patterson, 2011 UT 68, ¶¶ 15–17, 266 P.3d 828. Our courts do not lightly second-guess the parties by reviving a claim they have forfeited by their pleading or briefing decisions.10  

¶32 The mother presumably would be foreclosed from participating in the proceedings on remand if she had failed to file an appeal.11 But the mother did file an appeal. And the father has cited no case law that controls in the unusual circumstances presented here—where two appellants filed briefs on appeal and one of them has identified a legal error that affected not just both of the appellants but also the interests of other parties to this proceeding (the children). 

¶33 In these circumstances, we are reluctant to give conclusive, controlling effect to the briefing decisions of the parties. The juvenile court’s legal missteps infected its decision to terminate both the father’s and the mother’s legal rights.12 And those missteps may bear significant consequences not just for the parents but for their children. The rights and interests of the parents and the children are not only substantial but intertwined. On remand, the decision whether to terminate one parent’s rights could be affected by the decision whether to terminate the other’s rights. And the decision whether one or both parents should retain their rights may have substantial bearing on the analysis of the best interest of the children.13  

¶34 With these concerns in mind, we conclude that the mother’s briefing decisions should not foreclose her from participating in the case on remand. Both parents’ legal rights should be on the table. 

¶35 In remanding, we are not foreclosing the possibility that concerns expressed in the juvenile court’s order—such as the risk and effects of domestic violence—may be a sufficient basis for termination of the parents’ legal rights. Nor are we suggesting that the parents have not yet had a “reasonable length of time” to adjust their “circumstances, conduct, or conditions.” On these and other points, we are simply holding that the juvenile court’s opinion is too affected by legal error to merit deference on appeal. And we are sending the matter back to the juvenile court to exercise its discretion under a correct formulation of the law. 

IV 

¶36 We vacate the juvenile court’s order terminating the parental rights of the parents. In so doing, we leave in place any threshold orders not challenged on appeal—such as the court’s order establishing the parents’ unfitness. But we remand the case for rehearing on the question whether termination of their parental rights is strictly necessary in the best interest of the children, under the governing legal standard as clarified in this opinion. 

http://www.utcourts.gov/opinions/view.html?court=supopin&opinion=In re J.L…20220224.pdf 

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After a divorce, should my kids be with me or with the mom?

First, you need to understand that you’re asking the wrong question.

Child custody is not a zero-sum game; otherwise stated, when parents divorce, or when unmarried parents separate, where you get the idea that the children must be in the custody of one parent or the other, but not in the joint custody of both?

Perhaps it has come from the idea you been taught most of your life that children of divorced or separated parents must spend the majority of their time in the custody of one parent. I’m 52 years old at the time I write this, and throughout my youth I was taught that very thing.

Not only were we taught the children should spend most of their time in the custody of just one parent, but we were taught that the parent that should be the “custodial” or primary custodial” parent was the mother. Almost always the mother. The mother, unless it could be proven that the mother was heinously unfit to have custody of the children. It was not uncommon to hear about perfectly good and decent fathers not being awarded custody or not being awarded joint physical custody of their children even when mom had a substance abuse problem or was physically and/or emotionally abusive.

The idea that children could be or should be cared for equally or as near to equally as possible by both parents was in the not so distant past unthinkable. The idea of children being cared for by their fathers was believed to be emotionally and psychologically damaging to children, especially very young children. The more research that is conducted on the subject, however, the more we learn that such thinking is wrong. I’ll be the first to admit that, especially in American culture, it seemed somewhat intuitive to believe that children might need or fare better in the care of their mothers instead of their fathers, but it turns out that’s false.

Unfortunately, the legal profession and the courts have been very slow to accept, let alone embrace, this fact. But things are changing in the legal profession and the courts, and at a comparatively rapid pace.

Now (I write this May 27, 2021), things are different, or I should say they are becoming different. As well they should be. Just as this country realized it made no sense to make the black man or woman sit at the back of the bus and that all citizens deserve fair and equal treatment under the law, it makes no sense to deny children of as much love and care and companionship of both of their loving, fit parents as possible.

To crib from C.S. Lewis a bit, asking which fit parent the children are better off with is like asking which blade of the scissors we’re better off with.

When children have to loving, caring parents who are physically and emotionally and financially capable of providing the minimally necessary levels of care their children require, there is no to deny children the benefits of being reared by both parents equally. Period.

I am a divorce lawyer in Utah. For those of you who are currently facing or who are contemplating a possible divorce or child custody dispute in Utah, you may find these statutory criteria that the courts are supposed to apply when making child custody determinations:

Utah Code:


Section 10
. Custody of a child — Custody factors.

Section 10.1. Definitions — Joint legal custody — Joint physical custody.

Section 10.2. Joint custody order — Factors for court determination — Public assistance.

And these sections are worth reviewing to get an idea of what the definitions of child custody are, whether that be legal custody or physical custody:


Section 33
. Advisory guidelines.

Section 34. Parent-time — Best interests — Rebuttable presumption.

Section 34.5. Supervised parent-time.

Section 35. Minimum schedule for parent-time for children 5 to 18 years old.

Section 35.1. Optional schedule for parent-time for children 5 to 18 years of age.

Section 35.2. Equal parent-time schedule.

Section 35.5. Minimum schedule for parent-time for children under five years of age.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/After-a-divorce-should-my-kids-be-with-me-or-with-the-mom/answer/Eric-Johnson-311

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How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

How exactly does shared custody work? Does the child end up being like that kid from Jacqueline Wilson’s “The Suitcase Kid”?

The child certainly can be like the child (Andrea) from Jacqueline Wilson’s “The Suitcase Kid,” if under a shared parenting arrangement 1) the child divides his/her time living with both the father and mother and 2) each parent wants the child to live only with him/her and tries to persuade the child to do so.

But shared custody (also known as joint custody or—when the child spends equal time with both parents—joint equal or 50/50 custody) does not inexorably condemn the child to have a “Suitcase Kid” experience, as long as the parents place the happiness and mental and emotional health of the child above the parents’ respective self-interest. Treat your child the way you would want to be treated, were you in the child’s shoes!

It’s not popular these days to state what we all know: the best thing a fit parent can do for a child is to rear that child in a family in which that parent is married happily to the child’s other parent. Short of that, the next best thing a fit parent can do for a child is to ensure the child is reared as much as possible by both parents. Children of fit parents love both parents and want to be loved and cared for by both parents as much as possible (duh). Do it for them! They deserve it. It’s the least that divorced or separated parents can do for their children.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-exactly-does-shared-custody-work-Does-the-child-end-up-being-like-that-kid-from-Jacqueline-Wilsons-The-Suitcase-Kid/answer/Eric-Johnson-311

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In re Adoption of B.F.S – 2020 UT App 149 – venue for adoption vs. venue for petition for determination of rights

2020 UT App 149
THE UTAH COURT OF APPEALS
IN THE MATTER OF THE ADOPTION OF B.F.S., A PERSON UNDER EIGHTEEN YEARS OF AGE.
HEART TO HEART ADOPTIONS INC., Appellant.

Opinion
No. 20190933-CA
Filed November 5, 2020

Third District Court, Tooele Department
The Honorable Matthew Bates
No. 192300046

Lonn Litchfield, Attorney for Appellant

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE APPLEBY concurred.

MORTENSEN, Judge:

¶1        Heart to Heart Adoptions Inc. (the Agency) appeals the district court’s denial and dismissal of its petition for a determination of rights and interests in B.F.S. (Child) and an order for temporary custody on the bases of improper venue and Child’s best interests. We reverse.

BACKGROUND

¶2        Child was born in Michigan in March 2019. Shortly thereafter, Child’s unwed mother executed a consent to Child’s adoption and relinquished Child to the Agency, a licensed child-placing agency in Utah. The Agency sought to place Child with potential adoptive parents in Minnesota. The Agency filed a petition in Utah’s Third District Court for a determination of rights, see Utah Code Ann. § 78B-6-109 (LexisNexis 2018), and for an order of temporary custody, see id. § 78B-6-134 (2018), to facilitate Child’s adoption.

¶3        Though the petition was unopposed, the court denied and dismissed it. Citing Utah Code section 78B-6-105(1), the court found that Utah was not a proper venue because Child was not born in Utah and the prospective adoptive parents did not reside in Utah. Citing Utah Code section 78B-6-102(1), the court also found that Child’s best interests were not served by resolution of the petition by a Utah court “that has no interest in the placement of [Child].”

¶4        The Agency appealed.[1] During oral argument, the Agency indicated the determination sought in the underlying action subsequently may have been adjudicated in another court. This court requested additional briefing on the issue of mootness. Following briefing, we conclude the public interest exception applies and proceed to resolve the issues appealed.[2]

 

ISSUES AND STANDARDS OF REVIEW

¶5        The Agency asserts that the district court erred in denying and dismissing the petition by arguing the court misinterpreted Utah Code section 78B-6-105(1). “We review questions of statutory interpretation for correctness, affording no deference to the district court’s legal conclusions.” In re adoption of B.N.A., 2018 UT App 224, ¶ 8, 438 P.3d 10 (cleaned up).

¶6        The Agency also contends that the court erred in denying and dismissing the petition based on the court’s determination of Child’s best interests under Utah Code section 78B-6-102(1). When reviewing a decision regarding a prospective adoptee’s best interests, we afford the district court’s decision “a high degree of deference.” In re J.M., 2020 UT App 52, ¶ 24, 463 P.3d 66 (cleaned up). We will reverse only for clear error, “which we find when the result is against the clear weight of the evidence or leaves us with a firm and definite conviction that a mistake has been made.” Id. (cleaned up).

ANALYSIS
I.

¶7        The Agency argues that the district court erred in dismissing the petition based on the court’s conclusion under Utah Code section 78B-6-105 that venue was improper in Utah. We agree.

¶8        To begin, the statute provides,

Adoption proceedings shall be commenced by filing a petition with the clerk of the district court either:

(a) in the district where the prospective adoptive parent resides;

(b) if the prospective adoptive parent is not a resident of this state, in the district where:

(i) the adoptee was born;

(ii) the adoptee resides on the day on which the petition is filed; or

(iii) a parent of the proposed adoptee resides on the day on which the petition is filed; or

(c) with the juvenile court as provided in Subsection 78A-6-103(1).

Utah Code Ann. § 78B-6-105(1) (LexisNexis 2018). In the case of In re adoption of B.N.A., 2018 UT App 224, 438 P.3d 10, we recognized that section 78B-6-105(1) is the venue statute for adoption proceedings. Id. ¶ 24. Adoption proceedings seek judicial acts creating a parent-child relationship and terminating the parental rights of others with respect to the proposed adoptee. See Utah Code Ann. § 78B-6-103(2) (2018); In re adoption of B.H., 2020 UT 64, ¶ 37. A determination of rights and interests in a child is not an adoption proceeding but is precursory to the adoption petition.[3] See Utah Code Ann. § 78B-6-109 (2018) (determination of rights prior to adoption petition). Therefore, the venue provision in section 78B-6-105 does not apply to a petition for a determination of rights under section 78B-6-109 brought pursuant to section 78B-6-134 for an order of temporary custody.

¶9 Neither section 78B-6-109 nor section 78B-6-134 contains a venue provision. Accordingly, a petition for a determination of rights and an order of temporary custody is controlled by the general catch-all venue provision. See Carter v. University of Utah Med. Center, 2006 UT 78, ¶ 12, 150 P.3d 467 (holding that the general catch-all venue provision applies when neither an act’s venue provision nor any other venue provision controls). That provision states, “In all other cases an action shall be tried . . . in any county designated by the plaintiff in the complaint,” “[i]f none of the defendants resides in this state.” Utah Code Ann. § 78B-3-307(1), (3) (LexisNexis 2018). The action in this case is not contested and has no defendants or respondents. As such, the Agency was entitled to adjudication of the petition in the district where it was filed. Accordingly, the district court erred in dismissing the petition for lack of venue.

II.

¶10 The Agency also contends the district court erred in denying and dismissing the petition based on the court’s determination of Child’s best interests under Utah Code section 78B-6-102(1). We agree.

¶11 Section 78B-6-102 sets out our legislature’s intent for the Utah Adoption Act, including the “desire . . . that in every adoption the best interest of the child should govern and be of foremost concern in the court’s determination.” Utah Code Ann. § 78B-6-102(1) (LexisNexis 2018). Assuming that this intent extends to the action at issue, we conclude it was in Child’s best interests for the district court to adjudicate the Agency’s petition.

¶12 The Agency is Utah based. As such, it is regulated by Utah law, and Utah has an interest in ensuring the Agency conducts its business accordingly. Likewise, Utah has an interest in ensuring the Agency receives the benefits and protections of Utah law. Utah also has an interest in protecting adoptees who are in the custody and control of Utah-based agencies, regardless of whether those adoptees are born in or placed with adoptive parents in Utah.

¶13 Additionally, “the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, [and] in preventing the disruption of adoptive placements.” Id. § 78B-6-102(5)(a); In re adoption of K.T.B., 2020 UT 51, ¶ 42, 472 P.3d 843 (quoting same); see also In re adoption of J.S., 2014 UT 51, ¶ 41, 358 P.3d 1009 (state’s strong interest in immediate and secure adoptions for eligible newborns); In re adoption of B.B.D., 1999 UT 70, ¶ 14, 984 P.2d 967 (state’s compelling interest in adoption process). And both the state and a child have a complementary interest in achieving “a determination that a child can be adopted” and doing so in a manner that is “final as well as immediate.” Wells v. Children’s Aid Society of Utah, 681 P.2d 199, 203 (Utah 1984), abrogated on other grounds by In re adoption of J.S., 2014 UT 51, 358 P.3d 1009; see also In re adoption of B.Y., 2015 UT 67, ¶¶ 32, 46 n.10, 356 P.3d 1215 (state’s interests in facilitating adoption expeditiously and speedily identifying persons to assume parental role). These interests are present whether the prospective adoptee originates from Utah, is intended to be placed in Utah, resides in Utah, or is in the custody and control of a Utah-based agency. Here, the Agency is Utah based and had custody and control of Child. Therefore, both the Agency and Child were entitled to the protections and benefits of Utah law.

¶14      The denial of the petition impeded the determination that Child could be adopted. The court’s order denied Child the stability the legislature sought to effectuate in passing the Utah Adoption Act. The court’s finding that the petition should be adjudicated in a “state in which the prospective parents live or the state in which the child was born or resides, not a state, like Utah, that has no interest in the placement of the child,” was therefore clearly erroneous.

CONCLUSION

¶15      We conclude that the district court erred in dismissing the Agency’s petition for a determination of rights and interests in Child and for an order of temporary custody on the grounds of venue. We also determine that the court clearly erred in so doing based on its determination of Child’s best interests. Reversed.

Utah Family Law, LC | divorceutah.com | 801-466-9277

——————-

[1] This action was unopposed at the district court and remains unopposed on appeal. In connection with proceedings that “involve[] the termination and creation of parental rights,” this action falls within “the constitutional grant of judicial power to the courts,” and it is appropriate for our court to review the action “despite the lack of adversariness.” In re Gestational Agreement, 2019 UT 40, ¶ 18, 449 P.3d 69.

[2] The Agency’s supplemental brief indicates that Child’s adoption was finalized in Minnesota in November 2019, arguably rendering this action moot. Nevertheless, because we conclude that the public interest exception applies in these circumstances, we reach the issues appealed. We recognize “an exception to the mootness doctrine when the case: (1) affects the public interest, (2) is likely to recur, and (3) because of the brief time that any one litigant is affected, is likely to evade review.” Timothy v. Pia, Anderson, Dorius, Reynard & Moss LLC, 2019 UT 69, ¶ 32, 456 P.3d 731 (cleaned up). The present appeal is one of three submitted to us on almost identical facts. In each case, the district court ruled that Utah courts could not entertain the petition for a determination of rights based on grounds addressed here. In each case, when the court denied relief, the Agency was forced to await the determination of rights in the courts of another state where the eventually identified adoptive parents resided. Accordingly, these issues are not only likely to recur, but have recurred. Additionally, awaiting appellate review delays the finalization of the adoption. Furthermore, these issues are important to Utah adoption agencies and potential adoptees, and will continue to evade review. Because facilitating the adoption of children in the custody and control of Utah adoption agencies is in the public interest, we exercise our discretion to reach the merits in this case.

[3] We note that adoption agencies do not always have prospective adoptive parents identified for a child when a petition is filed. Nonetheless, an agency has an interest in the determination of rights in a child to establish control and custody of the prospective adoptee and to facilitate a future adoption. It thus makes little sense to deny an adoption agency the benefit of the law based on a venue provision premised on the location of prospective adoptive parents—who may not have been identified yet. And the language of the statute does not dictate such an outcome. Although the legislature may amend the venue provision to expressly provide for venue in a district in which an adoption agency operates to prevent confusion, the absence of that language does not call for the result reached by the district court in this case.

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In re Adoption of B.H. – 2020 UT 64 – UCCJE and ICPC

This opinion is subject to revision before final publication in the Pacific Reporter

2020 UT 64

IN THE SUPREME COURT OF THE STATE OF UTAH

In the Matter of the Adoption of B.H.,
a person under eighteen years of age

P.H. and A.D., Respondents,

v.

C.S., Petitioner.

No. 20190560
Heard April 10, 2020
Filed September 16, 2020

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake
The Honorable Robert P. Faust
No. 162900039

Attorneys:
Jessica S. Couser, Holladay, Benjamin K. Lusty, Salt Lake City, for respondents
Julie J. Nelson, Salt Lake City, Lisa B. Lokken, Cottonwood Heights, for petitioner

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 This case involves an interstate adoption. At the time of the child’s birth, the child’s mother (Mother) was a Montana resident and gave birth to the child there. Mother chose to place the child for adoption with two Utah residents, the Respondents (Adoptive Parents). Because the adoption involved an interstate placement of the child, Mother and Adoptive Parents were required to comply with the Interstate Compact on the Placement of Children (ICPC). UTAH CODE §§ 62a-4a-701 to -711.

¶2 Mother and Adoptive Parents followed the ICPC process. However, on a required ICPC request form, Mother did not list the Petitioner (Father) as the child’s father, even though he was her husband at the time and therefore the child’s legal father. Mother and Father had been separated for quite some time, and she believed he was not the child’s biological father. On the request form, she listed as the child’s father the man she believed to be the biological father.

¶3 Adoptive Parents filed an adoption petition in Utah district court. After taking temporary custody of the child in Montana, they returned with the child to Utah. They soon learned that Mother might still be married to Father, and they served him with notice of the adoption petition. Father successfully intervened in the proceeding and sought custody of the child. Adoptive Parents petitioned to terminate Father’s parental rights within the adoption proceeding. In the meantime, a genetic test revealed that Father was not only the child’s legal father, he was the child’s biological father as well.

¶4 The district court held a bench trial and concluded that Father had abandoned the child and was an unfit parent. The court terminated his parental rights and then finalized the adoption. Father appealed.

¶5 Father argued in the court of appeals that the district court lacked jurisdiction over the termination proceeding under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). UTAH CODE §§ 78B-13-101 to –318. Father also argued that Mother’s failure to include him on the ICPC request form invalidated the adoption. The court of appeals rejected both arguments. But it set aside the adoption decree because it did not state that the requirements of the ICPC had been complied with, as required by the Adoption Act.[1] Accordingly, the court of appeals remanded to the district court for the court to address this insufficiency.

¶6 We granted Father’s petition for certiorari. We affirm.
BACKGROUND[2]

¶7 Mother and Father, both residents of Montana, were married in 2008. They eventually separated. Mother planned to file for divorce but had not yet done so when she learned she was pregnant. She was unsure who the biological father was, but she believed it was likely a man named D.G. She ultimately decided to place her child for adoption with Adoptive Parents, who are Utah residents. At the time of the adoption petition, Mother was legally married to Father.

¶8 Adoptive Parents filed a petition for adoption in Utah district court. The child was born in Montana four days later. Adoptive Parents traveled to Montana and were at the hospital within hours of the birth.

¶9 Because the adoption would involve placement of the child across state lines, the parties to the adoption were required to comply with the ICPC. Mother completed ICPC form 100A, titled Interstate Compact on the Placement of Children Request (request form). Notably, on the request form Mother identified D.G. as the child’s father. Both Mother and D.G. voluntarily relinquished their parental rights.

¶10 Mother appointed Adoptive Parents as temporary guardians. Once the child was discharged from the hospital, Adoptive Parents took custody of the child. They stayed for a few days in a Montana hotel before returning to Utah with the child. They moved for temporary custody in the Utah district court in which they had filed the adoption petition. The court granted the motion, effective as of the child’s date of birth.

¶11 Around this time, Adoptive Parents learned that Mother might still be married. They quickly sent notice of the adoption proceedings to Father. Father timely moved to intervene in the case. And the district court granted the motion.

¶12 While the adoption proceeding was pending in Utah, Father filed for divorce in Montana and listed the child “as a child of the marriage.” The Montana court ordered genetic testing of Father and the child pursuant to Montana law. The genetic test revealed that Father was the child’s biological father.

¶13 Adoptive Parents petitioned to terminate Father’s parental rights within the Utah adoption proceeding, pursuant to Utah Code sections 78B-6-112[3] and -133 of the Utah Adoption Act (Adoption Act). The district court held a bench trial on the termination petition. But the court paused before issuing its ruling and asked the parties to brief whether the court had jurisdiction to terminate Father’s parental rights in light of his Montana residency.[4]

¶14 Adoptive Parents argued that the district court had subject matter jurisdiction over the termination proceeding pursuant to the Adoption Act because the termination was “for the purpose of facilitating the adoption of the child.” (Citing UTAH CODE § 78B-6-112(1)).

¶15 In response to the district court’s briefing request, Father contested the court’s subject matter jurisdiction for the first time. He asserted that jurisdiction was governed not by the Adoption Act but by the UCCJEA. And he argued that under the UCCJEA, Montana was the child’s home state and should have jurisdiction over the termination proceeding. Father also asserted that because his name was not on the request form, the placement did not comply with the ICPC. According to Father, this was a jurisdictional defect.

¶16 The district court did not explicitly rule on the parties’ briefing. But it ultimately exercised jurisdiction over the termination proceeding. It ruled on the merits of the termination petition, finding that Father had abandoned the child and was an unfit parent due to his alcohol abuse, drug addiction, and extensive criminal history, among other things. The court then finalized the adoption.

¶17 In the adoption decree and the accompanying findings of fact and conclusions of law, the district court did not explicitly conclude that the requirements of the ICPC had been met, as required by the Adoption Act. See id. § 78B-6-107(1)(a). However, the district court did make some findings relevant to ICPC compliance, including that “[t]he pre-placement and post-placement adoptive evaluations have been filed with the Court, and they confirm that the adopting parents are fit to parent [the child]” and “Mother’s Relinquishment and ICPC forms from Montana have been filed with the court.” The court concluded that “[t]he requirements of [the Adoption Act] have been met.”

¶18 Father appealed. He argued that “Utah cannot terminate a parent’s rights in the context of an adoption without that court having acquired jurisdiction to do so under the UCCJEA.” In re Adoption of B.H., 2019 UT App 103, ¶ 16, 447 P.3d 110. As the court of appeals explained, “Father contends that, under these facts, jurisdiction under the UCCJEA is a prerequisite to jurisdiction under the Adoption Act.” Id.

¶19 The court of appeals rejected this argument. It noted that the UCCJEA explicitly states that it does not govern adoption proceedings. Id. ¶ 17. And it concluded that the Adoption Act “expressly confers subject matter jurisdiction to terminate parental rights for the purpose of facilitating an adoption.” Id. ¶ 12 (citing UTAH CODE § 78B-6-112(1)).

¶20 Father also asserted that the adoption was invalid because Mother failed to comply with the ICPC when she did not list him as the child’s father on the request form. The court of appeals agreed that this was a material deficiency, but it concluded it was not a jurisdictional defect. In re Adoption of B.H., 2019 UT App 103, ¶ 28. The court noted, however, that the Adoption Act requires that a final decree of adoption state that the ICPC “ha[s] been complied with.” Id. ¶ 26. Because the district court failed to make such a conclusion, the court of appeals set aside the decree. Id. ¶ 30. It remanded to the district court for additional factfinding regarding ICPC compliance. Id. It also stated that, if necessary, Adoptive Parents could “still undertake steps to comply with the ICPC prior to reinstating the adoption decree.” Id. ¶ 27 n.7.

¶21 Father petitioned for certiorari, which we granted. We exercise jurisdiction under Utah Code section 78A-3-102(3)(a).

ISSUES AND STANDARD OF REVIEW

¶22 The questions before us are: (1) whether the court of appeals erred in concluding compliance with the UCCJEA is not a prerequisite to a termination of parental rights within an adoption proceeding and in concluding the requirements of the UCCJEA would have been met in this case if it applied, and (2) whether the court of appeals erred in remanding for a determination of compliance with the ICPC.

¶23 “On certiorari, this court reviews the decision of the court of appeals for correctness, giving no deference to its conclusions of law.” State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650.

ANALYSIS

¶24 Father argues that the court of appeals erred in concluding that the UCCJEA did not apply to the termination petition and the district court had subject matter jurisdiction based solely on the Adoption Act. We agree with the court of appeals that the UCCJEA does not govern jurisdiction over a termination petition brought under the Adoption Act.

¶25 Father also argues that the district court lacked subject matter jurisdiction because Mother failed to comply with the ICPC. Here as well, we agree with the court of appeals. The ICPC deficiency was not a jurisdictional defect. The ICPC does not purport to regulate jurisdiction among party states. And in the event of a violation of its terms, the remedy it provides is the potential for punishment of the alleged violator. It does not provide for the revocation of a child placement or the loss of jurisdiction in the receiving state.

¶26 We first address the applicability of the UCCJEA.

I. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

¶27 Father argues that the UCCJEA governs jurisdiction over the termination proceeding and that it confers jurisdiction upon Montana, not Utah. As the court of appeals observed, the UCCJEA states clearly that it does not apply to proceedings under the Adoption Act. UTAH CODE § 78B-13-103(2)(a). The premise of Father’s argument is that the termination of his parental rights is separate from the adoption proceeding, and that it falls under the Termination of Parental Rights Act. See id. §§ 78A-6-501 to –515. Specifically, Father asserts “Utah cannot terminate an out-of-state parent’s rights under the Termination of Parental Rights Act without the Utah court first having acquired jurisdiction to do so under the UCCJEA, even if the termination is in anticipation of an adoption.”

¶28 When a child custody determination involves parties from more than one state, the UCCJEA “exists to ‘[a]void jurisdictional competition and conflict with courts of other States.’” Nevares v. Adoptive Couple, 2016 UT 39, ¶ 11, 384 P.3d 213 (alteration in original) (citation omitted). Specifically, “the UCCJEA promotes a framework wherein a single state is vested with jurisdiction to make child custody determinations.” Id. And “a uniform set of rules . . . determine[s] which state is best positioned to adjudicate custody disputes.” Id. Under the UCCJEA, a court can exercise jurisdiction over an “initial child custody determination” if it is determined to be the “home state”[5] of the child, or in other limited circumstances. UTAH CODE § 78B­13-201(1). Once a state has exercised jurisdiction under the UCCJEA, that state has “exclusive, continuing jurisdiction” until neither the child nor a parent resides in the state, or the child and parents no longer have significant connections to the state. Id. § 78B-13-202(1). Father argues that Montana is the child’s home state under the UCCJEA, and therefore Utah lacks subject matter jurisdiction to terminate his parental rights.

¶29 Proceedings to terminate parental rights are considered “child custody proceedings” that are subject to the UCCJEA. Id. § 78B-13-102(4) (defining “child custody proceeding” to include termination of parental rights). So the UCCJEA would apply to a termination petition filed under the Termination of Parental Rights Act.

¶30 However, the UCCJEA expressly does not govern “an adoption proceeding.” Id. § 78B-13-103(2)(a). And it defines an adoption proceeding broadly as “any proceeding under Title 78B, Chapter 6, Part 1, Utah Adoption Act.” Id. § 78B-13-103(1). Adoptive Parents filed the termination petition under sections 112 and 133 of the Adoption Act, which provide a mechanism for termination of a person’s parental rights in connection with a contested adoption. Id. §§ 78B-6-112(1), (5), -133. The termination petition may either be “joined with a proceeding on an adoption petition,” id. § 78B-6-112(2)(a), or filed as a separate petition before or after the adoption petition is filed, id. § 78B-6-112(2)(b). But as Father notes, the grounds for termination are those found in the Termination of Parental Rights Act. See id. § 78B-6-112(5)(e).

¶31 Accordingly, the question before us is whether a termination petition filed under the Adoption Act is a “proceeding under [the Adoption Act],” which is not governed by the UCCJEA, or a proceeding under the Termination of Parental Rights Act, which is governed by the UCCJEA. This is a matter of statutory interpretation. The point of statutory interpretation “is to ascertain the intent of the legislature.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (citation omitted). Because the best evidence of legislative intent is the statute’s plain language, we begin there. Id.

¶32 Since we are assessing the interaction of two statutes, it is important to evaluate the statutory framework as a whole. We first examine the procedural and substantive features of a termination proceeding under the Termination of Parental Rights Act, and then make a comparison to a similar proceeding brought under subsections 112 and 133 of the Adoption Act.

A. Termination under the Termination of Parental Rights Act

¶33 Under the Termination of Parental Rights Act, “[a]ny interested party . . . may file a petition for termination of the parent-child relationship with regard to a child.”[6] UTAH CODE § 78A-6-504(1). Such a petition must be brought in the juvenile court. Id. § 78A-6-103(2)(e) (providing that “[t]he juvenile court has original jurisdiction over any proceeding concerning . . . the termination of the legal parent-child relationship in accordance with [the] . . . Termination of Parental Rights Act, including termination of residual parental rights and duties”).

¶34 After a petition has been filed, the petitioner must provide notice to “the parents, the guardian, the person or agency having legal custody of the child, and any person acting in loco parentis to the child.” Id. § 78A-6-506(1)(a). The notice must indicate the “(i) nature of the petition; (ii) time and place of the hearing; (iii) right to counsel; and (iv) right to appointment of counsel for a party whom the court determines is indigent and at risk of losing the party’s parental rights.” Id. § 78A-6-506(1)(b). Importantly, a parent whose rights are subject to being terminated is automatically a party to the proceeding and no intervention is required. See id. § 78A-6-506.

¶35 If the juvenile court terminates a parent’s rights in a child, the Termination of Parental Rights Act contemplates continued juvenile court involvement to find a permanent placement for the child.[7] Until that happens, the Act provides for review hearings at which the “agency or individual vested with custody of the child” reports on the “plan for permanent placement of the child” until the plan has been accomplished. Id. § 78A-6-512(2).

¶36 And although a termination “divests the child and the parents of all legal rights, powers, immunities, duties, and obligations with respect to each other,” id. § 78A-6-513(1), a termination under the Termination of Parental Rights Act does not completely foreclose reunification. A parent whose parental rights have been terminated may seek guardianship and reunification with the child under certain circumstances. Id. § 78A-6-511(6).

B. Termination under the Adoption Act

¶37 Conceptually, the Adoption Act treats the termination of any pre-existing parental rights in the child as part of an adoption. The Act defines an “adoption” not only as the creation of the relationship between the child and the adoptive parents, but also as the termination of the legal relationship between the child and any other person. Id. § 78B-6-103(2) (defining adoption as “the judicial act that: (a) creates the relationship of parent and child where it did not previously exist; and (b) . . . terminates the parental rights of any other person with respect to the child”).[8] In harmony with this definition of “adoption,” the Adoption Act provides a mechanism not only for the creation of a new parent-child relationship, but also for the termination of any other person’s rights in the child. In connection with the adoption of a child, a court has jurisdiction to terminate another person’s rights in the child if the person voluntarily relinquishes their parental rights, fails to intervene in the proceeding, is an unmarried biological father who has failed to perfect his parental rights, or the court determines the person is not the child’s parent. Id. § 78B-6-112(5)(a)–(d). And relevant here, if a person whose consent is required contests the adoption, the Act provides a mechanism for determining whether the person’s rights should be terminated. Id. §§ 78B-6-112(5)(e), -133.

¶38 A termination proceeding brought under the Adoption Act is procedurally different than such a proceeding brought under the Termination of Parental Rights Act. Notably, the Adoption Act provides that “a petition filed under [section 112] is subject to the procedural requirements of this chapter.” Id. § 78B­6-112(8).

¶39 First, jurisdiction varies between termination petitions brought under the two laws. As discussed, proceedings brought under the Termination of Parental Rights Act are within the juvenile court’s exclusive jurisdiction. Id. § 78A-6-103(2)(e). But termination petitions brought in connection with a contested adoption may be handled in the district court. Id. § 78B-6-112(1). A district court has jurisdiction over a termination proceeding only if it is brought to facilitate the adoption of a child. Id.

¶40 Additionally, the manner in which a parent whose rights are subject to termination learns of and becomes a party to the termination proceeding varies based on whether the petition arises under the Adoption Act or the Termination of Parental Rights Act. As explained above, supra ¶ 34, when a petition is filed under the Termination of Parental Rights Act, the petitioner must give notice to a parent whose rights are subject to termination. And the parent is automatically a party to the proceeding. Supra ¶ 34.

¶41 But that is not the case when the termination arises under the Adoption Act. A person in Father’s position, who is the presumed father of the child, must receive notice of the adoption petition. UTAH CODE § 78B-6-110(2)(a), (h). The required content of this notice differs from that required by the Termination of Parental Rights Act. Compare id. § 78B-6-110(5), with id. § 78A-6-506(1)(b). The Adoption Act requires that the notice contain specific information unique to an adoption proceeding, including: (1) the intervention requirements in subsection 110(6)(a);[9] (2) the consequences for failing to intervene listed in subsection 110(6)(b);[10] and (3) where a copy of the petition for adoption may be acquired. Id. § 78B-6-110(5)(c)– (d), (f).

¶42 Although a presumed father of a child must be notified of an adoption petition, he is not automatically a party to the adoption proceeding. He must move to intervene. Id. § 78B-6­110(6)(a). And “[a]n individual who files a motion to intervene in an adoption proceeding . . . is not a party to the adoption proceeding, unless the motion to intervene is granted.” Id. § 78B-6-141(5)(a)(i). Unlike a proceeding under the Termination of Parental Rights Act, if the presumed father does not intervene the court may terminate his rights in the child without him ever being a party to the proceeding. Id. § 78B-6-112(5)(c).

¶43 Finally, in some ways the two laws provide for substantively different proceedings. The proceedings are similar in that the grounds for termination are the same under both acts. See id. §§ 78A-6-507, 78B-6-112(5)(e). The Adoption Act cross-references the factors that are found in the Termination of Parental Rights Act. Id. § 78B-6-112(5)(e).

¶44 But because terminations under the Termination of Parental Rights Act do not necessarily include a permanent placement for the child, that Act contemplates continued juvenile court review hearings until a permanent placement is found. Supra ¶ 35. And it does not completely foreclose reunification. Supra ¶ 36.

¶45 In contrast, when parental rights are terminated under the Adoption Act and the court enters an adoption decree, that Act does not provide for continued court involvement. A new parent-child relationship has been formed. Id. § 78B-6-103(2)(a)– (b). The former parent’s rights in and obligations to the child are extinguished. Id. § 78B-6-138. And there is no provision for reunification with the parent whose rights were terminated.

¶46 In sum, when a potential adoptive parent petitions for a termination of another’s parental rights under the Adoption Act, except for the cross-reference to the grounds for termination, the petitioner follows the provisions of the Adoption Act, not the parallel provisions of the Termination of Parental Rights Act. And in numerous ways, those provisions are different.

C. Adoptive Parents’ Petition

¶47 Here, Adoptive Parents filed the petition to terminate Father’s parental rights under the Adoption Act. See id. §§ 78B-6-112(1), -133. It was filed in the district court as part of the adoption proceeding. See id. § 78B-6-112(2)(a). The district court had jurisdiction over the termination proceeding only because Adoptive Parents sought the termination to facilitate the adoption of the child. See id. § 78B-6-112(1). Adoptive Parents initially notified Father of the adoption petition as required by the Adoption Act. See id. § 78B-6-110(2), (5). And Father had to move to intervene to be included in the proceeding. See id. § 78B-6­110(6)(a). He was not automatically a party as he would have been had the termination been brought under the Termination of Parental Rights Act.

¶48 Yet Father argues the termination is a proceeding under the Termination of Parental Rights Act, even though it was brought under the Adoption Act, because the Adoption Act references the grounds for termination outlined in the Termination of Parental Rights Act.[11] See id. § 78B-6-112(5)(e). We disagree with Father’s reasoning. The Adoption Act’s cross-reference to the grounds for termination found in the other act does not mean that a contested termination brought under the Adoption Act actually arises under the Termination of Parental Rights Act. See Anderson v. Anderson, 416 P.2d 308, 309–10 (Utah 1966) (concluding where one statute merely cross-references another statute, the entirety of that referenced statute is not necessarily incorporated into the other). It means only that the same considerations apply whenever a termination is sought, whether or not it is in connection with an adoption. The cross-reference to the shared grounds for termination does not take this proceeding outside of the Adoption Act.

¶49 We conclude that the language and structure of the Adoption Act make clear that a termination petition such as the one here, which is brought under sections 112 and 133 in connection with an adoption, is a proceeding under the Adoption Act. The Adoption Act contemplates that an adoption involves both the judicial act that “creates the relationship of parent and child where it did not previously exist,” and “terminates the parental rights of any other person with respect to the child.” UTAH CODE § 78B-6-103(2). And the Act establishes a particular framework that permits potential adoptive parents to petition for termination if the adoption is contested.[12] Id. §§ 78B-6-112, -133.

¶50 Accordingly, we conclude that the instant termination petition and related proceedings are “adoption proceedings” as defined in the UCCJEA. We affirm the court of appeals’ determination that the UCCJEA does not govern subject matter jurisdiction here. Because we find the UCCJEA inapplicable, we do not address whether the court of appeals erred in concluding that the requirements of that statute would have been met if it did apply.

II. INTERSTATE COMPACT ON THE PLACEMENT OF

CHILDREN

¶51 We now address Father’s argument that the court of appeals erred in remanding the case to the district court for supplemental factfinding regarding compliance with the ICPC. The court of appeals concluded that Mother’s ICPC request form was defective because she listed D.G. instead of Father as the child’s father. In re Adoption of B.H., 2019 UT App 103, ¶ 28, 447 P.3d 110. But the court held that this defect did not deprive the district court of jurisdiction or otherwise require dismissal of the adoption petition. Id. However, because the district court did not include a conclusion that the ICPC “ha[d] been complied with” in the adoption decree— as required by the Adoption Act, UTAH CODE § 78B-6-107(1)(a)—the court of appeals set aside the decree. In re Adoption of B.H., 2019 UT App 103, ¶ 30. It then remanded to the district court for additional factfinding, and if necessary to give Adoptive Parents an opportunity to cure the ICPC deficiency before moving for reinstatement of the decree. Id. ¶ 27 n.7. Neither party has contested the court of appeals’ determination that the ICPC request was materially defective, so that issue is not before us.

¶52 Father contends it was error for the court of appeals to remand to the district court for additional factfinding and to permit the Adoptive Parents to cure the ICPC deficiency if necessary. He asserts that the ICPC must be complied with before filing an adoption petition and that the failure to do so constitutes an irreparable jurisdictional defect. He contends that because the ICPC notice was defective, Mother’s attempt to invoke the jurisdiction of Utah courts is invalid and the deficiency can no longer be cured.[13] Father asserts that this means Montana has jurisdiction over the child and that any new ICPC request must be filed in Montana.

¶53 We agree with the court of appeals that the deficient ICPC request form does not deprive the Utah court of jurisdiction. A reading of the ICPC reveals that it does not purport to govern jurisdiction among party states or strip jurisdiction from a receiving state as a remedy for a violation of its terms.

¶54 The ICPC “provides a uniform legal framework for the placement of children across State lines in foster homes and[] adoptive homes.” CRS REPORT FOR CONGRESS, RL32070, INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN: ICPC, 1 (2003). It is a compact among party states[14] “to cooperate with each other in the interstate placement of children” to ensure that (1) children requiring placement “receive the maximum opportunity to be placed in a suitable environment”; (2) the receiving state “may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child”; (3) the sending state “may obtain the most complete information on the basis of which to evaluate a projected placement before it is made”; and (4) “[a]ppropriate jurisdictional arrangements for the care of the children will be promoted.” UTAH CODE § 62A-4a-701 art. I(1)–(4). Its “chief function . . . is to protect the interests of children and of the States by requiring that certain procedures be followed in the making and the maintenance of interstate child placements.” CRS REPORT FOR CONGRESS, RL32070, INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN: ICPC, 1 (2003).

¶55 To this end, the ICPC requires that a “sending agency” comply with its terms and with any applicable laws of the receiving state that govern the placement of children in that state. UTAH CODE § 62A-4a-701 art. III(1). A “sending agency” is:

[A] party state, officer, or employee thereof; a subdivision of a party state, or officer or employee thereof; a court of a party state; a person, corporation, association, Indian tribe, charitable agency, or other entity which sends, brings, or causes to be sent or brought any child to another party state.

Id. § 62A-4a-701 art. II(2). Here, Mother is the “sending agency” because she is the “person” who caused the child to be sent to Utah with Adoptive Parents.

¶56 Father is correct that Mother was required to comply with the ICPC before sending the child to Utah with Adoptive Parents. See id. § 62A-4a-701 art. III(2) (requiring compliance “[p]rior to sending, bringing, or causing any child to be sent or brought into a receiving state for placement”).

¶57 However, it does not follow that her deficient attempt to do so constitutes an irreparable jurisdictional defect. The ICPC addresses the consequences of a failure to comply with its terms, and none of them involve transferring jurisdiction over the child from the receiving state to the sending state or reversing a child placement. The ICPC provides that a violation of its provisions constitutes a violation of “the laws respecting the placement of children” of both the sending state and the receiving state. Id. § 62A-4a-701 art. IV. And such a violation “may be punished or subjected to penalty in either jurisdiction in accordance with its laws.” Id. Father does not identify a law in either state that would require a reversal of the placement or a loss of jurisdiction in Utah under the circumstances here.

¶58 Additionally, the ICPC provides that in the case of a violation by a sending agency, “any violation shall constitute full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency which empowers or allows it to place, or care for children.” Id. Notably, this provision focuses on penalties and punishments directed at the noncompliant entity. It does not provide for reversing the placement that resulted from the violative behavior or the loss of jurisdiction over the child in the receiving state. We agree with the court of appeals that the penalties for noncompliance contemplated in the ICPC do not “divest the district court of jurisdiction.” In re Adoption of B.H., 2019 UT App 103, ¶ 28.

¶59 Father also asserts that because Mother’s attempt to invoke the jurisdiction of Utah courts was lacking, the sending jurisdiction retains jurisdiction. But that is incorrect. One provision of the ICPC speaks to “retention of jurisdiction.” See UTAH CODE § 62A-4a-701 art. V. It states,

The sending agency shall retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment, and disposition of the child which it would have had if the child had remained in the sending agency’s state, until the child is adopted, reaches majority, becomes self-supporting, or is discharged with the concurrence of the appropriate authority in the receiving state.

Id. § 62A-4a-701 art. V(1) (emphasis added). This preserves the sending agency’s jurisdiction over the child, not the sending state’s jurisdiction over the child.[15] Here, that is Mother; not Montana.[16]

¶60 Father also argues that because the Adoption Act requires compliance with the ICPC, the adoption is invalid because of the defective ICPC request. Father is correct that the Adoption Act requires compliance with the ICPC. See id. § 78B-6-107(1)(a) (stating “in any adoption proceeding . . . the court’s final decree of adoption shall state that the requirements of [the ICPC] have been complied with”). However, the Adoption Act does not provide for a dismissal of the adoption petition or a loss of jurisdiction as a result of noncompliance.

¶61 The provision of the Adoption Act that most closely addresses the circumstances here functions similarly to the ICPC— it provides for remedies against the alleged wrongdoer. Utah Code section 78B-6-106(2) states,

Any person injured by fraudulent representations or actions in connection with an adoption is entitled to pursue civil or criminal penalties in accordance with existing law. A fraudulent representation is not a defense to strict compliance with the requirements of this chapter and is not a basis for dismissal of a petition for adoption, vacation of an adoption decree, or an automatic grant of custody to the offended party. Custody determinations shall be based on the best interests of the child, in accordance with the provisions of Section 78B-6-133.

(Emphasis added.) Accordingly, even assuming Mother knowingly made a fraudulent misrepresentation on the ICPC request form, the Adoption Act explicitly rejects dismissal of the petition or transfer of custody to Father as a consequence.

¶62 We agree with the court of appeals that the ICPC deficiency in this case is not a jurisdictional defect. Neither the ICPC nor the Adoption Act provides for a loss of jurisdiction in the Utah district court or a dismissal of the adoption petition under these circumstances.

¶63 Even so, we also agree with the court of appeals that it is necessary to set aside the adoption decree in its current form and remand to the district court for further proceedings. The Adoption Act requires that the district court state in the adoption decree that the ICPC was complied with. And although the district court concluded that the requirements of the Adoption Act had been met, the court did not support this conclusion with the necessary determination of ICPC compliance.

¶64 As we have explained, this deficiency is not a jurisdictional defect. Neither the ICPC nor the Adoption Act requires dismissal of the petition or a loss of jurisdiction in the district court. But the fact remains that the district court’s conclusions of law in support of the adoption decree are insufficient. Accordingly, we set aside the decree and remand to the district court for further proceedings. We leave the form and scope of those proceedings to the district court’s discretion.

CONCLUSION

¶65 We affirm. We agree with the court of appeals that the Adoption Act rather than the UCCJEA governs subject matter jurisdiction over the termination petition. Accordingly, the district court had subject matter jurisdiction over this proceeding. We also conclude that the deficient ICPC request form is not a jurisdictional defect under the ICPC or the Adoption Act. However, the district court’s conclusions of law in support of the adoption decree were inadequate. We set aside the adoption decree and remand to the district court for further proceedings consistent with this opinion.

Utah Family Law, LC | divorceutah.com | 801-466-9277

————————————————————

[1] The Adoption Act requires that, “the court’s final decree of adoption shall state that the requirements of Title 62A, Chapter 4a, Part 7, Interstate Compact on Placement of Children, have been complied with.” UTAH CODE § 78B-6-107(1)(a).

[2] “On appeal from a bench trial, we view and recite the evidence in the light most favorable to the trial court’s findings.” Utah State Tax Comm’n v. See’s Candies, Inc., 2018 UT 57, ¶ 5 n.2, 435 P.3d 147 (citation omitted).

[3] This provision has since been amended by 2020 Utah Laws Ch. 392 (S.B. 170). However, the changes to this section are not substantive, so we cite to the current version of the code.

[4] The parties briefed both subject matter and personal jurisdiction and some additional arguments that they do not raise on appeal. We describe only the arguments that are relevant to the issues before us.

[5] A “home state” is defined as:

[T]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

UTAH CODE § 78B-13-102(7).

[6] However, if the petition to terminate parental rights is brought on behalf of the Division of Child and Family Services, it must be brought by the attorney general. UTAH CODE § 78A-6­504(2).

[7] The court may “place the child in the legal custody and guardianship of a licensed child placement agency or the division for adoption” or “make any other disposition of the child authorized under Section 78A-6-117.” Id. § 78A-6-511(2). And if a suitable adoptive placement is not available, the juvenile court must determine whether there is a relative who desires to adopt the child; may order a search to determine whether there are relatives who are willing to adopt the child; and if such a relative is located, make a finding as to whether the relative is fit to adopt the child, and place the child for adoption with the relative unless it is not in the child’s best interest to do so. Id. § 78A-6-511(4).

[8] We note the definition includes two exceptions that apply to an adoption by a person who is married to one of the biological parents. As that is not the situation here, we do not address those exceptions.

[9] Id. § 78B-6-110(6)(a) (“A person who has been served with notice of an adoption proceeding and who wishes to contest the adoption shall file a motion to intervene in the adoption proceeding: (i) within 30 days after the day on which the person was served with notice of the adoption proceeding; (ii) setting forth specific relief sought; and (iii) accompanied by a memorandum specifying the factual and legal grounds upon which the motion is based.”).

[10] Id. § 78B-6-110(6)(b) (“A person who fails to fully and strictly comply with all of the requirements described in Subsection (6)(a) within 30 days after the day on which the person was served with notice of the adoption proceeding: (i) waives any right to further notice in connection with the adoption; (ii) forfeits all rights in relation to the adoptee; and (iii) is barred from thereafter bringing or maintaining any action to assert any interest in the adoptee.”).

[11] He acknowledges that certain types of termination arise under the Adoption Act—for example, a voluntary relinquishment or a failure to intervene. Id. § 78B-6-112(5)(a)–(c).

[12] Father argues that if we conclude the Adoption Act unambiguously permits the district court to exercise its jurisdiction to terminate an out-of-state parent’s parental rights without first complying with the UCCJEA, we should reject such a reading as absurd. We “will not apply the absurdity doctrine unless ‘the operation of the plain language . . . [is] so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.’” Bagley v. Bagley, 2016 UT 48, ¶ 28, 387 P.3d 1000 (alterations in original) (citation omitted). So the absurdity doctrine applies “only if the legislature could not reasonably have intended the result.” Id. But it appears that the legislature did intend for Utah district courts to exercise jurisdiction over adoption proceedings potentially involving out-of-state individuals whose consent is required, such as Father. The Adoption Act states that “[i]f a person whose consent for the adoption is required . . . cannot be found within the state, the fact of the minor’s presence within the state shall confer jurisdiction on the court in proceedings under this chapter as to such absent person,” provided the person was given proper notice. UTAH CODE § 78B-6-105(4)(a). Service of notice also vests the court with jurisdiction over the person. Id. § 78B-6-105(5). Of course, in such circumstances the person whose consent is required will not necessarily give it. This provision seems to necessarily contemplate Utah courts exercising jurisdiction in an adoption proceeding involving an out-of-state person whose consent is required, which could lead to a contested termination proceeding. Accordingly, we reject Father’s absurdity argument.

[13] The court of appeals also observed that Mother might have complied with the ICPC through a cover letter that identified Father as her husband, but this document was not submitted in the district court. So Father argues that the court of appeals should not have remarked upon this letter. We do not consider this letter in our analysis.

[14] The ICPC “is a statutory agreement between all [fifty] states, the District of Columbia and the US Virgin Islands.” Am. Pub. Hum. Servs. Ass’n, ICPC FAQ’S,

https://aphsa.org/AAICPC/AAICPC/icpc_faq_2.aspx#:~:text=T%20he%20Interstate%20Compact%20on%20the%20Placement%20of%%2020Children%20(ICPC)%20is,and%20the%20US%20Virgin%20Islan%20ds.&text=It%20sets%20forth%20the%20requirements,be%20place%20d%20out%20of%20state%20(last%20visited%20July%2023,%202020). (last visited July 23, 2020).

[15] 15 This provision is concerned with the child’s care, not jurisdiction between member states. It preserves the sending agency’s jurisdiction over and financial responsibility for the child until another individual or entity, including the child, assumes responsibility for the child or the child “is discharged with the concurrence of the appropriate authority in the receiving state.” UTAH CODE § 62A-4a-701 art. V(1).

[16] 16 Father relies on In re Adoption of T. M. M. for support. 608 P.2d 130 (Mont. 1980). In that case, the prospective adoptive parents did not comply with the ICPC at all. Id. at 133. The biological mother, who had relinquished her parental rights, challenged the adoption and sought to revoke her own relinquishment. Id. at 132. The Montana Supreme Court held that “the failure of the prospective adoptive parents to comply with the terms and procedures of the [ICPC] constitute[d] full and sufficient grounds for the revocation of the parent’s consent.” Id. at 134 (internal quotation marks omitted). The Montana Supreme Court appears to have equated the revocation of the mother’s consent with the “suspension or revocation of any license, permit, or other legal authorization held by the sending agency.” Id. (citation omitted). We are not inclined to adopt this interpretation of the language of the ICPC.

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Can I petition the courts for custody of a child who is homeless?

Yes. In the jurisdiction where I practice family law, there are several ways to seek and obtain custody of child who is not your biological offspring:

  • petition for guardianship
  • petition to terminate parental rights/petition for adoption
  • request for child protective order

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-I-petition-the-courts-for-custody-of-a-child-who-is-homeless/answer/Eric-Johnson-311

Tags: , , , ,

Can I petition the courts for custody of a homeless child?

Yes. In the jurisdiction where I practice family law, there are several ways to seek and obtain custody of child who is not your biological offspring:
  • petition for guardianship
  • petition to terminate parental rights/petition for adoption
  • request for child protective order

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Can-I-petition-the-courts-for-custody-of-a-child-who-is-homeless/answer/Eric-Johnson-311

Tags: , , , , , , , , , , ,

In re adoption of B.H. – 2019 UT App 103 – UCCJEA and ICPC

In re adoption of B.H. 2019 UT App 103

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF B.H., A PERSON UNDER EIGHTEEN YEARS OF AGE.P.H. AND A.D.,
Appellees,

v.

C.S.,
Appellant.

Opinion No. 20171038-CA
Filed June 13, 2019
Third District Court, Salt Lake Department

The Honorable Robert P. Faust
No. 162900039

Julie J. Nelson, Alexandra Mareschal, and Lisa Lokken, Attorneys for Appellant
Jessica S. Couser and Benjamin K. Lusty, Attorneys for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBYconcurred.

MORTENSEN, Judge:

¶1        Although M.S. (Mother) and C.S. (Father) had been married since 2008, Mother claimed that a man other than Father (Purported Father) was the biological parent of B.H. (Child), who was born in Montana in early 2016. Within one week of Child’s birth, Mother voluntarily relinquished her parental rights and Child was placed into the custody of P.H. and A.D (Adoptive Parents), who resided in Utah. Adoptive Parents filed a petition for adoption in the State of Utah. Father was served notice of the adoption proceedings and he intervened in the action. After a bench trial, the district court terminated Father’s parental rights and finalized the adoption. On appeal, Father argues that (1) the district court lacked subject matter jurisdiction to terminate his parental rights and (2) the district court erred in finalizing the adoption because the Interstate Compact on the Placement of Children (ICPC)[1] request form, filled out by Mother, was materially deficient in that it listed Purported Father, rather than Father, as the parent of Child. We conclude that the district court had jurisdiction, but set aside the adoption decree and remand for additional findings and conclusions on compliance with the ICPC.

BACKGROUND

¶2        Child was born in Montana on January 30, 2016. Less than one week after Child’s birth, Mother and Purported Father voluntarily relinquished their parental rights and consented to place Child for adoption with Adoptive Parents, who resided in Utah. Child was discharged from the hospital and placed into the custody of Adoptive Parents on February 5, 2016. Adoptive Parents remained in Montana until an ICPC request form 100A, listing Mother and Purported Father as Child’s parents, was approved by all the required ICPC administrators on February 9, 2016.[2] The record indicates that Adoptive Parents transported Child to Utah the next day, on February 10, 2016.

¶3        Adoptive Parents initiated adoption proceedings by filing a petition (Adoption Petition) on January 26, 2016. On February 10, 2016, Adoptive Parents filed a Motion for Temporary Custody of Child and indicated that they had “recently learned that [Mother] is still technically married to [Father]” and Adoptive Parents were “working on determining paternity and/or providing notice to address any legal interests [of Father].” The district court granted temporary custody of Child to Adoptive Parents the next day (Temporary Custody Order).

¶4        On February 22, 2016, Adoptive Parents sent notice of the adoption proceedings to Father. Father intervened two weeks later.

¶5        Meanwhile, Father filed for divorce from Mother in Montana on March 14, 2016. As part of the divorce, the Montana court ordered genetic testing of Father and Child, which determined that Father was Child’s biological parent.

¶6      On June 29, 2016, Adoptive Parents petitioned the district court—in the adoption proceedings—to terminate Father’s parental rights (Termination Petition). The district court held a bench trial on the Termination Petition on July 31, 2017. After the trial, but before ruling on Father’s parental rights, the district court ordered the parties to file a memorandum addressing whether the court had jurisdiction to terminate Father’s parental rights. The district court concluded that it had jurisdiction under Utah Code section 78B­6-105, terminated Father’s parental rights, and finalized the adoption.

¶7        Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶8        Father raises two issues. First, he contends that the district court erred in concluding that it had jurisdiction to terminate his parental rights. Issues concerning jurisdiction are reviewed for correctness and we grant no deference to the district court’s conclusion. State v. Wynn, 2017 UT App 211, ¶ 11, 407 P.3d 1113; see also State v. Nicholls, 2006 UT 76, ¶ 3, 148 P.3d 990; In re A.J.B., 2017 UT App 237, ¶ 12, 414 P.3d 552.

¶9        Second, Father contends that the district court erred in finalizing the adoption, because the ICPC was not complied with. “‘The proper interpretation and application of a statute is a question of law which we review for correctness . . . .’” In re P.F.B., 2008 UT App 271, ¶ 10, 191 P.3d 49 (omission in original) (quoting Gutierrez v. Medley, 972 P.2d 913, 914–15 (Utah 1998)).

ANALYSIS

I. Jurisdiction

¶10 Father contends that the district court erred in terminating his parental rights, because the court lacked jurisdiction under the Utah Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).[3] Father also contends that the court lacked jurisdiction under the Utah Adoption Act, see generally Utah Code Ann. §§ 78B-6-101 to -146 (LexisNexis 2018),[4] because, under these facts, jurisdiction under the UCCJEA must be established as a prerequisite to jurisdiction under the Adoption Act. We review jurisdictional requirements under the Adoption Act and UCCJEA in turn.

A. Adoption Act

¶11 The Adoption Act confers jurisdiction over adoption proceedings “in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis 2018). Thus, as an initial matter, where Adoptive Parents reside in Utah and the Adoption Petition was filed in Utah, the district court below properly exercised jurisdiction under the Adoption Act. But Father argues that the district court lacked jurisdiction to terminate his parental rights under the Adoption Act “because the termination proceeding is not itself the adoption proceeding.” This argument is unavailing for two reasons.

¶12 First, the Adoption Act expressly confers subject matter jurisdiction to terminate parental rights for the purpose of facilitating an adoption. Id. § 78B-6-112(1). Section 78B-6-112 also expressly states that a petition to terminate parental rights may be “(a) joined with a proceeding on an adoption petition; or (b) filed as a separate proceeding before or after a petition to adopt the child is filed.” Id. § 78B-6-112(2). Here, Adoptive Parents initiated the adoption proceedings by filing the Adoption Petition in January 2016. And in June 2016, Adoptive Parents filed the Termination Petition in the same adoption proceedings. Because the Adoption Act expressly provides for jurisdiction over a petition to terminate parental rights when that petition is filed within an adoption proceeding, and because that procedure was followed here, we conclude that the district court had jurisdiction over both the Adoption Petition and the Termination Petition.

¶13 Father cites the dissenting opinion in Osborne v. Adoption Center of Choice, 2003 UT 15, 70 P.3d 58, to support his argument that the termination proceeding was separate from the adoption proceedings. See id. ¶ 53 (Durham, J., dissenting) (“[A determination of parental rights] is not an adoption proceeding, but a separate proceeding that precedes an adoption proceeding.” (cleaned up)). This argument falls short for two reasons. First, despite the dissent’s position in Osborne, the majority held that the district court did not exceed its jurisdiction by making a parental-rights determination within the adoption proceedings. Id. ¶¶ 12–13, 29 (majority opinion). Second, the relevant portion of the Utah Code in effect at the time Osborne was decided provided that a petition for determination of parental rights may be filed “‘at any time prior to the filing of a petition for adoption.’” Id. ¶ 45 (Durham, J., dissenting) (emphasis added) (quoting Utah Code Ann. § 78-30-4.24 (2002)). However, this provision was amended after Osborne and permits a determination of parental rights to be requested by petition any time prior to the “finalization of an adoption,” id. § 78B-6-109(1)(a)–(b) (LexisNexis 2018) (emphasis added), or by motion within an adoption proceeding, id. § 78B-6-109(2). Accordingly, because precedent and the applicable Utah statute allow for a determination of parental rights within an adoption proceeding, we conclude that Father’s argument is without merit.

¶14 Second, the district court in this case had jurisdiction to terminate Father’s parental rights, despite the fact that he resides in Montana, because Father received notice of the adoption proceedings and intervened. The Adoption Act provides that “the fact of the minor’s presence within the state shall confer jurisdiction . . . , provided that due notice has been given in accordance with the Utah Rules of Civil Procedure.” Id. § 78B-6-105(4)(a); cf. Beltran v. Allan, 926 P.2d 892, 898 (Utah Ct. App. 1996) (holding that an out-of-state father was subject to Utah’s statutory scheme and therefore required to file notice of paternity because he was on notice that the mother was in Utah to place their child for adoption). Here, Father received notice of the adoption proceedings on February 22, 2016. Specifically, he was served notice that (1) adoption proceedings had been filed in Utah, (2) he could intervene in the adoption proceedings, and (3) his failure to intervene would result in a waiver and forfeiture of all rights in relation to Child. This notice was sufficient to confer jurisdiction to the district court under section 78B-6-105(4)(a) of the Adoption Act.

¶15 The exercise of jurisdiction over a non-resident is not unique to this case. Our supreme court in In re adoption of B.B.D., 1999 UT 70, 984 P.2d 967, held that when a non-resident father intervened in adoption proceedings, he “voluntarily invoked and submitted to the jurisdiction of Utah, its laws, and its court system.” Id. ¶ 29. This holding illustrates that when an out-of-state father intervenes in adoption proceedings, he has not only waived personal jurisdiction but also submitted to Utah’s laws. Id. ¶¶ 30–33; see also Beltran, 926 P.2d at 898 (holding that an out-of-state father was subject to Utah’s statutory scheme upon receiving notice). Accordingly, Father’s intervention in the adoption proceedings invoked the jurisdiction of the district court, including jurisdiction to terminate Father’s parental rights as part of the overall adoption proceedings.

B. UCCJEA

¶16 Father argues that “Utah cannot terminate a parent’s rights in the context of an adoption without that court having acquired jurisdiction to do so under the UCCJEA.” In other words, Father contends that, under these facts, jurisdiction under the UCCJEA is a prerequisite to jurisdiction under the Adoption Act. We disagree.

¶17 Father first relies on section 78B-13-201 of the UCCJEA, which provides that the UCCJEA is the “exclusive jurisdictional basis for making a child custody determination.” Utah Code Ann. § 78B-13-201(2) (LexisNexis 2018). The UCCJEA also expressly provides, however, that “[t]his chapter does not govern . . . an adoption proceeding.” Id. § 78B-13-103(2). And the UCCJEA defines “adoption proceeding” broadly: “For purposes of this section, ‘adoption proceeding’ means any proceeding under Title 78B, Chapter 6, Part 1, Utah Adoption Act.” Id. § 78B-13-102(1). Thus, where the plain language of the UCCJEA unambiguously excludes the UCCJEA from adoption proceedings, Father’s argument misses the mark.

¶18      Father next contends that the Adoption Act acknowledges that jurisdiction must be established under the UCCJEA in order to terminate an out-of-state parent’s rights. Father raises the point that the Adoption Act requires courts to make a finding that an adoption complies with the ICPC. See id. § 78B-6-107(1). Father then argues that compliance with the ICPC necessarily requires “that the jurisdiction requirements of the UCCJEA be satisfied.” We are not persuaded.

¶19 First, the Adoption Act requires only that an adoption comply with the ICPC, not the ICPC and the UCCJEA. Given the legislature’s expressed directive that the UCCJEA does not govern adoption proceedings, the UCCJEA and ICPC are distinct and separate titles under the Utah Code, and the ICPC does not expressly reference the UCCJEA, we are hard-pressed to conclude that the legislature intended compliance with the ICPC to mean compliance with the ICPC and the UCCJEA. See Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (“The best evidence of the legislature’s intent is the plain language of the statute itself.” (cleaned up)).

¶20      Second, that the ICPC overlaps with the Adoption Act in some respects and with the UCCJEA in others does not create overlap between the Adoption Act and the UCCJEA—especially given the clear legislative directive that the UCCJEA does not govern adoption proceedings. The ICPC defines placement as “the arrangement for the care of a child in a family free, adoptive, or boarding home, or in a child-caring agency or institution.” Utah Code Ann. § 62A-4a-701 art. II(4) (LexisNexis 2018). In other words, adoptions are only one of several “arrangement[s] for the care of a child” contemplated and governed by the ICPC. Accordingly, even if the jurisdictional requirements of the UCCJEA must be met under some scenarios also governed by the ICPC, it does not follow that a party must comply with the UCCJEA to satisfy the ICPC in every instance.

¶21 Father contends that Nevares v. Adoptive Couple, 2016 UT 39, 384 P.3d 213, illustrates that jurisdiction under the UCCJEA must be established prior to jurisdiction under the Adoption Act. In Nevares, our supreme court grappled with jurisdiction under the UCCJEA when a father filed a paternity action in Utah, id. ¶ 2, despite the fact that the child and the adoptive parents resided in Illinois at the time the action was filed, id. ¶ 7. Ultimately, the court held that Utah did not have UCCJEA jurisdiction over the father’s paternity action because (1) Utah ceased to be the child’s home state when he moved to Illinois, id. ¶¶ 16–17, and (2) although Illinois was not the child’s home state (because he had not resided there for more than six months prior to the father’s paternity action), jurisdiction in Illinois was proper because the child had “a significant connection with Illinois” vis-à-vis his physical presence in the state and the fact that the adoptive parents had resided in Illinois for more than five years, id. ¶ 21 (cleaned up).

¶22 The facts in Nevares are both instructive and distinguishable. Nevares is instructive because it illustrates that even if the UCCJEA applied in this case, Utah would have jurisdiction. Here, as in Nevares, Child has no “home state.” Although Montana was Child’s home state from January 30, 2016 (Child’s date of birth), to February 10, 2016 (when Child moved to Utah), Montana ceased to be Child’s home state when Child moved to Utah with Adoptive Parents. See id. ¶ 16 (“Utah ceased to be [the child’s] home state once he moved to Illinois with [the adoptive parents].”). Further, when the Adoption Petition and Motion for Temporary Custody were filed in Utah, Child had not resided in Utah for more than six months; and therefore, Utah was not Child’s home state. See id. However, also like the child in Nevares, Child in this case had significant ties to Utah sufficient to confer jurisdiction under the UCCJEA. Specifically, Child was present in Utah, and Adoptive Parents, who were acting as Child’s parents, resided in Utah. Thus, Nevares demonstrates that jurisdiction would have been proper under the UCCJEA if it applied to this case.[5] See id. ¶ 21.

¶23 Nevares is also distinguishable and demonstrates that the UCCJEA is not applicable in this case. The UCCJEA governed jurisdiction in Nevares because the father filed the paternity action in Utah prior to the time the adoptive parents filed the petition for adoption in Illinois. Id. ¶ 7. Thus, the provision in Utah’s UCCJEA providing that the UCCJEA does not apply to adoption proceedings was not triggered, and therefore, Nevares is distinguishable from this case because it concerned a paternity action, not an adoption.

¶24      Simply put, we disagree with Father’s contention that the

legislature’s directive that the UCCJEA does not govern adoption proceedings should be interpreted to mean that the UCCJEA operates to, in effect, govern adoption proceedings. Instead, we conclude that the district court had jurisdiction to terminate Father’s parental rights and finalize the adoption decree under the Adoption Act.[6]

II. Compliance with the ICPC

¶25 Next, Father contends that the district court erred in finalizing the adoption because the ICPC was not complied with as the result of Mother listing Purported Father on the ICPC request form rather than Father. The ICPC “is a uniform law that has been enacted by all fifty states, the District of Columbia, and the U.S. Virgin Islands.” Alternative Options & Services for Children v. Chapman, 2004 UT App 488, ¶ 2, 106 P.3d 744. The ICPC requires that “[p]rior to sending, bringing, or causing any child to be sent or brought into a receiving state . . . the sending agency shall furnish the appropriate public authorities in the receiving state written notice of the intention to send, bring, or place the child in the receiving state.” Utah Code Ann. § 62A-4a-701 art. III(2) (LexisNexis 2018) (listing information that the sending state is required to provide to the receiving state). Compliance with the ICPC can be evidenced by approval of a uniform ICPC-100A request form. See American Public Human Services Association, ICPC Regulations, Regulation No. 2, (8)(d), https://aphsa.org/AAICPC/AAICPC/ICPC_Regulations.as px [https://perma.cc/LZ24-GRSF] (“The receiving state ICPC-100A approval expires six months from the date the 100A was signed by receiving state.”). Further, the Adoption Act requires that “[i]n any adoption proceeding . . . the court’s final decree of adoption shall state that the requirements of [the ICPC] have been complied with.” Utah Code Ann. § 78B-6-107(1) (LexisNexis 2018).

¶26      As an initial matter, the district court did not state that the ICPC had been complied with. Its findings of fact and conclusions of law for adoption of Child state that the ICPC request form was filed with the court and “[t]he requirements of Title 78B, Chapter 6, Part 1, Utah Adoption Act, have been met.” These findings, however, are silent as to compliance with the ICPC. Therefore, remand is necessary for further findings as to whether the ICPC was complied with.

¶27 Father cites In re adoption of T.M.M., 608 P.2d 130 (Mont. 1980), a Montana case, to support his contention that non­compliance with the ICPC must result in vacatur of the adoption decree. In re adoption of T.M.M. is distinguishable from this case, however, because the Montana Supreme Court held that the adoptive parents failed to comply with the ICPC when they moved a child to Montana without ever notifying a Montana ICPC administrator. Id. at 134. Here, the ICPC request form was approved by Montana’s ICPC administrator on February 8, 2016 and Utah’s ICPC administrator on February 9, 2016—prior to Child moving to Utah with Adoptive Parents. Accordingly, where ICPC administrators were notified and indeed approved the ICPC request form before Child moved to Utah, the facts of In re adoption of T.M.M. simply do not support Father’s position. Further, a finding of compliance with the ICPC may be supported by the record in this case.[7]

¶28 We acknowledge that the ICPC form in this case was defective in that it listed Purported Father, rather than Father, as Child’s parent. This defect does not, however, deprive Utah courts of jurisdiction. To be sure, under the ICPC, a party could be subject to criminal penalties for knowingly violating the ICPC, see Utah Code Ann. § 62A-4a-711 (LexisNexis 2018),[8] but such a violation does not amount to non-compliance with the ICPC sufficient to divest the district court of jurisdiction or unwind the adoption, id. § 62A-4a-701 art. IV (“[A]ny violation [of the ICPC] shall constitute full and sufficient grounds for the suspension or revocation of any license, permit, or other legal authorization held by the sending agency . . . .”); see also In re Adoption No. 10087, 597 A.2d 456, 465 (Md. 1991) (“The fact that the ICPC had been violated in this case does not mandate dismissal; rather it indicates the need for a prompt determination of the best interest of this child.”).

¶29 Furthermore, any alleged non-compliance with the ICPC did not deprive Father of his rights because he received notice of the adoption proceedings, intervened, and received a trial concerning the termination of his parental rights. If Father had not received notice of, and had not intervened in, the adoption proceedings, the court could have been divested of jurisdiction under the Adoption Act. See Utah Code Ann. § 78B-6-105(4)(a) (LexisNexis 2018). But that is not what happened here. Therefore, any alleged defects in the ICPC request form did not divest the court of jurisdiction. Nevertheless, because the district court did not state that the ICPC requirements were complied with, we set aside the adoption decree and remand for further findings and conclusions on this issue.

CONCLUSION

¶30      The district court possessed subject matter jurisdiction to terminate Father’s parental rights and potentially finalize the adoption of Child under the Adoption Act, and because the UCCJEA expressly states that it does not govern adoption proceedings, UCCJEA jurisdiction was not required. Finally, we set aside the adoption decree and remand for additional findings and conclusions on whether the requirements of the ICPC have been complied with.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] The ICPC “is a uniform law that has been enacted by all fifty states, the District of Columbia, and the U.S. Virgin Islands.” Alternative Options & Services for Children v. Chapman, 2004 UT App 488, ¶ 2, 106 P.3d 744. “The purpose of the ICPC is to promote cooperation among the states in the interstate placement of children to ensure that the best interests of children are met.” Id. Utah’s version of the ICPC is codified at Utah Code sections 62A-4a-701 to -711.

[2] The ICPC requires that an ICPC-100A “Interstate Compact Placement Request” form be approved by an ICPC administrator in both the sending state and receiving state before a prospective adoptive child may be transported across state lines. See American Public Human Services Association, ICPC Regulations, https://aphsa.org/AAICPC/AAICPC/ICPC_Regulations.aspx [https://perma.cc/LZ24-GRSF].

[3] The UCCJEA is codified at Utah Code sections 78B-13-101 to -318.

[4] Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, unless otherwise indicated, we cite the current version of the Utah Code.

[5] Even if analysis under the UCCJEA resulted in “concurrent jurisdiction” by virtue of Father’s presence in Montana, Utah would nonetheless have priority jurisdiction because the Adoption Petition, Motion for Temporary Custody, and Temporary Custody Order were filed in Utah prior to Father’s divorce action in Montana. See Liska v. Liska, 902 P.2d 644, 647–48 (Utah Ct. App. 1995) (holding that Utah had primary jurisdiction under the UCCJEA because a divorce decree, which determined child custody, originated in Utah prior to the action filed in Colorado).

[6] Father also contends that the district court should have declined jurisdiction because Mother engaged in unjustifiable conduct by listing Purported Father on the ICPC request form. See Utah Code Ann. § 78B-13-208(1) (LexisNexis 2018) (“[I]f a court of this state has jurisdiction under this chapter because a person invoking the jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction . . . .”). But because this provision falls under the UCCJEA, we conclude that it does not apply to jurisdiction conferred by the Adoption Act.

[7] Compliance with the ICPC requires that written notice, containing specific information, be submitted to ICPC administrators, see Utah Code Ann. § 62A-4a-701 art. III(2) (LexisNexis 2018), not necessarily that all the specific information be set forth on the ICPC request form 100A. Adoptive Parents, in their brief, indicate that the complete ICPC packet submitted to Montana’s ICPC administrator contained information not included on the ICPC request form, including a cover letter identifying Father as Mother’s husband. Accordingly, on remand, it may be necessary to add the complete ICPC packet to the record in order to find that the ICPC was complied with in this case. And given that noncompliance with the ICPC would not divest the court of jurisdiction, in the event that the current record and complete ICPC packet still do not comply with the ICPC, Adoptive Parents can still undertake steps to comply with the ICPC prior to reinstating the adoption decree.

[8] Section 62A-4a-711 was not enacted until 2017 and therefore does not apply to Mother in this case.

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2018 UT App 224 – In re Adoption of B.N.A. – wrong district court

2018 UT App 224 – In re Adoption of B.N.A.

THE UTAH COURT OF APPEALS
IN THE MATTER OF THE ADOPTION OF B.N.A.,
A PERSON UNDER EIGHTEEN YEARS OF AGE

C.E.L., Appellant,
v.
T.L. AND A.L., Appellees.

Opinion No. 20180316-CA
Filed December 6, 2018

Third District Court, Tooele Department
The Honorable Matthew Bates
No. 172300016

Karra J. Porter and Crystal Lynn Orgill, Attorneys for Appellant

Ronald D. Wilkinson, Marianne P. Card, and Sara Pfrommer, Attorneys for Appellees

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        Utah adoption law provides that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court . . . in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis Supp. 2018). In this case, we must determine what the consequences are, under this statute, if prospective adoptive parents file an adoption petition in the wrong district. The biological father (Father) of the child in question (Child) contends that the statute speaks to a court’s subject-matter jurisdiction, and asserts that a petition filed in the wrong district must be dismissed for lack of jurisdiction. The prospective adoptive parents (Petitioners), on the other hand, contend that the statute speaks simply to venue, and assert that when a petition is filed in the wrong district, the court has jurisdiction to continue to adjudicate the case, but must transfer the case upon request to the proper district. For the reasons set forth herein, we find Petitioners’ position persuasive, and therefore affirm the district court’s decision to deny Father’s motion to dismiss.

BACKGROUND

¶2        In early 2014, Father engaged in a brief romantic relationship with a woman (Mother) who became pregnant and gave birth to Child in November 2014. After the relationship ended, Father asserts that he had no further communication or interaction with Mother, and therefore claims to have been unaware of Mother’s pregnancy or of Child’s existence until after Child was born, and unaware that he was Child’s father until December 2017. It is undisputed that Father has never had any relationship with Child, who is now four years old.

¶3        In the meantime, in the spring of 2017 Mother decided to place Child for adoption, and began working with an adoption agency toward that end. The adoption agency selected Petitioners as a potential adoptive family, and Petitioners filed a petition for adoption in April 2017. Despite the fact that Petitioners reside in Utah County, part of Utah’s Fourth Judicial District, they filed their petition in Tooele County, part of Utah’s Third Judicial District.

¶4        Immediately after filing their petition, Petitioners asked the court to authorize a “commissioner” to take Mother’s relinquishment, in accordance with Utah Code section 78B-6-124(1)(b). The court approved Petitioner’s request, and signed an order appointing a representative of the adoption agency to take Mother’s relinquishment. After the order was signed, Mother met with the representative and signed a document relinquishing her parental rights to Child. One of that document’s provisions stated that Mother’s relinquishment was irrevocable “as to [Petitioners],” but that Mother was “not . . . consenting to the adoption of [Child] by any other person or persons.” In addition, the document provided that, “[i]f [Petitioners] are unable to complete the adoption of [Child] for any reason, and the adoption petition is dismissed or denied, it is in [Child’s] best interest that he be returned to [Mother’s] custody and control.”[1] Soon after Mother signed the relinquishment, Petitioners filed a copy of it with the court, and a few days later the court signed an order awarding temporary custody of Child to Petitioners.

¶5        Just a few months later, before the adoption was finalized, Mother filed a motion to set aside her relinquishment, asserting that she did not sign the document freely and voluntarily. The district court, after a half-day evidentiary hearing, determined that Mother had acted voluntarily and was not under duress or undue influence, and denied Mother’s motion. The court’s decision to deny Mother’s motion is not at issue in this appeal.

¶6        About a month later, in early January 2018, Father entered an appearance in the adoption case and filed a motion seeking leave to intervene, asking that the adoption proceedings be dismissed. A few weeks later, Father filed a second motion, raising for the first time his argument—advanced here in this appeal—that the district court did not have subject-matter jurisdiction over the case because Petitioners filed their petition in the wrong district.

¶7        After full briefing and oral argument, the district court denied Father’s motion to dismiss, and determined that it did have subject-matter jurisdiction over the case. Father then asked for permission to appeal the district court’s interlocutory order regarding jurisdiction, and we granted that request.

ISSUE AND STANDARD OF REVIEW

¶8        The issue presented in this case is one of statutory interpretation: whether Utah Code section 78B-6-105(1)(a) acts as a limit on a district court’s subject-matter jurisdiction, or is merely a venue statute. “We review questions of statutory interpretation for correctness, affording no deference to the district court’s legal conclusions.” State v. Stewart, 2018 UT 24, ¶ 5 (quotation simplified).

ANALYSIS

¶9        The statute in question states, in fairly straightforward language, that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court,” and that, if the prospective adoptive parent is a Utah resident, the petition is to be filed “in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a). All parties agree that this language demands that adoption proceedings be initiated by the filing of a petition. And all parties agree that, at least in adoption cases that are to be filed in district court rather than juvenile court, see id. § 78B-6-105(1)(c), and in which the prospective adoptive parent is a Utah resident, see id. § 78B-6-105(1)(a), this petition is supposed to be filed in the district where the prospective adoptive parent resides. On these points, the language appears plain and unambiguous.

¶10 The statute is not as plain, however, when it comes to setting forth the consequences that attach when a petitioner files an adoption petition in the wrong judicial district.[2] Father asserts that a petition filed in the wrong district must be dismissed, because he reads the statute as speaking to a court’s subject-matter jurisdiction to adjudicate the case. Petitioners, on the other hand, point out that any Utah district court has subject-matter jurisdiction over adoption cases as a class, and read the statute as a venue provision that does not implicate a court’s jurisdiction, but merely allows any party to request that the petition be transferred to the proper district. To resolve this dispute, we start by examining the concept of subject-matter jurisdiction, and then return to a further examination of the text of the statute.

¶11 “The notion of ‘jurisdiction’ is a slippery one.” In re adoption of B.B., 2017 UT 59, ¶ 125, 417 P.3d 1. The word “jurisdiction” means “different things in different circumstances.” Id. Sometimes, it is used to refer to “the scope of a court’s power to issue a certain form of relief,” while at other times the word is used to refer to “the territorial authority of the court that issues a decision,” but “neither of these notions of jurisdiction goes to a court’s subject-matter jurisdiction.” Id. ¶¶ 125–27.

¶12 Subject-matter jurisdiction is a “special” type of jurisdictional concept, one that is “distinct from other notions of jurisdiction in that we require our courts to consider such issues sua sponte” and, unlike other notions of jurisdiction, we “do not allow the parties to waive or forfeit [subject-matter jurisdiction] from consideration.” Id. ¶ 128. This distinction is “crucial,” because “[i]f an issue is subject-matter jurisdictional, the general rules of finality and preservation are off the table,” and that can “undermine the premises of efficiency, speedy resolution, and finality that generally undergird our justice system.” Id.

¶13 Because subject-matter jurisdiction is “special” and “distinct” from other jurisdictional concepts, see id., due to the fact that “parties can raise subject matter jurisdiction at any time during a proceeding, it makes sense to cabin the issues that fall under the category of subject matter jurisdiction,” Johnson v. Johnson, 2010 UT 28, ¶ 10, 234 P.3d 1100; see also In re adoption of B.B., 2017 UT 59, ¶ 129 (stating that “our law has been careful to cabin the notion of subject-matter jurisdiction”). In recent years, our supreme court has made a concerted effort to do just that, “routinely rebuff[ing] attempts by litigants to recast merits arguments as issues of subject-matter jurisdiction,” and instructing trial courts that they must “guard[] against the faux elevation of a court’s failure to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction.” In re adoption of B.B., 2017 UT 59, ¶ 130 n.14 (quotation simplified); see also Johnson, 2010 UT 28, ¶ 9 (stating that “[t]he concept of subject matter jurisdiction does not embrace all cases where the court’s competence is at issue,” and that “[w]here the court has jurisdiction over the class of case involved, judgment is not void on the ground that the right involved in the suit did not embrace the relief granted”); Chen v. Stewart, 2004 UT 82, ¶ 36, 100 P.3d 1177 (determining that the parties mischaracterized their claim as one grounded in subject-matter jurisdiction in a futile attempt to avoid waiver), abrogated on other grounds by State v. Nielsen, 2014 UT 10, 326 P.3d 645. In Johnson, for instance, the court held that a district court had subject-matter jurisdiction over a divorce case, even though the parties were never actually legally married to begin with, because subject-matter jurisdiction is generally determined by reference to a “class of cases, rather than the specifics of an individual case.” Johnson, 2010 UT 28, ¶ 10. “Because the district court clearly has the authority to adjudicate divorces, looking to the specific facts of a particular case is inconsistent with our usual definition of subject matter jurisdiction.” Id. ¶ 12.

¶14 In fact, our supreme court has limited the concept of subject-matter jurisdiction to two specific situations: “(a) statutory limits on the authority of the court to adjudicate a class of cases,” and “(b) timing and other limits on the justiciability of the proceeding before the court (such as standing, ripeness, and mootness).” In re adoption of B.B., 2017 UT 59, ¶ 121 (quotation simplified); see also id. ¶ 153 (stating that “[o]ur law has long assessed subject-matter jurisdiction at the categorical level—encompassing only statutory limits on the classes of cases to be decided by the court and traditional limits on justiciability”). Neither of these situations is present here.

¶15 Starting with the second category first, Father does not assert that any of the common “justiciability” doctrines apply here, and therefore we need not analyze the potential applicability of any of those doctrines to the facts of this case.

¶16 And with regard to the first category, the text of the statute in question contains no express “limits” on the authority of Utah district courts to adjudicate adoption cases generally, as a class. Even Father wisely concedes that “[d]istrict courts may generally handle adoptions.” Indeed, “in Utah our district courts are courts of general jurisdiction” that have “general power to hear ‘all matters civil and criminal’ so long as they are ‘not excepted in the Utah Constitution and not prohibited by law.’” Id. ¶ 143 (quoting Utah Code section 78A-5-102(1)). More specifically, as concerns adoption cases, our supreme court has noted that “Utah district courts clearly have subject matter jurisdiction over adoption proceedings as a class of cases.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 34, 266 P.3d 702; see also In re adoption of B.B., 2017 UT 59, ¶ 137 (stating that, “[b]y statute, our Utah courts are expressly authorized to assume jurisdiction over adoption petitions”).

¶17 When the legislature intends to place a statutory limit on a district court’s jurisdictional ability to hear a category of cases, it certainly knows how to do so expressly. See In re adoption of B.B., 2017 UT 59, ¶ 143 (stating that “[t]he code . . . places certain restrictions on the jurisdiction of our district courts,” but that such restrictions “are expressly denominated as such—as jurisdictional limits”). For instance, the legislature will identify certain claims as within the “exclusive jurisdiction” of an administrative agency or of a particular type of court, see, e.g., Utah Code Ann. § 34A-2-407(12)(a)–(b) (LexisNexis Supp. 2018) (identifying claims within the “exclusive jurisdiction” of the Labor Commission); id. § 78A-6-103(2) (Supp. 2018) (identifying the “exclusive jurisdiction” of juvenile courts over certain matters), or will note that “no court has jurisdiction” to entertain certain actions, see, e.g., id. § 31A-27a-105(1)(b) (2017) (stating that “[n]o court has jurisdiction to entertain, hear, or determine a delinquency proceeding commenced by any person other than the commissioner of this state”). The subsection of the statute at issue here has no such express limitation on jurisdiction. See id. § 78B-6-105(1)(a).[3] It does not identify adoption cases as within the “exclusive jurisdiction” of the judicial district in which the prospective adoptive parent resides, nor does it state that “no court” but the courts in the district in which the adoptive parents reside has jurisdiction over a case.[4]

¶18 Indeed, while the linguistic structure of the statutory subsection in question is not at all similar to other statutes containing express jurisdictional limits, it is quite similar to other statutes concerning venue. Several of Utah’s venue statutes require that a particular cause of action “be brought and tried” or “commenced and tried” in a particular location. See, e.g., id. § 78B-3-305(1) (stating that “[a]ll transitory causes of action arising outside the state, except those mentioned in Section 78B-3-306, shall . . . be brought and tried in the county where any defendant resides”); id. § 78B-3-306 (stating that “[a]ll transitory causes of action arising outside the state in favor of residents of this state shall be brought and tried in the county where the plaintiff resides, or in the county where the principal defendant resides”). We find it difficult to ignore the similarities between these venue statutes and the statute in question, which states that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court . . . where the prospective adoptive parent resides.” See id. § 78B-6-105(1)(a).

¶19      Moreover, in 2004 the legislature amended the title of the statute. Before the amendment, the statute had been captioned “Jurisdiction of district and juvenile court – Time for filing.” See id. § 78-30-7 (LexisNexis 2003).[5] In the 2004 legislative session, without materially altering the relevant language of the statute itself, the legislature changed the title of the statute to read as it does now: “District court venue – Jurisdiction of juvenile court – Jurisdiction over nonresidents – Time for filing.” See Adoption Amendments, ch. 122, § 11, 2004 Utah Laws 546, 553;[6] see also Utah Code Ann. § 78B-6-105. “The title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute’s intent. However, it is persuasive and can aid in ascertaining the statute’s correct interpretation and application.” Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 10, 284 P.3d 616 (quotation simplified). In this case, in which we must determine whether the statute is a jurisdictional statute or a venue statute, we find it significant that the legislature has specifically categorized the statute as one speaking to venue rather than to subject-matter jurisdiction.

¶20 Despite all of these persuasive indications that the relevant statute speaks only to venue and not to subject-matter jurisdiction, Father directs us to two of our previous decisions that have referred to the statute as “jurisdictional.” See In re adoption of S.L.F., 2001 UT App 183, 27 P.3d 583; In re adoption of K.O., 748 P.2d 588 (Utah Ct. App. 1988). Father asserts that those cases constitute binding authority that the statute is jurisdictional and compel the dismissal of Petitioner’s petition.

¶21 Father’s argument certainly has some force. In those cases, we did refer to the statute as containing a “jurisdiction requirement,” see In re adoption of K.O., 748 P.2d at 591; see also In re adoption of S.L.F., 2001 UT App 183, ¶ 17, and even went so far as to state that “[w]ithout knowing the [petitioners’] residence . . . , this Court cannot ascertain whether or not the trial court had jurisdiction to grant the adoption,” In re adoption of K.O., 748 P.2d at 591. In one of the cases, we implicitly rejected the argument Petitioners advance here, namely, that the adoption statute was merely a “venue” statute, and held that “until the adoption petition was properly filed in Second District Court, where [the prospective adoptive parent] resides, the proceeding had not been ‘commenced’ as required” by the statute. In re adoption of S.L.F., 2001 UT App 183, ¶ 16 n.1.[7] And in the other, we specifically stated that, if the trial court on remand “determines that it had no jurisdiction to hear the adoption because the [petitioners] were not residents of Cache County, Utah at the time of filing, that proceeding was void.” In re adoption of K.O., 748 P.2d at 592.

¶22 It is undeniably the case that one panel of this court is bound to follow the previous decisions of another panel of this court, unless we make a specific decision to overrule or disavow the earlier precedent. See State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (stating that “[u]nder the doctrine of horizontal stare decisis, the first decision by a court on a particular question of law governs later decisions by the same court,” and specifically holding that “[t]he doctrine of horizontal stare decisis applies as between different panels of the court of appeals” (quotation simplified)). However, the principle of horizontal stare decisis only applies if the previous precedent remains robust. See United States v. Plouffe, 445 F.3d 1126, 1128 (9th Cir. 2006) (stating that “where an intervening higher authority has issued an opinion that is clearly irreconcilable with our prior circuit precedent, a panel is free to act disregarding that precedent” (quotation simplified)); see also 21 C.J.S. Courts § 190 (2018) (stating that “stare decisis does not preclude a decision that reflects developments in the law since the courts must consider statutory or case law changes that undermine or contradict the viability of prior precedent”).

¶23 While the two cases upon which Father relies have not been explicitly overruled, two developments have taken place in the decades since those cases were decided that cause us to doubt the continuing vitality of those cases’ discussions of jurisdiction. First, both of those cases were decided prior to 2004, when our legislature amended the title of the statute to specify that the statute, at least as concerns district courts, is intended to speak to venue and not to jurisdiction. Second, since those cases were decided, our supreme court has significantly “cabin[ed] the issues that fall under the category of subject matter jurisdiction,” Johnson, 2010 UT 28, ¶ 10, and has made clear that subject-matter jurisdiction applies to only two situations, neither of which is present in this case. Our fealty is first and foremost to the mandates of our supreme court and to the enactments of our legislature, and where our precedent conflicts with more recent supreme court pronouncements or statutory changes, we are duty-bound to follow the path our supreme court and our legislature have set. See Ortega v. Ridgewood Estates LLC, 2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by vertical stare decisis to follow strictly the decisions rendered by the Utah Supreme Court.” (quotation simplified)); Beltran v. Allen, 926 P.2d 892, 898 (Utah Ct. App. 1996) (stating that “it is the Utah statute, as interpreted by majority holdings of the Utah Supreme Court, which controls the outcome of this case”).[8]

¶24 For these reasons, we conclude that Utah Code section 78B-6-105(1)(a) speaks to venue, and does not limit a court’s subject-matter jurisdiction. Accordingly, unless the adoption is one that must be filed in juvenile court pursuant to Utah Code section 78A-6-103(1)(o), see Utah Code Ann. § 78B-6-105(1)(c), any district court has subject-matter jurisdiction to adjudicate an adoption case, even one filed in the wrong district, but must transfer the case to the correct district upon the filing of a proper request. Cf. id. § 78B-3-308 (stating that, when a case is filed in the wrong venue, a party may file “a written motion requesting the trial be moved to the proper county”).

CONCLUSION

¶25 The provision in Utah’s adoption code that requires that an adoption case be “commenced” by the filing of a petition in a particular judicial district is a provision that speaks to venue, and not to subject-matter jurisdiction. Petitioners did indeed file their petition in the wrong venue, but this did not deprive the court of subject-matter jurisdiction, because any district court in Utah has subject-matter jurisdiction over any adoption case that does not have to be filed in juvenile court. The consequence for filing in the wrong district is not automatic dismissal; it is that any party, upon proper motion, may request that the case be transferred to the correct district. Unless and until such a request is made, however, the court in which the case is filed may continue to adjudicate the case, and its rulings are not void. For all of these reasons, we affirm the district court’s decision to deny Father’s motion to dismiss for lack of subject-matter jurisdiction, and we remand the case to the district court for further proceedings consistent with this opinion.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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[1] 1. This provision of the relinquishment explains why the parties are litigating about whether Utah Code section 78B-6-105(1)(a) speaks to subject-matter jurisdiction or to venue: if the statute is jurisdictional, Petitioners’ petition should be dismissed, and in that event Father intends to assert that Child should be returned to Mother’s custody and control.

[2] Father emphasizes the statute’s use of the word “shall,” which is usually interpreted as a mandatory command, see Utah Code Ann. § 68-3-12(1)(j) (LexisNexis 2016) (defining “shall” as meaning “that an action is required or mandatory”), and argues that adoption petitioners are commanded to file their adoption petition in the proper district. This argument is correct, as far as it goes, but the legislature’s use of the word “shall,” in this context, fails to answer the question at the center of this dispute because it tells us nothing about what the intended consequences are for filing the petition in the wrong place. Indeed, this case nicely illustrates one reason why some legal scholars have noted that the word “shall” is “a semantic mess”: because “a recurrent issue in the huge constellation of shall-must holdings” concerns “the effect of failing to honor a mandatory provision’s terms,” which presents “an issue for a treatise on remedies, not interpretation.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 113, 115 (2012).

[3] Father points out that subsection (1)(c) of the statute appears to be jurisdictional, in that it places some adoption cases within the exclusive jurisdiction of the juvenile court, and infers therefrom that the other subsections must therefore also be jurisdictional. Father is arguably correct that subsection (1)(c) speaks to a juvenile court’s subject-matter jurisdiction—that provision states that adoption proceedings “shall be commenced by filing a petition” in “juvenile court as provided in Subsection 78A-6-103(1).” See Utah Code Ann. § 78B-6-105(1)(c) (LexisNexis Supp. 2018). The referenced section of the Juvenile Court Act states that “the juvenile court has exclusive original jurisdiction” over “adoptions” in cases where “the juvenile court has previously entered an order terminating the rights of a parent and finds that adoption is in the best interest of the child.” See id. § 78A-6-103(1)(o) (Supp. 2018). This language does appear to encompass express limits on the authority of courts other than juvenile courts to hear a particular sub-class of adoption cases. However, it does not follow that, just because subsection (c) is jurisdictional, subsections (a) and (b) must also be jurisdictional. On this issue, the title of the statute provides helpful guidance, instructing us that the statute concerns itself with “[d]istrict court venue” but with “[j]urisdiction of juvenile court.” See id. § 78B-6-105; see also infra ¶ 19. As we read the statute, the legislature has placed most adoption cases within the broad subject-matter jurisdiction of district courts, but has placed one sub-class of adoption cases within the narrower subject-matter jurisdiction of juvenile courts. Within the first (broader) category, we do not perceive the legislature as having set any jurisdictional limits on the ability of any particular judicial district or individual district court to hear any of the cases that fall within their purview.

[4] Furthermore, unlike some other comparable state statutes, see, e.g., Wyo. Stat. Ann. § 1-22-109 (2018) (requiring specific documents to be filed with an adoption petition), Utah’s statute does not impose any requirements on petitioners to file specific documents (such as, for instance, relinquishments or consents) with adoption petitions. Father points to some of these other state statutes, and notes that courts in other states have found such requirements to be jurisdictional. See, e.g., In re JWT, 2005 WY 4, ¶¶ 5–6, 104 P.3d 93. Father’s argument is unavailing here, however, because Utah’s statute imposes no such requirements, and therefore we need not consider whether our legislature intended any such requirements to be jurisdictional.

[5] In 2008, Utah Code section 78-30-7 was renumbered as Utah Code section 78B-6-105. See Title 78 Recodification and Revision, ch. 3, § 864, 2008 Utah Laws 48, 443.

[6] The “redline” version of the bill that effected the title change did not show the new title in “redline” format, even though all proposed changes to the body of the statute were clearly marked. Father infers from this that the legislators themselves (as opposed, presumably, to legislative staff) may not have known that the title was even being changed, and therefore asserts that “the title change does not imply any legislative intent.” We find Father’s argument speculative—we simply do not know why the change to the title of the bill was not redlined, or whether that fact has any significance. Legislative history certainly has a role to play in helping courts interpret ambiguous statutes, see, e.g., Allred v. Saunders, 2014 UT 43, ¶ 18, 342 P.3d 204 (stating that “it is sometimes appropriate to consider legislative history when interpreting statutes”), but in order to shed any meaningful light on the question of statutory meaning, the legislative history in question must itself be “reliable,” see Graves v. North E. Services, Inc., 2015 UT 28, ¶ 67, 345 P.3d 619 (stating that “[w]e may resolve ambiguities in the text of the law by reference to reliable indications of legislative understanding or intent” (emphasis added)). It is certainly mysterious that the title change was not redlined even though the rest of the proposed (…continued)

changes were. But without knowing more about the reasons why that happened, or about what (if any) significance that had to the legislators who considered the bill, we find Father’s argument insufficiently persuasive to overcome the basic fact that, prior to 2004, the title proclaimed the statute to be jurisdictional, but that since 2004, the legislature has chosen a title that proclaims the statute to be a venue statute, at least as concerns district courts.

[7] Even in In re adoption of S.L.F., there is some indication that— prior to our supreme court’s more recent cases—this court and the district courts were conceptualizing subject-matter jurisdiction too broadly. In that case, a potential adoptive parent filed an adoption petition in Salt Lake County (in the Third Judicial District), even though she lived in Davis County (in the Second Judicial District). See In re adoption of S.L.F., 2001 UT App 183, ¶ 3, 27 P.3d 583. Later, the parent made a “motion for a change of venue,” asking that the petition be transferred to Davis County. Id. ¶ 5. The Salt Lake County district court granted the motion, and transferred the petition to Davis County. Id. Had there been a jurisdictional defect of the kind Father envisions, transfer would not have been possible— indeed, the only action a court without jurisdiction can take is to dismiss the case. See, e.g., Hollenbach v. Salt Lake City Civil Service Comm’n, 2013 UT App 62, ¶ 3, 299 P.3d 1148 (per curiam) (stating that “when a court lacks jurisdiction, it retains only the authority to dismiss the action” (quotation simplified)). No party took issue with the Salt Lake County district court’s decision to transfer (rather than dismiss) the case, and we did not reach the propriety of that transfer on appeal.

[8] Father also argues that construing the relevant statute as a venue statute rather than as a jurisdictional statute would have “constitutional implications,” because he points out that fathers are required to “strictly” comply with other provisions of Utah’s adoption code, and argues that “it would be unconstitutional to impose a ‘strict compliance’ standard for biological fathers but a more relaxed standard for adoptive parents.” Our conclusion herein regarding the meaning of the relevant statute—and, specifically, regarding the intended consequences of filing a petition in the wrong district—has nothing to do with requiring “strict” or “relaxed” compliance with the statutory mandates. Our conclusion is simply that the legislature intended the statute to function as a venue statute, and therefore a court does not lack subject-matter jurisdiction over an adoption petition filed in the wrong district any more than it would lack subject-matter jurisdiction over a divorce case or a tort case filed in the wrong county. We see no constitutional infirmities with the legislature’s creation of a venue statute in this context, and therefore reject Father’s constitutional arguments.

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In re Adoption of B.N.A. – 2018 UT App 224 – adoption subject matter jurisdiction

2018 UT App 224

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF B.N.A.,
A PERSON UNDER EIGHTEEN YEARS OF AGE

C.E.L.,
Appellant,
V.
T.L. AND A.L.,
Appellees.

Opinion
No. 20180316-CA
Filed December 6, 2018

Third District Court, Tooele Department
The Honorable Matthew Bates
No. 172300016

Karra J. Porter and Crystal Lynn Orgill, Attorneys for Appellant

Ronald D. Wilkinson, Marianne P. Card, and
Sara Pfrommer, Attorneys for Appellees

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        Utah adoption law provides that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court . . . in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a) (LexisNexis Supp. 2018). In this case, we must determine what the consequences are, under this statute, if prospective adoptive parents file an adoption petition in the wrong district. The biological father (Father) of the child in question (Child) contends that the statute speaks to a court’s subject-matter jurisdiction, and asserts that a petition filed in the wrong district must be dismissed for lack of jurisdiction. The prospective adoptive parents (Petitioners), on the other hand, contend that the statute speaks simply to venue, and assert that when a petition is filed in the wrong district, the court has jurisdiction to continue to adjudicate the case, but must transfer the case upon request to the proper district. For the reasons set forth herein, we find Petitioners’ position persuasive, and therefore affirm the district court’s decision to deny Father’s motion to dismiss.

BACKGROUND

¶2        In early 2014, Father engaged in a brief romantic relationship with a woman (Mother) who became pregnant and gave birth to Child in November 2014. After the relationship ended, Father asserts that he had no further communication or interaction with Mother, and therefore claims to have been unaware of Mother’s pregnancy or of Child’s existence until after Child was born, and unaware that he was Child’s father until December 2017. It is undisputed that Father has never had any relationship with Child, who is now four years old.

¶3        In the meantime, in the spring of 2017 Mother decided to place Child for adoption, and began working with an adoption agency toward that end. The adoption agency selected Petitioners as a potential adoptive family, and Petitioners filed a petition for adoption in April 2017. Despite the fact that Petitioners reside in Utah County, part of Utah’s Fourth Judicial District, they filed their petition in Tooele County, part of Utah’s Third Judicial District.

¶4        Immediately after filing their petition, Petitioners asked the court to authorize a “commissioner” to take Mother’s relinquishment, in accordance with Utah Code section 78B-6­124(1)(b). The court approved Petitioner’s request, and signed an order appointing a representative of the adoption agency to take Mother’s relinquishment. After the order was signed, Mother met with the representative and signed a document relinquishing her parental rights to Child. One of that document’s provisions stated that Mother’s relinquishment was irrevocable “as to [Petitioners],” but that Mother was “not . . . consenting to the adoption of [Child] by any other person or persons.” In addition, the document provided that, “[i]f [Petitioners] are unable to complete the adoption of [Child] for any reason, and the adoption petition is dismissed or denied, it is in [Child’s] best interest that he be returned to [Mother’s] custody and control.”[1] Soon after Mother signed the relinquishment, Petitioners filed a copy of it with the court, and a few days later the court signed an order awarding temporary custody of Child to Petitioners.

¶5        Just a few months later, before the adoption was finalized, Mother filed a motion to set aside her relinquishment, asserting that she did not sign the document freely and voluntarily. The district court, after a half-day evidentiary hearing, determined that Mother had acted voluntarily and was not under duress or undue influence, and denied Mother’s motion. The court’s decision to deny Mother’s motion is not at issue in this appeal.

¶6        About a month later, in early January 2018, Father entered an appearance in the adoption case and filed a motion seeking leave to intervene, asking that the adoption proceedings be dismissed. A few weeks later, Father filed a second motion, raising for the first time his argument—advanced here in this appeal—that the district court did not have subject-matter jurisdiction over the case because Petitioners filed their petition in the wrong district.

¶7        After full briefing and oral argument, the district court denied Father’s motion to dismiss, and determined that it did have subject-matter jurisdiction over the case. Father then asked for permission to appeal the district court’s interlocutory order regarding jurisdiction, and we granted that request.

ISSUE AND STANDARD OF REVIEW

¶8        The issue presented in this case is one of statutory interpretation: whether Utah Code section 78B-6-105(1)(a) acts as a limit on a district court’s subject-matter jurisdiction, or is merely a venue statute. “We review questions of statutory interpretation for correctness, affording no deference to the district court’s legal conclusions.” State v. Stewart, 2018 UT 24, ¶ 5 (quotation simplified).

ANALYSIS

¶9        The statute in question states, in fairly straightforward language, that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court,” and that, if the prospective adoptive parent is a Utah resident, the petition is to be filed “in the district where the prospective adoptive parent resides.” Utah Code Ann. § 78B-6-105(1)(a). All parties agree that this language demands that adoption proceedings be initiated by the filing of a petition. And all parties agree that, at least in adoption cases that are to be filed in district court rather than juvenile court, see id. § 78B-6-105(1)(c), and in which the prospective adoptive parent is a Utah resident, see id. § 78B-6­105(1)(a), this petition is supposed to be filed in the district where the prospective adoptive parent resides. On these points, the language appears plain and unambiguous.

¶10 The statute is not as plain, however, when it comes to setting forth the consequences that attach when a petitioner files an adoption petition in the wrong judicial district.[2] Father asserts that a petition filed in the wrong district must be dismissed, because he reads the statute as speaking to a court’s subject-matter jurisdiction to adjudicate the case. Petitioners, on the other hand, point out that any Utah district court has subject-matter jurisdiction over adoption cases as a class, and read the statute as a venue provision that does not implicate a court’s jurisdiction, but merely allows any party to request that the petition be transferred to the proper district. To resolve this dispute, we start by examining the concept of subject-matter jurisdiction, and then return to a further examination of the text of the statute.

¶11 “The notion of ‘jurisdiction’ is a slippery one.” In re adoption of B.B., 2017 UT 59, ¶ 125, 417 P.3d 1. The word “jurisdiction” means “different things in different circumstances.” Id. Sometimes, it is used to refer to “the scope of a court’s power to issue a certain form of relief,” while at other times the word is used to refer to “the territorial authority of the court that issues a decision,” but “neither of these notions of jurisdiction goes to a court’s subject-matter jurisdiction.” Id. ¶¶ 125–27.

¶12 Subject-matter jurisdiction is a “special” type of jurisdictional concept, one that is “distinct from other notions of jurisdiction in that we require our courts to consider such issues sua sponte” and, unlike other notions of jurisdiction, we “do not allow the parties to waive or forfeit [subject-matter jurisdiction] from consideration.” Id. ¶ 128. This distinction is “crucial,” because “[i]f an issue is subject-matter jurisdictional, the general rules of finality and preservation are off the table,” and that can “undermine the premises of efficiency, speedy resolution, and finality that generally undergird our justice system.” Id.

¶13 Because subject-matter jurisdiction is “special” and “distinct” from other jurisdictional concepts, see id., due to the fact that “parties can raise subject matter jurisdiction at any time during a proceeding, it makes sense to cabin the issues that fall under the category of subject matter jurisdiction,” Johnson v. Johnson, 2010 UT 28, ¶ 10, 234 P.3d 1100; see also In re adoption of B.B., 2017 UT 59, ¶ 129 (stating that “our law has been careful to cabin the notion of subject-matter jurisdiction”). In recent years, our supreme court has made a concerted effort to do just that, “routinely rebuff[ing] attempts by litigants to recast merits arguments as issues of subject-matter jurisdiction,” and instructing trial courts that they must “guard[] against the faux elevation of a court’s failure to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction.” In re adoption of B.B., 2017 UT 59, ¶ 130 n.14 (quotation simplified); see also Johnson, 2010 UT 28, ¶ 9 (stating that “[t]he concept of subject matter jurisdiction does not embrace all cases where the court’s competence is at issue,” and that “[w]here the court has jurisdiction over the class of case involved, judgment is not void on the ground that the right involved in the suit did not embrace the relief granted”); Chen v. Stewart, 2004 UT 82, ¶ 36, 100 P.3d 1177 (determining that the parties mischaracterized their claim as one grounded in subject-matter jurisdiction in a futile attempt to avoid waiver), abrogated on other grounds by State v. Nielsen, 2014 UT 10, 326 P.3d 645. In Johnson, for instance, the court held that a district court had subject-matter jurisdiction over a divorce case, even though the parties were never actually legally married to begin with, because subject-matter jurisdiction is generally determined by reference to a “class of cases, rather than the specifics of an individual case.” Johnson, 2010 UT 28, ¶ 10. “Because the district court clearly has the authority to adjudicate divorces, looking to the specific facts of a particular case is inconsistent with our usual definition of subject matter jurisdiction.” Id. ¶ 12.

¶14 In fact, our supreme court has limited the concept of subject-matter jurisdiction to two specific situations: “(a) statutory limits on the authority of the court to adjudicate a class of cases,” and “(b) timing and other limits on the justiciability of the proceeding before the court (such as standing, ripeness, and mootness).” In re adoption of B.B., 2017 UT 59, ¶ 121 (quotation simplified); see also id. ¶ 153 (stating that “[o]ur law has long assessed subject-matter jurisdiction at the categorical level—encompassing only statutory limits on the classes of cases to be decided by the court and traditional limits on justiciability”). Neither of these situations is present here.

¶15 Starting with the second category first, Father does not assert that any of the common “justiciability” doctrines apply here, and therefore we need not analyze the potential applicability of any of those doctrines to the facts of this case.

¶16 And with regard to the first category, the text of the statute in question contains no express “limits” on the authority of Utah district courts to adjudicate adoption cases generally, as a class. Even Father wisely concedes that “[d]istrict courts may generally handle adoptions.” Indeed, “in Utah our district courts are courts of general jurisdiction” that have “general power to hear ‘all matters civil and criminal’ so long as they are ‘not excepted in the Utah Constitution and not prohibited by law.’” Id. ¶ 143 (quoting Utah Code section 78A-5-102(1)). More specifically, as concerns adoption cases, our supreme court has noted that “Utah district courts clearly have subject matter jurisdiction over adoption proceedings as a class of cases.” In re adoption of Baby E.Z., 2011 UT 38, ¶ 34, 266 P.3d 702; see also In re adoption of B.B., 2017 UT 59, ¶ 137 (stating that, “[b]y statute, our Utah courts are expressly authorized to assume jurisdiction over adoption petitions”).

¶17 When the legislature intends to place a statutory limit on a district court’s jurisdictional ability to hear a category of cases, it certainly knows how to do so expressly. See In re adoption of B.B., 2017 UT 59, ¶ 143 (stating that “[t]he code . . . places certain restrictions on the jurisdiction of our district courts,” but that such restrictions “are expressly denominated as such—as jurisdictional limits”). For instance, the legislature will identify certain claims as within the “exclusive jurisdiction” of an administrative agency or of a particular type of court, see, e.g., Utah Code Ann. § 34A-2-407(12)(a)–(b) (LexisNexis Supp. 2018) (identifying claims within the “exclusive jurisdiction” of the Labor Commission); id. § 78A-6-103(2) (Supp. 2018) (identifying the “exclusive jurisdiction” of juvenile courts over certain matters), or will note that “no court has jurisdiction” to entertain certain actions, see, e.g., id. § 31A-27a-105(1)(b) (2017) (stating that “[n]o court has jurisdiction to entertain, hear, or determine a delinquency proceeding commenced by any person other than the commissioner of this state”). The subsection of the statute at issue here has no such express limitation on jurisdiction. See id. § 78B-6-105(1)(a).[3] It does not identify adoption cases as within the “exclusive jurisdiction” of the judicial district in which the prospective adoptive parent resides, nor does it state that “no court” but the courts in the district in which the adoptive parents reside has jurisdiction over a case.[4]

¶18 Indeed, while the linguistic structure of the statutory subsection in question is not at all similar to other statutes containing express jurisdictional limits, it is quite similar to other statutes concerning venue. Several of Utah’s venue statutes require that a particular cause of action “be brought and tried” or “commenced and tried” in a particular location. See, e.g., id. § 78B-3-305(1) (stating that “[a]ll transitory causes of action arising outside the state, except those mentioned in Section 78B­3-306, shall . . . be brought and tried in the county where any defendant resides”); id. § 78B-3-306 (stating that “[a]ll transitory causes of action arising outside the state in favor of residents of this state shall be brought and tried in the county where the plaintiff resides, or in the county where the principal defendant resides”). We find it difficult to ignore the similarities between these venue statutes and the statute in question, which states that “[a]doption proceedings shall be commenced by filing a petition with the clerk of the district court . . . where the prospective adoptive parent resides.” See id. § 78B-6-105(1)(a).

¶19      Moreover, in 2004 the legislature amended the title of the statute. Before the amendment, the statute had been captioned “Jurisdiction of district and juvenile court – Time for filing.” See id. § 78-30-7 (LexisNexis 2003).[5] In the 2004 legislative session, without materially altering the relevant language of the statute itself, the legislature changed the title of the statute to read as it does now: “District court venue – Jurisdiction of juvenile court – Jurisdiction over nonresidents – Time for filing.” See Adoption Amendments, ch. 122, § 11, 2004 Utah Laws 546, 553;[6] see also Utah Code Ann. § 78B-6-105. “The title of a statute is not part of the text of a statute, and absent ambiguity, it is generally not used to determine a statute’s intent. However, it is persuasive and can aid in ascertaining the statute’s correct interpretation and application.” Blaisdell v. Dentrix Dental Sys., Inc., 2012 UT 37, ¶ 10, 284 P.3d 616 (quotation simplified). In this case, in which we must determine whether the statute is a jurisdictional statute or a venue statute, we find it significant that the legislature has specifically categorized the statute as one speaking to venue rather than to subject-matter jurisdiction.

¶20 Despite all of these persuasive indications that the relevant statute speaks only to venue and not to subject-matter jurisdiction, Father directs us to two of our previous decisions that have referred to the statute as “jurisdictional.” See In re adoption of S.L.F., 2001 UT App 183, 27 P.3d 583; In re adoption of K.O., 748 P.2d 588 (Utah Ct. App. 1988). Father asserts that those cases constitute binding authority that the statute is jurisdictional and compel the dismissal of Petitioner’s petition.

¶21 Father’s argument certainly has some force. In those cases, we did refer to the statute as containing a “jurisdiction requirement,” see In re adoption of K.O., 748 P.2d at 591; see also In re adoption of S.L.F., 2001 UT App 183, ¶ 17, and even went so far as to state that “[w]ithout knowing the [petitioners’] residence . . . , this Court cannot ascertain whether or not the trial court had jurisdiction to grant the adoption,” In re adoption of K.O., 748 P.2d at 591. In one of the cases, we implicitly rejected the argument Petitioners advance here, namely, that the adoption statute was merely a “venue” statute, and held that “until the adoption petition was properly filed in Second District Court, where [the prospective adoptive parent] resides, the proceeding had not been ‘commenced’ as required” by the statute. In re adoption of S.L.F., 2001 UT App 183, ¶ 16 n.1.[7] And in the other, we specifically stated that, if the trial court on remand “determines that it had no jurisdiction to hear the adoption because the [petitioners] were not residents of Cache County, Utah at the time of filing, that proceeding was void.” In re adoption of K.O., 748 P.2d at 592.

¶22 It is undeniably the case that one panel of this court is bound to follow the previous decisions of another panel of this court, unless we make a specific decision to overrule or disavow the earlier precedent. See State v. Legg, 2018 UT 12, ¶ 9, 417 P.3d 592 (stating that “[u]nder the doctrine of horizontal stare decisis, the first decision by a court on a particular question of law governs later decisions by the same court,” and specifically holding that “[t]he doctrine of horizontal stare decisis applies as between different panels of the court of appeals” (quotation simplified)). However, the principle of horizontal stare decisis only applies if the previous precedent remains robust. See United States v. Plouffe, 445 F.3d 1126, 1128 (9th Cir. 2006) (stating that “where an intervening higher authority has issued an opinion that is clearly irreconcilable with our prior circuit precedent, a panel is free to act disregarding that precedent” (quotation simplified)); see also 21 C.J.S. Courts § 190 (2018) (stating that “stare decisis does not preclude a decision that reflects developments in the law since the courts must consider statutory or case law changes that undermine or contradict the viability of prior precedent”).

¶23 While the two cases upon which Father relies have not been explicitly overruled, two developments have taken place in the decades since those cases were decided that cause us to doubt the continuing vitality of those cases’ discussions of jurisdiction. First, both of those cases were decided prior to 2004, when our legislature amended the title of the statute to specify that the statute, at least as concerns district courts, is intended to speak to venue and not to jurisdiction. Second, since those cases were decided, our supreme court has significantly “cabin[ed] the issues that fall under the category of subject matter jurisdiction,” Johnson, 2010 UT 28, ¶ 10, and has made clear that subject-matter jurisdiction applies to only two situations, neither of which is present in this case. Our fealty is first and foremost to the mandates of our supreme court and to the enactments of our legislature, and where our precedent conflicts with more recent supreme court pronouncements or statutory changes, we are duty-bound to follow the path our supreme court and our legislature have set. See Ortega v. Ridgewood Estates LLC, 2016 UT App 131, ¶ 30, 379 P.3d 18 (“We are bound by vertical stare decisis to follow strictly the decisions rendered by the Utah Supreme Court.” (quotation simplified)); Beltran v. Allen, 926 P.2d 892, 898 (Utah Ct. App. 1996) (stating that “it is the Utah statute, as interpreted by majority holdings of the Utah Supreme Court, which controls the outcome of this case”).[8]

¶24 For these reasons, we conclude that Utah Code section 78B-6-105(1)(a) speaks to venue, and does not limit a court’s subject-matter jurisdiction. Accordingly, unless the adoption is one that must be filed in juvenile court pursuant to Utah Code section 78A-6-103(1)(o), see Utah Code Ann. § 78B-6-105(1)(c), any district court has subject-matter jurisdiction to adjudicate an adoption case, even one filed in the wrong district, but must transfer the case to the correct district upon the filing of a proper request. Cf. id. § 78B-3-308 (stating that, when a case is filed in the wrong venue, a party may file “a written motion requesting the trial be moved to the proper county”).

CONCLUSION

¶25 The provision in Utah’s adoption code that requires that an adoption case be “commenced” by the filing of a petition in a particular judicial district is a provision that speaks to venue, and not to subject-matter jurisdiction. Petitioners did indeed file their petition in the wrong venue, but this did not deprive the court of subject-matter jurisdiction, because any district court in Utah has subject-matter jurisdiction over any adoption case that does not have to be filed in juvenile court. The consequence for filing in the wrong district is not automatic dismissal; it is that any party, upon proper motion, may request that the case be transferred to the correct district. Unless and until such a request is made, however, the court in which the case is filed may continue to adjudicate the case, and its rulings are not void. For all of these reasons, we affirm the district court’s decision to deny Father’s motion to dismiss for lack of subject-matter jurisdiction, and we remand the case to the district court for further proceedings consistent with this opinion.

[1] This provision of the relinquishment explains why the parties are litigating about whether Utah Code section 78B-6-105(1)(a) speaks to subject-matter jurisdiction or to venue: if the statute is jurisdictional, Petitioners’ petition should be dismissed, and in that event Father intends to assert that Child should be returned to Mother’s custody and control.

[2] 2. Father emphasizes the statute’s use of the word “shall,” which is usually interpreted as a mandatory command, see Utah Code Ann. § 68-3-12(1)(j) (LexisNexis 2016) (defining “shall” as meaning “that an action is required or mandatory”), and argues that adoption petitioners are commanded to file their adoption petition in the proper district. This argument is correct, as far as it goes, but the legislature’s use of the word “shall,” in this context, fails to answer the question at the center of this dispute because it tells us nothing about what the intended consequences are for filing the petition in the wrong place. Indeed, this case nicely illustrates one reason why some legal scholars have noted that the word “shall” is “a semantic mess”: because “a recurrent issue in the huge constellation of shall-must holdings” concerns “the effect of failing to honor a mandatory provision’s terms,” which presents “an issue for a treatise on remedies, not interpretation.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 113, 115 (2012).

[3] 3. Father points out that subsection (1)(c) of the statute appears to be jurisdictional, in that it places some adoption cases within the exclusive jurisdiction of the juvenile court, and infers therefrom that the other subsections must therefore also be jurisdictional. Father is arguably correct that subsection (1)(c) speaks to a juvenile court’s subject-matter jurisdiction—that provision states that adoption proceedings “shall be commenced by filing a petition” in “juvenile court as provided in Subsection 78A-6-103(1).” See Utah Code Ann. § 78B-6-105(1)(c) (LexisNexis Supp. 2018). The referenced section of the Juvenile Court Act states that “the juvenile court has exclusive original jurisdiction” over “adoptions” in cases where “the juvenile court has previously entered an order terminating the rights of a parent and finds that adoption is in the best interest of the child.” See id. § 78A-6-103(1)(o) (Supp. 2018). This language does appear to encompass express limits on the authority of courts other than juvenile courts to hear a particular sub-class of adoption cases. However, it does not follow that, just because subsection (c) is jurisdictional, subsections (a) and (b) must also be jurisdictional. On this issue, the title of the statute provides helpful guidance, instructing us that the statute concerns itself with “[d]istrict court venue” but with “[j]urisdiction of juvenile court.” See id. § 78B-6-105; see also infra ¶ 19. As we read the statute, the legislature has placed most adoption cases within the broad subject-matter jurisdiction of district courts, but has placed one sub-class of adoption cases within the narrower subject-matter jurisdiction of juvenile courts. Within the first (broader) category, we do not perceive the legislature as having set any jurisdictional limits on the ability of any particular judicial district or individual district court to hear any of the cases that fall within their purview.

[4] Furthermore, unlike some other comparable state statutes, see, e.g., Wyo. Stat. Ann. § 1-22-109 (2018) (requiring specific documents to be filed with an adoption petition), Utah’s statute does not impose any requirements on petitioners to file specific documents (such as, for instance, relinquishments or consents) with adoption petitions. Father points to some of these other state statutes, and notes that courts in other states have found such requirements to be jurisdictional. See, e.g., In re JWT, 2005 WY 4, ¶¶ 5–6, 104 P.3d 93. Father’s argument is unavailing here, however, because Utah’s statute imposes no such requirements, and therefore we need not consider whether our legislature intended any such requirements to be jurisdictional.

[5] In 2008, Utah Code section 78-30-7 was renumbered as Utah Code section 78B-6-105. See Title 78 Recodification and Revision, ch. 3, § 864, 2008 Utah Laws 48, 443.

[6] The “redline” version of the bill that effected the title change did not show the new title in “redline” format, even though all proposed changes to the body of the statute were clearly marked. Father infers from this that the legislators themselves (as opposed, presumably, to legislative staff) may not have known that the title was even being changed, and therefore asserts that “the title change does not imply any legislative intent.” We find Father’s argument speculative—we simply do not know why the change to the title of the bill was not redlined, or whether that fact has any significance. Legislative history certainly has a role to play in helping courts interpret ambiguous statutes, see, e.g., Allred v. Saunders, 2014 UT 43, ¶ 18, 342 P.3d 204 (stating that “it is sometimes appropriate to consider legislative history when interpreting statutes”), but in order to shed any meaningful light on the question of statutory meaning, the legislative history in question must itself be “reliable,” see Graves v. North E. Services, Inc., 2015 UT 28, ¶ 67, 345 P.3d 619 (stating that “[w]e may resolve ambiguities in the text of the law by reference to reliable indications of legislative understanding or intent” (emphasis added)). It is certainly mysterious that the title change was not redlined even though the rest of the proposed changes were. But without knowing more about the reasons why that happened, or about what (if any) significance that had to the legislators who considered the bill, we find Father’s argument insufficiently persuasive to overcome the basic fact that, prior to 2004, the title proclaimed the statute to be jurisdictional, but that since 2004, the legislature has chosen a title that proclaims the statute to be a venue statute, at least as concerns district courts.

[7] 7. Even in In re adoption of S.L.F., there is some indication that— prior to our supreme court’s more recent cases—this court and the district courts were conceptualizing subject-matter jurisdiction too broadly. In that case, a potential adoptive parent filed an adoption petition in Salt Lake County (in the Third Judicial District), even though she lived in Davis County (in the Second Judicial District). See In re adoption of S.L.F., 2001 UT App 183, ¶ 3, 27 P.3d 583. Later, the parent made a “motion for a change of venue,” asking that the petition be transferred to Davis County. Id. ¶ 5. The Salt Lake County district court granted the motion, and transferred the petition to Davis County. Id. Had there been a jurisdictional defect of the kind Father envisions, transfer would not have been possible— indeed, the only action a court without jurisdiction can take is to dismiss the case. See, e.g., Hollenbach v. Salt Lake City Civil Service Comm’n, 2013 UT App 62, ¶ 3, 299 P.3d 1148 (per curiam) (stating that “when a court lacks jurisdiction, it retains only the authority to dismiss the action” (quotation simplified)). No party took issue with the Salt Lake County district court’s decision to transfer (rather than dismiss) the case, and we did not reach the propriety of that transfer on appeal.

[8] 8. Father also argues that construing the relevant statute as a venue statute rather than as a jurisdictional statute would have “constitutional implications,” because he points out that fathers are required to “strictly” comply with other provisions of Utah’s adoption code, and argues that “it would be unconstitutional to impose a ‘strict compliance’ standard for biological fathers but a more relaxed standard for adoptive parents.” Our conclusion herein regarding the meaning of the relevant statute—and, specifically, regarding the intended consequences of filing a petition in the wrong district—has nothing to do with requiring “strict” or “relaxed” compliance with the statutory mandates. Our conclusion is simply that the legislature intended the statute to function as a venue statute, and therefore a court does not lack subject-matter jurisdiction over an adoption petition filed in the wrong district any more than it would lack subject-matter jurisdiction over a divorce case or a tort case filed in the wrong county. We see no constitutional infirmities with the legislature’s creation of a venue statute in this context, and therefore reject Father’s constitutional arguments.

My boyfriend wants to adopt my son, but my son doesn’t want to be adopted.

How should I respond to a boyfriend that is determined to adopt my child if we marry even though the father pays child support and the child seems stressed by the idea of effectively changing fathers despite really liking my boyfriend?

First, it’s good that he is willing to adopt your son (as opposed to seeing him as an annoyance), even though it’s bad that he wants to take the boy from his biological father.

So how do you respond?

You stand firm and tell your boyfriend:

  • that the father of your child A) has rights parental that your boyfriend does not have; and B) rights to the child that are stronger than the rights (if any) the boyfriend would have as a stepfather.
  • that if the child does not want to be adopted because he already has a responsible father that he knows and loves, then no judge is going to grant a petition for the boy to be adopted by someone else.

You tell your boyfriend that the best way he can foster and maintain a relationship that is mutually beneficial for him and the boy alike is to support the boy’s relationship with his loving, responsible, biological dad. The son’s respect for you will grow because of the respect you have for him and for his relationship with his father.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-should-I-respond-to-a-boyfriend-that-is-determined-to-adopt-my-child-if-we-marry-even-though-the-father-pays-child-support-and-the-child-seems-stressed-by-the-idea-of-effectively-changing-fathers-despite-really/answer/Eric-Johnson-311

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In re Adoption of B.B. – 2017 UT 59 – contested adoption of American Indian child

This opinion is subject to revision before final publication in the Pacific Reporter

2017 UT 59

IN THE

SUPREME COURT OF THE STATE OF UTAH

 

In the Matter of the Adoption of B.B., a minor,

 

E.T.,

Appellant,

R.K.B. and K.A.B., Appellees.

 

No. 20150434

Filed August 31, 2017

 

On Certification from the Court of Appeals

 

Third District, Salt Lake

The Honorable Ryan M. Harris

No. 142900417

 

Attorneys:

Angilee K. Dakic, Salt Lake City, for appellant

Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellees

 

JUSTICE HIMONAS authored the opinion of the Court with respect to Parts II.B., II.D., and III, in which JUSTICE DURHAM and

JUSTICE PEARCE joined; and a dissenting opinion with respect to Parts I, II.A., and II.C, in which JUSTICE DURHAM joined.

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court with respect to Part I of his opinion, in which CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined; and a dissenting opinion with respect to Part II of his opinion, in which CHIEF JUSTICE DURRANT joined.

 

JUSTICE HIMONAS, opinion of the Court as to Parts II.B., II.D., and III:

 

 

 

INTRODUCTION

¶ 1 Contested adoptions are gut-wrenching, and the longer they remain in flux, the greater the toll on the biological parents, the prospective adoptive parents, family members, and, most significantly, the child. But no one is better off for “judicial shortcuts, intentional or unintentional, which reach an expeditious result but fail to recognize the fundamental nature of the right of [biological] parents to the care, custody, and management of their child.” In re Adoption of L.D.S., 155 P.3d 1, 8 (Okla. 2006), as supplemented on reh’g, No. 250 (Mar. 6, 2007). “In fact, the best interests of the child can be served in no legitimate manner except in obedience to the policies and procedures mandated by law.” Id. So it is vital that the courts of this state, this court included, take care to ensure that adoption proceedings are as free as possible from fatal defects. Regrettably, this case is septic: Birth Mother admitted to having perpetrated a fraud on the district court and suborning perjury from her brother-in-law, all in an effort to keep Birth Father from intervening in the proceedings, and all against the backdrop of what I believe was untimely and therefore invalid consent.

¶ 2 Procedurally, this case is before us on certification from our court of appeals, the central issue presented by the parties being whether the district court got it right when it denied Birth Father’s motion to intervene. Because both Birth Father and Birth Mother are members of the Cheyenne River Sioux Tribe and B.B. is eligible for enrollment in the tribe, the Child is an Indian child. Hence, in my view, we have to consider the interplay between the Indian Child Welfare Act (ICWA) and Birth Father’s attempt to intervene, the application of ICWA to Birth Mother’s consent, and the impact her invalid consent has on these proceedings.[1] I view these inquiries as raising the issues of (1) whether a district court has subject matter jurisdiction over an adoption proceeding where neither biological parent has validly consented to the adoption and where the order terminating their parental rights is therefore void, (2) whether the jurisdictional issue is properly before us by virtue of Birth Father’s right to challenge the validity of Birth Mother’s consent and the order terminating his parental rights, and (3) whether Birth Father is a “parent” for purposes of ICWA and entitled to intervene in the proceedings below.

¶ 3 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.2

                                                                                                                                                      

2 Put a little differently, this case implicates issues of subject matter jurisdiction and statutory interpretation. The subject matter jurisdiction issue turns on whether we may void the termination of Birth Mother’s parental rights by holding that Birth Mother failed to give valid consent, and that, therefore, the district court lacked subject matter jurisdiction to terminate her parental rights. But the majority of the court—Chief Justice Durrant, Associate Chief Justice Lee, and Justice Pearce—holds that this issue is not properly before us and therefore does not reach the issue of Birth Mother’s consent.

On the statutory interpretation question, which turns on whether Birth Father is a “parent” under ICWA, a majority of the court—Justices Himonas, Durham, and Pearce—holds that Birth Father qualifies as a parent because he met the federal standard for acknowledging or establishing paternity. The dissent would hold that there is no federal standard for acknowledging or establishing paternity, and that Birth Father’s failure to follow Utah procedures for acknowledging or establishing paternity means that he is not a parent under ICWA. Because the court concludes that Birth Father is a parent under ICWA, it also holds that he has a right to notice and to intervene in the adoption proceedings, reversing the district court’s contrary conclusion and remanding for further proceedings.

BACKGROUND

¶ 4 In December 2013, Birth Father and Birth Mother were in a committed relationship and engaged in sex leading to the conception of the Child.[2] Both Birth Father and Birth Mother are members of the Cheyenne River Sioux Tribe, and they resided together on the Cheyenne River Sioux Reservation in South Dakota at the time of conception and for the first six months of Birth Mother’s pregnancy. Birth Father supported Birth Mother during her pregnancy, paying for her phone bill and their rent, utilities, and groceries. Six months into the pregnancy, in June or July 2014, Birth Mother moved to Utah to be closer to friends and family. Birth Father was to join her later, once she was settled into their new apartment. 

¶ 5 For the first few weeks after Birth Mother’s move to Utah, she and Birth Father stayed in contact over the phone, but after Birth Mother encountered a former boyfriend, she cut off all contact with Birth Father. She stopped calling Birth Father, stopped answering his calls, and even changed her phone number. At Birth Mother’s request, mutual friends told Birth Father that she was fine and would soon return to South Dakota. Birth Father indicated that he “figured . . . [she] just needed some space” and that she “would return to South Dakota before she delivered [their] baby, or that she and the baby would return together after the delivery.”

¶ 6 On August 29, 2014, Birth Mother gave birth to the Child in Utah. Twenty-four hours and six minutes later, she signed a form titled

“Relinquishment of Parental Rights and Consent of Natural Birth Mother to Adoption” in the presence of a notary public and an adoption agency representative. Birth Mother also signed a Statement Concerning Birth Father, naming her brother-in-law, rather than Birth Father, as the biological father. Based on Birth Mother’s misrepresentations concerning the biological father, the adoption agency and counsel for the adoptive parents had the brother-in-law sign a sworn affidavit declaring that he was the Child’s biological father, relinquishing his rights to the Child, consenting to the adoption, and representing that he was neither an enrolled member of nor eligible for membership in a Native American tribe.

¶ 7 On September 8, 2014, ten days from the Child’s birth, Birth Mother executed a Voluntary Relinquishment of Parental Rights, Consent to Adoption, and Consent to Entry of Order Terminating

Parental Rights in open court, again naming her brother-in-law as the Child’s biological father. On September 25, 2014, the district court issued an order terminating Birth Mother’s parental rights and determining the biological father’s rights. Birth Mother had expressly objected to any Indian tribe receiving notice of the proceedings, and the district court determined that the proceedings were voluntary and that therefore no Indian tribe was entitled to notice. The court held that “the unwed biological father[], whether he be [Birth Mother’s brother-inlaw] or any other man,” had “forfeited, surrendered, or waived” his parental rights and that his consent to the adoption was not required. The court also determined that the unmarried biological father had not acknowledged or established paternity to the Child and was therefore not a “parent” under ICWA. See 25 U.S.C. § 1903(9). The court then transferred custody of the Child to the adoption agency and authorized it to delegate custody to the prospective adoptive parents.

¶ 8 Birth Mother returned to South Dakota at the end of September 2014. On or about September 27, 2014, she saw Birth Father and told him that she had given birth to the Child and placed him for adoption. According to Birth Father, she told him that she listed no father on the birth certificate and that she later misrepresented the identity of the father. According to his affidavit, Birth Father “was completely shocked and devastated because [he] did not know that [their] son had been born, and [he] never knew [Birth Mother] had even considered placing him for adoption.” Birth Father also stated that he “immediately sought assistance to establish paternity and intervene in this matter,” although it is unclear from the record what his immediate action was.

¶ 9 According to Birth Father, he and Birth Mother “contacted the Utah vital records office to add [Birth Father’s] name to [their] son’s birth certificate, but [were] advised by counsel not to[,] due to [Birth Mother’s] rights being terminated.” Both Birth Father and Birth Mother informed the tribe of the situation. Over a period of a couple of months, Birth Father consulted with Dakota Plains Legal Services. On or before

October 30, 2014, Dakota Plains Legal Services contacted counsel for the prospective adoptive parents and left a message regarding Birth Mother, apparently communicating Birth Mother’s desire to withdraw her consent and requesting that the Child be returned to her. In November 2014, Birth Mother contacted the adoption agency to correct her misrepresentation, informing the adoption agency that Birth Father was the true biological parent.4 In late November or December 2014, according to Birth Father, Dakota Plains Legal Services referred him to Utah Legal Services, Inc., and on December 31, 2014, Birth Father filed a motion to intervene in the proceedings “in order to establish paternity, and thereafter file a petition to have his parental rights determined.”5 The case had been inactive from the entry of the termination order on September 25, 2014, until the filing of the motion to intervene on December 31, 2014.

¶ 10 Birth Father’s motion to intervene was mistakenly granted on January 5, 2015, before the prospective adoptive parents’ time to respond to or oppose the motion had run. Birth Father then filed a

                                                                                                                                                       

  • Birth Mother claims that “within one week of th[e] court entering its order to relinquish [her] rights, [she] contacted [the adoption agency] and informed them that [she] wanted to withdraw [her] consent” and was told that it was too late. But the exhibit she cites in support of that claim is a December 11, 2014 letter from the adoption agency that references a letter received from Birth Mother “last month” (i.e., November 2014). She cites that same letter in her affidavit, in support of her assertion that she “tried to revoke [her] consent and correct the misrepresentations that [she] had made to [the adoption agency].” And Birth Father cites that same letter in support of his claim that

[i]n December 2014, when the child was just a little over three months old, [Birth Mother] contacted [the adoption agency] to inform them that she had misrepresented the identity of the true father, and she made efforts to rescind the relinquishment of her parental rights, but was informed by the director that they ‘no longer have [any] power in that matter’ and that she ‘would need to work with the judge.’  

  • Birth Father stated that his intervention was “pursuant to Rule 24(a) of the Utah Rules of Civil Procedure and 25 U.S.C. 1911(c).” Motion for Paternity Test, and the prospective adoptive parents filed a motion requesting that the district court reconsider its decision to grant Birth Father’s motion to intervene and objecting to his motion for paternity testing. A few days later, Birth Father filed a Paternity Affidavit. Subsequently, Birth Mother filed an affidavit with the court stating that Birth Father was the biological parent and a member of the Cheyenne River Sioux Tribe. Birth Father then filed an Answer, Objection, and Verified Counterpetition to the Verified Petition for Adoption, objecting to the petition for adoption. He also filed a Notice of Commencement of Paternity Proceeding with the Utah Department of Health Office of Vital Records and Statistics. On January 27, 2015, the Cheyenne River Sioux Tribe filed a motion to intervene in the proceedings.

¶ 11 The district court held a hearing on the pending motions (not including the tribe’s motion to intervene) on February 24, 2015. On the day of the hearing, the Bureau of Indian Affairs (BIA) released new ICWA guidelines. Birth Father filed the guidelines with the district court that very day, requesting that the court review them and drawing the court’s attention to the guidelines regarding notice requirements, placement preferences, consent requirements, and the relationship between ICWA and state law. The prospective adoptive parents filed a motion objecting to Birth Father’s submission of that supplemental memorandum. On March 12, 2015, Birth Mother filed a Verified Withdrawal of Consent to Adoption and Motion for Return of Custody with the court. On March 26, 2015, the court made a minute entry, granting Birth Father’s motion for review based on the new ICWA guidelines and denying the prospective adoptive parents’ motion to strike those guidelines. 

¶ 12 The next day, the district court signed an order denying the Cheyenne River Sioux Tribe’s motion to intervene on the bases (1) “that an Indian tribe . . . cannot appear in court without the assistance of a licensed attorney” and (2) “that, under ICWA, a tribe has a right to intervene only in involuntary proceedings, and not in voluntary proceedings like this one.” On April 21, 2015, the court issued another order, denying Birth Father’s motion to intervene on the basis that he was “not a ‘parent’ under either ICWA or . . . Utah’s adoption statutes.” Because Birth Father was not permitted to intervene, his motion for paternity testing was mooted. The April 21, 2015 order also denied Birth Mother’s motion to withdraw her consent to the termination of her parental rights on the basis “that once a birth mother’s parental rights have been terminated by order of a court, that birth mother no longer has the right under ICWA to withdraw her consent, even if an adoption decree has not yet been entered.”

¶ 13 Birth Father filed a motion for a new trial, and on May 20, 2015, he filed a notice of appeal. The district court denied the motion for a new trial on June 4, 2015. The appeal was then certified for immediate transfer to us. Neither the tribe nor Birth Mother appealed the denial of their motions. Birth Father also filed a Motion for Stay Pending Appeal, which the court granted, and pursuant to which “[t]he finalization of [the Child’s] adoption will wait until the conclusion of the appeal.” After the stay, Birth Father’s parents filed a motion to intervene and a counter-petition for adoption based on ICWA’s placement preferences, but their motion was also denied, and they did not appeal the denial. Thus, only Birth Father’s claims are before us on appeal.

¶ 14 After oral argument, we asked for supplemental briefing on three issues: (1) whether Birth Mother’s consent complied with ICWA’s timing requirement, and if not, what effect that had on the validity of her consent; (2) if Birth Mother’s consent was invalid, whether that would affect the district court’s jurisdiction to enter or finalize an adoption decree; and (3) what, if any, other effect an invalid consent would have on the proceedings below.

¶ 15 We have jurisdiction pursuant to Utah Code section 78A-3102(3)(b).

STANDARDS OF REVIEW

¶ 16 Whether Birth Mother’s consent was valid under ICWA is a question of statutory interpretation, which we review “for correctness, affording no deference to the district court’s legal conclusions.” State v. Gallegos, 2007 UT 81, ¶ 8, 171 P.3d 426. And whether a district court has subject matter jurisdiction over a proceeding is a matter of law, which we review for correctness. Canfield v. Layton City, 2005 UT 60, ¶ 10, 122 P.3d 622.

¶ 17 Whether Birth Father has acknowledged or established paternity under ICWA is a question of statutory interpretation, which we also review for correctness. Gallegos, 2007 UT 81, ¶ 8. “As a general matter, the factual findings underpinning [a ruling on a motion to intervene] are subject to a clearly erroneous standard, and the district court’s interpretation of rule 24(a) is reviewed for correctness.” Gardiner

  1. Taufer, 2014 UT 56, ¶ 16, 342 P.3d 269 (internal quotation marks omitted). “[W]hether a particular statute affords a particular class of persons an unconditional intervention right . . . is a pure question of law because it involves abstract statutory construction.” In re United Effort Plan Tr., 2013 UT 5, ¶ 21, 296 P.3d 742. Thus, “[a] district court would not be entitled to any deference to the extent it misinterpreted an intervention statute in the abstract.” Id.

ANALYSIS

¶ 18 The first question I address is whether Birth Mother’s lack of valid consent, and the resultant invalid order terminating all parental rights, deprived the district court of subject matter jurisdiction to move forward with the adoption. Based on controlling Utah law and in keeping with the overwhelming majority of the courts of this country, I answer that question in the affirmative. Because the jurisdictional issue is properly before us only if Birth Father could have raised it on appeal, I then turn to a determination of whether Birth Father had the ability to challenge the validity of Birth Mother’s consent and to put the jurisdictional issue before us. I conclude that Birth Father was empowered to do so under our traditional approach to standing and 25 U.S.C. section 1914. Finally, a majority of the court concludes that apart from the foregoing, Birth Father is a parent under ICWA and eligible to intervene in this matter and that to hold otherwise would subvert ICWA’s core policies.

  1. BIRTH MOTHER’S INVALID CONSENT DEPRIVED THE DISTRICT COURT OF SUBJECT MATTER JURISDICTION

¶ 19 Although neither party originally raised the issue, we have an independent obligation to address the existence of subject matter jurisdiction. See Nevares v. Adoptive Couple, 2016 UT 39, ¶ 23, 384 P.3d 213 (“[S]ubject matter jurisdiction is an issue that can and should be addressed sua sponte when jurisdiction is questionable.” (alteration in original) (citation omitted)); People ex rel. J.G.C., 318 P.3d 576, 578 (Colo. App. 2013) (after requesting supplemental briefing on “the district court’s jurisdiction to determine the nonpaternity of [the] presumptive father,” concluding that “the district court lacked subject matter jurisdiction to make a paternity determination”); see also In re Adoption of L.D.S., 155 P.3d 1, 8 (Okla. 2006), as supplemented on reh’g, No. 250 (Mar. 6, 2007). I would hold that invalid consent in adoption proceedings is a subject matter jurisdictional issue.

A. Valid Consent Is a Jurisdictional Prerequisite to an Adoption

¶ 20 Without valid parental consent to an adoption, there is no justiciable matter and therefore nothing for the district court to exercise jurisdiction over.[3] This is because the subject of an adoption proceeding is a child and a court cannot proceed with the adoption unless the child has been validly placed within its purview. And absent consent, that placement has not happened, leaving a court without authorization to interfere with the fundamental right that is the parent-child relationship. In re Adoption of Strauser, 196 P.2d 862, 867 (Wyo. 1948) (“The first duty of the judge is to see that the necessary consents are given. If they are not, the proceeding is at an end. There is nothing for the judge to approve.”); cf. Atwood v. Cox, 55 P.2d 377, 381 (Utah 1936) (“Jurisdiction is the power to decide a justiciable controversy . . . .” (citation omitted)).

¶ 21 The principle that invalid consent deprives the district court of subject matter jurisdiction in adoption proceedings has been a part of Utah law for more than six decades. In Deveraux’ Adoption v. Brown, two children were placed in foster care but their mother’s parental rights were never permanently terminated. 268 P.2d 995, 998 (Utah 1954). When the children were placed for adoption, the mother objected that her consent was never validly given. Id. at 996. We held that it was unnecessary to even look at other issues in the adoption proceeding because “the court never obtained jurisdiction to exercise the power to grant the adoptions and therefore any questions pertaining to the welfare or custody of the children [were] not before it in such a proceeding.” Id. at 998. We therefore remanded, instructing the district court to set aside as void the orders granting the adoptions. Id. In doing so, we did not consider consent, as the majority on this point urges, to be “just one of many statutory prerequisites to the issuance of a valid adoption decree.” Infra ¶ 124. Rather, we meant what we said: because of the mother’s lack of consent, the district court “never obtained jurisdiction.Deveraux’ Adoption, 268 P.2d at 998 (emphasis added); see also In re Adoption of Walton, 259 P.2d 881, 883 (Utah 1953) (“So jealously guarded is the parent-child relation[ship] that uniformly it is held that the abandonment or desertion firmly must be established [as a statutory exception to obtaining parental consent] . . . before any question as to the best interests or welfare of the child can be the subject of inquiry.”).

¶ 22 The majority argues that Deveraux’ Adoption has been implicitly overruled by our cases that adopt a jurisdictional clear statement rule, according to which we construe a statute as jurisdictional only if it is “clearly denominated as such.” See infra ¶ 143. This is wrong. It is true that Labelle v. McKay Dee Hospital Center outlines a presumption “that our district courts retain their grant of constitutional jurisdiction in the absence of a clearly expressed statutory intention to limit jurisdiction.” 2004 UT 15, ¶ 8, 89 P.3d 113. But this presumption does not require the statutory provision to explicitly state that it is jurisdictional. Instead, a statute clearly expresses the “intention to limit jurisdiction” when the statute imposes a prerequisite to an action that is “of the essence of the thing to be done,” and not “given with a view merely to the proper, orderly and prompt conduct of . . . business, and by the failure to obey no prejudice will occur to those whose rights are protected by the statute.” ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65, ¶¶ 14, 19, 245 P.3d 184 (alteration in original) (citation omitted).[4] In contrast, statutory provisions are “merely directory in nature rather than mandatory and jurisdictional” when disregarding them does not “compromise the purpose” of the statute but is simply a failure to adhere to “one of numerous procedural hurdles.” Sill v. Hart, 2007 UT 45, ¶ 19, 162 P.3d 1099 (internal quotation marks omitted).

¶ 23 The statutory requirement of consent is mandatory and jurisdictional because it goes to the soul of the adoption. See Brown v. Baby Girl Harper, 766 S.E.2d 375, 378 (S.C. 2014) (“Consent lies at the foundation of the adoption process[.]” (citation omitted)); In re Adoption of Keith M.W., 79 P.3d 623, 629 (Alaska 2003) (“Parental consent lies at the foundation of the adoption process.” (internal quotation marks omitted)); see also In re Adoption of Walton, 259 P.2d at 883 (noting that although it is not the law in Utah that adoption statutes “are to be construed strictly in favor of the parent,” courts “have not hesitated to build a strong fortress around the parent-child relation[ship], . . . . [which] has been considered a bundle of human rights of such fundamental importance as to lead courts frequently to say that consent is at the foundation of adoption statutes”). In fact, although some states have based their jurisdictional holdings on statutory filing requirements that differ from Utah’s, see infra ¶ 136 & n.21, none of those statutes contains a clear statement that the required filings relate to subject matter jurisdiction—but the courts still widely recognize consent as a jurisdictional requirement.

                                                                                                                                                       

day deadline). And these deadlines are properly characterized as subject matter jurisdictional. See, e.g., Flannigan v. Jordan, 871 So. 2d 767, 770 (Ala. 2003) (untimely appeal deprives court of “subject-matter jurisdiction to review the case”); Ark. State Univ. v. Prof’l Credit Mgmt., Inc., 299 S.W.3d 535, 537 (Ark. 2009) (“The appeal from district court to circuit court was . . . untimely, and the circuit court was without jurisdiction to accept the appeal. We are likewise without jurisdiction to hear this appeal, and we therefore dismiss it for lack of subject-matter jurisdiction.”); Holley v. Davey, No. CV115015458S, 2012 WL 1510966, at *1 (Conn. Super. Ct. Apr. 4, 2012); In re Marriage of Welp, 596 N.W.2d 569, 571 (Iowa 1999); Gore v. Tenn. Dep’t of Corr., 132 S.W.3d 369, 378–79 (Tenn. Ct. App. 2003); Turbeville v. Dailey, No. 03-11-00679-CV, 2011 WL 6351850, at *3 (Tex. App. Dec. 14, 2011).

¶ 24 In addition to the “clear statement” rule, Utah law also applies a “class of cases” rule, in which “the concept of subject matter jurisdiction [is limited] to those cases in which the court lacks authority to hear a class of cases, rather than when it simply lacks authority to grant relief in an individual case.” In re Adoption of Baby E.Z., 2011 UT 38, ¶ 31, 266 P.3d 702. The prospective adoptive parents argue that this limitation means that whether a court has subject matter jurisdiction over a case cannot turn on any case-specific procedural facts. Instead, they argue that it is a limited inquiry into whether the case, considered in the abstract, is fairly characterized as a general type of case over which the court has jurisdiction.

¶ 25 But the “class of cases” paradigm begs the question, as defining the class of cases over which courts have subject matter jurisdiction is not as simple as looking at the general topic. By this logic, courts, by way of example, would have jurisdiction over anything with the rough shape and form of a “tort case” or “landlord-tenant case.” The prospective adoptive parents’ approach creates an unworkable standard—it is often impossible to determine whether a case falls within a “class of cases” without considering some concrete aspects about it. There are often prerequisites individual litigants must meet to show that they have satisfied the requirements of subject matter jurisdiction even when we unquestionably have subject matter jurisdiction over the topic. Consider the tort and landlord-tenant case categories noted above. District courts have jurisdiction over negligence cases, a species of tort, but parties must still comply with the Governmental Immunity Act’s notice requirements, because “[c]ompliance with the Immunity Act is a prerequisite to vesting a district court with subject matter jurisdiction over claims against governmental entities.” Wheeler v. McPherson, 2002 UT 16, ¶ 9, 40 P.3d 632; see also Buckner v. Kennard, 2004 UT 78, ¶ 35, 99 P.3d 842 (“Compliance with the notice requirements, where applicable, is a prerequisite for subject matter jurisdiction.”). Similarly, although district courts certainly have jurisdiction over landlord-tenant cases in general, we have held that the court lacks subject matter jurisdiction where one party failed to exhaust its administrative remedies. Hous. Auth. of Salt Lake v. Snyder, 2002 UT 28, ¶ 11, 44 P.3d 724. This logic applies with equal force to other statutory claims. Ramsay v. Kane Cty. Human Res. Special Serv. Dist., 2014 UT 5, ¶ 17, 322 P.3d 1163 (failure to exhaust administrative remedies deprived the court of subject matter jurisdiction over plaintiff’s Retirement Act claims).[5]

¶ 26 As the above cases demonstrate, an overly generalized take on the “category of cases” ignores the fact that courts cannot decide cases when they lack the authority necessary to do so, as is the case here. Furthermore, neither In re Adoption of Baby E.Z. nor its predecessor case, Johnson v. Johnson, 2010 UT 28, 234 P.3d 1100, purported to overrule Deveraux’ Adoption’s holding that a court lacks subject matter jurisdiction over an adoption where valid consent has not been obtained. The standard put forth by the prospective adoptive parents, however, would essentially have us overrule Deveraux’ Adoption—but they have not briefed this argument and, in any case, I see no reason to do so.

¶ 27 The rationale behind the jurisdictional necessity of parental consent in adoption proceedings is based not, as the majority asserts, in “the availability of a particular form of judicial relief,” infra ¶ 130, but in justiciability, because, in the eyes of the law, no child has been made available for adoption. Put another way, the lack of parental consent to an adoption makes the case unripe. See Mendive v. Third Judicial Dist. Court in & for Lander Cty., 253 P.2d 884, 890 (Nev. 1953) (stating that before district court accepts guardian’s consent, “it would definitely appear that the further jurisdiction of the . . . district court over the . . . adoption proceeding would be futile and unavailing; that its present provisional jurisdiction could never ripen into a jurisdiction to make a final order permitting the adoption, dependent as such order would be upon the consent of the guardian”); In re St. Vincent’s Servs., Inc., 841 N.Y.S.2d 834, 844 (Fam. Ct. 2007) (holding that “the issue of adoption ripens into a justiciable issue” only after parents’ rights have been validly terminated); In re Adoption of G.V., No. 11AP-617, 2011 WL

4921672, at *1 (Ohio Ct. App. Oct. 18, 2011) (stating that adoption petition had been dismissed as unripe where father’s consent was not obtained).

¶ 28 Furthermore, by stating that there is no child available for adoption, I do not mean, as the majority suggests, that the Child is not “a real child with a real interest in these proceedings.” Infra ¶ 152. The delicate and difficult nature of undoing error in an adoption proceeding is not lost on anyone. But the existence of a real child before the court does not mean the adoption case is ripe any more than the existence of a real tort before the court necessarily means that a case under the Governmental Immunity Act is ripe. Both require a prerequisite before the court is authorized to hear the case. In the adoption context, that prerequisite is parental consent, a traditional limit on justiciability. See infra ¶ 30 n.10. In short, district courts have no authority to place a child for adoption without the consent of the biological parents, and the prospective adoptive parents’ reliance on the district court’s error does not change the state of our law.

¶ 29 In the majority’s view, this application of justiciability principles will lead to a number of outcomes that will chip away at our longstanding law of jurisdiction. The majority’s concerns have no basis. Consent as a jurisdictional prerequisite to adoption is well established in this country, and none of the evils the majority predicts have befallen the courts that have recognized as much. See infra ¶ 130 & n.14 (listing cases in which courts around the country have been successful in “rebuff[ing] attempts by litigants to recast merits arguments as issues of subject-matter jurisdiction”). To the contrary, courts have easily made distinctions between the jurisdictional implications of consent and general statutory requirements. See, e.g., In re Bullock, 146 S.W.3d 783, 788 (Tex. App. 2004) (holding that despite the fact that a valid termination order is a jurisdictional prerequisite, “not all statutory prerequisites to filing suit are jurisdictional”); In re Harshey, 318 N.E.2d 544, 548–49 (Ohio Ct. App. 1974) (holding that despite statutory language requiring both parental and agency consent for child’s adoption, lack of parental consent deprives a court of jurisdiction but lack of agency consent does not). Despite its language about “opening the door” and “sow[ing] the seeds,” infra ¶ 122, the majority points to no situation in which a party would be able to use my opinion to ask a court to improperly expand subject matter jurisdiction to any statutory requirement. The majority may fear that litigants will attempt to stretch precedent to win cases—as often happens, in any matter—but it has offered no explanation for why it thinks Utah courts, unlike all the

 

other courts that have not been persuaded by those efforts, will be lured into inappropriately extending our subject matter jurisdiction law. The majority raises several hyperbolic “slippery slope” arguments—e.g., warning of “chaos and unpredictability for years to come,” infra ¶ 100, and that “[a]ny and all ‘case-specific procedural facts’ would be eligible for classification as subject-matter jurisdictional,” making the possibilities “endless” for courts to misinterpret our holding, infra ¶ 150. In doing so, rather than taking on the actual parameters of our opinion, the majority “tilts at a windmill of its own invention.” Lee v. Kemna, 534 U.S. 362, 385 n.15 (2002). In the majority’s view, the principles of ripeness and the case law of our court and the majority of other jurisdictions “rest[] on no settled legal principle,” dooming our lower courts to hopeless confusion. Infra ¶ 150 n.28. But I have faith in our lower courts’ ability to apply justiciability principles and our precedent, thereby preventing a situation in which “whenever . . . a defect [in a statutory prerequisite] was found, the subject-matter jurisdiction of the adoption court would be in jeopardy.” Infra ¶ 149. Because I unambiguously limit my opinion to the jurisdictional implications of parental consent in adoption proceedings, I am confident that we can avoid a Pandora’s box of subject matter jurisdictional evils.[6]

¶ 30 And as noted above, our holding in Deveraux’ Adoption that invalid consent deprives the district court of subject matter jurisdiction is consistent with the great majority of states’ views on the issue; the majority’s assertion that consent is “a mere legal prerequisite to the issuance of an [adoption] order,” infra ¶ 121, flies in the face of holding after holding.10

                                                                                                                                                       

custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”).

  • See, e.g., T. v. W.L., 159 So. 3d 1289, 1291 (Ala. Civ. App. 2014) (“When a required valid consent is not obtained, the probate court lacks jurisdiction to enter an adoption judgment.”); Westerlund v. Croaff, 198 P.2d 842, 845 (Ariz. 1948) (“[C]onsent in writing of the living natural parents, or its statutory equivalent, is a jurisdictional prerequisite to a valid adoption.”); Arnold v. Howell, 219 P.2d 854, 858 (Cal. Dist. Ct. App. 1950) (“Consent lies at the foundation of statutes of adoption . . . . With certain statutory exceptions, consent to an adoption is considered a jurisdictional prerequisite.” (citation omitted)); In re I.H.H-L., 251 P.3d 651, 657 (Kan. Ct. App. 2011) (“[Where] there is no consent from any statutorily authorized person . . . . the district court did not have jurisdiction over the petition for adoption and should have dismissed the case.” (citation omitted)); G.M.D. v. M.D., 610 S.W.2d 305, 307 (Mo. Ct. App. 1980) (“[I]n the absence of consent the court lacks jurisdiction to proceed.”); In re Jackson, 28 P.2d 125, 129 (Nev. 1934) (Because “consent lies at the foundation of adoption statutes . . . . [t]he order of adoption in this case was void because [it was] made without the consent of [the father].”); In re Ralph, 710 N.Y.S.2d 500, 503 (App. Div. 2000) (“The court lacks jurisdiction to act upon incomplete adoption applications[.]”); In re Holder, 10 S.E.2d 620, 622 (N.C. 1940) (“[N]either parent . . . gave consent to the adoption in the manner contemplated by the statute . . . . This . . . is held to be essential to jurisdiction of the subject matter.” (citation omitted)); McGinty v. Jewish Children’s Bureau, 545 N.E.2d 1272, 1274 (Ohio 1989) (per curiam) (“[P]arental consent to an adoption order is the jurisdictional prerequisite which, if absent, allows the order to be attacked as void . . . .”); Adoption of Robin, 571 P.2d 850, 856 (Okla. 1977)

(“It is fundamental that notice and parental consent are jurisdictional ¶ 31 For example, in a case with similar facts to this one, a mother lied to an adoption agency about the identity of the father of the two children she wanted to place for adoption and the county court thus never obtained consent from the biological father. In re Adoption of Kassandra B., 540 N.W.2d 554, 556 (Neb. 1995). The Nebraska Supreme Court, noting that “[c]hildren are not legally free for adoption unless both biological parents consent or one of the statutory exceptions to the need for their consent has been met,” held that the lower court lacked subject matter jurisdiction because the father’s consent was never obtained. Id. at 560. The order terminating parental rights was therefore void. Id.

¶ 32 And where a technical defect arose involving the witnesses to the birth mother’s signing of a consent form for adoption, the South Carolina Supreme Court rejected the notion that substantial compliance with the statutory requirements was sufficient. Brown, 766 S.E.2d at 379. The court noted that “statutory formalities [regarding consent or relinquishment forms] have heightened relevance and importance” because they “are the only clear line separating a biological parent’s rights with respect to the child prior to the adoption, from the finality and irrevocability resulting from the execution of the formalities.” Id. at 380. And because “[c]onsent lies at the foundation of the adoption process,” the lack of valid consent from the birth mother meant any adoption decree would be invalid. Id. at 378 (citation omitted).11

                                                                                                                                                       

prerequisites to the adoption of a legitimate child. . . . [and] [a]n adoption granted without parental consent is void . . . .” (citations omitted)); Hughes v. Aetna Cas. & Sur. Co., 383 P.2d 55, 60 (Or. 1963) (“Consent to an adoption by parents or guardian or other person in loco parentis is jurisdictional, except where the statute does not require it.”); In re Adoption of List, 211 A.2d 870, 873 (Pa. 1965) (“[N]otice to a natural parent of the adoption proceedings and the consent of a natural parent, where necessary, are jurisdictional prerequisites in an adoption proceeding . . . .”); In re JWT, 104 P.3d 93, 94 (Wyo. 2005) (“But here, the appropriate documentation never having been filed, the district court did not obtain jurisdiction to hear the adoption.”).

  • A handful of cases have suggested that the rule is different. For example, the Nevada Supreme Court held in a conclusory footnote that lack of consent made adoption proceedings merely voidable under 25

 

¶ 33 The majority attacks these cases on several grounds, none of which is persuasive. First, the majority argues that because these cases involve challenges to the validity of consent made by the birth parent, “they tell us nothing useful about . . . whether a failure of consent is a

                                                                                                                                                      

U.S.C. section 1914, based entirely on the fear that “a challenge made years after the adoption was finalized and untimely under state law might result in a holding that was detrimental to the best interests of the Native American child that the ICWA was designed to protect.” In re Petition of Phillip A.C., 149 P.3d 51, 60 n.44 (Nev. 2006). Similarly, the Alaska Supreme Court held that federal law did not force the conclusion that “invalid consents under § 1913 are void as a matter of law,” reasoning that otherwise decrees stemming from invalid consents would not be subject to state statutes of limitations. In re Adoption of T.N.F., 781 P.2d 973, 979 (Alaska 1989).

But we need not reach the issue of how this court would decide a case where the adoption had already been finalized. Utah law provides a limitation on the time period in which to contest an adoption. UTAH CODE § 78B-6-133(7)(b) (“No person may contest an adoption after one year from the day on which the final decree of adoption is entered.”). Because the court has not entered a final adoption decree, we do not need to decide whether this statute would bar a parent from contesting an adoption more than one year after the final adoption decree where the underlying proceeding was void for want of jurisdiction. Cf. In re Estate of Willey, 2016 UT 53, ¶ 16, 391 P.3d 171 (declining to reach issue of “whether all claims that judgments are void under rule 60(b)(4) [of the Utah Rules of Civil Procedure] are subject to the reasonable time limit imposed by rule 60(c)” because “the parties do not adequately brief this issue, because other jurisdictions are split on this issue, and because resolution of this issue is not necessary to the disposition of this case”). However, I note that other courts have, under certain circumstances, applied similar statutes in such a manner. See Hogue v. Olympic Bank, 708 P.2d 605, 608, 611 (Or. Ct. App. 1985) (en banc) (holding that one-year statute of limitations barred challenge to void adoption judgment where mother knew of adoption within statutory time period but did not act). But see Hughes, 383 P.2d at 66 (holding that statute did not bar challenge to void adoption judgment where applying statute of limitations would interfere with vested property rights).

subject-matter jurisdictional defect that can be raised by the court sua sponte.” Infra ¶ 134. Of course, there are cases in which the court has raised the issue sua sponte. See, e.g., In re I.H.H-L., 251 P.3d 651, 653 (Kan. Ct. App. 2011) (“Neither party questioned the district court’s jurisdiction to conduct the [termination of parental rights] proceedings that led to this appeal. On its own motion, however, this court questioned that jurisdiction and sought additional briefing from the parties addressing the jurisdictional questions. An appellate court has a duty to question jurisdiction on its own initiative.”); In re Adoption of L.D.S., 155 P.3d at 8 (“The jurisdictional issue [of whether the child was eligible for adoption without the valid consent of the biological parents] was raised sua sponte by this Court.”). And in any case, no court has relied on the dissent’s distinction, as parties are also free to raise subject matter jurisdiction concerns. See Johnson, 2010 UT 28, ¶ 10 (stating that “parties can raise subject matter jurisdiction at any time during a proceeding”). We are obligated to raise subject matter jurisdictional issues when they appear in a case before us, and there is no authority for the assertion that we may not do so if the facts of other cases did not require other courts to do the same.

¶ 34 The majority also points out that some adoption cases have personal jurisdiction defects due to lack of notice to the biological father. See infra ¶ 135 & n.18. But the fact that lack of notice often is intertwined with lack of consent does not mean that the issue is one solely of personal jurisdiction. A court may lack both personal jurisdiction and subject matter jurisdiction, and the dissent’s attempt to distinguish cases in which a lack of consent stemmed from failure to give notice is unavailing.

¶ 35 Additionally, the majority harbors “suspicion” of the cases we cite for the proposition that consent is a jurisdictional prerequisite because it thinks that many of them are from a “bygone era”—a time before courts focused on the best interests of the child. Infra ¶¶ 138–39. But courts across the country have continually and recently restated this proposition. Requiring parents to validly consent to termination of their parental rights before the court may assert jurisdiction over their children is not at all inconsistent with the current recognition in Utah and many other states that “the best interests of the child are paramount.” Infra ¶ 139. Indeed, numerous courts with statutory schemes that, like ours,[7] recognize the importance of the best interests of the child hold that consent is a jurisdictional requirement for adoption. See C.T. v. J.S., 951 P.2d 1199, 1200 (Alaska 1998) (“The only question is whether the trial court permissibly circumvented the consent requirement . . . . If not, then the adoption decree is void for lack of subject matter jurisdiction[.]”);[8] Brown, 766 S.E.2d at 378 (“Consent lies at the foundation of the adoption process[.]” (citation omitted));[9] In re Adoption of L.D.S., 155 P.3d at 8 (“[T]he best interests of the child can be served in no legitimate manner except in obedience to the policies and procedures mandated by law.”).[10] In any case, the best interests of a child are not furthered by placing the child for adoption without parental consent. See In re S.L.G., 110 A.3d 1275, 1285 (D.C. 2015) (“Although ‘the paramount consideration’ in determining whether to terminate parental rights is the best interest of the child, our case law recognizes that the [termination of parental rights] factors must be applied in accordance with ‘the presumption that the child’s best interest will be served by placing the child with his natural parent, provided the parent has not been proven unfit.’” (citation omitted)); In re Adoption of N.L.B., 212 S.W.3d 123, 128 (Mo. 2007) (en banc) (stating that statutorily required consideration of “the welfare of the person sought to be adopted . . . is informed by the fundamental proposition and presumption that maintaining the natural parent-child relationship is in the best interests of the child”); In re Adoption of L.D.S., 155 P.3d at 9 (“The lesson of this matter is that the interests of the child and ultimately all concerned in matters regarding parental rights can be adequately served only through scrupulous adherence to the statutory scheme found in the Adoption Code.”).

¶ 36 Having explained why valid consent is a subject matter jurisdictional prerequisite for an adoption proceeding, I now turn to whether Birth Mother consented to the termination of her parental rights. I would hold that her consent was not timely under ICWA and therefore invalid.

B. Birth Mother’s Consent Was Invalid

¶ 37  ICWA lays out a series of requirements for the termination of parental rights, including that “[a]ny consent given prior to, or within ten days after, birth of the Indian child shall not be valid.” 25 U.S.C. § 1913(a). Because the Child is an Indian child and therefore ICWA applies to these proceedings, the question is whether Birth Mother’s consent was timely given under this section.

¶ 38 That Birth Mother’s consent did not comply with ICWA’s timing requirements is undeniable, as both times she attempted to consent were “within ten days after[] birth of the Indian child.” Id. The Child was born at 12:14 p.m. on August 29, 2014, and Birth Mother attempted to consent for the first time on August 30, 2014. Both parties agree that this consent was invalid. Birth Mother again attempted to consent at 1:29 p.m. on September 8, 2014, and the prospective adoptive parents argue that this attempt was valid—even though it did not occur more than ten days after the Child’s birth—because it occurred more than ten twenty-four-hour periods after the Child’s birth. This argument is flat wrong.

¶ 39 When interpreting a statute, “our primary goal is to evince the true intent and purpose” of the legislative body. Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (citation omitted). The best evidence of legislative intent is “the plain and ordinary meaning of the statute’s terms.” Rent-A-Center W., Inc. v. Utah State Tax Comm’n, 2016 UT 1, ¶ 13, 367 P.3d 989. We often look to dictionary definitions as a “starting point” to determine the plain and ordinary meaning. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 17, 374 P.3d 3 (citation omitted); State v. Canton, 2013 UT 44, ¶ 13, 308 P.3d 517 (“In determining the ordinary meaning of nontechnical terms of a statute, our ‘starting point’ is the dictionary.” (citation omitted)).

¶ 40 The prospective adoptive parents purport to apply a plain language analysis by looking to Black’s Law Dictionary, which, around the time ICWA was passed, defined “day” as “[a] period of time consisting of twenty-four hours and including the solar day and the night.” Day, BLACK’S LAW DICTIONARY (5th ed. 1979). Under the prospective adoptive parents’ approach, ICWA’s timing requirement would be satisfied if consent was given any time after 240 hours of the child’s birth.

¶ 41 But the prospective adoptive parents may not cherry-pick a dictionary definition and call it a plain language analysis. I note that most definitions refer to a twenty-four-hour period with respect to the time from midnight to midnight. E.g., Day, WEBSTER’S NEW COLLEGIATE DICTIONARY (1973) (“the mean solar day of 24 hours beginning at mean midnight”); Day, RANDOM HOUSE COLLEGE DICTIONARY (revised ed. 1984) (“Also called civil day. a division of time equal to 24 hours but reckoned from one midnight to the next”); Day, AMERICAN HERITAGE DICTIONARY (5th ed. 2011) (“The 24-hour period during which the earth completes one rotation on its axis, traditionally measured from midnight to midnight.”). This definition is compatible with the notion that we do not begin counting the days since the Child’s birth based on the hour and minute he was born, but rather by the midnight-tomidnight metric generally used. See, e.g., Reisbeck v. HCA Health Servs. of Utah, Inc., 2000 UT 48, ¶ 16 n.4, 2 P.3d 447 (noting that rule 22 of the Utah Rules of Appellate Procedure’s deadline of days was meant to be calculated according to calendar days); see also State v. Sheets, 338 N.W.2d 886, 886–87 (Iowa 1983) (“The general rule is that when the word ‘day’ is used it means calendar day which includes the entire day from midnight to midnight . . . . We find no language in the [45-day statutory requirement] that indicates an intention to measure the time twenty-four hours from a given event.” (citations omitted)); In re Janklow, 589 N.W.2d 624, 626 (S.D. 1999) (“A ‘day,’ in this sense, begins at 12 o’clock midnight, and extends through 24 hours to the next 12 o’clock midnight.” (citation omitted)); Troxell v. Rainier Pub. Sch. Dist. No. 307, 111 P.3d 1173, 1176–77 (Wash. 2005) (citing Webster’s Dictionary in holding that the plain language of a statute required defining day as a twenty-four-hour period beginning at midnight). The prospective adoptive parents’ formalism has no place in this area of the law, as their method of tracking time would require district courts to track unique filing deadlines for each individual litigant—3:24 p.m. for litigant A, 5 p.m. for litigant B, and so on. See Troxell, 111 P.3d at 1177 n.4 (noting “absurd consequences” of “computation based on the precise timing of an act” including that “parties would have to attend to the precise hour, minute, and second of the filing” at issue (citation omitted)). I cannot see how Congress could have intended this result for counting time periods for purposes of ICWA.

¶ 42 This plain language interpretation of “day” as the time from midnight to midnight also meshes with the method for computing time outlined in the Federal Rules of Civil Procedure and its Utah counterpart, which also count in terms of days, not hours. FED. R. CIV. P. 6(a) (count in days “[w]hen the period is stated in days” and count in hours only “[w]hen the period is stated in hours”); UTAH R. CIV. P. 6(a) (same). This method of counting days applies in a variety of settings. FED. R. CIV. P. 6(a) (This rule applies “in computing any time period . . . in any statute that does not specify a method of computing time.”); UTAH R. CIV. P. 6(a) (same); see Gilroy v. Lowe, 626 P.2d 469, 471 (Utah 1981) (stating that the “method of computing time periods relating to acts provided for by law is set out in Rule 6(a) [of the] Utah Rules of Civil Procedure” and requires counting by calendar days); see also LeGras v. AETNA Life Ins. Co., 786 F.3d 1233, 1237–38 (9th Cir. 2015) (“We have consistently applied Rule 6 [of the Federal Rules of Civil Procedure] when interpreting time periods in various statutory contexts.”); Edwards v. Bay State Milling Co., 519 F. App’x 746, 748 n.3 (3d Cir. 2013) (noting that rule 6 of the Federal Rules of Civil Procedure “applies to any statute that does not specify a method of computing time” (internal quotation marks omitted)). Indeed, we have applied rule 6 of the Utah Rules of Civil Procedure to extend the waiting period for a putative father to file a paternity petition if the birth of the child falls on a holiday or weekend. Thurnwald v. A.E., 2007 UT 38, ¶ 4, 163 P.3d 623, abrogated on other grounds by In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009.

¶ 43 The prospective adoptive parents’ interpretation contorts the plain language of ICWA—had Congress intended to count by hours, it would have done so, as many state legislatures have done. See UTAH CODE § 78B-6-125(1) (“A birth mother may not consent to the adoption of her child or relinquish control or custody of her child until at least 24 hours after the birth of her child.”); see also IOWA CODE § 600A.4(2)(g), (4) (requiring a release of custody to be signed “not less than seventy-two hours after the birth of the child” and revocation of consent “within ninety-six hours of the time such parent signed a release of custody”); NEV. REV. STAT. § 127.070(1) (“All releases for and consents to adoption executed in this state by the mother before the birth of a child or within 72 hours after the birth of a child are invalid.”). But ICWA’s language is unambiguous in requiring a waiting period in terms of days, and the argument that the waiting period is really 240 hours is demonstrably wrong.

¶ 44 Because Birth Mother gave consent before midnight on the tenth day after the Child’s birth, she gave consent “within ten days after” the Child’s birth and her consent is therefore invalid.[11] 25 U.S.C. § 1913(a); see In re Adoption of C.D.K., 629 F. Supp. 2d 1258, 1261, 1263 (D. Utah 2009) (invalidating a mother’s consent to termination of her parental rights because the relinquishment hearing happened within ten days of the child’s birth). This, in my view, deprived the district court of subject matter jurisdiction, and I now turn to whether Birth Father had the right to raise the issue of the underlying subject matter jurisdictional defect.

  1. BIRTH FATHER HAS THE LEGAL RIGHT TO CHALLENGE

THE VALIDITY OF BIRTH MOTHER’S CONSENT AND THE DISTRICT COURT’S SUBJECT MATTER JURISDICTION

¶ 45 Following Birth Mother’s invalid consent, Birth Father appealed the district court’s denial of his motion to intervene. The district court denied Birth Father’s motion to intervene because it held that he had not established paternity before Birth Mother gave her consent, as required by Utah Code section 78B-6-121(3). Although I believe Birth Mother’s consent was invalid and the district court lacked subject matter jurisdiction to proceed with the adoption, these issues are before us only if Birth Father can properly challenge them. I would hold that Birth Father can do so, as he enjoys both traditional standing under Utah standing law and a statutory right as a parent under 25 U.S.C. section 1914 to raise Birth Mother’s invalid consent and the district court’s lack of subject matter jurisdiction to go forward with the adoption.

A. Birth Father Has Standing Under Our Traditional Test

¶ 46 Before a court may make a child available for adoption, it must terminate the parental rights of the biological parents. The order terminating Birth Mother’s parental rights is, as Justice Lee correctly notes, an appealable order. Infra ¶ 98. But as a prerequisite to the adoption order—which has not been finalized in this case—it is an appealable order within an existing case in which Birth Father’s rights are still very much at issue.17 In the unique context of adoption

                                                                                                                                                      

17 The majority chides me for “cit[ing] no authority for the power to revisit a final order in a collateral termination proceeding not challenged by any of the parties at any stage of these proceedings.” Infra ¶ 104. But the order here was not actually collateral, as both the termination and consent orders all took place within the same adoption proceeding, which is among the rare cases in which a final, appealable order affects remaining rights in such a way that we do not view it as collateral. Cf. State v. Mooers & Becker, 2017 UT 36, ¶ 17, __ P.3d __ (noting that “orders of complete restitution, though technically entered on the civil docket, flow entirely from the criminal cases that give rise to them; they are not separate civil cases with a life outside of the criminal case”); id. ¶ 19 n.4 (noting that where a district court alters the amount of complete restitution on appeal, that may form the basis for the district court on remand to also alter the amount of court-ordered restitution, even where the order of court-ordered restitution was not appealed). To call Birth Father’s action “collateral” similarly ignores the reality of how adoption orders are intertwined. And because Birth Father’s rights were directly affected by an order within the existing adoption case, his appeal properly falls within the time period of “the pendency of an action,” during which we have a responsibility to sua sponte raise subject matter jurisdictional issues. See infra ¶ 104.

The majority also cites two cases in support of its assertion that state timelines bar Birth Father from challenging the order terminating Mother’s rights because “[w]here, as here, a district court expressly holds that its order complies with ICWA requirements, the courts have held that the time to challenge that determination under section 1914

(cont.)

proceedings, Birth Father’s rights are inextricably tied to the order terminating Birth Mother’s rights, as that order purported to terminate his rights as a biological parent.18 Consequently, I conclude that Birth Father has standing to raise the defect in Birth Mother’s consent and the resultant failure of subject matter jurisdiction.

                                                                                                                                                      

expires upon the running of the time for an appeal.” Infra ¶ 119. But our holding in the first case, In re Adoption of A.B., 2010 UT 55, 245 P.3d 711, applies only to individuals who have the ability to file an appeal. See id. ¶ 13. But in this case, Birth Father was not a party at the time of Birth Mother’s untimely consent and therefore had no ability to appeal the relevant order. And the second case involves a question of res judicata and the Full Faith and Credit Clause, neither of which is applicable here. See Kiowa Tribe of Okla. v. Lewis, 777 F.2d 587, 592 (10th Cir. 1985).

18 The majority posits that Birth Father “accepted the validity of the consent order” until this court raised the issue, and concludes that he thus waived the issue. Infra ¶ 98 n.1. But whether Birth Father, the prospective adoptive parents, or the district court miscounted the days from the Child’s birth does not change the fact that the issue goes to subject matter jurisdiction and is properly raised by the court. In re Adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702 (“Because subject matter jurisdiction goes to the heart of a court’s authority to hear a case, it is not subject to waiver and may be raised at any time, even if first raised on appeal.” (citation omitted)); Barnard v. Wassermann, 855 P.2d 243, 248 (Utah 1993) (“This court has made clear that challenges to subject matter jurisdiction may be raised at any time and cannot be waived by the parties.”). And I reject the majority’s assertion that applying our sua sponte duties to this case “smacks of paternalism.” Infra ¶ 120. That charge essentially boils down to an attack on ICWA’s special protections for Indian children, parents, and tribes. If anything, the majority’s suggestion that state courts should turn their back to these problems at the risk of being paternalistic smacks of the kind of disregard of Indian welfare that caused Congress to enact ICWA in the first place. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 44– 45 (1989) (“It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-à-vis state authorities.”).

¶ 47 Courts of this state employ a three-step inquiry in assessing traditional standing: (1) “the party must assert that it has been or will be adversely affected by the [challenged] actions”; (2) “the party must allege a causal relationship between the injury to the party, the [challenged] actions and the relief requested”; and (3) “the relief requested must be substantially likely to redress the injury claimed.” Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 19, 148 P.3d 960 (alterations in original) (internal quotation marks omitted). Birth Father easily satisfies all three parts of this test.

¶ 48 First, Birth Father is undeniably adversely affected by Birth Mother’s invalid consent and the dependent order terminating her rights. Indeed, absent the termination order, Birth Father would be a “parent” under ICWA and entitled to intervene in this action even under the most grudging of standards. But as it now stands, Birth Mother’s invalid consent cut off Birth Father’s rights to his own child. That this state of affairs adversely affected Birth Father is beyond peradventure. See In re J.P., 648 P.2d 1364, 1373 (Utah 1982) (“The rights inherent in family relationships—husband-wife, parent-child, and sibling—are the most obvious examples of rights retained by the people. They are ‘natural,’ ‘intrinsic,’ or ‘prior’ in the sense that our Constitutions presuppose them. . . . Blackstone deemed ‘the most universal relation in nature . . . (to be) that between parent and child.’” (citations omitted)). Second, Birth Father can establish a causal relationship between the challenged action and the adverse effect: Birth Mother’s invalid consent and the subsequent order terminating her rights led directly to the district court placing the Child for adoption. And finally, the relief requested—Birth Father’s opportunity to intervene and assert his parental rights—will be a direct consequence of recognizing the invalidity of Birth Mother’s rights.

B. Birth Father Is a Parent Under ICWA

¶ 49 Section 1914 of ICWA allows a parent to petition a court to invalidate an action terminating parental rights that violated any provision of sections 1911, 1912, and 1913 of ICWA.[12] We hold that Birth Father meets ICWA’s definition of a “parent” because he has acknowledged paternity. 

¶ 50  “Pursuant to general principles of statutory interpretation, [w]e . . . look first to the . . . plain language [of ICWA], recognizing that our primary goal is to give effect to [congressional] intent in light of the purpose the statute was meant to achieve.” In re Kunz, 2004 UT 71, ¶ 8, 99 P.3d 793 (first three alterations in original) (internal quotation marks omitted). We consider it obvious that the plain language does not fully answer the question of what is required for an unmarried biological father to be considered a parent for purposes of ICWA.20 ICWA defines “parent” as “any biological parent or parents of an Indian child” but specifically excludes “the unwed father where paternity has not been acknowledged or established.” 25 U.S.C. § 1903(9). ICWA does not,

                                                                                                                                                      

whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.

25 U.S.C. § 1914. We address the language about removal from custody below. Infra ¶¶ 78–84.

20 The dissent misinterprets this sentence, stating that we “find[] it ‘obvious that the plain language’ of ICWA does not dictate the application of state law standards of paternity.” Infra ¶ 178. The dissent goes further to claim that we “base[] that conclusion on [our] sense of Congress’s ‘purpose’ in enacting ICWA, and on analysis in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), that [we] view[] as supportive of [our] holding.” Infra ¶ 178. However, our conclusion that the plain language does not fully answer the question of what is required for an unmarried biological father to be considered a parent under ICWA is not so narrowly moored. Our conclusion is further supported by the language of, among other provisions, 25 U.S.C. section 1903(9), where “parent” is defined, providing that an unmarried biological father is a parent only if he has “acknowledged or established” paternity, but with no indication of what actions are required to acknowledge or establish paternity and no specification regarding timing.

 

however, define what actions the unmarried father has to take to acknowledge or establish paternity and also does not specify the timing. 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.

  1. Interpreting “Acknowledge” and “Establish” Requires a Plain Meaning Approach

¶ 52 Because the terms “acknowledge” and “establish” are not defined in the statute, we turn first to dictionary definitions for guidance. The first definition for “acknowledge” in Black’s Law Dictionary is “[t]o recognize (something) as being factual or valid.”

Acknowledge, BLACK’S LAW DICTIONARY (10th ed. 2014). The second definition for “acknowledge” specifically gives “acknowledge paternity of the child” as an example; it reads, “[t]o show that one accepts responsibility for.” Id. The legal definition of “acknowledge” in Merriam-Webster’s online dictionary includes a variant with a similar example (“will acknowledge the child as his”) and defines “acknowledge” as “to admit paternity of.” Acknowledge, MERRIAMWEBSTER, available at https://perma.cc/HMQ9-MHP8. Other definitions of “acknowledge” in Merriam-Webster’s online dictionary include “to recognize as genuine or valid.” Id. Clearly, “acknowledge” is a broad term and little guidance is found in its meaning as to how to apply it. For example, while acknowledging paternity of a child can mean “show[ing] that one accepts responsibility for” the child, no specific actions are suggested by that term or its definition.

Acknowledge, BLACK’S LAW DICTIONARY (10th ed. 2014). Incidentally, Black’s Law Dictionary defines a “formal acknowledgment” as “[a] father’s recognition of a child as his own by a formal, written declaration that meets a state’s requirements for execution, typically by signing in the presence of two witnesses.” Acknowledgement, BLACK’S LAW DICTIONARY (10th ed. 2014). An “informal acknowledgment,” on the other hand, is “[a] father’s recognition of a child as his own not by a written declaration but by receiving the child into his family or supporting the child and otherwise treating the child as his own offspring.” Id. The dictionary definitions thus provide for acknowledgment under both state rules and other means not tied to state standards, and ICWA does not specify whether it requires formal or informal acknowledgment of paternity. Thus, the dictionary definition alone of “acknowledge” does not answer the question of what ICWA requires of a parent.

¶ 53 “Establish” likewise has a broad meaning under a plain language analysis. Black’s Law Dictionary has three definitions of “establish,” only one of which makes sense in the context of establishing paternity: “To prove; to convince.” Establish, BLACK’S LAW DICTIONARY (10th ed. 2014). And the most logical definition for this context in Merriam-Webster’s online dictionary is “to put beyond doubt.” Establish, MERRIAM-WEBSTER, available at https://perma.cc/9RB2-33WP. From these definitions, it is obvious that it requires more to “establish” paternity than to “acknowledge” paternity. But what actions are required in order to “prove” paternity or “put [paternity] beyond doubt” is not apparent from the plain meaning of the word. Furthermore, neither the plain meaning of “acknowledge” nor the plain meaning of “establish” suggests anything about the timing of the actions. Theoretically, if we were to rely on a plain meaning of the terms for the actions and timing required, a father could acknowledge or establish paternity many years after the completion of the adoption. Because the terms are so broad and vague and because of the lack of a timing element, dictionary definitions alone are inadequate for determining who is a parent under ICWA.

¶ 54 In light of this roadblock in the plain language analysis, the dissent argues that we should view “acknowledge” and “establish” as terms of art defined by the states. But the dissent belies its own conclusion by asserting, on one hand, that “acknowledge” and “establish” are well-defined terms of art, and on the other, that there are fifty variants of the terms. Infra ¶ 170. These are contradictory ideas, and the dissent’s attempt to reconcile them is unavailing.

¶ 55 The dissent’s position takes an erroneous view of the definition of a term of art. A term of art has one established meaning, not fifty. Term of art, BLACK’S LAW DICTIONARY (10th ed. 2014) (“A word or phrase having a specific, precise meaning in a given specialty, apart from its general meaning in ordinary contexts.” (emphasis added)); see McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 (1991) (“[W]e assume that when a statute uses such a term [of art], Congress intended it to have its established meaning.”); Dubois v. Madison Paper Co., 795 A.2d 696, 699 (Me. 2002) (“The phrase ‘clear and convincing evidence’ is a legal term of art with a well-established meaning.” (emphasis added)). The dissent’s insistence that “acknowledge” and “establish” have distinctly defined meanings contradicts the notion that the “longestablished” definitions last only as far as the state line.

¶ 56 A term of art may of course have nuanced differences from state to state, but the core meaning must be the same.[13] Contrary to the dissent’s assertion, different states’ interpretations of “acknowledge” and “establish” do not share a common core. As the dissent itself notes, “standards vary widely across the fifty states,” infra ¶ 170 n.35, including whether a writing must be signed by the mother for the father to acknowledge paternity. The standard for acknowledging or establishing paternity in Utah is so different from the standard in, for example, New Jersey, that we could not say they share the same common core. See Bruce L. v. W.E., 247 P.3d 966, 978–79 (Alaska 2011) (“Under New Jersey law, ‘fil[ing] a written acknowledgement of paternity . . . or initiat[ing] a lawsuit claiming paternity or any other parental rights prior to the final judgment of adoption’ would make an unwed father a parent for ICWA purposes.” (alterations in original) (quoting In re Adoption of a Child of Indian Heritage, 543 A.2d 925, 936 (N.J. 1988))).

¶ 57 The contradiction inherent in the dissent’s argument is exposed in its analysis of Holyfield. The dissent states that Holyfield’s rejection of state-law definitions is “easily distinguishable, as it involved a statutory term (domicile) of ‘generally uncontroverted meaning.’” Infra ¶ 165 (quoting Holyfield, 490 U.S. at 48). This is similar to how—at times—the dissent describes “acknowledge” and

“establish” as well. See infra ¶ 170 (“First, the words acknowledgement and establishment of paternity are long-established terms of art in state family law.”); infra ¶ 170 (“Congress utilized terms with accepted meaning in state family law.”); infra ¶ 170 n.35 (“[W]hen ICWA was enacted, ‘acknowledge’ was a term of art that indicated a specific process under state law—though varying from state to state.” (emphasis added)). The dissent is attempting to have its cake and eat it too by stating that “acknowledge” and “establish” are both accepted terms of art and have fifty different meanings.

¶ 58 Rather, “acknowledge” and “establish” are properly construed as plain language terms. Carpenter v. Hawley, 281 S.E.2d 783, 786 (N.C. Ct. App. 1981) (“Contrary to plaintiff’s assertions, the word ‘acknowledged’ is not a term of art . . . requiring a formal declaration before an authorized official.”); see also Estate of Griswold, 24 P.3d 1191, 1197–98 (Cal. 2001) (applying plain language analysis to

“acknowledge” in paternity suit); Blythe v. Ayres, 31 P. 915, 922 (Cal. 1892) (stating that “[t]he word ‘acknowledge’ has no technical meaning” in the context of paternity proceedings); State v. Wolfe, 239 A.2d 509, 512–13 (Conn. 1968) (stating that “acknowledge” in paternity statute “can only be taken in its usual and common meaning which is ‘(t)o own, avow, or admit; to confess; to recognize one’s acts, and assume the responsibility therefor’” (citing editions of Black’s Law Dictionary and Webster’s Dictionary)). A plain language interpretation of “acknowledge” and “establish” furthers ICWA’s purpose by allowing reasonable methods of acknowledging or establishing paternity, and Birth Father’s actions fall plainly within that scope.

  1. Federal Law Applies to Give Context to the Plain Meaning of the Terms

¶ 59 Having found that a plain language analysis of the terms requires more than the dictionary definitions provide, we now turn to the question of whether the procedures and timing for acknowledging or establishing paternity are defined by state law. We reject the notion that courts should rely on state law to determine whether an unmarried biological father has acknowledged or established paternity under ICWA. Instead, we adopt the reasoning in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). In Holyfield, the Supreme Court stated that

the purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-à-vis state authorities.

Id. at 44–45. “Parent” is a critical term under ICWA. Whether an individual qualifies as a “parent” determines whether he or she may benefit from the heightened protections for parental rights available under ICWA. There is “no reason to believe that Congress intended to rely on state law for the definition of [this] critical term.” Id. at 44. Indeed, we must begin “with the general assumption that in the absence of a plain indication to the contrary, . . . Congress when it enacts a statute is not making the application of the federal act dependent on state law.” Id. at 43 (alteration in original) (internal quotation marks omitted). And although “Congress sometimes intends that a statutory term be given content by the application of state law,” this applies only in the context of fleshing out the federal standard—it does not mean the federal standard is replaced with fifty state standards. Id.

¶ 60 Additionally, Holyfield notes that Congress can and does expressly state when it wants a state or tribal law definition to apply. Id. at 47 n.22 (“Where Congress . . . intend[s] that ICWA terms be defined by reference to other than federal law, it state[s] this explicitly.”). For example, Congress explicitly stated that “extended family member” and “Indian custodian” are defined by reference to tribal law or custom or state law. 25 U.S.C. § 1903(2), (6). This, the Holyfield Court stated, is evidence that if Congress “did intend that ICWA terms be defined by reference to other than federal law,” “it would have said so.” 490 U.S. at 47 n.22. And this is not merely “another way of saying that the legislature could have spoken more clearly.” Craig v. Provo City, 2016 UT 40, ¶ 38, 389 P.3d 423. Rather, the explicit use of state or tribal law for “extended family member” and “Indian custodian” but not for other terms such as “acknowledge” and “establish” indicates that Congress “rejected the formulation embodied in the neighboring provision”—i.e., that it declined to incorporate state or tribal standards for acknowledging and establishing paternity. Id. ¶ 38 n.9. Because Congress did not mandate a state or tribal law definition for “acknowledge” or “establish,” we can and should rely instead on a federal definition.

¶ 61 In determining how to define the procedures for acknowledging and establishing paternity, we have a duty to “harmonize [a statute’s] provisions in accordance with the legislative intent and purpose.” Osuala v. Aetna Life & Cas., 608 P.2d 242, 243 (Utah 1980); see also Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 906– 07 (Utah 1984) (stating that the meaning of a statute’s sections could not be determined without taking into account “the purposes they were designed to effectuate”); B.L. Key, Inc. v. Utah State Tax Comm’n, 934 P.2d 1164, 1168 n.2 (Utah Ct. App. 1997) (“[T]he overarching principle, applicable to all statutes, [is] that [statutes] should be construed and applied in accordance with the intent of the Legislature and the purpose sought to be accomplished.” (third alteration in original) (citation omitted)). At times, it may be necessary to delve into legislative history to determine what and how many purposes the legislature intended. Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 15, 267 P.3d 863 (“[W]hen statutory language is ambiguous . . . we generally resort to other modes of statutory construction and ‘seek guidance from legislative history’ and other accepted sources.” (citation omitted)). But that is not the case here, where we have a clear directive in the statute itself that drives at a purpose:

to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 U.S.C. § 1902.

¶ 62 The dissent provides no support for its assertion that 25 U.S.C. section 1901(5) states that a “key countervailing purpose at stake under ICWA is the protection of the traditional jurisdiction of state courts over adoption proceedings.” Infra ¶ 159. And that is an odd statement given that, in context, section 1901(5) states that “the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” That is, ICWA represents an extraordinary act of federal intervention into family law precisely in response to Congress’s concern about state courts’ “alarming[]” tendency to disregard the interests of Indian parents and tribes. 25 U.S.C. § 1901(4). So, far from being “recognize[d] . . . to a large degree” as a “countervailing purpose,” infra ¶ 159, state courts’ wielding of their traditional jurisdiction is what led to the need for ICWA in the first place.

¶ 63 Notably, nothing in the “Congressional declaration of policy,” 25 U.S.C. § 1902, supports the assertion that protection of states’ traditional jurisdiction is part of ICWA’s purpose. And the fact that “ICWA does not oust the states of that traditional area of their authority,” infra ¶ 159, is not a reason to read in another purpose—it is simply how federalism works. See In re Adoption of Halloway, 732 P.2d 962, 967 (Utah 1986) (“Under general supremacy principles, state law cannot be permitted to operate as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (internal quotation marks omitted)).

¶ 64 The dissent also ignores Congress’s plenary powers in this arena by asserting that issues of paternity and other family matters have “never been a creature of federal law,” infra ¶ 163, and that the use of the past tense in section 1903(9) is significant because it means that Congress intended “acknowledged” and “established” to be defined by existing standards—by which it means state standards. Infra ¶ 171. This is not correct. First, acknowledgement or establishment of paternity under a federal standard is consistent with the use of the past tense because any action a putative father takes after the enactment of ICWA necessarily looks back to the standard ICWA had—in the past— established. Second, to the extent the dissent is attempting to guard against a perceived intrusion, it ignores the fact that this “intrusion” is taking place within the context of Indian welfare, an area in which

Congress has plenary authority. U.S. CONST. art. I, § 8(3) (“The

Congress shall have Power . . . To regulate Commerce . . . with the Indian Tribes.”); see Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) (“[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.”); Halloway, 732 P.2d at 967 (“The Supreme Court has made it clear that where Indian affairs are concerned, a broad test of preemption is to be applied.”).

¶ 65 This authority encompasses family matters such as childraising. Wakefield v. Little Light, 347 A.2d 228, 234 (Md. 1975) (“We think it plain that child-rearing is an essential tribal relation.” (internal quotation marks omitted)); see also 25 U.S.C. § 1901(2)–(3) (stating that Congress has “assumed the responsibility for the protection and preservation of Indian tribes and their resources” and that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children”). Indeed, the very point of ICWA is to regulate family law issues. 25 U.S.C. § 1902 (stating that the statute’s policy is to protect Indian children and families and establish standards for placing those children in foster or adoptive homes). 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.

¶ 66 The danger that ICWA “would be impaired if state law were to control” presents an additional, compelling reason “for the presumption against the application of state law.” Holyfield, 490 U.S. at 44 (citation omitted). And hewing closely to this presumption in the Indian affairs arena, in which Congress enjoys plenary power, strikes us as particularly appropriate where “the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to correct.” Id. at 45; see also Halloway, 732 P.2d at 969 (stating that Utah court’s receptivity to placing Indian children in non-Indian homes “is precisely one of the evils at which the ICWA was aimed”); 25 U.S.C. § 1901(4) (indicating “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies”); id. § 1901(5) (expressing concern “that the States . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families”). The U.S. Supreme Court praised our “scholarly and sensitive” decision in Halloway for its sensitivity to the risk that state law could “be used to frustrate the federal legislative judgment expressed in the ICWA.” Holyfield, 490 U.S. at 52–53 (quoting Halloway, 732 P.2d at 970).

¶ 67 Furthermore, ICWA provides that “where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent . . . of an Indian child than the rights provided under [ICWA], the State or Federal court shall apply the State or Federal standard,” thus ensuring that parents of Indian children enjoy the highest level of protection of their parental rights available. 25 U.S.C. § 1921. 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. For a biological father to acknowledge paternity through a declaration of paternity, Utah law requires the birth mother’s signature in addition to the unmarried biological father’s signature. UTAH CODE § 78B-15-302(1)(c). Thus, in cases where the birth mother declines to sign the declaration, the unmarried biological father is precluded from acknowledging paternity under ICWA, if we look to Utah law for the definition of that term. See In re Adoption of R.M., 2013 UT App 27, ¶ 8, 296 P.3d 757 (“If the birth mother declines to acknowledge the unmarried biological father’s paternity and refuses to sign the declaration of paternity, he will have to comply with the paternity provisions in order for his consent to be required.”). The result is that, when applying Utah law, the unmarried biological father’s option to acknowledge paternity is essentially read out of ICWA. The district court’s opinion illustrates this result, as it does not seriously analyze whether Birth Father acknowledged paternity under Utah law, instead focusing on whether he complied with the requirements for establishing paternity under Utah law.

¶ 68 Also, as the district court recognized, “Utah’s requirements for establishment of paternity by unwed fathers are notoriously strict.” See In re Adoption of Baby E.Z., 2011 UT 38, ¶ 40, 266 P.3d 702 (“The Utah legislature has enacted strict requirements for unmarried birth fathers who seek to prevent adoption of their children.”).[14] Applying state law to a term as critical as the definition of a parent under ICWA is not in keeping with ICWA’s text and purpose. And applying Utah law specifically to eliminate the option of acknowledging paternity—and instead requiring an unmarried biological father of an Indian child to comply with some of the strictest requirements for establishing paternity in order to receive any protection of his parental rights under ICWA—“would, to a large extent, nullify the purpose the ICWA was intended to accomplish.” Holyfield, 490 U.S. at 52.

¶ 69 We also conclude that “Congress could hardly have intended the lack of nationwide uniformity that would result from state-law definitions of” who is a parent under ICWA. Id. at 45.23 In Holyfield, the U.S. Supreme Court concluded that ICWA did not incorporate statelaw definitions of domicile in large part to avoid the anomaly of different results depending on which state the mother traveled to in order to give birth. Id. at 46. It would be similarly anomalous—not to mention unfair and an unwarranted intrusion by states into Indian customs and practices—to make an unmarried biological Indian father’s status as a parent under ICWA depend on whether the mother gave birth in one state or another. “[A] statute under which different rules apply from time to time to the same” unmarried biological father, “simply as a result of” the mother’s decision to give birth in “one State [or] another, cannot be what Congress had in mind.” Id. Thus, we conclude that the interpretation of what is required to acknowledge or establish paternity under ICWA is not left up to state law.

¶ 70 We note that the dissent offers no persuasive reasoning for why we should presume that ICWA embraced state principles over those expressed in tribal law principles dealing with family issues. But, in any case, we likewise reject the notion that courts should look to tribal law to determine whether an unmarried biological father has acknowledged or established paternity under ICWA. As with state law, the application of tribal law to the definition of a parent under ICWA

                                                                                                                                                       

Utah law to show that actions outside of Utah’s paternity requirements are not per se unreasonable.

23 A principal reason for the presumption that Congress does not make “the application of . . . federal act[s] dependent on state law. . . . is that federal statutes are generally intended to have uniform nationwide application.” Holyfield, 490 U.S. at 43.

would result in a lack of nationwide uniformity. Based on Holyfield, we determine that Congress could hardly have intended that result.

  1. A Federal Standard of Reasonableness Applies

¶ 71 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. This comports with the canon of interpretation that where a statute is silent as to the time or manner of a subject, we presume a reasonability standard—an approach that is

                                                                                                                                                      

  • We concede that the courts in some cases we cite today did not look to a federal definition for acknowledging or establishing paternity, see, e.g., In re Adoption of a Child of Indian Heritage, 543 A.2d 925, 935 (N.J. 1988), but the dissent’s criticism on that issue misses the point. Infra ¶ 166 n.33. The federal standard of reasonableness sets the floor for how states can define acknowledging or establishing paternity in the context of ICWA. The fact that some state standards may be more protective of parents’ rights than the federal minimum does not mean they have rejected a reasonableness floor, and these standards are not inconsistent with our decision today. See 25 U.S.C. § 1921 (“In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard.”); see also Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 173 (Tex. App. 1995) (“Congress intended to defer to state or tribal standards for establishing paternity, as long as [those] standards were within contemplation of Congress and provide [a] realistic opportunity for unwed father[s] to establish [the paternal] relationship with [the] child.” (citation omitted)).

 

consistent with ICWA case law25 and has been applied by many states over many years and many different topics of law.[15] ICWA is silent

  • Other states have determined that an unmarried biological father of an Indian child can qualify as a parent under ICWA even if his actions were not sufficient to comply with state-law requirements for establishing paternity. For example, the Arizona Court of Appeals held that even though an unwed father had not complied with a state statute giving him thirty days after receiving notice of an adoption petition to serve the mother with notice that he had initiated a paternity proceeding—and therefore “the juvenile court would typically find he waived his right to further notification of any adoption hearing”—the record nonetheless reflected that he had taken adequate steps to acknowledge paternity for ICWA purposes. Jared P. v. Glade T., 209 P.3d 157, 160, 162 (Ariz. Ct. App. 2009). And the Alaska Supreme Court concluded, based on its analysis of cases from other states, “that to qualify as an ICWA parent an unwed father does not need to comply perfectly with state laws for establishing paternity, so long as he has made reasonable efforts to acknowledge paternity.” Bruce L. v. W.E., 247 P.3d 966, 979 (Alaska 2011). This is consistent with our conclusion that the definition of a parent under ICWA is not controlled by state law.

both as to the manner in which an unwed father may acknowledge or establish paternity and as to the time in which he must do so. Applying a reasonability standard here creates obvious stop-gaps and prevents the slippery-slope concerns of the dissent, as it requires more than “any bare acknowledgement by a putative father,” infra ¶ 198, and would not allow “a putative Indian father [to] come forward months or even years later and assert a right to disrupt even a finalized adoption.” Infra ¶ 201.[16]

the absence of a fixed statutory period of time”); Nw. Ohio Bldg. & Constr. Trades Council v. Conrad, 750 N.E.2d 130, 135–36 (Ohio 2001) (noting requirement that absent specific language administrative agency actions be performed “in a reasonable manner”); State v. Gaul, 691 N.E.2d 760, 767 (Ohio Ct. App. 1997) (applying the “reasonable manner” standard to a statute that commanded a public official to invest public money but did not specify how it was to be done); Commonwealth v. Bd. of Supervisors of Arlington Cty., No. 18747, 1976 WL 22828, at *2 (Va. Cir. Ct. Oct. 1, 1976) (county board must exercise its general powers in a reasonable manner); see also Lora v. Shanahan, 804 F.3d 601, 614 (2d Cir. 2015), cert. denied, 136 S. Ct. 2494 (2016) (analyzing “reasonable” time limit for immigration detention).

¶ 72 This approach is consistent with ICWA’s liberal administration. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,586 (Nov. 26, 1979) (stating that ICWA “shall be liberally construed”); see also Brenda O. v. Ariz. Dep’t of Econ. Sec., 244 P.3d 574, 577 (Ariz. Ct. App. 2010) (“ICWA is to be interpreted ‘liberally in favor of the Indians’ interest in preserving family units.’” (citation omitted)); In re Esther V., 248 P.3d 863, 869 (N.M. 2011) (noting that ICWA is a remedial statute that must be interpreted “liberally to facilitate and accomplish [its] purposes and intent” (citation omitted)). The BIA guidelines also support a federal reasonableness standard.28 Indeed, courts assessing paternity by unwed

                                                                                                                                                      

has not devolved into “chaos and unpredictability” as “each court faced with the . . . question . . . offer[s] its own subjective assessment of what is . . . ‘reasonable.’” Infra ¶ 200.

28 The BIA considered including a federal standard for what constitutes acknowledgement or establishment of paternity. Some commenters for the BIA’s proposed rule “recommended language requiring an unwed father to ‘take reasonable steps to establish or acknowledge paternity’” and requested clarification on time limits for acknowledging or establishing paternity. Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,795–96 (June 14, 2016). The BIA responded by stating that “[t]he Supreme Court and subsequent case law has already articulated a constitutional standard regarding the rights of unwed fathers” and that many states have held that, under ICWA, an unwed father “must make reasonable efforts to establish paternity, but need not strictly comply with State laws.” Id. (citing Bruce L., 247 P.3d at 978–79). Based on these holdings that a reasonableness standard for acknowledging or establishing paternity applies under ICWA—a set of holdings we join today—the BIA “d[id] not see a need to establish an ICWA-specific Federal definition for this term.” 81 Fed. Reg. at 38,796.

The U.S. Supreme Court relied on similar language from BIA guidelines in Holyfield. The guidelines declined to articulate a federal standard on the basis that “[t]here is no indication that these state law definitions [of “residence” and “domicile”] tend to undermine in any way the purposes of the Act.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,585 (Nov. 26, 1979). From this, the Supreme Court concluded that “[t]he clear implication is that

 

putative fathers under other federal statutes have also looked to “the history and tradition of liberal administration of benefits” in rejecting “[a]pplication of rigorous state law schemes for proof of paternity.” St. John Stevedoring Co. v. Wilfred, 818 F.2d 397, 399 (5th Cir. 1987). Put another way, the BIA guidelines did not adopt a uniform standard of reasonableness because the BIA correctly presumed that state courts already understood that strict compliance with state law was not necessary.

¶ 73 By contrast, the dissent’s proposed standard would lead to absurd situations where an unwed father who clearly has acknowledged or established paternity under ICWA would not qualify under Utah law. Take, for example, a situation where a biological mother abandons a child with the unmarried biological father. If the father acted as the sole caretaker for his child, that would surely be a clear-cut case of acknowledgement of paternity. But under Utah law, the father would not have acknowledged paternity if he did not have a written agreement that the mother had also signed. Supra ¶ 67. This would provide the father with fewer rights than a reasonability standard under ICWA. We believe a common-sense reading of ICWA prohibits the dissent’s strict interpretation. See In re Adoption of Baby E.Z., 2011 UT 38, ¶ 40; In re J.S., 321 P.3d 103, 110 (Mont. 2014) (applying a “[c]ommon sense construction of the meaning of ‘active efforts’” in ICWA (alteration in original)); see also In re Adoption of Sara J., 123 P.3d 1017, 1036 (Alaska 2005) (applying “[c]ommon sense” to interpret ICWA’s placement preferences); In re T.S.W., 276 P.3d 133, 144 (Kan. 2012) (same).

¶ 74 Thus, we hold that Birth Father’s actions satisfied the requirements for acknowledging paternity under ICWA using a reasonability standard. Birth Father and Birth Mother resided together at the time of conception and for the first six months of Birth Mother’s pregnancy. During that time, Birth Father supported Birth Mother, paying for their rent, utilities, and groceries and Birth Mother’s phone bill. When Birth Mother moved to Utah six months into the pregnancy, the plan was for Birth Father to join her later, once she was settled into their new apartment. Birth Father stayed in contact with Birth Mother

                                                                                                                                                       

state law that did tend to undermine the ICWA’s purposes could not be taken to express Congress’ intent.” Holyfield, 490 U.S. at 51 n.26.

over the phone for the first few weeks after her move, until Birth Mother cut off communication with him. Birth Father was then told by family friends that Birth Mother was fine and would return to South Dakota soon. Birth Father indicated that he believed Birth Mother needed some space and that she would either return to South Dakota to deliver their baby or that she would return with the baby after the delivery. Instead, Birth Mother placed their child for adoption. Upon learning of the proceedings shortly after the September 25, 2014 order terminating parental rights was issued, Birth Father informed the tribe of the situation and consulted with Dakota Plains Legal Services. After being referred to Utah Legal Services, Birth Father filed a motion to intervene, a motion for paternity testing, and a paternity affidavit expressly acknowledging that he was the Child’s biological father. He also filed an Answer, Objection, and Verified Counterpetition to the Verified Petition for Adoption. When new ICWA guidelines were released on the day of the hearing on his motions, Birth Father acted immediately: the very same day, he submitted those guidelines to the court with a motion requesting the court to review them and drawing the court’s attention to pertinent provisions in the guidelines. In the April 21, 2015 order denying Birth Father’s motion to intervene on the basis that he was not a parent under ICWA, the district court itself stated that Birth Father has filed numerous documents with the Court in this case asserting paternity. In connection with this case, [Birth Father] has filed an affidavit setting forth his willingness and ability to parent the Child, his plans for care of the Child, and his willingness to pay child support and expenses related to the pregnancy and birth. He has filed a notice, with the Utah Department of Health, Office of Vital Records and Statistics, indicating that he has filed a paternity action regarding the Child (identifying this case as the paternity action). Thus, if one construes this action as a ‘paternity action,’ then [Birth Father] has now accomplished all of the tasks required by Utah’s statute.  

¶ 75 These actions, we hold, were both timely and sufficient for Birth Father to acknowledge paternity under ICWA, making Birth Father a “parent” for purposes of section 1914.[17]

  1. Birth Father Is a Parent Under Utah Law

¶ 76 As an alternative basis, I would hold that Birth Father also timely acknowledged and established his paternity under Utah law. As the district court indicated, Birth Father “accomplished all of the tasks required” by Utah Code section 78B-6-121(3), which relates to the consent of an unmarried biological father. And Birth Father accomplished these tasks within the timeframe required by Utah law. See UTAH CODE § 78B-6-121(3) (requiring the unmarried biological father to accomplish those tasks “prior to the time the mother executes her consent for adoption or relinquishes the child for adoption”). The district court concluded that Birth Father’s actions were untimely because he “completed these tasks no earlier than January 26, 2015,” which the court determined was after “the time the mother execute[d] her consent for adoption or relinquishe[d] the child for adoption.” Id. However, because Birth Mother never gave valid consent, supra ¶ 44, and because Birth Father has accomplished all the necessary actions, Birth Father timely established paternity even under Utah law. Thus, even if Utah law applied to define how to acknowledge or establish paternity under ICWA, Birth Father satisfies the statutory definition of a “parent.”

¶ 77 The actions Birth Father took illustrate that this case is a poster child for application of ICWA. Against the backdrop of 25 U.S.C. section 1902’s declaration of policy stating that ICWA is designed “to promote the stability and security of Indian tribes and families” and guard against state courts’ unnecessary removals of Indian children from their families, the majority would hold that an Indian father who took every necessary action to acknowledge paternity of his Indian child did too little, too late. I disagree. Because Birth Father acknowledged his paternity under both a federal reasonableness standard and a stricter Utah standard, he is a “parent” for purposes of ICWA. This status as a parent gives him standing under section 1914 to challenge the order terminating Birth Mother’s parental rights due to her invalid consent. 25 U.S.C. § 1914 (“[A]ny parent . . . may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.”).

D. Birth Father’s Status as a Parent, Along with His Custody of the Child, Gives Him the Right to Intervene

¶ 78 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.

¶ 79 We first note that legal custody alone suffices for section 1914 purposes. To hold otherwise would exclude a large number of fathers who were unable to obtain physical custody through circumstances that are out of their control. We believe that result would be seriously troubling, especially given that ICWA should be “liberally construed.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,586.

¶ 80 Our approach is consistent with how courts have interpreted “custody” in other ICWA settings. For example, section 1912(f), which states that “[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination . . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” refers to either physical or legal custody. D.J. v. P.C., 36 P.3d 663, 670 (Alaska 2001); see also Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2562 (2013) (addressing whether unwed father had “legal or physical custody” of the child (emphasis added)).

¶ 81 In this case, Birth Father had legal custody of the Child by virtue of his paternity. “[A] parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.” UTAH CODE § 78A-6-503(1).[18] This includes not just physical custody, but also legal custody, which is defined as a relationship including “the right to physical custody,” id. § 78A-6-105(22)(a), “the right and duty to protect, train, and discipline” the child, id. § 105(22)(b), and “the right to determine where and with whom the minor shall live,” id. § 105(22)(d). And Utah law appears to presume that a parent automatically enjoys legal custody, stating that the “fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child is recognized, protected, and does not cease to exist simply because a parent may fail to be a model parent or because the parent’s child is placed in the temporary custody of the state,” id. § 78A-6-503(4), and that “a parent has the right, obligation, responsibility, and authority to raise, manage, train, educate, provide for, and reasonably discipline the parent’s children,” id. § 503(10)(a). Thus, as a parent under ICWA, Birth Father had legal custody of the Child.

¶ 82 Although Birth Father’s legal custody of the Child is sufficient, we also note that his lack of physical custody was due to Birth Mother’s misrepresentations, which we will not hold against him for section 1914 purposes. We believe there is a meaningful distinction between a father who, albeit unsuccessfully, attempts to obtain physical custody and one who makes no such efforts. Compare In re Adoption of Baby Girl B., 67 P.3d 359, 366 (Okla. Civ. App. 2003) (stating that, in keeping with “the policies and purposes” of ICWA, where “a father has no reasonable notice of fatherhood, then [federal and state versions of ICWA] do not preclude him from asserting rights under those Acts simply because he had not been, through no fault of his own, a custodial parent”), with In re J.S., 321 P.3d 103, 113 (Mont. 2014)

(holding that father never had custody of child where he “was not

 

involved in the child’s life for the significant part of 15 years and only became interested in the action ten years after significant State involvement refocused his attention to the matter”); see also Adoptive Couple, 133 S. Ct. at 2571 (Breyer, J., concurring) (stating that majority’s conclusion that father lacked physical and legal custody did not address situations where a father has paid “all of his child support obligations” or “was deceived about the existence of the child or . . . prevented from supporting his child”). In this case, Birth Father lacked physical custody of the Child only because Birth Mother left the state, refused to communicate with him, and did not tell him when or where the Child was born. Until Birth Mother left, however, Birth Father had taken significant steps to care for his unborn child, including providing financial support during Birth Mother’s pregnancy. And after Birth Father found out about the Child’s birth, he filed numerous documents with the district court stating his willingness to care for and support the Child. 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. State ex rel. D.A.C., 933 P.2d 993, 999–1000 (Utah Ct. App. 1997) (stating that ICWA’s policies support application of the Act even where there was no existing Indian family); see also In re Baby Boy Doe, 849 P.2d 925, 932 (Idaho 1993) (calling “existing Indian family” exception an inappropriate “judicially created exception” that “circumvent[s] the mandates of ICWA”); In re A.J.S., 204 P.3d 543, 549 (Kan. 2009) (stating that the exception “appears to be at odds with the clear language of ICWA”); In re Baby Boy C., 805 N.Y.S.2d 313, 323 (App. Div. 2005) (noting that “the word ‘existing’ is not found anywhere in ICWA’s definitions sections and appears to have been supplied by judicial interpretation”). These courts have held that interpreting the “removal” language to mean that ICWA does not apply where there was no existing Indian family would frustrate the policies of ICWA.[19] State ex rel. D.A.C., 933 P.2d at 1000; In re Baby Boy C., 805 N.Y.S.2d at 324 (“Since ICWA was passed, in part, to curtail state authorities from making child custody determinations based on misconceptions of Indian family life, the [“existing Indian family”] exception, which necessitates such an inquiry, clearly frustrates this purpose[.]”). 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.

¶ 84  Thus, we hold that Birth Father was a parent who had custody of the Child. But we are split on the implications of this holding. A minority of the court would hold that he has statutory standing to raise the subject matter jurisdictional issues of Birth Mother’s consent, and, because he has standing to place them before our court, we have a responsibility to reach them.[20] But, aside from the

“existing Indian family” context, several courts at first relied heavily on the plain language of “removal” in various sections of ICWA, thereby denying Indian children ICWA’s heightened protections. But such a strangled view of ICWA was widely abandoned after the U.S. Supreme Court’s decision in Holyfield, as state courts recognized the “existing Indian family” doctrine’s “deviation from ICWA’s core purpose of ‘preserving and protecting the interests of Indian tribes in their children.’” In re A.J.S., 204 P.3d 543, 550 (Kan. 2009) (citation omitted); see also In re Adoption of Baade, 462 N.W.2d 485, 489 (S.D. 1990) (“Such a practice fails to recognize the legitimate concerns of the tribe that are protected under the Act.”). We therefore reject the dissent’s idea that giving force to ICWA’s stated purpose is a “purposivist approach” that will lead us on “an endless journey.” Infra ¶ 197 n.51. Rather, our opinion today is a recognition that the plain language of ICWA is informed by its “core purpose of preserving and protecting the interests of Indian tribes in their children,” In re Baby Boy C., 805 N.Y.S.2d 313, 323 (App. Div. 2005), and that this purpose argues for an interpretation that embraces a minimum federal standard—reasonableness—for an Indian father’s acknowledgement or establishment of paternity.

subject matter jurisdictional implications of Birth Father’s status as a parent, the majority holds that he was entitled to intervene in the adoption proceedings. We therefore remand on that basis.

¶ 85 In remanding for the district court to allow Birth Father to intervene, we are not blind to “the potential traumatic impact of a sudden, precipitous separation of a child from the only parents [he] has ever known.” In re Adoption of Baby Girl P., 242 P.3d 1168, 1176 (Kan. 2010). But “[w]hatever feelings we might have as to where [the Child] should live, . . . it is not for us to decide that question.” Holyfield, 490 U.S. at 53. It is our task to decide whether the district court exercised proper jurisdiction, but we are not tasked with deciding “what the outcome of that determination should be.” Id. And we hope that our guidance to district courts in adoption proceedings will prevent future heart-wrenching situations. See id. at 53–54 (“Had the mandate of the ICWA been followed [by the district court], much potential anguish might have been avoided, and in any case the law cannot be applied so as automatically to ‘reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation.’” (quoting In re Adoption of Halloway, 732 P.2d 962, 972 (Utah 1986))).33

                                                                                                                                                       

See infra ¶ 154. The district court lacked jurisdiction to proceed with the adoption, but it had proper jurisdiction to obtain consent from the birth parents and terminate their rights if appropriate. Therefore, I would hold that a remand to that stage of the court’s proceedings is appropriate. See In re Adoption of L.D.S., 155 P.3d 1, 8–9 (Okla. 2006), as supplemented on reh’g, No. 250 (Mar. 6, 2007) (finding decree of adoption void and directing the trial court on remand “to return the parties to the legal status they held before the erroneous declaration that the child was available for adoption without parental consent”). Among other outcomes, this could include Birth Mother’s providing valid consent, in which event Birth Father may be able to timely petition to intervene, or Birth Father, Birth Mother, and the prospective adoptive parents may file petitions for custody.

33 The majority notes possible procedural due process problems if Birth Mother does not receive notice. Infra ¶ 110. But Birth Mother had both notice and an opportunity to be heard on this appeal when her motion to withdraw her consent was denied. See Nelson v. Jacobsen, 669

P.2d 1207, 1211 (Utah 1983) (“Timely and adequate notice and an

 

III. THE DISTRICT COURT ERRED IN HOLDING

THAT THE ADOPTION PROCEEDINGS WERE

VOLUNTARY AS TO BIRTH FATHER

¶ 86 Under ICWA, a parent has a right to receive notice of and to intervene in any proceeding involving the involuntary termination of his or her parental rights. 25 U.S.C. § 1912(a) (“In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the . . . termination of parental rights to[] an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe . . . of the pending proceedings and of their right of intervention.”). As we discussed above, Birth Father is a “parent” under ICWA. Supra ¶¶ 74– 77. The district court held that the proceeding was voluntary as to Birth Father, which meant he was not entitled to notice and intervention. We reverse and hold that the proceeding was involuntary as to Birth Father.

¶ 87 Originally, these proceedings appeared to be voluntary on the part of both parents because Birth Mother misrepresented her brotherin-law as the biological father and had him sign a consent form for termination of parental rights in order to make the adoption go faster. Even after Birth Father filed a motion to intervene to establish paternity and after Birth Mother filed an affidavit informing the court that Birth Father was the biological parent and a member of the Cheyenne River Sioux Tribe, the court still believed the case to be “undoubtedly a voluntary proceeding” because it was “initiated not by the State but by Petitioners after the child’s mother indicated her (at the time) voluntary desire to relinquish her parental rights and place the child for adoption.” While we recognize that the proceedings were voluntary as to Birth Mother, it is clear that Birth Father never sought to

                                                                                                                                                       

opportunity to be heard in a meaningful way are the very heart of procedural fairness.”). I am also confident that were we to reinstate Birth Mother’s rights, any due process concerns could be addressed by requiring Birth Father to provide Birth Mother with notice that her parental rights have been reinstated and that she possesses the ability to waive her parental rights in compliance with ICWA’s timing requirements.

 

voluntarily terminate his parental rights. We disagree with the district court’s characterization of “involuntary proceedings” as “statesponsored 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.

¶ 88 ICWA does not define “involuntary proceeding” as used in 25 U.S.C. section 1912(a), so we look to the plain meaning of the term instead. The plain language in section 1912(a) refers to “any involuntary proceeding in a State court.” Black’s Law Dictionary defines “involuntary” as “[n]ot resulting from a free and unrestrained choice; not subject to control by the will.” Involuntary, BLACK’S LAW DICTIONARY (10th ed. 2014). When a parent’s rights are terminated against his or her will, the termination does not “result[] from a free and unrestrained choice” by that parent. Id. And if the proceedings are involuntary as to one parent, a plain language analysis leads to the conclusion that they are involuntary proceedings under ICWA, regardless of whether those proceedings are initiated by the state or by the other parent. Additionally, in light of ICWA’s policy “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families,” 25 U.S.C. § 1902, it would be inconsistent to deny a parent the right to receive notice and to intervene in proceedings for the termination of his or her parental rights just because the termination of the other parent’s rights was voluntary. Thus, we conclude that the proceedings in this case are involuntary as they pertain to Birth Father.[21] Birth Father therefore was entitled to notice of the proceedings and the opportunity to intervene.

CONCLUSION

¶ 89 Because the proceedings in this case were involuntary as to Birth Father, and because he acknowledged paternity as required under ICWA, he had a right to receive notice of and to intervene in the adoption proceeding. Consequently, we reverse the district court’s denial of Birth Father’s motion to intervene and remand for further proceedings consistent with this opinion.

¶ 90 In addition, I would hold that (a) Birth Mother did not give valid consent to the termination of her parental rights, (b) the district court therefore lacked jurisdiction to proceed with the adoption of the Child, and (c) the issue is properly before us. I dissent from the majority’s holding to the contrary on issues (b) and (c).

                                                                                                                                                      

the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Id. § 1912(f).

Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013), is not to the contrary. Adoptive Couple held that sections 1912(d) and (f) do not apply where “an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody,” such that “the Indian parent never had custody of the Indian child.” Id. at 2560, 2562. But, as the deciding vote in the case averred, it did not “involve special circumstances such as a father who was deceived about the existence of the child or a father who was prevented from supporting his child.” Id. at 2571 (Breyer, J., concurring). There is thus no controlling precedent on the precise issue before this court. Id. (noting that Adoptive Couple “need not, and in my view does not, . . . decide whether or how [sections] 1912(d) and (f) apply where those [special] circumstances are present”).

 

Cite as:  2017 UT 59

 

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court as to Part I, in which CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined; and a dissenting opinion as to Part II, in which CHIEF JUSTICE DURRANT joined:

¶ 91 Contested adoption proceedings are difficult. They cut at the heart of the most sacred, essential institution of our society—the family. And the disposition of such a case has profound effects on the lives of many—on the child in question and on all who assert an interest in the child’s parentage or upbringing.

¶ 92 The sensitivity of these issues is heightened when one or more of the interested parties hails from another state. And the difficulty is compounded further when, as here, a party claiming rights as a putative father is a member of an Indian tribe, protected by the Indian Child Welfare Act (ICWA).

¶ 93 For these and other reasons Justice Himonas is right to urge a course of caution. I could not agree more with the admonition that the “‘best interests’” of children and others involved in adoption proceedings require careful “obedience to the policies and procedures mandated by law.’’ Supra ¶ 1 (citation omitted).

¶ 94 That’s about as far as my agreement with the lead opinion goes, however. The lead opinion claims to be following the “majority” approach on a range of the issues it addresses. See supra ¶ 30 (asserting that its jurisdictional analysis is consistent with “the great majority of states’ views on the issue”); supra ¶ 71 (stating that the majority’s federal “reasonableness” standard of establishing or acknowledging “paternity” under ICWA “is consistent with ICWA case law” in other states). But the cited cases are easily distinguishable. And Justice Himonas’s approach is quite unique. No court that I am aware of (Justice Himonas cites none) has ever held that a timing defect in an earlier consent order is the sort of subject-matter jurisdictional defect that must be considered sua sponte by the court presiding over an adoption. And the court’s analysis of the ICWA standard of establishing or acknowledging “paternity” is equally novel. No court that I am aware of (and again the lead opinion cites none) treats the notion of “paternity” in ICWA as a purely federal standard—a standard of “reasonableness” to be developed on a case-by-case basis by the courts, and not by reference to standards established as a matter of state law.

 

 

¶ 95 On these and other points the lead opinion stretches existing law beyond recognition. Justice Himonas claims fealty to existing precedent but his approach is a novel one. It threatens to unsettle this important field on numerous points of heretofore settled law.

¶ 96 The question presented in this case is a simple one. We are asked to decide whether the district court erred in denying a motion to intervene filed by E.T., a member of an Indian tribe who asserts an interest in B.B. as a putative father. The district court denied that motion on the ground that E.T. could not qualify as a “parent” under Utah law or under ICWA, which excludes an unwed father whose “paternity has not been acknowledged or established.” 25 U.S.C. § 1903(9). The ICWA notion of acknowledgement or establishment of paternity, in the district court’s view, was an invocation of state law principles of paternity. And the district court denied E.T.’s motion to intervene because E.T. had not acknowledged or established his paternity as a matter of state law.

¶ 97 I would affirm that decision, which is entirely in line with the terms of ICWA and with established case law in other jurisdictions. I would hold that E.T. does not qualify as a “parent” because he did not acknowledge or establish his paternity under Utah law. While a majority of the court disagrees with my analysis on this point, a majority nonetheless rejects the lead opinion’s subject-matter jurisdiction analysis. Thus, the court concludes that there is no subjectmatter jurisdiction defect in this case.

¶ 98 Justice Himonas’s contrary conclusions are premised on a series of distortions of settled principles of law. First, the lead opinion distorts the law of appellate procedure and subject-matter jurisdiction. The root of its jurisdictional analysis is its decision to question a final order finding that the birth mother (C.C.) consented to the adoption more than ten days after the birth of the child as required by ICWA. That order was a final, appealable one when entered. But no one ever challenged it. Not C.C. And not even E.T.[22] And that should have rendered the merits of that decision final, foreclosing our prerogative of second-guessing it, under settled rules of finality and appellate procedure.

¶ 99 The lead opinion would unsettle our law of appellate procedure in reopening an order that no party ever sought to challenge. And it would distort the law of subject-matter jurisdiction by treating a purported defect in the consent order as a matter going to the adoption court’s subject-matter jurisdiction.

¶ 100 Second, the court distorts the standard set forth in ICWA. It does so by interpreting the statute’s reference to the acknowledgement or establishment of “paternity” to call for a wholly federal standard of paternity—a standard the court declines to define except to say that it calls for a case-by-case evaluation of “reasonableness.” Supra ¶¶ 71–72. This unsettles the law in this important field. No court to date has interpreted ICWA to call for a wholly federal standard of establishing paternity. By declaring the existence of such a standard without ultimately defining it, the court ensures chaos and unpredictability for years to come.

¶ 101 I find all of the above untenable. And easily avoidable. All we have to do is follow settled rules of procedure and jurisdiction and the plain text of ICWA. I would do so here. While a majority of the court holds that there is no defect in the district court’s subject-matter jurisdiction, I would also affirm the district court’s denial of the motion to intervene because E.T. did not timely acknowledge or establish his paternity.

                                                                                                                                                       

order—neither in the proceedings below nor on appeal. In resting on other grounds, E.T. accepted the validity of the consent order both before the district court and in his briefs on appeal. For this reason the court concludes that E.T. has waived any opportunity to challenge the consent and termination order. And the court’s analysis of the procedural impropriety of the lead opinion’s review of the consent and termination order is premised on the fact that E.T. failed to bring this issue within the scope of our review.

  1. SUBJECT-MATTER JURISDICTION

¶ 102 We have no quarrel with Justice Himonas’s assertion that our court has a duty to make a sua sponte assessment of our own subjectmatter 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.

  1. The Consent Order Is Not Properly Before Us

¶ 103 The heart of Justice Himonas’s jurisdictional analysis is his determination that the district court erred in concluding that C.C.’s consent complied with ICWA’s timing requirements. Because Justice Himonas would reverse the district court’s conclusions on this issue, he would determine that the district court lacked jurisdiction to proceed with the adoption.

¶ 104 But Justice Himonas cites no authority for the power to revisit a final order in a collateral termination proceeding not challenged by any of the parties at any stage of these proceedings— below or on appeal. When a court enters a final order stating its findings of fact and conclusions of law, that order is binding unless and until a litigant successfully challenges the order’s validity. See Snell v. Cleveland, Inc., 316 F.3d 822, 825–28 (9th Cir. 2002) (reversing district court’s sua sponte decision to vacate a final judgment in an earlier case on the basis of an alleged defect in diversity jurisdiction). This is true even in the context of subject-matter jurisdiction. See id. We have a sua sponte responsibility to raise issues of subject-matter jurisdiction during the pendency of an action. See id. at 826; UTAH R. CIV. P. 12(h)(2). But we do not have power to sua sponte reconsider the premises of jurisdiction of a final judgment that has not been collaterally attacked by a litigant. See Snell, 316 F.3d at 825–28; UTAH R. Civ. P. 60(b); Yanow v. Weyerhaeuser S.S. Co., 274 F.2d 274, 279–80 & n.8 (9th Cir. 1958) (citing Noble v. Union River Logging R. Co., 147 U.S. 165, 171–74 (1893)).

¶ 105 Granted, E.T. was unaware of the termination proceedings in which C.C. voluntarily relinquished her rights and consented to the adoption of B.B. Yet he had every opportunity to raise a rule 60(b) challenge to that final judgment in the context of his motion to intervene. And he failed to do so at any time prior to the court’s final adjudication of his motion to intervene. E.T.’s decision not to raise such a challenge constituted a waiver of the issue before the district court.

¶ 106 E.T.’s waiver is equally clear on appeal. His notice of appeal identifies only the order denying his motion to intervene and subsidiary orders. See Amended Notice of Appeal (June 8, 2015). It makes no mention of the consent order. And the consent order, as a distinct final judgment, was not a subsidiary order. That is fatal. An order not identified in the notice of appeal falls beyond our appellate jurisdiction. And the failure to identify an order is a non-waivable (jurisdictional) defect.[23]

¶ 107 “[T]he object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case. Respondent is entitled to know specifically which judgment is being appealed.” Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474 (quoting Nunley v. Stan Katz Real Estate, Inc., 388 P.2d 798, 800 (Utah 1964)). We decline to disregard this rule of appellate procedure in this case. Accordingly, we do not review the order adjudicating C.C.’s consent under ICWA because E.T. did not raise a rule 60(b) challenge to this order below and likewise did not identify this order in his notice of appeal.

¶ 108 We see no basis for the notion of a free-ranging duty to search the record to “ensure” that an adoption case is “as free as possible” from any “defects” we deem “fatal.” Supra ¶ 1. That premise runs counter to our settled rules of appellate procedure, which are rooted in the adversary system. Our law leaves it to the parties to identify legal deficiencies undermining the legality or finality of a judgment rendered in a collateral matter. Under our longstanding rules the appellant bears the burden of identifying any and all orders being challenged on appeal.

¶ 109 We follow that pattern here. We hold that the consent order in question is not properly presented for our review because it was not identified in the notice of appeal.

¶ 110 The effects of the lead opinion’s contrary conclusion would be substantial. In proposing the reversal of an order not identified in the notice of appeal and the sua sponte reconsideration of factual and legal conclusions underpinning a final judgment, the lead opinion would undermine the rights of a party who has not been heard at any point in the proceedings on appeal (C.C.). To our knowledge, C.C. has not received any notice that the termination order is under review on appeal. And were the lead opinion’s decision to control, we have no reason to believe that C.C. would receive formal notice that her rights had been reinstated by the lead opinion’s proposed vacatur of the termination order. This would be deeply problematic—and an apparent violation of C.C.’s right to procedural due process.

¶ 111 The proposal to disregard our settled rules of appellate procedure would come at a cost to the legitimacy of our judicial system. It would also threaten the certainty and predictability that are essential to a well-functioning adoption system.

¶ 112 Justice Himonas’s approach would inject uncertainty of an indefinite duration into the lives of those who place their children for adoption. This uncertainty is wide-ranging. A mother who consents to an adoption would never be certain that the child’s placement would be final. She would be left with the risk that a court might peer down long after judgment has become final and identify an error missed by the district court, counsel, and all parties.

¶ 113 Under Justice Himonas’s approach, such a mother need not even receive notice that the validity of her consent is being reviewed. Yet there would always be the possibility that lives might be turned upside down by a judicial decision vacating consent and re-imposing the obligations of parenthood. This would be more than unfair. It would be fundamentally at odds with our adoption statute. See UTAH CODE § 78B-6-102(5)(b) (“[A]n unmarried mother, faced with the responsibility of making crucial decisions about the future of a newborn child, is entitled to privacy, and has the right to make timely and appropriate decisions regarding her future and the future of the child, and is entitled to assurance regarding the permanence of an adoptive placement.”).

¶ 114 Justice Himonas’s approach would also jeopardize the security and reliance interests of adoptive children and adoptive parents.[24] We do not positively countenance C.C.’s conduct in this case. But the lead opinion’s proposal to cast aside settled rules of law governing appellate procedure would impact more than this case. It would disrupt a system that, while imperfect, is carefully tailored to protect the interests in certainty and finality of all persons who come before our courts.

¶ 115 This would be deeply problematic. In the field of adoption, clear legal rules, finality, and certainty align with the best interests of children. See UTAH CODE § 78B-6-102(5)(a). And all of those principles are undermined by the lead opinion’s proposal to sua sponte reconsider the validity of the order accepting C.C.’s consent and terminating her parental rights.

  1. Invalid Consent Under ICWA Section 1913 Is Not Void Ab Initio

¶ 116 Justice Himonas seeks to avoid the finality of the consent and termination order by concluding that a violation of section 1913 renders an untimely consent void ab initio. See supra ¶¶ 31–32, 44. But that conclusion is inconsistent with the text of the statute and with settled case law.

¶ 117 Section 1913(a) states that “[a]ny consent given prior to, or within ten days after, birth of the Indian child shall not be valid.” 25 U.S.C. § 1913(a). In isolation, this language does not answer the critical question—whether parties may waive an objection to a defect in the timing of consent by failing to timely challenge it. But section 1914 provides strong evidence that any defect in ICWA compliance is subject to waiver. It provides that “[a]ny Indian child . . . , any parent or Indian custodian . . . , and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.” Id. § 1914. The permissive “may petition” clearly implies a choice—to petition or not. To give meaning to that choice, the statute cannot be interpreted to void orders that have not been challenged under section 1914. The term “invalidate” also carries a negative implication. It suggests that unless a party affirmatively challenges a proceeding’s compliance with ICWA section 1913, the consent and resulting termination order are valid.

¶ 118 This conclusion is consistent with case law in other jurisdictions.[25] A few courts have held that section 1914 preempts rules governing preservation. But no court has ever raised an ICWA consent issue sua sponte.[26] Surely it is even more problematic to reconsider a consent order not identified in the notice of appeal.[27]

¶ 119 Where, as here, a district court expressly holds that its order complies with ICWA requirements, the courts have held that the time to challenge that determination under section 1914 expires upon the running of the time for an appeal. See In re Adoption of A.B., 2010 UT 55, ¶¶ 22–25, 245 P.3d 711; cf. Kiowa Tribe of Okla. v. Lewis, 777 F.2d 587, 592 (10th Cir. 1985) (“We cannot read § 1914’s reference to ‘any court of competent jurisdiction’ as the type of clear and manifest authorization that federal courts need before they upset the ordinary principles of federal-state comity embodied in 28 U.S.C. § 1738 and the Full Faith and Credit Clause. It seems rather to state simply where such actions may initially be brought. Regardless of whether we agree with the Kansas Supreme Court’s construction of the ICWA, here we must honor the judgment it has rendered on the subject.” (emphasis added)).

¶ 120 Accordingly, we hold that violations of ICWA subject to challenge under section 1914 do not render those actions void ab initio. Justice Himonas’s contrary conclusion is not just unprecedented; it would threaten the interests of the very population ICWA was intended to protect. By voiding an action not challenged by the Indian child, his mother, putative father, or his tribe, the lead opinion would slight the autonomy of the stakeholders Congress empowered by enacting section 1914. That smacks of paternalism. And it would disrupt finality and inject greater uncertainty into already complicated proceedings—at great cost to all involved. See supra ¶¶ 111–15. C. Consent to Adoption Is Not Jurisdictional

¶ 121 Even if a violation of section 1913 rendered consent void ab initio, we find no basis for the majority’s conclusion that a defect in consent deprives a district court of subject-matter jurisdiction. The concept of subject-matter jurisdiction encompasses (a) statutory limits on the “authority of the court to adjudicate a class of cases,” Johnson v. Johnson, 2010 UT 28, ¶ 10, 234 P.3d 1100; and (b) timing and other limits on the “justiciability” of the proceeding before the court (such as standing, ripeness, and mootness), see Carlton v. Brown, 2014 UT 6, ¶¶ 29–30, 323 P.3d 571. In extending the principle of subject-matter jurisdiction to include a mere legal prerequisite to the issuance of an order granting the relief sought by the plaintiff, the lead opinion would unsettle our law and open the door to any of a wide range of issues being injected sua sponte by the court—or by a party long after a case is otherwise finally decided.

¶ 122 In opening the door to reconsider the legal basis for an order that our law deems final and jurisdictionally insulated from review, the lead opinion would threaten the principles of efficiency and finality at the heart of our adoption system. And its novel conception of subjectmatter jurisdiction would sow the seeds of uncertainty that would threaten the finality of cases in other fields as well.

¶ 123 The adoption cases cited by Justice Himonas are all distinguishable on grounds mentioned above. Supra ¶ 121. None of

 

them supports the lead opinion’s novel theory. The cited Utah cases, see supra ¶ 25, are also distinguishable. Those cases go to a principle of justiciability and the propriety of a case being heard in a particular forum at a particular time (before a governmental entity has a chance to rule on a notice of claim, or before a party exhausts administrative avenues for relief). That is not at all what is at issue here. So the lead opinion’s view does not follow from existing cases. The lead opinion would open up a broad new category of subject-matter jurisdictional issues that would undermine the efficient operation of our justice system and the finality of our judgments for years to come.

¶ 124 We accordingly reject the notion that any defect in the timing of the mother’s consent deprived the district court of subject-matter jurisdiction. The timeliness of the entry of consent under ICWA has nothing to do with subject-matter jurisdiction as that term is understood in our law. Valid consent is just one of many statutory prerequisites to the issuance of a valid adoption decree. See UTAH CODE §§ 78B-6-101 et seq. (identifying a host of statutory requirements for the issuance of an adoption in varying circumstances). And a deficiency in this or any other prerequisite falls outside the traditional scope of subject-matter jurisdiction.

  1. Theory

¶ 125 The notion of “jurisdiction” is a slippery one.[28] This is a word that means different things in different circumstances. Sometimes it is used to characterize the scope of a court’s power to issue a certain form of relief.[29] In that sense we may speak of a court lacking “jurisdiction” to award relief that is precluded by the substantive law under the facts of a particular case. And we may identify legal preconditions to the availability of such relief as bars on the exercise of a court’s “jurisdiction.”9

¶ 126 Another conception of “jurisdiction” goes to the territorial authority of the court that issues a decision. This is the notion of personal jurisdiction. It may be invoked in a case in which a judgment is entered against a party lacking in a sufficient connection to the state in which the court sits.10 This is another instance in which we may speak

                                                                                                                                                       

jurisdiction over a particular case causes a judgment to be voidable rather than void.” (citation omitted)).

  • See, e.g., Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (“[T]he questions Steadman has raised do not go to subject-matter jurisdiction and instead concern only whether the trial court had particular-case jurisdiction. Or, more precisely, as ‘challenges to [the trial court’s] subsequent rulings and judgment,’ they ‘are questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction.’ In other words, they are allegations of pure legal error and not of a failure of the court’s power to act at all. And particularcase jurisdiction is subject to waiver.” (alterations in original) (citation omitted)); In re Adoption of M.A., 930 A.2d 1088, 1091 (Me. 2007) (reversing a district court’s dismissal of an adoption case for lack of subject-matter jurisdiction and distinguishing authority to issue an adoption under the governing statute from subject-matter jurisdiction which is determined solely on the basis of whether the case is within the class of cases over which a court has authority); Heath v. W.C.A.B. (Pa. Bd. of Prob. & Parole), 860 A.2d 25, 29 (Pa. 2004) (“[W]e have no quarrel with the Commonwealth Court’s asking sua sponte whether the

‘personal animus’ exception implicated its subject matter jurisdiction. Rather, we disagree with the Commonwealth Court’s ultimate conclusion that the exception is indeed jurisdictional. . . . [W]e determine whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case.” (citation omitted) (internal quotation marks omitted)).

  • g., Fenn v. Mleads Enters., Inc., 2006 UT 8, ¶ 10, 137 P.3d 706 (“[A] Utah state court may assert specific personal jurisdiction over a foreign defendant only if (1) the defendant has minimum contacts with Utah of a court lacking “jurisdiction” to enter an award against a particular party.

¶ 127 Yet neither of these notions of jurisdiction goes to a court’s subject-matter jurisdiction. Both of these forms of jurisdiction, moreover, are subject to the rules of preservation and waiver. A failure to raise them at the appropriate time results in a forfeiture of the issue.11 It is accordingly improper for a court to raise these “jurisdictional” matters sua sponte.

¶ 128 Subject-matter jurisdiction is special. It is distinct from other notions of jurisdiction in that we require our courts to consider such issues sua sponte, or in other words we do not allow the parties to waive or forfeit them from consideration.[30] The distinction is crucial, as it cuts

and (2) the assertion of jurisdiction would not offend the traditional notions of fair play and substantial justice.”).

  • See, e.g., State v. All Real Prop., Residence & Appurtenances, 2005 UT 90, ¶¶ 8–11, 127 P.3d 693 (holding that a failure to raise an objection to personal jurisdiction or defective notice at first opportunity in a proceeding results in waiver or forfeiture of the claim); State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (“As a general rule, claims not raised before the trial court may not be raised on appeal.”).

at the heart of our adversary system. If an issue is subject-matter jurisdictional, the general rules of finality and preservation are off the table. So for each such issue we undermine the premises of efficiency, speedy resolution, and finality that generally undergird our justice system.

¶ 129 That is why our law has been careful to cabin the notion of subject-matter jurisdiction.[31] We limit this concept carefully because an

302, 307 (Wyo. 2016) (“[Subject-matter jurisdiction] cannot be created or destroyed by procedural irregularities, such as, for example, a defect in the process by which intervention effectively adds a new party to a case. The rules of civil procedure cannot extend or limit subject matter jurisdiction, even though such rules may establish the proper method of invoking the jurisdiction of the court in particular cases. A court’s subject matter jurisdiction lies dormant until it is called upon to exercise it by some sort of initiating procedural mechanism, such as a pleading, complaint, or information. At that point, the court ‘acquires jurisdiction’ in the limited sense of procedurally having the authority to proceed and exercise its subject matter jurisdiction in a particular case. Consequently, a failure to adhere to the requirements governing the proper nature and filing of such case-initiating documents, even to the extent they may be characterized as substantive requirements, will not necessarily deprive a court of subject matter jurisdiction.” (citation omitted)).

                                                                                                                                                      

(citation omitted) (internal quotation marks omitted)); Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994) (“[S]ubject-matter jurisdiction concerns the power of the trial court to deal with a class of cases to which a particular case belongs. Stated differently: ‘Jurisdiction,’ in the strict meaning of the term, as applied to judicial officers and tribunals, means no more than the power lawfully existing to hear and determine a cause. It is the power lawfully conferred to deal with the general subject involved in the action. It does not depend upon the ultimate existence of a good cause of action in the plaintiff, in the particular case before the court. It is the power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case.”) (citation omitted) (internal quotation marks omitted)); Troupis v. Summer, 218 P.3d 1138, 1140–41 (Idaho 2009) (“Jurisdiction over the subject matter is the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some of the inherent facts that exist and may be developed during trial.” (citation omitted) (internal quotation marks omitted)); McCormick v. Robertson, 28 N.E.3d 795, 802 (Ill. 2015) (“So long as a claim meets the requirements for justiciability, it will be sufficient to invoke the court’s subject matter jurisdiction, even if the claim is defectively stated. The only consideration is whether it falls within the general class of cases that the court has the inherent power to hear and determine. If it does, then subject matter jurisdiction is present.” (emphasis in original) (citation omitted)); Holding v. Franklin Cty. Zoning Bd. of Adjustment, 565 N.W.2d 318, 319 (Iowa 1997) (“For several years we have sought to correct a formerly widespread misimpression that often confused a court’s lack of subject matter jurisdiction with a court’s lack of authority to act in a particular matter. . . . We hope the distinction is now clear as it is important: the term subject matter jurisdiction refers to the power of a court to hear and determine the class of cases to which the proceedings in question belong. Where subject matter jurisdiction exists, it does not necessarily follow that a court has authority to act in a specific case included within that general class.”); Duvall v. Duvall, 80 So. 2d 752, 754 (“Jurisdiction of the subject matter is the power of the court to hear and determine cases of the general class to which the expansive notion of subject-matter jurisdiction will undermine the basic premises of our justice system. And that is why the law has long defined the concept of subject-matter jurisdiction to consist of the two categories noted above—statutory limits on the class of cases assigned to the authority of a certain court, and other limits that go to the concept of justiciability.

¶ 130 These principles are well-embedded in our law. And cases in Utah and elsewhere have long warned of the perils of expanding these categories to encompass mere preconditions to the availability of a particular form of judicial relief.[32] We heed that warning here. We do

particular case belongs. . . . But if a court has jurisdiction of the subject matter, it has the power to decide the case according to its own view of the law and the facts; the test of jurisdiction is whether the court has the right to enter on the inquiry, and not whether its methods were regular, its findings right, or its conclusions according to law.”), overruled on other grounds, 81 So. 2d 695 (Miss. 1955); In re Expungement of Arrest Records Related to Brown v. State, 226 S.W.3d 147, 150 (Mo. 2007) (“Subject matter jurisdiction is a tribunal’s statutory authority to hear a particular kind of claim. The court must have cognizance of the class of cases to which the one to be adjudged belongs. The failure to distinguish between the erroneous exercise of jurisdiction and the want of jurisdiction is a fruitful source of confusion and errancy of decision.” (citation omitted) (internal quotation marks omitted)).

not treat a defect in a birth mother’s consent as a defect in an adoption court’s subject-matter jurisdiction.

¶ 131 Clearly our district courts have the statutory authority to issue an adoption decree. UTAH CODE § 78A-5-102(1); id. § 78B-6-105; In re Adoption of Baby E.Z., 2011 UT 38, ¶ 34, 266 P.3d 702 (“Utah district courts clearly have subject matter jurisdiction over adoption proceedings as a class of cases.”). Because there are no grounds for questioning the justiciability of this proceeding (no standing, ripeness, or mootness problem),[33] moreover, we find that there is no subjectmatter jurisdictional issue presented by this case.

when the court has jurisdiction and the parties had an opportunity to be heard.”); Troupis, 218 P.3d at 1140 (“Subject matter jurisdiction is a key requirement for the justiciability of a claim and cannot be waived by consent of the parties. Because of the serious ramifications of a court acting without subject matter jurisdiction, namely that the judgments of that court are void, the concept must be clearly defined.” (citation omitted)); Najera v. Chesapeake Div. of Soc. Servs., 629 S.E.2d 721, 723 (Va. Ct. App. 2006) (“Whether a judicial order can be attacked as void turns on the subtle, but crucial, difference between the power of a court to adjudicate a specified class of cases, commonly known as ‘subject matter jurisdiction,’ and the authority of a court to exercise that power in a particular case. This distinction guards against the faux elevation of a court’s failure to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction. In making that distinction, we focus on the statutory language delegating power to the courts to decide the issue and the legislative design it reveals.” (citation omitted) (internal quotation marks omitted)).

  1. Cases on Adoption and Jurisdiction

¶ 132 Justice Himonas claims to find support for his contrary conclusion in a line of adoption cases in other states. Those cases, in his view, establish the well-settled general rule that courts lack subjectmatter jurisdiction over adoption proceedings predicated on invalid consent. See supra ¶ 30 n.10. Justice Himonas also proffers support for his analysis in Utah precedent—in this court’s decision in Deveraux’ Adoption v. Brown, 268 P.2d 995 (Utah 1954), and in cases requiring a notice of claim under the Governmental Immunity Act and the exhaustion of administrative remedies as prerequisites to jurisdiction. See supra ¶ 25. Yet none of the cited cases supports the lead opinion’s framework. Here, a court rendered a final judgment that C.C.’s consent was valid and complied with ICWA. And no one has challenged that final judgment—either via direct appeal or collateral attack. No court that we are aware of—and Justice Himonas cites none—has ever revisited the factual or legal underpinnings of a mother’s consent sua sponte in a subsequent proceeding.

¶ 133 All of the cases cited by Justice Himonas are distinguishable. First, nearly all of them fit within the two categories of subject-matter jurisdiction identified above. And the few that do not fit this paradigm bear no resemblance to the facts of this case, as they involve statutory prerequisites to jurisdiction that are not present in our code.

¶ 134 Justice Himonas’s cases generally fall into three categories. In one category the courts are simply stating that a defect in a mother’s consent is a legal barrier to the issuance of an adoption order.16 No one

                                                                                                                                                      

legal defect in a court’s decision goes to “justiciability” (and must be raised sua sponte and may be considered at any time).

16 See, e.g., L.T. v. W.L., 159 So. 3d 1289, 1291 (Ala. Civ. App. 2014) (vacating adoption on biological mother’s petition to set aside judgment because Alabama statute requires that minors be represented by a guardian ad litem prior to giving consent; finding lack of jurisdiction to issue the adoption decree because mother, a minor at the time, was not represented by a guardian ad litem at any point in the proceedings); Westerlund v. Croaff, 198 P.2d 842, 845 (Ariz. 1948) (noting that district court had concluded that father was unwilling to consent and that his consent was required; concluding that writ of prohibition was appropriate to enjoin further adoption proceedings); Arnold v.

 

doubts that conclusion. A birth mother’s consent is undeniably a prerequisite to the issuance of an adoption decree. And in that sense it can certainly be said that the court lacks “jurisdiction” to issue an adoption decree. Yet these holdings appear in cases in which the birth parent appears and challenges the validity of the consent. So they tell us nothing useful about the question presented here—which is whether a failure of consent is a subject-matter jurisdictional defect that can be raised by the court sua sponte.[34]

¶ 135 Other cases cited in the lead opinion rest on principles of personal jurisdiction. In these cases courts have allowed a collateral

Howell, 219 P.2d 854, 858 (Cal. Dist. Ct. App. 1950) (setting aside adoption on the ground that consent was obtained by fraud, noting that consent is a jurisdictional prerequisite in the sense that it is a basis for setting aside an adoption where the issue is raised by a party); In re Adoption of List, 211 A.2d 870, 873–74 (Pa. 1965) (using the term “jurisdiction” and “jurisdictional” to identify statutory requirements for adoption and identifying a “presumption of [the adoption decree’s] validity and regularity and an implication . . . that the court did find the necessary facts and did perform all the steps essential to the jurisdiction of the court” and placing the “burden . . . on the person attacking an adoption decree to establish its invalidity by clear and convincing evidence”).

attack on a final order by a birth parent whose connection to or notice from the forum state was constitutionally defective.18 Occasionally the courts have offhandedly referred to such a defect as going to subjectmatter jurisdiction.[35] But, confusing terminology aside, this is decidedly

18 G.M.D. v. M.D., 610 S.W.2d 305, 307 (Mo. Ct. App. 1980) (vacating adoption on petition of parent whose consent was required and who had not been given adequate notice of the proceedings); In re Jackson, 28 P.2d 125, 129 (Nev. 1934) (same); In re Holder, 10 S.E.2d 620, 622 (N.C. 1940) (vacating adoption on petition from brother and legal heir of deceased biological mother on several grounds, including that the biological mother’s consent was required and she had not been given notice of the adoption proceedings and that the adoption order was never signed by the court); Adoption of Robin, 571 P.2d 850, 856 (Okla. 1977) (setting aside an adoption on petition of a biological father whose consent was required for the issuance of an adoption and who was deprived of due process by the adoptive parents’ fraud on the court and finding that birth mother’s consent was obtained by fraud and duress); Hughes v. Aetna Cas. & Sur. Co., 383 P.2d 55, 60 (Or. 1963) (granting biological child’s petition declaring him the legal heir of his deceased mother where the biological mother was not given notice of the adoption proceedings nor was her consent obtained and no exception to such requirement was satisfied).

not a matter of subject-matter jurisdiction. The lack of notice or connection to the forum goes to personal or territorial jurisdiction. And that sort of jurisdiction has long been understood as subject to the law of preservation and waiver—in that a failure to raise a personal jurisdiction defense at the first opportunity results in a forfeiture, and the matter is not the court’s to raise.20

¶ 136 Justice Himonas also cites a few cases where the states’ adoption statutes require that specific documents be filed simultaneously with the petition for adoption as a precondition to the court’s acquisition of subject matter jurisdiction over the case.21 Even under this third category of cases, jurisdiction is determined as of the

                                                                                                                                                      

the context of a case that turned on the failure of the adoption court to give notice to the biological mother of the adoption proceeding).

  • See, e.g., All Real Prop., Residence & Appurtenances, 2005 UT 90, ¶ 10 (holding that a failure to raise an objection to personal jurisdiction or defective notice at first opportunity in a proceeding results in waiver or forfeiture of the claim).
  • In re I.H.H-L., 251 P.3d 651, 656–57 (Kan. Ct. App. 2011) (interpreting the Kansas adoption statute to require attachment of consent to the petition as a precondition to a court’s jurisdiction to hear an adoption petition and concluding failure to do so precluded the district court from acquiring subject-matter jurisdiction over the adoption but also rejecting a rule where “subject matter jurisdiction could fluctuate moment to moment” and embracing the federal rule that subject-matter jurisdiction is determined at the time of filing of the complaint); In re Adoption of Kassandra B., 540 N.W.2d 554, 559 (Neb. 1995) (“The fact that the statute is phrased in the past tense indicates that the requisite consents should be obtained prior to filing the petition.”); In re Ralph, 710 N.Y.S.2d 500, 502–03 (App. Div. 2000) (concluding that failure to file complete adoption applications precluded the court’s exercise of jurisdiction and dismissing the action); In re JWT, 104 P.3d at 94 (identifying Wyoming statutory requirements that required particular documents to be filed “with the petition to adopt” and concluding that their absence at the time of filing rendered the adoption “invalid ab initio,” but noting that had the documents been filed—even if their content were false—jurisdiction might properly be found).

filing of the action. It is not divested by any subsequent interpretive error that may arise in the case.

¶ 137 Here Justice Himonas does not assert that there was any defect in jurisdiction at the time the case was initiated. He couldn’t. By statute, our Utah courts are expressly authorized to assume jurisdiction over adoption petitions and determine parental rights and consent at any time during the proceeding—prior to the issuance of the adoption.[36] And there is no dispute that the district court did in fact terminate C.C.’s rights and determine that no father had established rights in the child prior to proceeding on the petition for adoption. See Order Allowing Relinquishment of Parental Rights, Terminating Birth Mother’s Parental Rights, and Determining Birth Father’s Rights at 2 (Sept. 25, 2014).

¶ 138 The cases cited by Justice Himonas should also be viewed in historical perspective. Many of the cited cases are from a bygone era— in which adoption was disfavored and the rights of biological parents were elevated above the best interests of the child and the interests of adoptive parents.[37]

¶ 139 But these principles have no application to Utah adoption law today. Our Utah Adoption Act was enacted in 2008. And in enacting this law our legislature made express findings rejecting the notion that adoption is disfavored because it disrupts biological family ties. See UTAH CODE § 78B-6-102. Our legislature has thus rejected the premises underlying many of the cases cited by Justice Himonas. In Utah the best interests of the child are paramount. Id. § 78B-6-102(1). We also have recognized the fundamental interests of adoptive parents. Id. § 78B-6-102(5)(d). These are other grounds for suspicion of Justice Himonas’s reliance on the cited cases.

¶ 140 The issue presented in this case, moreover, is quite distinct from that presented in the cases cited by the majority. Here we are squarely presented with a question regarding subject-matter jurisdiction—whether we may consider a potential objection that no party has raised and that goes to an order that was rendered final and unappealable many months back. The lead opinion’s theory on this point is unprecedented. It has cited no authority for the proposal to review a final order that determined that valid consent was given and that was never challenged by the mother who gave the consent. Indeed, the district court’s order was not even challenged by the putative father—either below or on appeal. The lead opinion’s view that we have authority, indeed an obligation, to review the mother’s consent is without support in the cited cases.

                                                                                                                                                      

The courts are quite uniform in applying the rule of strict construction in favor of the parents’ natural rights in adoption proceedings.”); Adoption of Robin, 571 P.2d at 855 (“Adoption statutes are to be strictly construed in favor of the natural parents where the controversy is between the natural parents and persons seeking to destroy that status.”); Hughes, 383 P.2d at 59 (“[T]he right of adoption being in derogation of the common law, is a special power conferred by statute, and the rule is that such statutes must be strictly construed. . . . [T]he court in adoption proceedings is exercising a special statutory power not according to the course of the common law, and when its decree is called in question, even collaterally, no presumptions in favor of jurisdiction are indulged, but the facts necessary for jurisdiction must appear affirmatively, on the face of the record.” (citation omitted) (internal quotation marks omitted)).

 

¶ 141 Utah law is likewise unhelpful to the lead opinion. The Deveraux’ Adoption case is similar to the line of adoption cases cited by Justice Himonas.[38] Deveraux speaks of a court “never obtain[ing] jurisdiction to exercise the power to grant” an adoption in a case in which there was a defect in a birth mother’s consent. Deveraux’ Adoption v. Brown, 268 P.2d at 998. But the Deveraux court’s notion of “jurisdiction” goes only to the legal authority of the court to award certain relief (to issue an adoption decree). Deveraux had no occasion to consider whether a defect in the birth mother’s consent deprived the court of subject-matter jurisdiction because the birth mother herself intervened in the adoption and “objected that her consent was never validly given.” Supra ¶ 21 (citing Deveraux, 268 P.2d at 996). So Deveraux likewise tells us nothing of relevance to the matter before us.

  1. Governmental Immunity Act and Administrative Exhaustion

¶ 142 That leaves only the governmental immunity and administrative exhaustion cases cited by Justice Himonas. The lead opinion cites those cases to support its view that “[t]here are often prerequisites individual litigants must meet to show that they have satisfied the requirements of subject matter jurisdiction even when we unquestionably have subject matter jurisdiction over” a general category of cases. Supra ¶ 25. We have no quarrel with that general proposition. The “categories” of cases over which our courts have subject-matter jurisdiction certainly have boundaries to them. And litigants must make a case-by-case showing as to whether they fall within the relevant boundaries. But that unobjectionable proposition is hardly a license for us to treat mere preconditions to the issuance of a given type of order as a bar to the exercise of subject-matter jurisdiction.

¶ 143 Conditions that go to subject-matter jurisdiction are clearly denominated as such.[39] And they are, by necessity, conditions that can be established fairly easily at the outset of the litigation. Familiar examples in federal court are the existence of a federal question or the diversity of citizenship of the parties (and a sufficient amount in controversy). See 28 U.S.C. §§ 1331–32. But in Utah our district courts are courts of general jurisdiction. They have general power to hear “all matters civil and criminal” so long as they are “not excepted in the Utah Constitution and not prohibited by law.” UTAH CODE § 78A-5102(1). The code, admittedly, places certain restrictions on the jurisdiction of our district courts. But they are expressly denominated as such—as jurisdictional limits.[40] And they are matters that may be easily assessed at the outset of the litigation, unlike legal preconditions to the issuance of a given form of judicial relief.

¶ 144 It is true that the governmental immunity and administrative exhaustion cases identify “case-specific procedural facts” that have been deemed to go to subject-matter jurisdiction. Supra ¶ 24. But these cases provide no authority to treat any legal precondition to the issuance of a form of judicial relief as subject-matter jurisdictional. Instead these cases fit comfortably within the settled paradigm.

¶ 145 It is also true that we have held that the filing of a notice of claim with the government is a statutory “prerequisite to vesting a district court with subject matter jurisdiction over claims against governmental entities.” Wheeler v. McPherson, 2002 UT 16, ¶ 9, 40 P.3d 632. But that does not at all mean that any statutory prerequisite to a successful tort claim is subject-matter jurisdictional. It means that our law treats the failure to file a notice of claim as a matter rendering the judicial proceeding unripe. This fits comfortably within the traditional notion of justiciability. A failure to file a claim with a non-judicial department of government can be understood to deem the judicial filing premature. And a premature filing can easily be viewed as a categorical defect that goes to subject-matter jurisdiction; it is subjectmatter jurisdictional in that it deems the non-judicial department the appropriate body to resolve the matter, and accordingly holds that the filing in court is premature. That is ultimately what our cases say. See Rushton v. Salt Lake Cty., 1999 UT 36, ¶¶ 18–21, 977 P.2d 1201 (“A notice of claim provides the entity being sued with the factual details of the incident that led to the plaintiff’s claim. Moreover, it ‘provide[s] the governmental entity an opportunity to correct the condition that caused the injury, evaluate the claim, and perhaps settle the matter without the expense of litigation.’” (alteration in original) (quoting Larson v. Park City Mun. Corp., 955 P.2d 343, 345–46 (Utah 1998)). We leave it at that, as doing so avoids the slippery slope introduced by the lead opinion.

¶ 146 The exhaustion cases are similar. They hold that a court lacks subject-matter jurisdiction where a plaintiff has failed to exhaust its avenues for relief in an administrative agency. See Hous. Auth. of Salt Lake v. Snyder, 2002 UT 28, ¶ 11, 44 P.3d 724. But again this is no broad conclusion that all legal preconditions to a successful claim are subjectmatter jurisdictional. It goes to traditional justiciability in the sense of ripeness. So our exhaustion cases similarly identify a categorical defect that goes to subject-matter jurisdiction. They conclude that a nonjudicial entity is the appropriate body to resolve the matter, and that a court lacks jurisdiction because the case belongs in an administrative proceeding and not in court.[41]

¶ 147 We follow these precedents but do not extend them in the manner devised by the lead opinion. Doing so would expand on traditional conceptions of subject-matter jurisdiction in a manner that jeopardizes some central tenets of our justice system.

  1. Systemic Costs and Slippery Slope

¶ 148 The lead opinion’s framework may appear to protect the interests of a sympathetic party. See supra ¶ 1 (expressing concerns about the “septic” nature of this case, infected by a birth mother who “perpetrated a fraud” and deprived a birth father of his chance to intervene to protect his interests). But it would do so at a substantial cost to the coherence of our law and to basic tenets of our judicial system—to the law of subject-matter jurisdiction, to rules of waiver and preservation, and to principles of finality and efficiency embedded deeply in our jurisprudence. Such costs are immediately apparent in

                                                                                                                                                       

administrative exhaustion); Tolman v. Logan City, 2007 UT App 260, ¶ 9, 167 P.3d 489 (“However, an as applied challenge does not become ripe until the challenging party has exhausted its administrative remedies and received a final decision from the relevant administrative agency.”). Our approach, moreover, is consistent with parallel case law in other jurisdictions. See Crow v. Penrose-St. Francis Healthcare Sys., 169 P.3d 158, 161 (Colo. 2007) (“Because the Hospital’s governing board has not rendered a final decision in his matter, Crow has not exhausted his available administrative remedies, and his case is not ripe for judicial review.”); Molo Oil Co. v. City of Dubuque, 692 N.W.2d 686, 693 (Iowa 2005) (“Exhaustion of one’s administrative remedies is a condition precedent to ripeness.”).

We do not mean to suggest that administrative exhaustion is on all fours with the doctrine of ripeness. There are certainly conceptual differences between the two sets of principles. See Ticor Title Ins. Co. v. F.T.C., 814 F.2d 731, 734–35 (D.C. Cir. 1987) (identifying the overlap as well as differences between administrative exhaustion requirements and the doctrine of ripeness). But this is a coherent way to understand administrative exhaustion as subject-matter jurisdictional. And the lead opinion’s contrary view—treating exhaustion as jurisdictional because it is a legal prerequisite to the issuance of relief—would open a perilous slippery slope.

the adoption setting; but the decision proposed in the lead opinion would also reverberate in other fields.

¶ 149 If Justice Himonas’s view prevailed, it would be the judge’s duty (both in the district court and on appeal) to search the record for statutory prerequisites to an adoption that may not have been fulfilled. And whenever such a defect was found, the subject-matter jurisdiction of the adoption court would be in jeopardy. Such jeopardy would last for at least a year beyond the entry of the adoption decree. See supra ¶ 32 n.11. And throughout such proceedings, both in the district court and during any appeal, the parties could expect a more sluggish and less efficient disposition—as judges would be required to make ongoing assessments on issues heretofore left to the adversary system. All interested parties would suffer as a result.

¶ 150 The lead opinion purports to limit its rule to a specific prerequisite to the issuance of an adoption decree—to the validity of the birth mother’s consent. But the logic of its analysis sweeps more broadly. Any and all “case-specific procedural facts” would be eligible for classification as subject-matter jurisdictional. See supra ¶ 24. All that matters under the lead opinion is that the matter in question be an important precondition to the availability of the relief sought by the plaintiff. The possibilities for inclusion are endless.[42] And the timeframe for upsetting a final adoption is potentially unlimited.29

¶ 151 Justice Himonas says that a defect in the mother’s consent deprives the district court of subject-matter jurisdiction because “absent consent,” the court is “without authorization to interfere with the fundamental right that is the parent-child relationship.” Supra ¶ 20. The lead opinion even goes so far as to say that without valid consent “no child has been made available for adoption.” Supra ¶ 27.

¶ 152 But that is an unvarnished judicial fiction. Of course there is a child to be adopted. We call him “B.B.” here to protect his anonymity. But he is a real child with a real interest in these proceedings. And he has been living with his would-be adoptive parents since just after his birth in 2014. Since that time all of these individuals have proceeded in

                                                                                                                                                       

important. And that would leave lower courts without any basis for discerning what other statutory requirements might properly be deemed a matter of equal importance.

The slippery slope problem would remain, moreover, even assuming that “consent” problems are the only “case-specific procedural facts” that would be deemed to go to subject-matter jurisdiction. ICWA prescribes a range of requirements affecting a parent’s consent: that consent be given before a judge, 25 U.S.C. § 1913(a); that the judge engage in an adequate colloquy regarding the parent’s rights, id.; that the colloquy be fully understood, id.; that the judge certify that the colloquy was understood, id.; that the colloquy be interpreted where it might not be understood in English, id.; and that the consent not be improperly prohibited from being withdrawn, id. § 1913(c). And state law of course also regulates consent—by mothers and fathers. See, e.g., UTAH CODE § 78B-6-120; id. § 78B-6-120.1; id. § 78B6-121; id. § 78B-6-125. These and other elements of valid consent would seem to be “case-specific procedural facts” implicating subject-matter jurisdiction under the lead opinion’s theory. The lead opinion would thus invite litigation—and uncertainty and delay—on the question of whether these and other elements of “consent” may be questioned in a manner reopening an adoption that is otherwise final.

29 See supra ¶ 32 n.11 (acknowledging the possibility that the oneyear limitation on challenges to an adoption decree in Utah law, Utah Code section 78B-6-133(7)(b), may not apply in the face of a jurisdictional defect stemming from ICWA, and citing at least one case that supports that conclusion—Hughes v. Aetna Cas. & Sur. Co., 383 P.2d 55, 66 (Or. 1963)).

reliance on the finality of the order terminating the birth mother’s parental rights. They may not yet have an adoption decree. But they have rested easily on the conclusion that the birth mother no longer has a right to interfere with the adoption because her consent was deemed valid, her rights were terminated, and the time for questioning the basis for those decisions has long passed. So the lead opinion may say there is no child to be adopted, but all those who had anything to do with B.B. have long thought otherwise.

¶ 153 What the lead opinion is really saying is that it thinks the validity of a mother’s consent is particularly important. It says as much in asserting that the “requirement of consent is mandatory and jurisdictional because it goes to the soul of the adoption.” Supra ¶ 23. Fair enough. We don’t doubt that a mother’s consent is a crucial step in the proceedings. But subject-matter jurisdiction is different. Our law has long assessed subject-matter jurisdiction at the categorical level— encompassing only statutory limits on the classes of cases to be decided by the court and traditional limits on justiciability. A defect in consent fits in neither category. So if a consent problem is a jurisdictional problem then so are many other legal grounds for challenging the propriety of a district court’s decision. That cannot be—unless we are prepared to abandon the central tenets of finality and adversariness at the heart of our justice system. We are not. And we reject the lead opinion’s view that a defect in consent might deprive our courts of subject-matter jurisdiction over an adoption proceeding.

  1. Jurisdiction Is Proper Under the Lead Opinion’s Theory

¶ 154 If a defect in a birth mother’s consent really deprived the district court of subject-matter jurisdiction, then the proper course would be an order of vacatur and dismissal.[43] Yet the lead opinion would not dismiss the case. It would remand to allow the mother to decide whether to enter a valid consent. See supra ¶ 84 n.32.

¶ 155 That is telling. What it tells us is that even the lead opinion would not ultimately conclude that the district court lacks subjectmatter jurisdiction over any of the issues it undertakes to review— namely the adjudication of C.C.’s consent and the denial of the E.T.’s motion to intervene. Even taking the lead opinion’s view of the cases at face value, there isn’t a single case for the proposition that a district court lacks jurisdiction to decide whether consent was validly given or to determine whether a party claiming an interest in the child may properly intervene in the proceedings. These are pre-adoption issues that, under any view, a district court has power to decide.

¶ 156 The lead opinion tries to split the baby. It concludes that the court has jurisdiction to take “valid consent” but lacks jurisdiction to take “invalid consent.” See supra ¶ 84 n.32. But there is no such thing as a defect in subject-matter jurisdiction that arises only if the court decides an issue one way. What the lead opinion is really trying to do is reopen the merits of the termination order. But the merits of the termination order are foreclosed from our consideration here for all of the reasons set forth in Part I.A above.

¶ 157 We leave the matter there. The contrary path articulated in the lead opinion would upend the settled law of subject-matter jurisdiction in troubling ways. We decline to take that path.

  1. MOTION TO INTERVENE AND FEDERAL PATERNITY STANDARD

¶ 158 The lead opinion’s decision on the merits of E.T.’s motion to intervene is likewise problematic. Here a majority of the court expands the reach of ICWA in a manner that its plain language cannot bear— and that ignores a countervailing purpose that Congress was also balancing in enacting ICWA. I respectfully dissent.

¶ 159 ICWA, like most statutes, is not “aimed at advancing a single objective at the expense of all others.” Myers v. Myers, 2011 UT 65, ¶ 27, 266 P.3d 806. It is a “result of a legislative give-and-take that balances multiple concerns.” Id. A key countervailing purpose at stake under ICWA is the protection of the traditional jurisdiction of state courts over adoption proceedings. See 25 U.S.C. § 1901(5) (noting that states possess “recognized jurisdiction over Indian child custody proceedings”).31 ICWA does not oust the states of that traditional area of their authority. Id. It recognizes it to a large degree—balancing against the interests of the integrity of Indian families the rights of the states to vindicate the important interests protected by their laws of adoption and parental rights.

¶ 160 In other words, ICWA does not create an independent federal adoption regime. Its substantive provisions function only within the context of a state or tribal adoption proceeding. See id. §§ 1911–13. And Congress did not override the traditional jurisdiction inherent in adoption cases. It simply mandated some minimum standards that state adoption schemes must satisfy. See id. § 1902.

¶ 161 This confirms that Congress understood the importance of state law in this field. And it recognized the fundamental nature of the interests protected by such law—including the welfare and best interests of children, which are implicated whenever an adoption

                                                                                                                                                       

31 ICWA admittedly provides for a degree of federal “intervention” into state sovereignty in this field. See supra ¶ 62. But the Act also preserves “traditional” state sovereignty to some degree. That is reflected not only in the text of section 1901(5) but also in other statutory sections that make reference to mechanisms and terms of state law. See 25 U.S.C. § 1912(a) (identifying additional federal standards to apply to “any involuntary proceeding in a State court”); id. § 1913(b) (identifying a right to “withdraw consent to a foster care placement under State law”); id. § 1919(a) (authorizing the establishment of jurisdiction agreements between states and tribes); id. § 1922 (authorizing “emergency removal . . . under applicable State law”). To that extent there is no mistaking the fact that ICWA balances the protection of “the essential tribal relations of Indian people,” see supra ¶ 62, against the “traditional” sovereignty of the states.

I am not advocating that we ignore the former, as the majority suggests. I am just urging that we keep both sets of interests in mind— and that we look to the text of the statute in deciding where Congress has intervened and where it has preserved traditional state sovereignty. Thus, I would give full effect to ICWA’s text where the statute identifies unique federal standards. But I would not go beyond the text of the statute to displace state law where Congress has not spoken.

 

 

proceeding is underway. Thus, ICWA does not guarantee an unfettered right of members of Indian tribes to intervene in or object to an adoption in any circumstance or at any time. It sets forth specific, limited rights of tribal members.

¶ 162 The provision at issue here is along these lines. It does not guarantee a right to notice and intervention to any tribal member with a claimed interest in a child in an adoption proceeding. It limits that right to a “parent.” 25 U.S.C. § 1912(a). And ICWA defines “parent” in a careful, limited way. It states that a “parent” is “any biological parent or parents of an Indian child,” not including “the unwed father where paternity has not been acknowledged or established.” Id. § 1903(9).

¶ 163 To me this is an obvious invocation of state law. I say obvious because paternity has never been a creature of federal law. It has always been a matter within the exclusive sovereignty of the states. The longstanding rule in Utah and elsewhere is that an unwed father’s legal rights as a father—his “paternity”—is established by the law of the state in which his putative child’s adoption goes forward. See generally In re Adoption of Baby B., 2012 UT 35, 308 P.3d 382; see also HOMER H.

CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES, 309 (2d ed. 1972). Admittedly, there are constitutional limitations on this general rule—circumstances in which the state law of paternity must give way to federal constitutional limitations (such as due process). See, e.g., Stanley v. Illinois, 405 U.S. 645, 649–58 (1972) (holding that “a presumption that distinguishes and burdens [only] all unwed fathers” was unconstitutional). But no one has suggested that any such limitation would apply here. So the obvious place to look to decide whether E.T. has “acknowledged” or “established” his “paternity” is Utah law.

¶ 164 I would decide this case on that basis. I would conclude, as have other courts confronting this question,[44] that an Indian parent has a right to notice and intervention under 25 U.S.C. section 1912(a) only if his paternity has been “acknowledged or established” as a matter of state law (or perhaps tribal law). And I would affirm the district court’s decision here because it was properly based on the Utah standard.

¶ 165 The majority’s contrary conclusions cannot stand. The statutory text undermines the majority’s approach. And Congress’s legislative purpose, as interpreted in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), cannot properly be construed to support the court’s conclusions. Holyfield is easily distinguishable, as it involved a statutory term (domicile) of “generally uncontroverted” meaning. Id. at 48.

¶ 166 That cannot be said of the notion of the acknowledgement or establishment of paternity. These are terms that impose varying standards throughout the fifty states (and the laws of Indian nations). We cannot possibly interpret this language of ICWA to prescribe a uniform federal standard. The only way to achieve uniformity would be to legislate a specific, binding federal standard. Yet even the majority declines to do that. It just says it thinks that a reasonability standard would work the best.33 And it provides no analysis under that standard

                                                                                                                                                      

paternity, courts have resolved the issue under state law.”); In re Adoption of a Child of Indian Heritage, 543 A.2d 925, 935 (N.J. 1988) (“We conclude, therefore, that Congress intended to defer to state or tribal law standards for establishing paternity, so long as these approaches are permissible variations on the methods of acknowledging and establishing paternity within the general contemplation of Congress when it passed the ICWA. . . .”); In re Adoption of Baby Girl B., 67 P.3d 359, 367 (Okla. Civ. App. 2003) (relying on state law but warning that its application cannot frustrate the purpose of ICWA).

33 The majority seeks support for its approach in a supposed “canon of interpretation” presuming a “reasonability” standard in the face of statutory silence “as to the time or manner of a subject.” Supra ¶ 71. And it claims that such a canon is “consistent with ICWA case law.” Supra ¶ 71. I’m unsure of the basis or applicability of this supposed “canon” as a general matter. But whatever its merits in other settings, it is not consistent with the ICWA cases cited by the majority. Neither the Arizona Court of Appeals nor the Alaska Supreme Court adopted a federal reasonability standard for acknowledging or establishing paternity. To the contrary, both courts held that the undefined terms other than to say that E.T. has acknowledged or established paternity under any possible standard.

¶ 167 To me that suggests that we are not really interpreting the terms of the governing federal statute. If we are unable to state a meaningful legal standard, we are not really judging in accordance with a rule of law. We are only picking a winner in litigation. I cannot agree with this decision. And I respectfully disagree with the majority’s analysis for these reasons, which I explain in more detail below.

  1. ICWA Invokes State Law

¶ 168 The starting place for our analysis should be the statutory text. And that text strongly signals the congressional adoption of a state standard of paternity. It does so by employing legal terms of art with settled meaning in family law.

¶ 169 A person cannot qualify as a parent under ICWA if he is an “unwed father” whose “paternity has not been acknowledged or established.” 25 U.S.C. § 1903(9). Four elements of this phrasing cut against the majority’s conclusion that ICWA directs state courts to establish a uniform federal standard of paternity.

¶ 170 First, the words acknowledgement and establishment of paternity are long-established terms of art in state family law. All fifty states prescribe their own standards and procedures for acknowledging or establishing paternity.34 But the phrases employed in ICWA encompass

                                                                                                                                                      

invoked state law. Jared P., 209 P.3d at 161 (”ICWA does not, however, define how paternity can be acknowledged or otherwise detail any procedure to establish paternity. Consequently, we look to state law to determine whether paternity has been acknowledged or established.” (emphasis added)); Bruce L. v. W.E., 247 P.3d 966, 978 (Alaska 2011) (following courts that “have looked to state law . . . to determine whether paternity has been acknowledged or established under ICWA.”).

Granted, both the Arizona and Alaska courts concluded that the putative father did not have to perfectly comply with applicable state law in some circumstances. But that is a far cry from the adoption of a uniform federal reasonability standard.

  • “All states have programs under which birthing hospitals give unmarried parents of a newborn the opportunity to acknowledge the concepts that most all states share in common: (a) the notion of an acknowledgement of paternity, which generally refers to a writing by a father (with or without a requirement of consent by the mother), where the writing itself has the legal effect of sustaining a father’s parental rights to some degree;35 and (b) the concept of an establishment of

                                                                                                                                                       

father’s paternity of the child. States must also help parents acknowledge paternity up until the child’s eighteenth birthday through vital records offices or other offices designated by the state. Paternity can also be established at a court or administrative hearing or by default if the man was served notice of a paternity hearing but did not appear.”

DEPARTMENT OF HEALTH AND HUMAN SERVICES ADMINISTRATION FOR

CHILDREN AND FAMILIES OFFICE OF CHILD SUPPORT ENFORCEMENT, HANDBOOK ON CHILD SUPPORT ENFORCEMENT 14 (2008) (emphasis added).

  • Even in 1978, when ICWA was enacted, “acknowledge” was a term of art that indicated a specific process under state law—though varying from state to state. No later than 1921, there was already debate about what steps an unwed father should be required to take to legally “acknowledge” paternity. WALTER TIFFANY, HANDBOOK ON THE LAW OF PERSONS AND DOMESTIC RELATIONS 302–03 (Roger W. Cooley ed., 3d ed. 1921) (“The courts are not in agreement as to what constitutes a sufficient acknowledgment of the child to legitimate it. In a few instances it has been held that the acknowledgment must be by an instrument executed for the express purpose, but the better rule seems to be that the writing need not be made for the express purpose of acknowledging the child, but that the acknowledgment is sufficient if made in any written instrument, collateral or otherwise.”). In the 1970s there was still “great variety in the methods prescribed [by the states] for making the acknowledgment.” HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 173 (1987). “In some states,” the acknowledgement had to be “in writing and witnessed, in others it [had to] be executed before a notary or other officer, in others it [had to] be merely in writing, in others it [had to] be ‘general and notorious’ and in still others no formalities whatever [were] required.” Id. In an effort to eliminate the inconsistency that stemmed from states’ exclusive jurisdiction to prescribe the acknowledgement process, the National Conference of Commissioners on Uniform State Laws published the Uniform Parentage Act of 1973. Pursuant to the Act, an unwed father

 

paternity, which is initiated by a court filing and culminates in the issuance of a judicial order (sometimes contested but not necessarily) establishing the father’s parental rights and obligations.36 Surely it was no accident that Congress utilized terms with accepted meaning in state family law. And because it did, we should presume that ICWA embraced the principles embedded in these state law terms.

¶ 171 Second, the statute speaks in the past tense. It forecloses the right to notice and intervention for unwed fathers whose paternity “has not been acknowledged or established.” 25 U.S.C. § 1903(9). This backward-looking phrasing further underscores the state term-of-art premise of the ICWA definition. Congress made the putative father’s right to notice and intervention dependent on what had been acknowledged or established—past tense. And there is not and never has been any way for a father to “acknowledge” or “establish” his parental rights as a matter of federal law. There is no such thing as federal family law (see more on that below). And for that reason it would be very odd for Congress to be speaking of a federal

                                                                                                                                                       

could acknowledge paternity “in a writing filed with the appropriate court or Vital Statistics Bureau” if the mother “does not dispute the acknowledgment within a reasonable time after being informed thereof.” UNIF. ACT ON PARENTAGE § 4 (NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 1973). As of 2000, nineteen states had enacted the Uniform Parentage Act in its entirety and many others had enacted “significant portions of it.” Prefatory Note to UNIF. PARENTAGE ACT

(NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 2002). But there is still no national, uniform standard. This is purely a matter of state law, and the standards vary widely across the fifty states.

  • Even prior to ICWA, “statutes ha[d] been enacted in most if not all jurisdictions creating judicial proceedings to establish the paternity of an illegitimate child. . . .” 59 A.L.R. 3d 685 (1974) (emphasis added); see also 14 C.J.S. Children Out-of-Wedlock 111 (describing the different burdens of proof in suits to establish paternity); UNIF. ACT ON PARENTAGE §§ 3, 6 (NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 1973) (authorizing a “natural father” to establish his paternity through court action).

acknowledgement or establishment of paternity as a prerequisite to a right to notice and intervention.37

¶ 172 Third, the statutory duty to provide notice to those whose paternity has been acknowledged or established indicates that these are established, formal mechanisms. A family who wishes to adopt a child of Indian heritage has a statutory duty to provide notice to any parent. But if parent includes anyone who has vaguely acknowledged paternity in some informal way, the adopting family will have no way to know how to fulfill its obligations under ICWA. And an Indian mother would have no way of assuring that her child will actually be given to the adoptive couple, even after her own parental rights have been terminated. That is a further strike against the majority’s construction.

Surely Congress didn’t mean to require biological mothers and

                                                                                                                                                      

  • The majority appears to ignore this point in its reasonableness analysis. Rather than focusing exclusively on E.T.’s actions prior to the termination order, it spends significant time on the actions E.T. took after the termination order. But E.T. could not possibly have been entitled to notice and intervention at the time the proceeding began—or even at the time of his motion to intervene—based on actions he took after that time.

I am also skeptical that the actions he took prior to the custody proceedings satisfied even the majority’s reasonability standard for acknowledging paternity. My skepticism stems not from any “socioeconomic [or] cultural assumptions,” supra ¶ 75 n.29, but from the inherent difficulty of administering a “reasonability” standard that credits purely private conduct. The relevant “actions” boil down to E.T. providing for C.C. for the first six months of pregnancy and believing that C.C. would come back to South Dakota or that he would join C.C. in Utah after the baby was born. If this amounts to a reasonable acknowledgment of paternity, almost anything will. After all, E.T. appears to have provided for C.C. even before the child was conceived, and he does not assert that he articulated or documented his beliefs regarding future plans before the custody proceedings were initiated. Under those circumstances I cannot see how the adoptive parents or the district court would have any way of knowing that E.T. had an interest in the child—or of providing E.T. notice at the time the adoption petition was filed. And this only exacerbates the practical problems of the majority’s standard.

adoptive families to give notice to persons whose acknowledgement of paternity was so vague and informal that they cannot reasonably be identified. And the majority’s decision to require this only enhances the practical concerns identified above. See supra ¶¶ 111–15.

¶ 173 A fourth and related point builds on a series of established canons or norms of statutory construction in this field. When Congress passed ICWA, it was surely aware that (a) “[t]he whole subject of the domestic relations of husband and wife, parent and child” has long been understood to “belong[] to the laws of the states, and not to the laws of the United States,” Ex parte Burrus, 136 U.S. 586, 593–94 (1890);[45] (b) state courts have “virtually exclusive primacy” in the area of family law, while “federal courts, as a general rule, do not adjudicate issues of” family law “even when there might otherwise be a basis for federal jurisdiction,” United States v. Windsor, 133 S. Ct. 2675, 2691 (2013); and (c) for these and other reasons, family law terms in federal statutes are ordinarily deemed to be “determined by state, rather than federal law,” De Sylva v. Ballentine, 351 U.S. 570, 580 (1956).

¶ 174 These principles lend a heavy dose of skepticism to the view that Congress intended to delegate to state courts the power to prescribe a set of uniform federal standards of paternity. That would be an extraordinary delegation of federal policymaking power. To me it’s unimaginable that Congress would have meant to delegate that power to a judicial branch of another sovereign—fifty sovereigns, really—in a field traditionally left to that sovereign’s sole authority.[46]

¶ 175 The exercise of this power is a matter of legislative policymaking. There is no “right” answer to the question of what it takes for an unwed father to acknowledge or establish paternity. So to make law on the appropriate standards, we would have to step into the role long held by our legislature. I have no idea how to do that. (Should we hold legislative hearings the way the legislature does when it adopts or amends laws in this field?) And I am certain Congress didn’t mean for the Utah Supreme Court to have the final say on the matter. We are one of fifty state courts of last resort. So to interpret ICWA to give this body the power to decide on an ideal standard for the acknowledgement or establishment of paternity is to assure a lack of a uniform standard. That cannot be what Congress had in mind—even under the majority’s strong purposivist view of ICWA. See supra ¶ 69 (concluding that Congress’s purpose of assuring uniformity sustains the conclusion that this court should prescribe a federal standard of acknowledging or establishing paternity).

¶ 176 This is a strong indication that we are treading into a domain not meant for us under the terms of the governing statute. “When presented with alternative interpretations of a statutory scheme, we should choose the one that involves the judiciary least in the enterprise of legislative policymaking.” State v. Parduhn, 2011 UT 55, ¶ 72, 283 P.3d 488 (Lee, J., dissenting). Courts should not go looking for opportunities to “become a policymaker instead of an interpreter.” Id. “We should presume that the legislature intended to preserve the respective legislative and judicial roles, with the legislature making policy and the courts construing and applying that policy to cases that come before them.” Id. “If one of two interpretations of a statute

                                                                                                                                                       

that “bear no relation” to the governing terms of the law. Id. For that reason the majority’s Fourth Amendment example is beside the point. See supra ¶ 71 n.27. The text of the Fourth Amendment is framed in terms of “unreasonable searches and seizures.” U.S. CONST. amend. IV. So of course the Fourth Amendment test is framed as an inquiry into “reasonableness.” See supra ¶ 71 n.27. But that tells us nothing of relevance to the proper test under ICWA.

conflates those roles, it should accordingly be rejected as contrary to legislative intent.” Id.[47]

¶ 177 This should be doubly true in a case, like this one, where the statute we interpret is a federal law addressing a domain long governed exclusively by state law. I see no room for the conclusion that Congress meant for this court to put our policymaker hats on and decide on the best standard for the acknowledgement or establishment of paternity. Surely it’s more likely that its use of settled terms of state law was a signal that Congress was asking us to apply established state law.

  1. Response to Majority

¶ 178 The majority finds it “obvious that the plain language” of ICWA does not dictate the application of state law standards of paternity. Supra ¶ 50. It bases that conclusion on its sense of Congress’s “purpose” in enacting ICWA, and on analysis in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), that it views as supportive of its holding. And it claims that my approach violates the traditional meaning of the phrase “term of art.” I find none of these points persuasive.

¶ 179 First, the purported “purpose” of ICWA cannot override the terms of the statute. ICWA, as noted, balances multiple purposes. And we overstep our bounds if we fail to credit the compromised balance of those purposes reflected in the statutory text. Myers v. Myers, 2011 UT 65, ¶ 27, 266 P.3d 806; Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 23 n.6, 248 P.3d 465.

¶ 180 As noted above, ICWA, at a minimum, is also aimed at preserving the sovereignty of the state courts over adoption and paternity—and in protecting the children whose interests are so keenly implicated in adoption proceedings. Thus, it is entirely correct to say that ICWA was aimed at protecting the integrity of Indian families. But because the statutory purpose was not to advance that purpose at all costs, our inquiry cannot end at that high level of generality. We must consider how Congress struck the balance at the specific level of the terms of the statute.[48]

¶ 181 The Holyfield opinion is not to the contrary. Nor does it support the majority’s holding in this case. In Holyfield, the court interpreted a provision in ICWA granting tribal courts the exclusive jurisdiction over custody proceedings involving an Indian child “who resides or is domiciled within” a tribe’s reservation. 490 U.S. at 36 (quoting 25 U.S.C. § 1911(a)). And, as the majority here indicates, the Holyfield court interpreted the term “domicile” to prescribe a federal standard. Id. at 43–47. In so concluding, moreover, the Holyfield court stated a “general assumption that ‘in the absence of a plain indication to the contrary, . . . Congress when it enacts a statute is not making the application of the federal act dependent on state law.’” Id. at 43

(alteration in original) (quoting Jerome v. United States, 318 U.S. 101, 104 (1943)).

¶ 182 Yet Holyfield announces no hard and fast rule. Indeed it acknowledges that “Congress sometimes intends that a statutory term be given content by the application of state law.” Id. And the grounds for the court’s holding in Holyfield simply do not apply here. Holyfield is distinguishable.

¶ 183 Holyfield does not conclude that ICWA’s purpose of protecting Indian families mandates a uniform federal standard for all terms in the statute. It acknowledges the contrary. Id. And it begins its analysis with “‘the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.’” Id. at 47 (quoting Richards v. United States, 369 U.S. 1, 9 (1962)). Thus, the core holding in Holyfield is different from the one described by the majority in this case. Holyfield is based on the statutory text. And it holds that “domicile” is a statement of a uniform standard not because ICWA’s broad purpose demands uniformity in all cases, but because “‘[d]omicile’ is . . . a concept widely used in both federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is generally uncontroverted.” Id. at 48 (emphasis added). And the uncontroverted meaning includes the standards for demonstrating domicile that are almost universally accepted among federal and state jurisdictions. See id.

¶ 184 Thus, the Holyfield opinion is quite different from the majority opinion in this case. The Holyfield court did not construct its own preferred standard of domicile—a standard informed only by a vague sense that Congress must have meant to provide “less exacting” requirements for Indian parents than the laws of many states. Supra ¶ 71. The Holyfield analysis is textual. It is rooted in the “generally accepted meaning of the term ‘domicile.’” Holyfield, 490 U.S. at 47.

¶ 185 As noted above, there is no such thing as a “generally accepted meaning” of acknowledging or establishing paternity in the sense discussed in Holyfield. As a product of our federalism, the fifty states have adopted a range of procedures and standards for the acknowledgement or establishment of paternity.[49] This could not have been a surprise for the Congress that enacted ICWA.

¶ 186 The majority takes issue with this analysis. It claims that I am relying on “an erroneous view of the definition of a term of art.” Supra ¶ 55. Thus, the majority insists that a term of art must have a single “core meaning.” Supra ¶ 56. And the majority rejects my approach on the ground that the state-by-state definitions of acknowledge and establish “do not share a common core.” Supra ¶ 56. From that premise, the majority proceeds to the conclusion that the words acknowledgement and establishment of paternity are ordinary (not legal) terms as used in ICWA. Supra ¶ 58. And the court cites a few cases that purportedly support this conclusion. Supra ¶ 58.[50]

¶ 187 None of this adds up in my view. The court’s starting premise is overbroad; it misses the obvious implications of our American federalism. The law of paternity is like many other pockets of state law, with substantial variation from state to state. State law varies widely on a wide range of questions, such as negligence, strict liability, breach of contract, divorce, child custody, and intestate succession. But a federal statute invoking legal terminology from one of these fields would not properly be understood as using the words of the law in an ordinary (non-legal) sense just because there are legal variations from state to state.[51]

¶ 188 The terms in question here—acknowledgement and establishment of paternity—moreover, are legal terms with a common “core meaning.” At the heart of every state’s standards for acknowledgement of paternity is the question whether the purported parents have shown that they accept responsibility for the child.

read extratextual requirements into undefined terms. See State v. Wolfe, 239 A.2d 509, 512 (Conn. 1968); Carpenter v. Hawley, 281 S.E.2d 783, 786 (N.C. Ct. App. 1981). The other two cases are even less helpful to the majority’s cause. One was decided long before state paternity schemes were fleshed out, see Blythe v. Ayres, 31 P. 915, 922 (Cal. 1892), and the other is not a custody proceeding at all. See Estate of Griswold, 24 P.3d 1191, 1194–95 (Cal. 2001) (determining whether a father’s admission of paternity in a “bastardy proceeding” was sufficient to acknowledge paternity under a different state’s probate code). In any event, none of the cases interpret a federal statute. So none of them supports the majority’s conclusion that terms utilized by every state’s adoption scheme must be given an independent, ordinary (non-legal) meaning under a federal statute regulating those schemes.

Acknowledge, BLACK’S LAW DICTIONARY (9th ed. 2009) (defining “acknowledge” as “[t]o show that one accepts responsibility for <acknowledge paternity of the child>”). Establishment of paternity also has a core meaning. This is the legal notion that the purported parents “settle, make, or fix firmly” that they are the true parents of the child. Establish, BLACK’S LAW DICTIONARY (9th ed. 2009).45 There are variations across the fifty states as to the procedure or standards for acknowledging or establishing paternity. But those variations stem from each state’s policy preferences and prerogatives. They do not undefine these legal terms of art.

¶ 189 If a statute speaks the language of the law, then we interpret that term in accordance with established legal conventions. This is a settled tenet of the law of interpretation.[52] And that tenet does not change just because we find a lack of a single, clear meaning of the legal term in question.[53]

45 See also 14 C.J.S. Children Out-of-Wedlock § 111 (describing the different burdens of proof in suits to establish paternity); UNIF. ACT ON PARENTAGE §§ 3, 6 (1973) (authorizing a “natural father” to establish his paternity through court action).

¶ 190 Where a legal term is employed, we can understand the term only by reference to the norms and conventions of that language. The language of the law is like a distinct dialect.48 And we will misunderstand the dialect if we ignore its norms and conventions.

¶ 191 Granted, it is possible to speak of acknowledging or establishing paternity without reference to the law. But a statutory reference to these established legal terms should be viewed against the backdrop of the law. And we will misunderstand or misuse the terminology if we ignore its legal context.[54] The majority commits this fatal error in its approach.

¶ 192 In my view it is beside the point that “Utah law requires the birth mother’s signature in addition to the unmarried biological father’s signature” as a condition of an acknowledgement “through a declaration of paternity.” Supra ¶ 67. Surely that does not mean that “the unmarried biological father’s option to acknowledge paternity is . . . read out of ICWA.”[55] Supra ¶ 67. It simply means that E.T. failed to

48 See Michael B. Rappaport & John O. McGinnis, The Constitution and the Language of the Law (San Diego Legal Studies Paper No. 17-262, 2017), https://ssrn.com/abstract=2928936.

secure his paternity through an acknowledgement under Utah law. ICWA’s bare reference to acknowledgement or establishment of paternity cannot properly be read as a guarantee that a given putative father will qualify under either. It is simply an indication that either means of securing rights of paternity in a given state’s law will suffice as a matter of federal Indian law. And certainly E.T. could have secured his paternity rights under Utah law; he simply failed to do so in any of the means required by our law.

¶ 193 There is likewise nothing “anomalous” about the notion that “an unmarried biological Indian father’s status as a parent under ICWA” depends on his compliance with the laws of the state where the child is born. Supra ¶ 69. That is not some unforeseen oddity of my reading of ICWA; it is an inherent feature of our longstanding system of federalism that was well-known to Congress—a system in which parental rights are a creature of state law, and thus may be established under the various laws of the fifty states.

¶ 194 The alternative, moreover, is a make-it-up-as-we-go standard—a standard without any real content, except the notion that a biological father must meet an undefined “reasonability standard” that is “less exacting” than the requirements of Utah law. Supra ¶ 71. That seems close to an admission that the court has no standard. And the lack of a standard assures that the majority cannot ultimately live up to its premises.

¶ 195 Instead the majority offers only a bare holding—that E.T.’s “actions satisfied the requirements for acknowledging paternity under ICWA using a reasonability standard.” Supra ¶ 74. And the court simply lists the facts it deems sufficient under the circumstances of this case. That is a further admission that we are not stating a legal standard but only a disposition of this case.

¶ 196 Perhaps that’s understandable. The logic of the court’s opinion, after all, is one that can lead only to the conclusion that any bare “acknowledgement” of paternity, however minimal, must suffice as a matter of federal Indian law. To support its holding, the majority points to hurdles set by Utah law that E.T. has not satisfied. See supra ¶ 67. And it concludes that Utah law is too “exacting.” Supra ¶ 71.

                                                                                                                                                       

of ICWA.” It says only that E.T. cannot secure his rights through such a filing.

Thus, it is unacceptable, in the court’s view, to allow “state law to determine who is a parent under ICWA” because that “would, in some cases, provide a lower level of protection of parental rights than ICWA intends.” Supra ¶ 67. With this in mind, the court sets forth a vague reasonability standard that purports to be more protective “of parental rights pertaining to Indian children.” Supra ¶ 71.

¶ 197 But why stop there? The logic of the court’s opinion will lead inevitably to the most minimally “exacting” acknowledgement of paternity imaginable. Anything less, after all, could sustain the same conclusion reached in this case—that ICWA’s purpose is to protect the rights of Indian tribal members, and that allowing state law (or any law except a minimalist acknowledgement) “to determine who is a parent under ICWA would . . . provide a lower level of protection of parental rights than ICWA intends.”[56] Supra ¶ 67.

¶ 198 The majority apparently perceives the problem with that approach. If any bare acknowledgement by a putative father will do, then the statutory definition will be eviscerated: All unwed putative fathers will become entitled to notice and a right to intervene because any father can plausibly say he made a bare acknowledgement of paternity at some point. And that cannot be. See VCS, Inc. v. Utah Cmty. Bank, 2012 UT 89, ¶ 18, 293 P.3d 290 (noting that an interpretation that would “swallow” statutory language “runs afoul of the settled canon of preserving independent meaning for all statutory provisions”).

¶ 199 Presumably that is why the court stops short of stating a meaningful standard. Perhaps it acknowledges that we cannot defensibly pick a paternity standard out of the air. But unless we are willing to set the bar at the lowest imaginable level, the logic of the court’s opinion will always call for us to set it lower; otherwise we will have a standard that is too “exacting” to satisfy the purpose of ICWA. So the court, naturally, is left to state no meaningful standard at all.

¶ 200 And that is also untenable—and completely at odds with the core premise of the court’s opinion. The majority’s premise is that Congress could not have intended a state-law-based notion of acknowledgement or establishment of paternity because it intended a nationwide uniform standard. See supra ¶ 71. Yet the court’s holding assures the exact opposite. This court today says that Utah law has set the paternity bar too high. But absent any meaningful legal standard, our opinion today assures a complete lack of uniformity. If today’s opinion takes hold in other states, it will guarantee chaos and unpredictability—not uniformity. It will invite each court faced with the paternity question to offer its own subjective assessment of what is a “reasonable” acknowledgment of paternity and whether the state or tribal paternity laws in question are too “exacting.” Supra ¶ 71.

¶ 201 The majority’s approach may also produce devastating unintended consequences. By recognizing an unwed father’s right to notice and intervention upon a vague, informal “acknowledgement” of paternity, and ignoring the backward-looking requirement of paternity that “has . . . been acknowledged,” the court opens the door to the possibility that a putative Indian father will come forward months or even years later and assert a right to disrupt even a finalized adoption. If and when this eventuality arises, perhaps the courts will find a “reasonability” time bar or estoppel basis to avoid this disruption. But I see no basis for it on the face of ICWA. So as the law stands there is no assurance that an adoption of an Indian child will ever be truly final. The court’s approach leaves open the possibility of disruption of any adoption of an Indian child whose biological father might one day claim to have “acknowledged” his paternity.

¶ 202 This cannot be what Congress had in mind when it limited the rights of notice and intervention to unwed fathers who have had their paternity acknowledged or established. Surely Congress meant for courts to apply a fixed legal standard. And because ICWA uses settled terms of art from family law, I would interpret it to incorporate state (and tribal) law on this question. I would accordingly affirm the district court’s denial of E.T.’s motion to dismiss.

III. CONCLUSION

¶ 203 For reasons stated in Part I of this opinion a majority of the court finds no defect in subject-matter jurisdiction. A different majority nonetheless reverses the denial of the motion to intervene. I dissent from that decision for reasons set forth in Part II of my opinion. I would also affirm the district court’s denial of E.T.’s motion to dismiss and remand for finalization of the adoption.

 

 

[1] I refer to E.T., the unmarried biological father, as “Birth Father,” C.C., the unmarried biological mother, as “Birth Mother,” and B.B. as the “Child.”

[2] In its decision, the district court listed facts that “the Court from a careful review of the parties’ submissions believe[d] . . . to be undisputed, and [did] not by th[e] factual recitation intend to resolve disputed factual issues, if any.” We mirror the district court in this regard, reciting facts from the record that appear largely undisputed.

[3] There are exceptions to the requirement of parental consent where, for example, abuse, neglect, or other “parental unfitness” is at issue. See Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 202–03 (Utah 1984), abrogated on other grounds by In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009 (“Constitutionally protected parental rights can be . . . [voluntarily] surrendered pursuant to statute. . . . Parental rights can also be terminated through parental unfitness or substantial neglect.”); In re J.P., 648 P.2d 1364, 1375 (Utah 1982) (“[A]ll unwed mothers are entitled to a showing of unfitness before being involuntarily deprived of their parental rights.”). Neither party argues that those exceptions apply in this case, so I focus only on the lack of consent.

[4] We have also consistently regarded our appellate deadlines as jurisdictional, even though our rules of appellate procedure do not explicitly contain a jurisdictional statement. See, e.g., Union Pac. R.R. Co.

  1. Utah State Tax Comm’n, 2000 UT 40, ¶ 25, 999 P.2d 17 (“UPRR’s petitions for judicial review in both this court and the district court were filed late, thus depriving both courts of jurisdiction.”); Johnson v. Office of Prof’l Conduct, 2017 UT 7, ¶ 10, 391 P.3d 208 (holding that “we lack jurisdiction to hear the merits of [the] appeal” where appellant’s petition was outside of the Utah Rules of Appellate Procedure’s thirty-

(cont.)

[5] The majority is correct that Governmental Immunity Act cases and administrative exhaustion cases involve ripeness, which “fits comfortably within the traditional notion of justiciability.” Infra ¶ 145. I agree that ripeness is an appropriate jurisdictional issue, and it applies directly to this case because until parental consent is obtained, the adoption case is unripe. See infra ¶ 27.

[6] The majority also laments that recognizing the subject matter jurisdictional nature of consent in an adoption proceeding will mean that district courts will be forced to carefully review adoption proceedings to ensure that they are error-free. Infra ¶ 149. I cannot conceive of how this is a problem. We have encouraged, and continue to encourage, district courts to tread carefully “in this highly sensitive area of child adoption.” In re Adoption of W.A.T., 808 P.2d 1083, 1085 (Utah 1991). This is particularly important in the ICWA context, where state courts’ being too quick to remove Indian children from their families “is precisely one of the evils at which the ICWA was aimed.” In re Adoption of Halloway, 732 P.2d 962, 969 (Utah 1986); see also 25 U.S.C. § 1901(4)–(5) (“Congress finds . . . that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in nonIndian foster and adoptive homes and institutions; and . . . that the States, exercising their recognized jurisdiction over Indian child

[7] UTAH CODE § 78B-6-102(1) (“It is the intent and desire of the Legislature that in every adoption the best interest of the child should govern and be of foremost concern in the court’s determination.”).

[8] ALASKA STAT. § 25.23.005 (The adoption “chapter shall be liberally construed to the end that the best interests of adopted children are promoted.”).

[9] S.C. CODE § 63-9-20 (“[W]hen the interests of a child and an adult are in conflict, the conflict must be resolved in favor of the child.”).

[10] OKLA. STAT. tit. 10, § 7501-1.2(A)(1) (stating that one purpose of the Oklahoma Adoption Code is to “[e]nsure and promote the best interests of the child in adoptions”).

[11] The majority takes the position that the action is merely voidable because the phrase “may petition” in section 1914 “suggests that unless a party affirmatively challenges a proceeding’s compliance with ICWA section 1913, the consent and resulting termination order are valid.” Infra ¶ 117. I reject this attempt to pit sections 1914 and 1913’s protections against each other. Section 1914 is a mechanism for bringing voidness to the attention of a court; it does not negate section 1913’s language about untimely consent “not be[ing] valid.” The majority’s contrary interpretation contravenes our principle of interpreting statutes “in harmony with other provisions in the same statute and with other statutes under the same and related chapters.” Sill v. Hart, 2007 UT 45, ¶ 7, 162 P.3d 1099 (citation omitted).

[12] Section 1914 reads in full:

Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from

(cont.)

[13] This underscores why acknowledgement or establishment of paternity is not, as the dissent contends, like a declaration of bankruptcy. Infra ¶ 191 n.49. Declaring bankruptcy—as a legal term of art—certainly has different effects than “just say[ing] the word bankruptcy.” Infra ¶ 191 n.49. But the dissent ignores that the steps one must take to declare bankruptcy and the legal effects it has are the same in all fifty states. But that is far from the case for acknowledging and establishing paternity.

[14] This is not to say that Utah’s standards for acknowledging paternity are unreasonable. Rather, we point out the strict nature of

(cont.)

[15] Coulter & Smith, Ltd. v. Russell, 966 P.2d 852, 858 (Utah 1998) (“[I]f a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances.”); see Laurelle v. Bush, 119 P. 953, 956 (Cal. Dist. Ct. App. 1911) (“It is a wellrecognized rule of statutory construction that a general grant of power, unaccompanied by specific directions as to the manner in which the power is to be exercised, implies the right and duty to adopt and employ such means and methods as may be reasonably necessary to a proper exercise of the power” in the context of granting a permit for a license.); Spiegelberg v. Gomez, 379 N.E.2d 1135, 1136 (N.Y. 1978) (implying a reasonableness condition on time before city may raise the rent on property it acquires); Lance Int’l, Inc. v. First Nat’l City Bank, 927 N.Y.S.2d 56, 58 (App. Div. 2011) (implying a reasonable period of time for winding up a dissolved corporation’s affairs when statute is silent on time periods); Jonathan Neil Corp. v. State Liquor Auth., 491 N.Y.S.2d 632, 633 (App. Div. 1985) (using a “reasonable time” standard for how long a party should keep records on its premises “[i]n

[16] The dissent’s arguments about a standard of reasonableness seem to stem not from a belief that ICWA could not have intended a reasonableness standard but from discomfort with any reasonableness standard. See infra ¶ 172 (equating “reasonably” with “vaguely”). We find it hard to believe that a state court would be baffled by application of a reasonableness standard in the federal context and would feel the need to resort to legislative-like hearings, see infra ¶ 175, given that we frequently are called upon to apply a federal standard of reasonableness in other contexts, such as interpreting the Fourth Amendment of the U.S. Constitution. State v. Maxwell, 2011 UT 81, ¶ 14, 275 P.3d 220 (discussing “reasonableness” in Fourth Amendment context); State v. Simons, 2013 UT 3, ¶ 40, 296 P.3d 721 (Lee, J., concurring) (noting that “the touchstone under the Fourth Amendment is reasonableness, and that standard affords flexibility”). And although states may differ in their interpretation of “reasonableness,” see generally State v. Martinez, 2017 UT 43, ¶ 18, __ P.3d __ (rejecting New Mexico Court of Appeals’ holding on “reasonable Fourth Amendment privacy considerations of passengers” (citation omitted)), the country

[17] The dissent’s skepticism that “the actions [Birth Father] took prior to the custody proceedings satisfied” a reasonability standard, infra ¶ 171 n.37, echoes socioeconomic and cultural assumptions that ICWA itself aims to uproot. See 25 U.S.C. § 1901(5) (stating “that the States . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families”); H.R. REP. No. 95-1386, at 10 (1978) (discussing how “many social workers [are] ignorant of Indian cultural values and social norms” and therefore “make decisions that are wholly inappropriate in the context of Indian family life”).

[18] Under ICWA, “legal custody” is defined by reference to tribal or state law. See 25 U.S.C. § 1903(6) (defining “Indian custodian” as “any Indian person who has legal custody of an Indian child under tribal law or custom or under State law”); Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38,792 (stating that a parent may have legal custody “under any applicable Tribal law or Tribal custom or State law”).

[19] We see important parallels between the rise and fall of the “existing Indian family” doctrine and the case before us today. In the

[20] Because I believe that Birth Mother’s consent was invalid, I would hold that this should result in a remand for a lack of subject matter jurisdiction. I reject the majority’s notion that a lack of subject matter jurisdiction would bind the court to an order of vacatur and dismissal.

[21] Regardless of whether the proceedings are voluntary, because Birth Father is a parent for purposes of ICWA, see supra ¶¶ 74–77, he was “entitled to the protections under [25 U.S.C. sections] 1912(d) and (f) and other applicable provisions.” Bruce L. v. W.E., 247 P.3d 966, 979 (Alaska 2011). But nothing in the record indicates that Birth Father was provided with, for example, any “remedial services and rehabilitative programs designed to prevent the breakup of the Indian family[.]” 25 U.S.C. § 1912(d). And the district court has made no “determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by

(cont.)

[22] Justice Himonas posits that E.T. lacked an opportunity to challenge

C.C.’s consent because he was never a party to the proceedings. But E.T. had every opportunity when he moved to intervene. At that point he had a full and fair opportunity to identify any grounds for his intervention. Yet he never challenged the validity of the consent

(cont.)

[23] See Jensen v. Intermountain Power Agency, 1999 UT 10, ¶¶ 6–9, 977 P.2d 474 (notice of appeal must identify orders for review, orders not identified are beyond the jurisdiction of the court to review); Holbrook v. Hodson, 466 P.2d 843, 845 (Utah 1970) (untimely notice of appeal is a defect in appeal requiring dismissal); Utah Down Syndrome Found., Inc. v. Utah Down Syndrome Ass’n, 2012 UT 86, ¶ 13, 293 P.3d 241 (non-parties have no appeal of right).

[24] See, e.g., UTAH CODE § 78B-6-102(5)(a) (identifying the state’s “compelling interest” in both “providing stable and permanent homes for adoptive children in a prompt manner” and “preventing the disruption of adoptive placements”); id. § 78B-6-102(5)(c) (finding that “adoptive children have a right to permanence and stability in adoptive placements”); Wells v. Children’s Aid Soc. of Utah, 681 P.2d 199, 203 (Utah 1984) (“The state has a strong interest in speedily identifying those persons who will assume the parental role over [adoptive] children, not just to assure immediate and continued physical care but also to facilitate early and uninterrupted bonding of a child to its parents. . . . To serve its purpose for the welfare of the child, a determination that a child can be adopted must be final as well as immediate.”), abrogated on other grounds by In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009.

[25] See, e.g., In re of Petition of Phillip A.C., 149 P.3d 51, 60 n.44 (Nev. 2006) (noting that “a voluntary proceeding that violates § 1913(a) is merely voidable, not automatically void”); In re Adoption of Erin G., 140 P.3d 886, 892–94 (Alaska 2006) (holding that section 1914 challenge was subject to state statute of limitations).

[26] See generally In re Enrique P., 709 N.W.2d 676, 684–90 (Neb. Ct. App. 2006) (collecting ICWA cases raising challenges under section 1914).

[27] Henry M. v. Ariz. Dep’t of Econ. Sec., No. 2 CA-JV 2011-0146, 2012 WL 2859979, at *3–4 (Ariz. Ct. App. July 12, 2012) (declining to review an ICWA compliance issue under section 1914 where the order was not identified in the notice of appeal).

[28] See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996) (“‘Jurisdiction,’ it has been observed, ‘is a word of many, too many, meanings . . . .’”)); Chen v. Stewart, 2004 UT 82, ¶ 35, 100 P.3d 1177 (“Jurisdiction is ‘a many-hued term.’”), abrogated on other grounds by State v. Nielsen, 2014 UT 10, 326 P.3d 645.

[29] See, e.g., Bank of Am., N.A. v. Kuchta, 21 N.E.3d 1040, 1046 (Ohio 2014) (“A court’s jurisdiction over a particular case refers to the court’s authority to proceed or rule on a case that is within the court’s subjectmatter jurisdiction. This latter jurisdictional category involves consideration of the rights of the parties. If a court possesses subjectmatter jurisdiction, any error in the invocation or exercise of

[30] See, e.g., Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1151 (Utah 1995) (“[S]ubject matter jurisdiction is an issue that can and should be addressed sua sponte when jurisdiction is questionable.”); see also Steadman, 411 S.W.3d at 722 (recognizing that subject-matter jurisdiction cannot be waived or forfeited); Heath, 860 A.2d at 29 (“We begin with the well-established principle that subject matter jurisdiction is a question that is not waivable and may be raised by a court on its own motion.”); Estate of Brown, 402 S.W.3d 193, 198–99 (Tenn. 2013) (distinguishing subject-matter jurisdiction, which cannot be waived, from other statutory prerequisites to relief like a statute of limitations, which may be waived or forfeited); Bd. of Supervisors of Fairfax Cty. v. Bd. of Zoning Appeals of Fairfax Cty., 626 S.E.2d 374, 379 (Va. 2006) (identifying the “fundamental distinction between the element of subject matter jurisdiction and the other jurisdictional elements” as the inability of this issue to be waived or forfeited and a court’s obligation to raise it sua sponte (citation omitted) (internal quotation marks omitted)); CSC Grp. Holdings, LLC v. Automation & Elecs., Inc., 368 P.3d

[31] See In re Adoption of Baby E.Z., 2011 UT 38, ¶¶ 31–34, 266 P.3d 702; Johnson, 2010 UT 28, ¶¶ 9–10; In re Estate of McLaughlin, 754 P.2d 679, 681–82 (Utah Ct. App. 1988). This is by no means a unique feature of Utah law. Courts far and wide have long cabined the concept of subject-matter jurisdiction in this way. See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160–61 (2010) (“‘Jurisdiction’ refers to a court’s adjudicatory authority. Accordingly, the term ‘jurisdictional’ properly applies only to prescriptions delineating the classes of cases (subjectmatter jurisdiction) and the persons (personal jurisdiction) implicating that authority.” (citation omitted) (internal quotation marks omitted)); Amodio v. Amodio, 724 A.2d 1084, 1086 (Conn. 1999) (“Answering this certified question requires us to review the distinction between a trial court’s ‘jurisdiction’ and its ‘authority to act’ under a particular statute. Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.”

[32] We have routinely rebuffed attempts by litigants to recast merits arguments as issues of subject-matter jurisdiction. See, e.g., Johnson, 2010 UT 28, ¶ 10 (warning that “[b]ecause parties can raise subject matter jurisdiction at any time during a proceeding, it makes sense to cabin the issues that fall under the category” and rejecting just such an attempt in the divorce context); Chen, 2004 UT 82, ¶ 36 (concluding that the parties had mischaracterized a merits claim as an issue of subject-matter jurisdiction in an effort to avoid waiver). The same is true in other jurisdictions. See, e.g., In re Adoption of D.P.P., 158 So. 3d 633, 636–37 (Fla. Dist. Ct. App. 2014) (“We disagree with the lower court’s determination concerning subject matter jurisdiction in the adoption proceeding. A court has subject matter jurisdiction when it has the authority to hear and decide the case. . . . Because the finality of judgments is favored, it is well established that errors, irregularities and even wrongdoing in the proceeding do not render a judgment void

[33] Justice Himonas disagrees. He asserts that without valid consent “there is no justiciable matter and therefore nothing for the district court to exercise jurisdiction over.” Supra ¶ 20. But this is just a restatement of the lead opinion’s proposed holding. Justice Himonas offers no support for the proposition that a failure of consent—the failure of a mere precondition to the issuance of certain relief—is a matter that goes to “justiciability.” And it certainly does not. Or, more properly, if it does then the exception has swallowed the rule, and any

[34] See In re JWT, 104 P.3d 93, 94 (Wyo. 2005) (distinguishing a failure to file all of the statutorily required documents with the adoption petition—a Wyoming statutory precondition to suit that if not followed will void the proceedings “ab initio”—from “a case where mother file[s] a false affidavit” which [on its face meets the statutory requirements], concluding that where the necessary documents are filed—albeit falsely—“the district court might have . . . jurisdiction to proceed with the adoption”); McGinty v. Jewish Children’s Bureau, 545 N.E.2d 1272, 1275 (Ohio 1989) (per curiam) (rejecting a habeas petition challenging the court’s subject-matter jurisdiction to issue an adoption where there was an alleged defect in consent; concluding that “once a final determination has been made that the parents validly consented to the adoption, that determination removes the basis for a habeas corpus attack on the ground that the court ordering the adoption lacked subject matter jurisdiction”).

[35] C.T. v. J.S., 951 P.2d 1199, 1200 (Alaska 1998) (using the term subject-matter jurisdiction but reasoning only that the lower court ruling that mother was estopped from refusing consent was in error and reversing adoption on that basis); G.M.D., 610 S.W.2d at 307 (mentioning the term subject-matter jurisdiction in stating the rule 60(b) standard but making no reference to it thereafter in assessing the validity of a challenge raised by biological mother—not by the court sua sponte); In re Holder, 10 S.E.2d at 622 (using the terminology of subject-matter jurisdiction in reference to the fact that “neither parent was made a party” to the adoption proceeding); In re Adoption of L.D.S., 155 P.3d 1, 8 (Okla. 2006), as supplemented on reh’g, No. 250 (Mar. 6, 2007) (holding district court was divested of jurisdiction during pendency of appeal and voiding adoption issued during the time when the district court lacked jurisdiction on account of a pending appeal);

Hughes, 383 P.2d at 60–63 (using the term subject-matter jurisdiction in

[36] See UTAH CODE § 78B-6-109(1)–(2) (allowing determination of parental rights to occur at any point in an adoption proceeding prior to issuance of the adoption); id. § 78B-6-105 (identifying the filing of an adoption petition as the only thing required to initiate an adoption proceeding); id. § 78B-6-112(2)(a) (authorizing a court to terminate parental rights in the adoption proceeding).

[37] See, e.g., Westerlund, 198 P.2d at 843–44 (“As adoption is in derogation of the common law, generally speaking it may be said that adoptive statutes should receive a strict construction, particularly with respect to the jurisdiction of the court or where the effect of the adoption would be to deprive a natural parent of the possession of his child.”); In re Jackson, 28 P.2d at 127 (“The act of adoption takes a child away from its parent by destroying the legal and natural relation between them and creating in its stead an artificial relation deemed by law to be for the best interests of the child. It is in derogation of the common law which regards the natural rights of the parents to be of a sacred and enduring character. As the statute confers a special power of this kind which may be exerted in opposition to the wishes, or without the consent of the parents, it should be strictly construed in their favor.

[38] Deveraux likewise suffers from the background principles problem. It long predates Utah’s current adoption act. And it identifies adoptions as disfavored and fails to mention principles of the best interests of the child or the rights of adoptive parents—elevating the rights of biological parents above all else. See Deveraux’ Adoption v.

Brown, 268 P.2d 995, 997 (Utah 1954).

[39] See, e.g., Labelle v. McKay Dee Hosp. Ctr., 2004 UT 15, ¶ 8, 89 P.3d 113 (“Article VIII, section 5 of the Utah Constitution vests in the district court ‘original jurisdiction in all matters except as limited by this constitution or by statute.’ We presume that our district courts retain their grant of constitutional jurisdiction in the absence of a clearly expressed statutory intention to limit jurisdiction.”); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 515–16 (2006) (“If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” (footnote omitted) (citation omitted)).

[40] See, e.g., UTAH CODE § 34A-2-407(12)(a)–(b) (identifying claims within the “exclusive jurisdiction” of the Labor Commission “[s]ubject to appellate review”); id. § 78A-6-103(2) (identifying “exclusive jurisdiction” of juvenile courts over certain matters).

[41] Our courts have not always framed this jurisdictional problem in these precise terms. But that is the conceptual essence of our cases. See Salt Lake City Mission v. Salt Lake City, 2008 UT 31, ¶ 14, 184 P.3d 599

(equating ripeness requirements in federal law with the requirement of

(cont.)

[42] Justice Himonas responds by insisting that we have identified “no situation in which a party would be able to use [his] opinion to ask a court to improperly expand subject matter jurisdiction to any statutory requirement.” Supra ¶ 29. But this misses our point—that the logic of the lead opinion sweeps broadly to encompass any “case-specific procedural fact[]” affecting the validity of the adoption decree. That premise forms the basis for the legal standard the lead opinion would apply in future cases. And lower courts would have to take the opinion seriously as long as it remained in place. So it’s possible that this court would hold the line—refusing to extend the standard Justice Himonas would announce today to other “case-specific procedural facts” affecting the validity of an adoption decree. But the lower courts would still be left to field any of a series of challenges to adoption decrees as long as the lead opinion’s theory remained.

The lead opinion, after all, rests on no settled legal principle. It is based only on the insistence that consent is historically and logically

(cont.)

[43] See, e.g., Ramsay v. Kane Cty. Human Res. Special Serv. Dist., 2014 UT 5, ¶ 17, 322 P.3d 1163 (“[W]hen a court determines it lacks subject matter jurisdiction, it ‘retains only the authority to dismiss the action.’” (quoting Varian–Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989)); Salt Lake Cty. v. Bangerter, 928 P.2d 384, 386 (Utah 1996) (“When it is ascertained that there is no jurisdiction in the court because of the absence of a justiciable controversy, then the court can go no further, and its immediate duty is to dismiss the action. . . .” (internal quotation marks omitted) (quoting Baird v. State, 574 P.2d 713, 716 (Utah 1978)).

[44] See Jared P. v. Glade T., 209 P.3d 157, 161 (Ariz. Ct. App. 2009) (“ICWA does not, however, define how paternity can be acknowledged or otherwise detail any procedure to establish paternity. Consequently, we look to state law to determine whether paternity has been acknowledged or established.”); In re Daniel M., 708, 1 Cal. Rptr. 3d 897, 900 (Cal. Ct. App. 2003) (“Moreover, because the ICWA does not provide a standard for the acknowledgment or establishment of

[45] See also Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce.”), overruled in part on other grounds by Williams v. North Carolina, 317 U.S. 287 (1942); United States v. Windsor, 133 S. Ct. 2675, 2689–90 (2013) (“By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.”).

[46] My point is not to state a general objection to an inquiry into “reasonableness”—or even to “subjective standards generally.” See Oliver v. Utah Labor Comm’n, 2017 UT 39, ¶ 84 n.18, __ P.3d __ (Lee, A.C.J., concurring). It is to emphasize the need to tie our legal standards

“to the statutory text,” and to urge caution for “fuzzy” legal inquiries

(cont.)

[47] See Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329– 30 (2006); State v. Herrera, 895 P.2d 359, 362 (Utah 1995); Bastian v. King, 661 P.2d 953, 956 (Utah 1983).

[48] The majority does refer to some textual provisions of the statute in support of its view. For one, it cites ICWA for the proposition that a parent of an Indian child is entitled to the “higher standard of protection” set forth in state or federal law when such laws “provide[] a higher standard of protection” than that set forth in ICWA. Supra ¶ 67 (quoting 25 U.S.C. § 1921). And the majority says that this ensures “that parents of Indian children enjoy the highest level of protection of their parental rights available.” Supra ¶ 67. But this is circular. We cannot say whether a supposedly federal standard yields a higher level of protection than that set forth in state law until we know the contents of the federal standard. And, as noted below, the majority ultimately is unwilling to articulate a federal standard.

[49] See supra ¶ 170 nn. 34–36.

[50] The cited cases say little or nothing of relevance to the interpretation of a federal statute regulating state custody proceedings.

Two of the cited cases simply stand for the axiom that courts must not

(cont.)

[51] One example is evident in ICWA itself. ICWA recognizes as a parent “any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom.” 25 U.S.C. § 1903(9) (emphasis added). The reference to an adoption clearly invokes state law, as there is no such thing as a federal adoption. Yet under the majority’s approach, the term “adopt” would invoke a new federal standard incorporating the ordinary sense of adopt and ignoring state standards of adoption (which vary widely from state to state). That of course makes no sense. And it makes no more sense as applied to the acknowledgement or establishment of paternity.

[52] See F.A.A. v. Cooper, 566 U.S. 284, 292 (2012) (citing cases for the “cardinal rule of statutory construction” that “when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken” (citation omitted) (internal quotation marks omitted); Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (“When the legislature ‘borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.’” (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)).

[53] See Cooper, 566 U.S. at 292–94 (noting that “the meaning of ‘actual damages’ [in the federal Privacy Act, 5 U.S.C. § 552a(g)(4)(A)] is far from clear,” in that it “is sometimes understood to include nonpecuniary harm” but also “has been used . . . more narrowly to authorize damages for only pecuniary harm,” but proceeding to find a legal definition based on the “particular context in which the term appears” in the statute).

[54] An acknowledgement or establishment of paternity is like a declaration of bankruptcy. We can speak of declaring bankruptcy in the ordinary sense of a mere utterance. But in so doing we will be misusing the language—by missing its clear legal connotation. Cf. The Office: Money (NBC television broadcast Oct. 18, 2007) (Michael Scott: “I DECLARE BANKRUPTCY!” Oscar: “Hey, I just wanted you to know, that you can’t just say the word bankruptcy and expect anything to happen.” Michael Scott: “I didn’t say it, I declared it.” Oscar: “Still … that’s … it’s not anything.”).

[55] I see nothing telling about the fact that the district court in this case did not “seriously analyze whether Birth Father acknowledged paternity under Utah law, instead focusing on whether he complied with the requirements for establishing paternity under Utah law.” Supra ¶ 67. Presumably, that is just a reflection of the parties’ advocacy—of the fact that E.T. didn’t argue that he secured his paternity through an acknowledgement because he knew he could not qualify under Utah law. That doesn’t tell us that acknowledgement of paternity is “read out

(cont.)

[56] This is the problem with the purposivist approach to statutory interpretation. If we view statutes as aimed at accomplishing their perceived purpose at all costs, we are embarked on an endless journey. We may say that ICWA is aimed at articulating a uniform standard to protect the rights of Indian families. But if that’s all it is, then we must stop at nothing in our efforts to vindicate that purpose. And the only way to stop at nothing is to say that even the barest acknowledgement of paternity is enough to satisfy the statute.

In re Adoption of B.B. – 2017 UT 59

This opinion is subject to revision before final publication in the Pacific Reporter

2017 UT 59

IN THE

SUPREME COURT OF THE STATE OF UTAH

 

In the Matter of the Adoption of B.B., a minor,

 

E.T.,

Appellant,

R.K.B. and K.A.B., Appellees.

 

No. 20150434

Filed August 31, 2017

 

On Certification from the Court of Appeals

 

Third District, Salt Lake

The Honorable Ryan M. Harris

No. 142900417

 

Attorneys:

Angilee K. Dakic, Salt Lake City, for appellant

Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellees

 

JUSTICE HIMONAS authored the opinion of the Court with respect to Parts II.B., II.D., and III, in which JUSTICE DURHAM and

JUSTICE PEARCE joined; and a dissenting opinion with respect to Parts I, II.A., and II.C, in which JUSTICE DURHAM joined.

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court with respect to Part I of his opinion, in which CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined; and a dissenting opinion with respect to Part II of his opinion, in which CHIEF JUSTICE DURRANT joined.

 

JUSTICE HIMONAS, opinion of the Court as to Parts II.B., II.D., and III:

 

 

 

INTRODUCTION

¶ 1 Contested adoptions are gut-wrenching, and the longer they remain in flux, the greater the toll on the biological parents, the prospective adoptive parents, family members, and, most significantly, the child. But no one is better off for “judicial shortcuts, intentional or unintentional, which reach an expeditious result but fail to recognize the fundamental nature of the right of [biological] parents to the care, custody, and management of their child.” In re Adoption of L.D.S., 155 P.3d 1, 8 (Okla. 2006), as supplemented on reh’g, No. 250 (Mar. 6, 2007). “In fact, the best interests of the child can be served in no legitimate manner except in obedience to the policies and procedures mandated by law.” Id. So it is vital that the courts of this state, this court included, take care to ensure that adoption proceedings are as free as possible from fatal defects. Regrettably, this case is septic: Birth Mother admitted to having perpetrated a fraud on the district court and suborning perjury from her brother-in-law, all in an effort to keep Birth Father from intervening in the proceedings, and all against the backdrop of what I believe was untimely and therefore invalid consent.

¶ 2 Procedurally, this case is before us on certification from our court of appeals, the central issue presented by the parties being whether the district court got it right when it denied Birth Father’s motion to intervene. Because both Birth Father and Birth Mother are members of the Cheyenne River Sioux Tribe and B.B. is eligible for enrollment in the tribe, the Child is an Indian child. Hence, in my view, we have to consider the interplay between the Indian Child Welfare Act (ICWA) and Birth Father’s attempt to intervene, the application of ICWA to Birth Mother’s consent, and the impact her invalid consent has on these proceedings.[1] I view these inquiries as raising the issues of (1) whether a district court has subject matter jurisdiction over an adoption proceeding where neither biological parent has validly consented to the adoption and where the order terminating their parental rights is therefore void, (2) whether the jurisdictional issue is properly before us by virtue of Birth Father’s right to challenge the validity of Birth Mother’s consent and the order terminating his parental rights, and (3) whether Birth Father is a “parent” for purposes of ICWA and entitled to intervene in the proceedings below.

¶ 3 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.2

                                                                                                                                                       

2 Put a little differently, this case implicates issues of subject matter jurisdiction and statutory interpretation. The subject matter jurisdiction issue turns on whether we may void the termination of Birth Mother’s parental rights by holding that Birth Mother failed to give valid consent, and that, therefore, the district court lacked subject matter jurisdiction to terminate her parental rights. But the majority of the court—Chief Justice Durrant, Associate Chief Justice Lee, and Justice Pearce—holds that this issue is not properly before us and therefore does not reach the issue of Birth Mother’s consent.

On the statutory interpretation question, which turns on whether Birth Father is a “parent” under ICWA, a majority of the court—Justices Himonas, Durham, and Pearce—holds that Birth Father qualifies as a parent because he met the federal standard for acknowledging or establishing paternity. The dissent would hold that there is no federal standard for acknowledging or establishing paternity, and that Birth Father’s failure to follow Utah procedures for acknowledging or establishing paternity means that he is not a parent under ICWA. Because the court concludes that Birth Father is a parent under ICWA, it also holds that he has a right to notice and to intervene in the adoption proceedings, reversing the district court’s contrary conclusion and remanding for further proceedings.

BACKGROUND

¶ 4 In December 2013, Birth Father and Birth Mother were in a committed relationship and engaged in sex leading to the conception of the Child.[2] Both Birth Father and Birth Mother are members of the Cheyenne River Sioux Tribe, and they resided together on the Cheyenne River Sioux Reservation in South Dakota at the time of conception and for the first six months of Birth Mother’s pregnancy. Birth Father supported Birth Mother during her pregnancy, paying for her phone bill and their rent, utilities, and groceries. Six months into the pregnancy, in June or July 2014, Birth Mother moved to Utah to be closer to friends and family. Birth Father was to join her later, once she was settled into their new apartment. 

¶ 5 For the first few weeks after Birth Mother’s move to Utah, she and Birth Father stayed in contact over the phone, but after Birth Mother encountered a former boyfriend, she cut off all contact with Birth Father. She stopped calling Birth Father, stopped answering his calls, and even changed her phone number. At Birth Mother’s request, mutual friends told Birth Father that she was fine and would soon return to South Dakota. Birth Father indicated that he “figured . . . [she] just needed some space” and that she “would return to South Dakota before she delivered [their] baby, or that she and the baby would return together after the delivery.”

¶ 6 On August 29, 2014, Birth Mother gave birth to the Child in Utah. Twenty-four hours and six minutes later, she signed a form titled

“Relinquishment of Parental Rights and Consent of Natural Birth Mother to Adoption” in the presence of a notary public and an adoption agency representative. Birth Mother also signed a Statement Concerning Birth Father, naming her brother-in-law, rather than Birth Father, as the biological father. Based on Birth Mother’s misrepresentations concerning the biological father, the adoption agency and counsel for the adoptive parents had the brother-in-law sign a sworn affidavit declaring that he was the Child’s biological father, relinquishing his rights to the Child, consenting to the adoption, and representing that he was neither an enrolled member of nor eligible for membership in a Native American tribe.

¶ 7 On September 8, 2014, ten days from the Child’s birth, Birth Mother executed a Voluntary Relinquishment of Parental Rights, Consent to Adoption, and Consent to Entry of Order Terminating

Parental Rights in open court, again naming her brother-in-law as the Child’s biological father. On September 25, 2014, the district court issued an order terminating Birth Mother’s parental rights and determining the biological father’s rights. Birth Mother had expressly objected to any Indian tribe receiving notice of the proceedings, and the district court determined that the proceedings were voluntary and that therefore no Indian tribe was entitled to notice. The court held that “the unwed biological father[], whether he be [Birth Mother’s brother-inlaw] or any other man,” had “forfeited, surrendered, or waived” his parental rights and that his consent to the adoption was not required. The court also determined that the unmarried biological father had not acknowledged or established paternity to the Child and was therefore not a “parent” under ICWA. See 25 U.S.C. § 1903(9). The court then transferred custody of the Child to the adoption agency and authorized it to delegate custody to the prospective adoptive parents.

¶ 8 Birth Mother returned to South Dakota at the end of September 2014. On or about September 27, 2014, she saw Birth Father and told him that she had given birth to the Child and placed him for adoption. According to Birth Father, she told him that she listed no father on the birth certificate and that she later misrepresented the identity of the father. According to his affidavit, Birth Father “was completely shocked and devastated because [he] did not know that [their] son had been born, and [he] never knew [Birth Mother] had even considered placing him for adoption.” Birth Father also stated that he “immediately sought assistance to establish paternity and intervene in this matter,” although it is unclear from the record what his immediate action was.

¶ 9 According to Birth Father, he and Birth Mother “contacted the Utah vital records office to add [Birth Father’s] name to [their] son’s birth certificate, but [were] advised by counsel not to[,] due to [Birth Mother’s] rights being terminated.” Both Birth Father and Birth Mother informed the tribe of the situation. Over a period of a couple of months, Birth Father consulted with Dakota Plains Legal Services. On or before

October 30, 2014, Dakota Plains Legal Services contacted counsel for the prospective adoptive parents and left a message regarding Birth Mother, apparently communicating Birth Mother’s desire to withdraw her consent and requesting that the Child be returned to her. In November 2014, Birth Mother contacted the adoption agency to correct her misrepresentation, informing the adoption agency that Birth Father was the true biological parent.4 In late November or December 2014, according to Birth Father, Dakota Plains Legal Services referred him to Utah Legal Services, Inc., and on December 31, 2014, Birth Father filed a motion to intervene in the proceedings “in order to establish paternity, and thereafter file a petition to have his parental rights determined.”5 The case had been inactive from the entry of the termination order on September 25, 2014, until the filing of the motion to intervene on December 31, 2014.

¶ 10 Birth Father’s motion to intervene was mistakenly granted on January 5, 2015, before the prospective adoptive parents’ time to respond to or oppose the motion had run. Birth Father then filed a

                                                                                                                                                       

  • Birth Mother claims that “within one week of th[e] court entering its order to relinquish [her] rights, [she] contacted [the adoption agency] and informed them that [she] wanted to withdraw [her] consent” and was told that it was too late. But the exhibit she cites in support of that claim is a December 11, 2014 letter from the adoption agency that references a letter received from Birth Mother “last month” (i.e., November 2014). She cites that same letter in her affidavit, in support of her assertion that she “tried to revoke [her] consent and correct the misrepresentations that [she] had made to [the adoption agency].” And Birth Father cites that same letter in support of his claim that

[i]n December 2014, when the child was just a little over three months old, [Birth Mother] contacted [the adoption agency] to inform them that she had misrepresented the identity of the true father, and she made efforts to rescind the relinquishment of her parental rights, but was informed by the director that they ‘no longer have [any] power in that matter’ and that she ‘would need to work with the judge.’  

  • Birth Father stated that his intervention was “pursuant to Rule 24(a) of the Utah Rules of Civil Procedure and 25 U.S.C. 1911(c).” Motion for Paternity Test, and the prospective adoptive parents filed a motion requesting that the district court reconsider its decision to grant Birth Father’s motion to intervene and objecting to his motion for paternity testing. A few days later, Birth Father filed a Paternity Affidavit. Subsequently, Birth Mother filed an affidavit with the court stating that Birth Father was the biological parent and a member of the Cheyenne River Sioux Tribe. Birth Father then filed an Answer, Objection, and Verified Counterpetition to the Verified Petition for Adoption, objecting to the petition for adoption. He also filed a Notice of Commencement of Paternity Proceeding with the Utah Department of Health Office of Vital Records and Statistics. On January 27, 2015, the Cheyenne River Sioux Tribe filed a motion to intervene in the proceedings.

¶ 11 The district court held a hearing on the pending motions (not including the tribe’s motion to intervene) on February 24, 2015. On the day of the hearing, the Bureau of Indian Affairs (BIA) released new ICWA guidelines. Birth Father filed the guidelines with the district court that very day, requesting that the court review them and drawing the court’s attention to the guidelines regarding notice requirements, placement preferences, consent requirements, and the relationship between ICWA and state law. The prospective adoptive parents filed a motion objecting to Birth Father’s submission of that supplemental memorandum. On March 12, 2015, Birth Mother filed a Verified Withdrawal of Consent to Adoption and Motion for Return of Custody with the court. On March 26, 2015, the court made a minute entry, granting Birth Father’s motion for review based on the new ICWA guidelines and denying the prospective adoptive parents’ motion to strike those guidelines. 

¶ 12 The next day, the district court signed an order denying the Cheyenne River Sioux Tribe’s motion to intervene on the bases (1) “that an Indian tribe . . . cannot appear in court without the assistance of a licensed attorney” and (2) “that, under ICWA, a tribe has a right to intervene only in involuntary proceedings, and not in voluntary proceedings like this one.” On April 21, 2015, the court issued another order, denying Birth Father’s motion to intervene on the basis that he was “not a ‘parent’ under either ICWA or . . . Utah’s adoption statutes.” Because Birth Father was not permitted to intervene, his motion for paternity testing was mooted. The April 21, 2015 order also denied Birth Mother’s motion to withdraw her consent to the termination of her parental rights on the basis “that once a birth mother’s parental rights have been terminated by order of a court, that birth mother no longer has the right under ICWA to withdraw her consent, even if an adoption decree has not yet been entered.”

¶ 13 Birth Father filed a motion for a new trial, and on May 20, 2015, he filed a notice of appeal. The district court denied the motion for a new trial on June 4, 2015. The appeal was then certified for immediate transfer to us. Neither the tribe nor Birth Mother appealed the denial of their motions. Birth Father also filed a Motion for Stay Pending Appeal, which the court granted, and pursuant to which “[t]he finalization of [the Child’s] adoption will wait until the conclusion of the appeal.” After the stay, Birth Father’s parents filed a motion to intervene and a counter-petition for adoption based on ICWA’s placement preferences, but their motion was also denied, and they did not appeal the denial. Thus, only Birth Father’s claims are before us on appeal.

¶ 14 After oral argument, we asked for supplemental briefing on three issues: (1) whether Birth Mother’s consent complied with ICWA’s timing requirement, and if not, what effect that had on the validity of her consent; (2) if Birth Mother’s consent was invalid, whether that would affect the district court’s jurisdiction to enter or finalize an adoption decree; and (3) what, if any, other effect an invalid consent would have on the proceedings below.

¶ 15 We have jurisdiction pursuant to Utah Code section 78A-3102(3)(b).

STANDARDS OF REVIEW

¶ 16 Whether Birth Mother’s consent was valid under ICWA is a question of statutory interpretation, which we review “for correctness, affording no deference to the district court’s legal conclusions.” State v. Gallegos, 2007 UT 81, ¶ 8, 171 P.3d 426. And whether a district court has subject matter jurisdiction over a proceeding is a matter of law, which we review for correctness. Canfield v. Layton City, 2005 UT 60, ¶ 10, 122 P.3d 622.

¶ 17 Whether Birth Father has acknowledged or established paternity under ICWA is a question of statutory interpretation, which we also review for correctness. Gallegos, 2007 UT 81, ¶ 8. “As a general matter, the factual findings underpinning [a ruling on a motion to intervene] are subject to a clearly erroneous standard, and the district court’s interpretation of rule 24(a) is reviewed for correctness.” Gardiner

  1. Taufer, 2014 UT 56, ¶ 16, 342 P.3d 269 (internal quotation marks omitted). “[W]hether a particular statute affords a particular class of persons an unconditional intervention right . . . is a pure question of law because it involves abstract statutory construction.” In re United Effort Plan Tr., 2013 UT 5, ¶ 21, 296 P.3d 742. Thus, “[a] district court would not be entitled to any deference to the extent it misinterpreted an intervention statute in the abstract.” Id.

ANALYSIS

¶ 18 The first question I address is whether Birth Mother’s lack of valid consent, and the resultant invalid order terminating all parental rights, deprived the district court of subject matter jurisdiction to move forward with the adoption. Based on controlling Utah law and in keeping with the overwhelming majority of the courts of this country, I answer that question in the affirmative. Because the jurisdictional issue is properly before us only if Birth Father could have raised it on appeal, I then turn to a determination of whether Birth Father had the ability to challenge the validity of Birth Mother’s consent and to put the jurisdictional issue before us. I conclude that Birth Father was empowered to do so under our traditional approach to standing and 25 U.S.C. section 1914. Finally, a majority of the court concludes that apart from the foregoing, Birth Father is a parent under ICWA and eligible to intervene in this matter and that to hold otherwise would subvert ICWA’s core policies.

  1. BIRTH MOTHER’S INVALID CONSENT DEPRIVED THE DISTRICT COURT OF SUBJECT MATTER JURISDICTION

¶ 19 Although neither party originally raised the issue, we have an independent obligation to address the existence of subject matter jurisdiction. See Nevares v. Adoptive Couple, 2016 UT 39, ¶ 23, 384 P.3d 213 (“[S]ubject matter jurisdiction is an issue that can and should be addressed sua sponte when jurisdiction is questionable.” (alteration in original) (citation omitted)); People ex rel. J.G.C., 318 P.3d 576, 578 (Colo. App. 2013) (after requesting supplemental briefing on “the district court’s jurisdiction to determine the nonpaternity of [the] presumptive father,” concluding that “the district court lacked subject matter jurisdiction to make a paternity determination”); see also In re Adoption of L.D.S., 155 P.3d 1, 8 (Okla. 2006), as supplemented on reh’g, No. 250 (Mar. 6, 2007). I would hold that invalid consent in adoption proceedings is a subject matter jurisdictional issue.

A. Valid Consent Is a Jurisdictional Prerequisite to an Adoption

¶ 20 Without valid parental consent to an adoption, there is no justiciable matter and therefore nothing for the district court to exercise jurisdiction over.[3] This is because the subject of an adoption proceeding is a child and a court cannot proceed with the adoption unless the child has been validly placed within its purview. And absent consent, that placement has not happened, leaving a court without authorization to interfere with the fundamental right that is the parent-child relationship. In re Adoption of Strauser, 196 P.2d 862, 867 (Wyo. 1948) (“The first duty of the judge is to see that the necessary consents are given. If they are not, the proceeding is at an end. There is nothing for the judge to approve.”); cf. Atwood v. Cox, 55 P.2d 377, 381 (Utah 1936) (“Jurisdiction is the power to decide a justiciable controversy . . . .” (citation omitted)).

¶ 21 The principle that invalid consent deprives the district court of subject matter jurisdiction in adoption proceedings has been a part of Utah law for more than six decades. In Deveraux’ Adoption v. Brown, two children were placed in foster care but their mother’s parental rights were never permanently terminated. 268 P.2d 995, 998 (Utah 1954). When the children were placed for adoption, the mother objected that her consent was never validly given. Id. at 996. We held that it was unnecessary to even look at other issues in the adoption proceeding because “the court never obtained jurisdiction to exercise the power to grant the adoptions and therefore any questions pertaining to the welfare or custody of the children [were] not before it in such a proceeding.” Id. at 998. We therefore remanded, instructing the district court to set aside as void the orders granting the adoptions. Id. In doing so, we did not consider consent, as the majority on this point urges, to be “just one of many statutory prerequisites to the issuance of a valid adoption decree.” Infra ¶ 124. Rather, we meant what we said: because of the mother’s lack of consent, the district court “never obtained jurisdiction.Deveraux’ Adoption, 268 P.2d at 998 (emphasis added); see also In re Adoption of Walton, 259 P.2d 881, 883 (Utah 1953) (“So jealously guarded is the parent-child relation[ship] that uniformly it is held that the abandonment or desertion firmly must be established [as a statutory exception to obtaining parental consent] . . . before any question as to the best interests or welfare of the child can be the subject of inquiry.”).

¶ 22 The majority argues that Deveraux’ Adoption has been implicitly overruled by our cases that adopt a jurisdictional clear statement rule, according to which we construe a statute as jurisdictional only if it is “clearly denominated as such.” See infra ¶ 143. This is wrong. It is true that Labelle v. McKay Dee Hospital Center outlines a presumption “that our district courts retain their grant of constitutional jurisdiction in the absence of a clearly expressed statutory intention to limit jurisdiction.” 2004 UT 15, ¶ 8, 89 P.3d 113. But this presumption does not require the statutory provision to explicitly state that it is jurisdictional. Instead, a statute clearly expresses the “intention to limit jurisdiction” when the statute imposes a prerequisite to an action that is “of the essence of the thing to be done,” and not “given with a view merely to the proper, orderly and prompt conduct of . . . business, and by the failure to obey no prejudice will occur to those whose rights are protected by the statute.” ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65, ¶¶ 14, 19, 245 P.3d 184 (alteration in original) (citation omitted).[4] In contrast, statutory provisions are “merely directory in nature rather than mandatory and jurisdictional” when disregarding them does not “compromise the purpose” of the statute but is simply a failure to adhere to “one of numerous procedural hurdles.” Sill v. Hart, 2007 UT 45, ¶ 19, 162 P.3d 1099 (internal quotation marks omitted).

¶ 23 The statutory requirement of consent is mandatory and jurisdictional because it goes to the soul of the adoption. See Brown v. Baby Girl Harper, 766 S.E.2d 375, 378 (S.C. 2014) (“Consent lies at the foundation of the adoption process[.]” (citation omitted)); In re Adoption of Keith M.W., 79 P.3d 623, 629 (Alaska 2003) (“Parental consent lies at the foundation of the adoption process.” (internal quotation marks omitted)); see also In re Adoption of Walton, 259 P.2d at 883 (noting that although it is not the law in Utah that adoption statutes “are to be construed strictly in favor of the parent,” courts “have not hesitated to build a strong fortress around the parent-child relation[ship], . . . . [which] has been considered a bundle of human rights of such fundamental importance as to lead courts frequently to say that consent is at the foundation of adoption statutes”). In fact, although some states have based their jurisdictional holdings on statutory filing requirements that differ from Utah’s, see infra ¶ 136 & n.21, none of those statutes contains a clear statement that the required filings relate to subject matter jurisdiction—but the courts still widely recognize consent as a jurisdictional requirement.

                                                                                                                                                      

day deadline). And these deadlines are properly characterized as subject matter jurisdictional. See, e.g., Flannigan v. Jordan, 871 So. 2d 767, 770 (Ala. 2003) (untimely appeal deprives court of “subject-matter jurisdiction to review the case”); Ark. State Univ. v. Prof’l Credit Mgmt., Inc., 299 S.W.3d 535, 537 (Ark. 2009) (“The appeal from district court to circuit court was . . . untimely, and the circuit court was without jurisdiction to accept the appeal. We are likewise without jurisdiction to hear this appeal, and we therefore dismiss it for lack of subject-matter jurisdiction.”); Holley v. Davey, No. CV115015458S, 2012 WL 1510966, at *1 (Conn. Super. Ct. Apr. 4, 2012); In re Marriage of Welp, 596 N.W.2d 569, 571 (Iowa 1999); Gore v. Tenn. Dep’t of Corr., 132 S.W.3d 369, 378–79 (Tenn. Ct. App. 2003); Turbeville v. Dailey, No. 03-11-00679-CV, 2011 WL 6351850, at *3 (Tex. App. Dec. 14, 2011).

¶ 24 In addition to the “clear statement” rule, Utah law also applies a “class of cases” rule, in which “the concept of subject matter jurisdiction [is limited] to those cases in which the court lacks authority to hear a class of cases, rather than when it simply lacks authority to grant relief in an individual case.” In re Adoption of Baby E.Z., 2011 UT 38, ¶ 31, 266 P.3d 702. The prospective adoptive parents argue that this limitation means that whether a court has subject matter jurisdiction over a case cannot turn on any case-specific procedural facts. Instead, they argue that it is a limited inquiry into whether the case, considered in the abstract, is fairly characterized as a general type of case over which the court has jurisdiction.

¶ 25 But the “class of cases” paradigm begs the question, as defining the class of cases over which courts have subject matter jurisdiction is not as simple as looking at the general topic. By this logic, courts, by way of example, would have jurisdiction over anything with the rough shape and form of a “tort case” or “landlord-tenant case.” The prospective adoptive parents’ approach creates an unworkable standard—it is often impossible to determine whether a case falls within a “class of cases” without considering some concrete aspects about it. There are often prerequisites individual litigants must meet to show that they have satisfied the requirements of subject matter jurisdiction even when we unquestionably have subject matter jurisdiction over the topic. Consider the tort and landlord-tenant case categories noted above. District courts have jurisdiction over negligence cases, a species of tort, but parties must still comply with the Governmental Immunity Act’s notice requirements, because “[c]ompliance with the Immunity Act is a prerequisite to vesting a district court with subject matter jurisdiction over claims against governmental entities.” Wheeler v. McPherson, 2002 UT 16, ¶ 9, 40 P.3d 632; see also Buckner v. Kennard, 2004 UT 78, ¶ 35, 99 P.3d 842 (“Compliance with the notice requirements, where applicable, is a prerequisite for subject matter jurisdiction.”). Similarly, although district courts certainly have jurisdiction over landlord-tenant cases in general, we have held that the court lacks subject matter jurisdiction where one party failed to exhaust its administrative remedies. Hous. Auth. of Salt Lake v. Snyder, 2002 UT 28, ¶ 11, 44 P.3d 724. This logic applies with equal force to other statutory claims. Ramsay v. Kane Cty. Human Res. Special Serv. Dist., 2014 UT 5, ¶ 17, 322 P.3d 1163 (failure to exhaust administrative remedies deprived the court of subject matter jurisdiction over plaintiff’s Retirement Act claims).[5]

¶ 26 As the above cases demonstrate, an overly generalized take on the “category of cases” ignores the fact that courts cannot decide cases when they lack the authority necessary to do so, as is the case here. Furthermore, neither In re Adoption of Baby E.Z. nor its predecessor case, Johnson v. Johnson, 2010 UT 28, 234 P.3d 1100, purported to overrule Deveraux’ Adoption’s holding that a court lacks subject matter jurisdiction over an adoption where valid consent has not been obtained. The standard put forth by the prospective adoptive parents, however, would essentially have us overrule Deveraux’ Adoption—but they have not briefed this argument and, in any case, I see no reason to do so.

¶ 27 The rationale behind the jurisdictional necessity of parental consent in adoption proceedings is based not, as the majority asserts, in “the availability of a particular form of judicial relief,” infra ¶ 130, but in justiciability, because, in the eyes of the law, no child has been made available for adoption. Put another way, the lack of parental consent to an adoption makes the case unripe. See Mendive v. Third Judicial Dist. Court in & for Lander Cty., 253 P.2d 884, 890 (Nev. 1953) (stating that before district court accepts guardian’s consent, “it would definitely appear that the further jurisdiction of the . . . district court over the . . . adoption proceeding would be futile and unavailing; that its present provisional jurisdiction could never ripen into a jurisdiction to make a final order permitting the adoption, dependent as such order would be upon the consent of the guardian”); In re St. Vincent’s Servs., Inc., 841 N.Y.S.2d 834, 844 (Fam. Ct. 2007) (holding that “the issue of adoption ripens into a justiciable issue” only after parents’ rights have been validly terminated); In re Adoption of G.V., No. 11AP-617, 2011 WL

4921672, at *1 (Ohio Ct. App. Oct. 18, 2011) (stating that adoption petition had been dismissed as unripe where father’s consent was not obtained).

¶ 28 Furthermore, by stating that there is no child available for adoption, I do not mean, as the majority suggests, that the Child is not “a real child with a real interest in these proceedings.” Infra ¶ 152. The delicate and difficult nature of undoing error in an adoption proceeding is not lost on anyone. But the existence of a real child before the court does not mean the adoption case is ripe any more than the existence of a real tort before the court necessarily means that a case under the Governmental Immunity Act is ripe. Both require a prerequisite before the court is authorized to hear the case. In the adoption context, that prerequisite is parental consent, a traditional limit on justiciability. See infra ¶ 30 n.10. In short, district courts have no authority to place a child for adoption without the consent of the biological parents, and the prospective adoptive parents’ reliance on the district court’s error does not change the state of our law.

¶ 29 In the majority’s view, this application of justiciability principles will lead to a number of outcomes that will chip away at our longstanding law of jurisdiction. The majority’s concerns have no basis. Consent as a jurisdictional prerequisite to adoption is well established in this country, and none of the evils the majority predicts have befallen the courts that have recognized as much. See infra ¶ 130 & n.14 (listing cases in which courts around the country have been successful in “rebuff[ing] attempts by litigants to recast merits arguments as issues of subject-matter jurisdiction”). To the contrary, courts have easily made distinctions between the jurisdictional implications of consent and general statutory requirements. See, e.g., In re Bullock, 146 S.W.3d 783, 788 (Tex. App. 2004) (holding that despite the fact that a valid termination order is a jurisdictional prerequisite, “not all statutory prerequisites to filing suit are jurisdictional”); In re Harshey, 318 N.E.2d 544, 548–49 (Ohio Ct. App. 1974) (holding that despite statutory language requiring both parental and agency consent for child’s adoption, lack of parental consent deprives a court of jurisdiction but lack of agency consent does not). Despite its language about “opening the door” and “sow[ing] the seeds,” infra ¶ 122, the majority points to no situation in which a party would be able to use my opinion to ask a court to improperly expand subject matter jurisdiction to any statutory requirement. The majority may fear that litigants will attempt to stretch precedent to win cases—as often happens, in any matter—but it has offered no explanation for why it thinks Utah courts, unlike all the

 

other courts that have not been persuaded by those efforts, will be lured into inappropriately extending our subject matter jurisdiction law. The majority raises several hyperbolic “slippery slope” arguments—e.g., warning of “chaos and unpredictability for years to come,” infra ¶ 100, and that “[a]ny and all ‘case-specific procedural facts’ would be eligible for classification as subject-matter jurisdictional,” making the possibilities “endless” for courts to misinterpret our holding, infra ¶ 150. In doing so, rather than taking on the actual parameters of our opinion, the majority “tilts at a windmill of its own invention.” Lee v. Kemna, 534 U.S. 362, 385 n.15 (2002). In the majority’s view, the principles of ripeness and the case law of our court and the majority of other jurisdictions “rest[] on no settled legal principle,” dooming our lower courts to hopeless confusion. Infra ¶ 150 n.28. But I have faith in our lower courts’ ability to apply justiciability principles and our precedent, thereby preventing a situation in which “whenever . . . a defect [in a statutory prerequisite] was found, the subject-matter jurisdiction of the adoption court would be in jeopardy.” Infra ¶ 149. Because I unambiguously limit my opinion to the jurisdictional implications of parental consent in adoption proceedings, I am confident that we can avoid a Pandora’s box of subject matter jurisdictional evils.[6]

¶ 30 And as noted above, our holding in Deveraux’ Adoption that invalid consent deprives the district court of subject matter jurisdiction is consistent with the great majority of states’ views on the issue; the majority’s assertion that consent is “a mere legal prerequisite to the issuance of an [adoption] order,” infra ¶ 121, flies in the face of holding after holding.10

                                                                                                                                                      

custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”).

  • See, e.g., T. v. W.L., 159 So. 3d 1289, 1291 (Ala. Civ. App. 2014) (“When a required valid consent is not obtained, the probate court lacks jurisdiction to enter an adoption judgment.”); Westerlund v. Croaff, 198 P.2d 842, 845 (Ariz. 1948) (“[C]onsent in writing of the living natural parents, or its statutory equivalent, is a jurisdictional prerequisite to a valid adoption.”); Arnold v. Howell, 219 P.2d 854, 858 (Cal. Dist. Ct. App. 1950) (“Consent lies at the foundation of statutes of adoption . . . . With certain statutory exceptions, consent to an adoption is considered a jurisdictional prerequisite.” (citation omitted)); In re I.H.H-L., 251 P.3d 651, 657 (Kan. Ct. App. 2011) (“[Where] there is no consent from any statutorily authorized person . . . . the district court did not have jurisdiction over the petition for adoption and should have dismissed the case.” (citation omitted)); G.M.D. v. M.D., 610 S.W.2d 305, 307 (Mo. Ct. App. 1980) (“[I]n the absence of consent the court lacks jurisdiction to proceed.”); In re Jackson, 28 P.2d 125, 129 (Nev. 1934) (Because “consent lies at the foundation of adoption statutes . . . . [t]he order of adoption in this case was void because [it was] made without the consent of [the father].”); In re Ralph, 710 N.Y.S.2d 500, 503 (App. Div. 2000) (“The court lacks jurisdiction to act upon incomplete adoption applications[.]”); In re Holder, 10 S.E.2d 620, 622 (N.C. 1940) (“[N]either parent . . . gave consent to the adoption in the manner contemplated by the statute . . . . This . . . is held to be essential to jurisdiction of the subject matter.” (citation omitted)); McGinty v. Jewish Children’s Bureau, 545 N.E.2d 1272, 1274 (Ohio 1989) (per curiam) (“[P]arental consent to an adoption order is the jurisdictional prerequisite which, if absent, allows the order to be attacked as void . . . .”); Adoption of Robin, 571 P.2d 850, 856 (Okla. 1977)

(“It is fundamental that notice and parental consent are jurisdictional ¶ 31 For example, in a case with similar facts to this one, a mother lied to an adoption agency about the identity of the father of the two children she wanted to place for adoption and the county court thus never obtained consent from the biological father. In re Adoption of Kassandra B., 540 N.W.2d 554, 556 (Neb. 1995). The Nebraska Supreme Court, noting that “[c]hildren are not legally free for adoption unless both biological parents consent or one of the statutory exceptions to the need for their consent has been met,” held that the lower court lacked subject matter jurisdiction because the father’s consent was never obtained. Id. at 560. The order terminating parental rights was therefore void. Id.

¶ 32 And where a technical defect arose involving the witnesses to the birth mother’s signing of a consent form for adoption, the South Carolina Supreme Court rejected the notion that substantial compliance with the statutory requirements was sufficient. Brown, 766 S.E.2d at 379. The court noted that “statutory formalities [regarding consent or relinquishment forms] have heightened relevance and importance” because they “are the only clear line separating a biological parent’s rights with respect to the child prior to the adoption, from the finality and irrevocability resulting from the execution of the formalities.” Id. at 380. And because “[c]onsent lies at the foundation of the adoption process,” the lack of valid consent from the birth mother meant any adoption decree would be invalid. Id. at 378 (citation omitted).11

                                                                                                                                                       

prerequisites to the adoption of a legitimate child. . . . [and] [a]n adoption granted without parental consent is void . . . .” (citations omitted)); Hughes v. Aetna Cas. & Sur. Co., 383 P.2d 55, 60 (Or. 1963) (“Consent to an adoption by parents or guardian or other person in loco parentis is jurisdictional, except where the statute does not require it.”); In re Adoption of List, 211 A.2d 870, 873 (Pa. 1965) (“[N]otice to a natural parent of the adoption proceedings and the consent of a natural parent, where necessary, are jurisdictional prerequisites in an adoption proceeding . . . .”); In re JWT, 104 P.3d 93, 94 (Wyo. 2005) (“But here, the appropriate documentation never having been filed, the district court did not obtain jurisdiction to hear the adoption.”).

  • A handful of cases have suggested that the rule is different. For example, the Nevada Supreme Court held in a conclusory footnote that lack of consent made adoption proceedings merely voidable under 25

 

¶ 33 The majority attacks these cases on several grounds, none of which is persuasive. First, the majority argues that because these cases involve challenges to the validity of consent made by the birth parent, “they tell us nothing useful about . . . whether a failure of consent is a

                                                                                                                                                      

U.S.C. section 1914, based entirely on the fear that “a challenge made years after the adoption was finalized and untimely under state law might result in a holding that was detrimental to the best interests of the Native American child that the ICWA was designed to protect.” In re Petition of Phillip A.C., 149 P.3d 51, 60 n.44 (Nev. 2006). Similarly, the Alaska Supreme Court held that federal law did not force the conclusion that “invalid consents under § 1913 are void as a matter of law,” reasoning that otherwise decrees stemming from invalid consents would not be subject to state statutes of limitations. In re Adoption of T.N.F., 781 P.2d 973, 979 (Alaska 1989).

But we need not reach the issue of how this court would decide a case where the adoption had already been finalized. Utah law provides a limitation on the time period in which to contest an adoption. UTAH CODE § 78B-6-133(7)(b) (“No person may contest an adoption after one year from the day on which the final decree of adoption is entered.”). Because the court has not entered a final adoption decree, we do not need to decide whether this statute would bar a parent from contesting an adoption more than one year after the final adoption decree where the underlying proceeding was void for want of jurisdiction. Cf. In re Estate of Willey, 2016 UT 53, ¶ 16, 391 P.3d 171 (declining to reach issue of “whether all claims that judgments are void under rule 60(b)(4) [of the Utah Rules of Civil Procedure] are subject to the reasonable time limit imposed by rule 60(c)” because “the parties do not adequately brief this issue, because other jurisdictions are split on this issue, and because resolution of this issue is not necessary to the disposition of this case”). However, I note that other courts have, under certain circumstances, applied similar statutes in such a manner. See Hogue v. Olympic Bank, 708 P.2d 605, 608, 611 (Or. Ct. App. 1985) (en banc) (holding that one-year statute of limitations barred challenge to void adoption judgment where mother knew of adoption within statutory time period but did not act). But see Hughes, 383 P.2d at 66 (holding that statute did not bar challenge to void adoption judgment where applying statute of limitations would interfere with vested property rights).

subject-matter jurisdictional defect that can be raised by the court sua sponte.” Infra ¶ 134. Of course, there are cases in which the court has raised the issue sua sponte. See, e.g., In re I.H.H-L., 251 P.3d 651, 653 (Kan. Ct. App. 2011) (“Neither party questioned the district court’s jurisdiction to conduct the [termination of parental rights] proceedings that led to this appeal. On its own motion, however, this court questioned that jurisdiction and sought additional briefing from the parties addressing the jurisdictional questions. An appellate court has a duty to question jurisdiction on its own initiative.”); In re Adoption of L.D.S., 155 P.3d at 8 (“The jurisdictional issue [of whether the child was eligible for adoption without the valid consent of the biological parents] was raised sua sponte by this Court.”). And in any case, no court has relied on the dissent’s distinction, as parties are also free to raise subject matter jurisdiction concerns. See Johnson, 2010 UT 28, ¶ 10 (stating that “parties can raise subject matter jurisdiction at any time during a proceeding”). We are obligated to raise subject matter jurisdictional issues when they appear in a case before us, and there is no authority for the assertion that we may not do so if the facts of other cases did not require other courts to do the same.

¶ 34 The majority also points out that some adoption cases have personal jurisdiction defects due to lack of notice to the biological father. See infra ¶ 135 & n.18. But the fact that lack of notice often is intertwined with lack of consent does not mean that the issue is one solely of personal jurisdiction. A court may lack both personal jurisdiction and subject matter jurisdiction, and the dissent’s attempt to distinguish cases in which a lack of consent stemmed from failure to give notice is unavailing.

¶ 35 Additionally, the majority harbors “suspicion” of the cases we cite for the proposition that consent is a jurisdictional prerequisite because it thinks that many of them are from a “bygone era”—a time before courts focused on the best interests of the child. Infra ¶¶ 138–39. But courts across the country have continually and recently restated this proposition. Requiring parents to validly consent to termination of their parental rights before the court may assert jurisdiction over their children is not at all inconsistent with the current recognition in Utah and many other states that “the best interests of the child are paramount.” Infra ¶ 139. Indeed, numerous courts with statutory schemes that, like ours,[7] recognize the importance of the best interests of the child hold that consent is a jurisdictional requirement for adoption. See C.T. v. J.S., 951 P.2d 1199, 1200 (Alaska 1998) (“The only question is whether the trial court permissibly circumvented the consent requirement . . . . If not, then the adoption decree is void for lack of subject matter jurisdiction[.]”);[8] Brown, 766 S.E.2d at 378 (“Consent lies at the foundation of the adoption process[.]” (citation omitted));[9] In re Adoption of L.D.S., 155 P.3d at 8 (“[T]he best interests of the child can be served in no legitimate manner except in obedience to the policies and procedures mandated by law.”).[10] In any case, the best interests of a child are not furthered by placing the child for adoption without parental consent. See In re S.L.G., 110 A.3d 1275, 1285 (D.C. 2015) (“Although ‘the paramount consideration’ in determining whether to terminate parental rights is the best interest of the child, our case law recognizes that the [termination of parental rights] factors must be applied in accordance with ‘the presumption that the child’s best interest will be served by placing the child with his natural parent, provided the parent has not been proven unfit.’” (citation omitted)); In re Adoption of N.L.B., 212 S.W.3d 123, 128 (Mo. 2007) (en banc) (stating that statutorily required consideration of “the welfare of the person sought to be adopted . . . is informed by the fundamental proposition and presumption that maintaining the natural parent-child relationship is in the best interests of the child”); In re Adoption of L.D.S., 155 P.3d at 9 (“The lesson of this matter is that the interests of the child and ultimately all concerned in matters regarding parental rights can be adequately served only through scrupulous adherence to the statutory scheme found in the Adoption Code.”).

¶ 36 Having explained why valid consent is a subject matter jurisdictional prerequisite for an adoption proceeding, I now turn to whether Birth Mother consented to the termination of her parental rights. I would hold that her consent was not timely under ICWA and therefore invalid.

B. Birth Mother’s Consent Was Invalid

¶ 37  ICWA lays out a series of requirements for the termination of parental rights, including that “[a]ny consent given prior to, or within ten days after, birth of the Indian child shall not be valid.” 25 U.S.C. § 1913(a). Because the Child is an Indian child and therefore ICWA applies to these proceedings, the question is whether Birth Mother’s consent was timely given under this section.

¶ 38 That Birth Mother’s consent did not comply with ICWA’s timing requirements is undeniable, as both times she attempted to consent were “within ten days after[] birth of the Indian child.” Id. The Child was born at 12:14 p.m. on August 29, 2014, and Birth Mother attempted to consent for the first time on August 30, 2014. Both parties agree that this consent was invalid. Birth Mother again attempted to consent at 1:29 p.m. on September 8, 2014, and the prospective adoptive parents argue that this attempt was valid—even though it did not occur more than ten days after the Child’s birth—because it occurred more than ten twenty-four-hour periods after the Child’s birth. This argument is flat wrong.

¶ 39 When interpreting a statute, “our primary goal is to evince the true intent and purpose” of the legislative body. Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (citation omitted). The best evidence of legislative intent is “the plain and ordinary meaning of the statute’s terms.” Rent-A-Center W., Inc. v. Utah State Tax Comm’n, 2016 UT 1, ¶ 13, 367 P.3d 989. We often look to dictionary definitions as a “starting point” to determine the plain and ordinary meaning. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 17, 374 P.3d 3 (citation omitted); State v. Canton, 2013 UT 44, ¶ 13, 308 P.3d 517 (“In determining the ordinary meaning of nontechnical terms of a statute, our ‘starting point’ is the dictionary.” (citation omitted)).

¶ 40 The prospective adoptive parents purport to apply a plain language analysis by looking to Black’s Law Dictionary, which, around the time ICWA was passed, defined “day” as “[a] period of time consisting of twenty-four hours and including the solar day and the night.” Day, BLACK’S LAW DICTIONARY (5th ed. 1979). Under the prospective adoptive parents’ approach, ICWA’s timing requirement would be satisfied if consent was given any time after 240 hours of the child’s birth.

¶ 41 But the prospective adoptive parents may not cherry-pick a dictionary definition and call it a plain language analysis. I note that most definitions refer to a twenty-four-hour period with respect to the time from midnight to midnight. E.g., Day, WEBSTER’S NEW COLLEGIATE DICTIONARY (1973) (“the mean solar day of 24 hours beginning at mean midnight”); Day, RANDOM HOUSE COLLEGE DICTIONARY (revised ed. 1984) (“Also called civil day. a division of time equal to 24 hours but reckoned from one midnight to the next”); Day, AMERICAN HERITAGE DICTIONARY (5th ed. 2011) (“The 24-hour period during which the earth completes one rotation on its axis, traditionally measured from midnight to midnight.”). This definition is compatible with the notion that we do not begin counting the days since the Child’s birth based on the hour and minute he was born, but rather by the midnight-tomidnight metric generally used. See, e.g., Reisbeck v. HCA Health Servs. of Utah, Inc., 2000 UT 48, ¶ 16 n.4, 2 P.3d 447 (noting that rule 22 of the Utah Rules of Appellate Procedure’s deadline of days was meant to be calculated according to calendar days); see also State v. Sheets, 338 N.W.2d 886, 886–87 (Iowa 1983) (“The general rule is that when the word ‘day’ is used it means calendar day which includes the entire day from midnight to midnight . . . . We find no language in the [45-day statutory requirement] that indicates an intention to measure the time twenty-four hours from a given event.” (citations omitted)); In re Janklow, 589 N.W.2d 624, 626 (S.D. 1999) (“A ‘day,’ in this sense, begins at 12 o’clock midnight, and extends through 24 hours to the next 12 o’clock midnight.” (citation omitted)); Troxell v. Rainier Pub. Sch. Dist. No. 307, 111 P.3d 1173, 1176–77 (Wash. 2005) (citing Webster’s Dictionary in holding that the plain language of a statute required defining day as a twenty-four-hour period beginning at midnight). The prospective adoptive parents’ formalism has no place in this area of the law, as their method of tracking time would require district courts to track unique filing deadlines for each individual litigant—3:24 p.m. for litigant A, 5 p.m. for litigant B, and so on. See Troxell, 111 P.3d at 1177 n.4 (noting “absurd consequences” of “computation based on the precise timing of an act” including that “parties would have to attend to the precise hour, minute, and second of the filing” at issue (citation omitted)). I cannot see how Congress could have intended this result for counting time periods for purposes of ICWA.

¶ 42 This plain language interpretation of “day” as the time from midnight to midnight also meshes with the method for computing time outlined in the Federal Rules of Civil Procedure and its Utah counterpart, which also count in terms of days, not hours. FED. R. CIV. P. 6(a) (count in days “[w]hen the period is stated in days” and count in hours only “[w]hen the period is stated in hours”); UTAH R. CIV. P. 6(a) (same). This method of counting days applies in a variety of settings. FED. R. CIV. P. 6(a) (This rule applies “in computing any time period . . . in any statute that does not specify a method of computing time.”); UTAH R. CIV. P. 6(a) (same); see Gilroy v. Lowe, 626 P.2d 469, 471 (Utah 1981) (stating that the “method of computing time periods relating to acts provided for by law is set out in Rule 6(a) [of the] Utah Rules of Civil Procedure” and requires counting by calendar days); see also LeGras v. AETNA Life Ins. Co., 786 F.3d 1233, 1237–38 (9th Cir. 2015) (“We have consistently applied Rule 6 [of the Federal Rules of Civil Procedure] when interpreting time periods in various statutory contexts.”); Edwards v. Bay State Milling Co., 519 F. App’x 746, 748 n.3 (3d Cir. 2013) (noting that rule 6 of the Federal Rules of Civil Procedure “applies to any statute that does not specify a method of computing time” (internal quotation marks omitted)). Indeed, we have applied rule 6 of the Utah Rules of Civil Procedure to extend the waiting period for a putative father to file a paternity petition if the birth of the child falls on a holiday or weekend. Thurnwald v. A.E., 2007 UT 38, ¶ 4, 163 P.3d 623, abrogated on other grounds by In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009.

¶ 43 The prospective adoptive parents’ interpretation contorts the plain language of ICWA—had Congress intended to count by hours, it would have done so, as many state legislatures have done. See UTAH CODE § 78B-6-125(1) (“A birth mother may not consent to the adoption of her child or relinquish control or custody of her child until at least 24 hours after the birth of her child.”); see also IOWA CODE § 600A.4(2)(g), (4) (requiring a release of custody to be signed “not less than seventy-two hours after the birth of the child” and revocation of consent “within ninety-six hours of the time such parent signed a release of custody”); NEV. REV. STAT. § 127.070(1) (“All releases for and consents to adoption executed in this state by the mother before the birth of a child or within 72 hours after the birth of a child are invalid.”). But ICWA’s language is unambiguous in requiring a waiting period in terms of days, and the argument that the waiting period is really 240 hours is demonstrably wrong.

¶ 44 Because Birth Mother gave consent before midnight on the tenth day after the Child’s birth, she gave consent “within ten days after” the Child’s birth and her consent is therefore invalid.[11] 25 U.S.C. § 1913(a); see In re Adoption of C.D.K., 629 F. Supp. 2d 1258, 1261, 1263 (D. Utah 2009) (invalidating a mother’s consent to termination of her parental rights because the relinquishment hearing happened within ten days of the child’s birth). This, in my view, deprived the district court of subject matter jurisdiction, and I now turn to whether Birth Father had the right to raise the issue of the underlying subject matter jurisdictional defect.

  1. BIRTH FATHER HAS THE LEGAL RIGHT TO CHALLENGE

THE VALIDITY OF BIRTH MOTHER’S CONSENT AND THE DISTRICT COURT’S SUBJECT MATTER JURISDICTION

¶ 45 Following Birth Mother’s invalid consent, Birth Father appealed the district court’s denial of his motion to intervene. The district court denied Birth Father’s motion to intervene because it held that he had not established paternity before Birth Mother gave her consent, as required by Utah Code section 78B-6-121(3). Although I believe Birth Mother’s consent was invalid and the district court lacked subject matter jurisdiction to proceed with the adoption, these issues are before us only if Birth Father can properly challenge them. I would hold that Birth Father can do so, as he enjoys both traditional standing under Utah standing law and a statutory right as a parent under 25 U.S.C. section 1914 to raise Birth Mother’s invalid consent and the district court’s lack of subject matter jurisdiction to go forward with the adoption.

A. Birth Father Has Standing Under Our Traditional Test

¶ 46 Before a court may make a child available for adoption, it must terminate the parental rights of the biological parents. The order terminating Birth Mother’s parental rights is, as Justice Lee correctly notes, an appealable order. Infra ¶ 98. But as a prerequisite to the adoption order—which has not been finalized in this case—it is an appealable order within an existing case in which Birth Father’s rights are still very much at issue.17 In the unique context of adoption

                                                                                                                                                       

17 The majority chides me for “cit[ing] no authority for the power to revisit a final order in a collateral termination proceeding not challenged by any of the parties at any stage of these proceedings.” Infra ¶ 104. But the order here was not actually collateral, as both the termination and consent orders all took place within the same adoption proceeding, which is among the rare cases in which a final, appealable order affects remaining rights in such a way that we do not view it as collateral. Cf. State v. Mooers & Becker, 2017 UT 36, ¶ 17, __ P.3d __ (noting that “orders of complete restitution, though technically entered on the civil docket, flow entirely from the criminal cases that give rise to them; they are not separate civil cases with a life outside of the criminal case”); id. ¶ 19 n.4 (noting that where a district court alters the amount of complete restitution on appeal, that may form the basis for the district court on remand to also alter the amount of court-ordered restitution, even where the order of court-ordered restitution was not appealed). To call Birth Father’s action “collateral” similarly ignores the reality of how adoption orders are intertwined. And because Birth Father’s rights were directly affected by an order within the existing adoption case, his appeal properly falls within the time period of “the pendency of an action,” during which we have a responsibility to sua sponte raise subject matter jurisdictional issues. See infra ¶ 104.

The majority also cites two cases in support of its assertion that state timelines bar Birth Father from challenging the order terminating Mother’s rights because “[w]here, as here, a district court expressly holds that its order complies with ICWA requirements, the courts have held that the time to challenge that determination under section 1914

(cont.)

proceedings, Birth Father’s rights are inextricably tied to the order terminating Birth Mother’s rights, as that order purported to terminate his rights as a biological parent.18 Consequently, I conclude that Birth Father has standing to raise the defect in Birth Mother’s consent and the resultant failure of subject matter jurisdiction.

                                                                                                                                                       

expires upon the running of the time for an appeal.” Infra ¶ 119. But our holding in the first case, In re Adoption of A.B., 2010 UT 55, 245 P.3d 711, applies only to individuals who have the ability to file an appeal. See id. ¶ 13. But in this case, Birth Father was not a party at the time of Birth Mother’s untimely consent and therefore had no ability to appeal the relevant order. And the second case involves a question of res judicata and the Full Faith and Credit Clause, neither of which is applicable here. See Kiowa Tribe of Okla. v. Lewis, 777 F.2d 587, 592 (10th Cir. 1985).

18 The majority posits that Birth Father “accepted the validity of the consent order” until this court raised the issue, and concludes that he thus waived the issue. Infra ¶ 98 n.1. But whether Birth Father, the prospective adoptive parents, or the district court miscounted the days from the Child’s birth does not change the fact that the issue goes to subject matter jurisdiction and is properly raised by the court. In re Adoption of Baby E.Z., 2011 UT 38, ¶ 25, 266 P.3d 702 (“Because subject matter jurisdiction goes to the heart of a court’s authority to hear a case, it is not subject to waiver and may be raised at any time, even if first raised on appeal.” (citation omitted)); Barnard v. Wassermann, 855 P.2d 243, 248 (Utah 1993) (“This court has made clear that challenges to subject matter jurisdiction may be raised at any time and cannot be waived by the parties.”). And I reject the majority’s assertion that applying our sua sponte duties to this case “smacks of paternalism.” Infra ¶ 120. That charge essentially boils down to an attack on ICWA’s special protections for Indian children, parents, and tribes. If anything, the majority’s suggestion that state courts should turn their back to these problems at the risk of being paternalistic smacks of the kind of disregard of Indian welfare that caused Congress to enact ICWA in the first place. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 44– 45 (1989) (“It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-à-vis state authorities.”).

¶ 47 Courts of this state employ a three-step inquiry in assessing traditional standing: (1) “the party must assert that it has been or will be adversely affected by the [challenged] actions”; (2) “the party must allege a causal relationship between the injury to the party, the [challenged] actions and the relief requested”; and (3) “the relief requested must be substantially likely to redress the injury claimed.” Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 74, ¶ 19, 148 P.3d 960 (alterations in original) (internal quotation marks omitted). Birth Father easily satisfies all three parts of this test.

¶ 48 First, Birth Father is undeniably adversely affected by Birth Mother’s invalid consent and the dependent order terminating her rights. Indeed, absent the termination order, Birth Father would be a “parent” under ICWA and entitled to intervene in this action even under the most grudging of standards. But as it now stands, Birth Mother’s invalid consent cut off Birth Father’s rights to his own child. That this state of affairs adversely affected Birth Father is beyond peradventure. See In re J.P., 648 P.2d 1364, 1373 (Utah 1982) (“The rights inherent in family relationships—husband-wife, parent-child, and sibling—are the most obvious examples of rights retained by the people. They are ‘natural,’ ‘intrinsic,’ or ‘prior’ in the sense that our Constitutions presuppose them. . . . Blackstone deemed ‘the most universal relation in nature . . . (to be) that between parent and child.’” (citations omitted)). Second, Birth Father can establish a causal relationship between the challenged action and the adverse effect: Birth Mother’s invalid consent and the subsequent order terminating her rights led directly to the district court placing the Child for adoption. And finally, the relief requested—Birth Father’s opportunity to intervene and assert his parental rights—will be a direct consequence of recognizing the invalidity of Birth Mother’s rights.

B. Birth Father Is a Parent Under ICWA

¶ 49 Section 1914 of ICWA allows a parent to petition a court to invalidate an action terminating parental rights that violated any provision of sections 1911, 1912, and 1913 of ICWA.[12] We hold that Birth Father meets ICWA’s definition of a “parent” because he has acknowledged paternity. 

¶ 50  “Pursuant to general principles of statutory interpretation, [w]e . . . look first to the . . . plain language [of ICWA], recognizing that our primary goal is to give effect to [congressional] intent in light of the purpose the statute was meant to achieve.” In re Kunz, 2004 UT 71, ¶ 8, 99 P.3d 793 (first three alterations in original) (internal quotation marks omitted). We consider it obvious that the plain language does not fully answer the question of what is required for an unmarried biological father to be considered a parent for purposes of ICWA.20 ICWA defines “parent” as “any biological parent or parents of an Indian child” but specifically excludes “the unwed father where paternity has not been acknowledged or established.” 25 U.S.C. § 1903(9). ICWA does not,

                                                                                                                                                      

whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.

25 U.S.C. § 1914. We address the language about removal from custody below. Infra ¶¶ 78–84.

20 The dissent misinterprets this sentence, stating that we “find[] it ‘obvious that the plain language’ of ICWA does not dictate the application of state law standards of paternity.” Infra ¶ 178. The dissent goes further to claim that we “base[] that conclusion on [our] sense of Congress’s ‘purpose’ in enacting ICWA, and on analysis in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), that [we] view[] as supportive of [our] holding.” Infra ¶ 178. However, our conclusion that the plain language does not fully answer the question of what is required for an unmarried biological father to be considered a parent under ICWA is not so narrowly moored. Our conclusion is further supported by the language of, among other provisions, 25 U.S.C. section 1903(9), where “parent” is defined, providing that an unmarried biological father is a parent only if he has “acknowledged or established” paternity, but with no indication of what actions are required to acknowledge or establish paternity and no specification regarding timing.

 

however, define what actions the unmarried father has to take to acknowledge or establish paternity and also does not specify the timing. 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.

  1. Interpreting “Acknowledge” and “Establish” Requires a Plain Meaning Approach

¶ 52 Because the terms “acknowledge” and “establish” are not defined in the statute, we turn first to dictionary definitions for guidance. The first definition for “acknowledge” in Black’s Law Dictionary is “[t]o recognize (something) as being factual or valid.”

Acknowledge, BLACK’S LAW DICTIONARY (10th ed. 2014). The second definition for “acknowledge” specifically gives “acknowledge paternity of the child” as an example; it reads, “[t]o show that one accepts responsibility for.” Id. The legal definition of “acknowledge” in Merriam-Webster’s online dictionary includes a variant with a similar example (“will acknowledge the child as his”) and defines “acknowledge” as “to admit paternity of.” Acknowledge, MERRIAMWEBSTER, available at https://perma.cc/HMQ9-MHP8. Other definitions of “acknowledge” in Merriam-Webster’s online dictionary include “to recognize as genuine or valid.” Id. Clearly, “acknowledge” is a broad term and little guidance is found in its meaning as to how to apply it. For example, while acknowledging paternity of a child can mean “show[ing] that one accepts responsibility for” the child, no specific actions are suggested by that term or its definition.

Acknowledge, BLACK’S LAW DICTIONARY (10th ed. 2014). Incidentally, Black’s Law Dictionary defines a “formal acknowledgment” as “[a] father’s recognition of a child as his own by a formal, written declaration that meets a state’s requirements for execution, typically by signing in the presence of two witnesses.” Acknowledgement, BLACK’S LAW DICTIONARY (10th ed. 2014). An “informal acknowledgment,” on the other hand, is “[a] father’s recognition of a child as his own not by a written declaration but by receiving the child into his family or supporting the child and otherwise treating the child as his own offspring.” Id. The dictionary definitions thus provide for acknowledgment under both state rules and other means not tied to state standards, and ICWA does not specify whether it requires formal or informal acknowledgment of paternity. Thus, the dictionary definition alone of “acknowledge” does not answer the question of what ICWA requires of a parent.

¶ 53 “Establish” likewise has a broad meaning under a plain language analysis. Black’s Law Dictionary has three definitions of “establish,” only one of which makes sense in the context of establishing paternity: “To prove; to convince.” Establish, BLACK’S LAW DICTIONARY (10th ed. 2014). And the most logical definition for this context in Merriam-Webster’s online dictionary is “to put beyond doubt.” Establish, MERRIAM-WEBSTER, available at https://perma.cc/9RB2-33WP. From these definitions, it is obvious that it requires more to “establish” paternity than to “acknowledge” paternity. But what actions are required in order to “prove” paternity or “put [paternity] beyond doubt” is not apparent from the plain meaning of the word. Furthermore, neither the plain meaning of “acknowledge” nor the plain meaning of “establish” suggests anything about the timing of the actions. Theoretically, if we were to rely on a plain meaning of the terms for the actions and timing required, a father could acknowledge or establish paternity many years after the completion of the adoption. Because the terms are so broad and vague and because of the lack of a timing element, dictionary definitions alone are inadequate for determining who is a parent under ICWA.

¶ 54 In light of this roadblock in the plain language analysis, the dissent argues that we should view “acknowledge” and “establish” as terms of art defined by the states. But the dissent belies its own conclusion by asserting, on one hand, that “acknowledge” and “establish” are well-defined terms of art, and on the other, that there are fifty variants of the terms. Infra ¶ 170. These are contradictory ideas, and the dissent’s attempt to reconcile them is unavailing.

¶ 55 The dissent’s position takes an erroneous view of the definition of a term of art. A term of art has one established meaning, not fifty. Term of art, BLACK’S LAW DICTIONARY (10th ed. 2014) (“A word or phrase having a specific, precise meaning in a given specialty, apart from its general meaning in ordinary contexts.” (emphasis added)); see McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342 (1991) (“[W]e assume that when a statute uses such a term [of art], Congress intended it to have its established meaning.”); Dubois v. Madison Paper Co., 795 A.2d 696, 699 (Me. 2002) (“The phrase ‘clear and convincing evidence’ is a legal term of art with a well-established meaning.” (emphasis added)). The dissent’s insistence that “acknowledge” and “establish” have distinctly defined meanings contradicts the notion that the “longestablished” definitions last only as far as the state line.

¶ 56 A term of art may of course have nuanced differences from state to state, but the core meaning must be the same.[13] Contrary to the dissent’s assertion, different states’ interpretations of “acknowledge” and “establish” do not share a common core. As the dissent itself notes, “standards vary widely across the fifty states,” infra ¶ 170 n.35, including whether a writing must be signed by the mother for the father to acknowledge paternity. The standard for acknowledging or establishing paternity in Utah is so different from the standard in, for example, New Jersey, that we could not say they share the same common core. See Bruce L. v. W.E., 247 P.3d 966, 978–79 (Alaska 2011) (“Under New Jersey law, ‘fil[ing] a written acknowledgement of paternity . . . or initiat[ing] a lawsuit claiming paternity or any other parental rights prior to the final judgment of adoption’ would make an unwed father a parent for ICWA purposes.” (alterations in original) (quoting In re Adoption of a Child of Indian Heritage, 543 A.2d 925, 936 (N.J. 1988))).

¶ 57 The contradiction inherent in the dissent’s argument is exposed in its analysis of Holyfield. The dissent states that Holyfield’s rejection of state-law definitions is “easily distinguishable, as it involved a statutory term (domicile) of ‘generally uncontroverted meaning.’” Infra ¶ 165 (quoting Holyfield, 490 U.S. at 48). This is similar to how—at times—the dissent describes “acknowledge” and

“establish” as well. See infra ¶ 170 (“First, the words acknowledgement and establishment of paternity are long-established terms of art in state family law.”); infra ¶ 170 (“Congress utilized terms with accepted meaning in state family law.”); infra ¶ 170 n.35 (“[W]hen ICWA was enacted, ‘acknowledge’ was a term of art that indicated a specific process under state law—though varying from state to state.” (emphasis added)). The dissent is attempting to have its cake and eat it too by stating that “acknowledge” and “establish” are both accepted terms of art and have fifty different meanings.

¶ 58 Rather, “acknowledge” and “establish” are properly construed as plain language terms. Carpenter v. Hawley, 281 S.E.2d 783, 786 (N.C. Ct. App. 1981) (“Contrary to plaintiff’s assertions, the word ‘acknowledged’ is not a term of art . . . requiring a formal declaration before an authorized official.”); see also Estate of Griswold, 24 P.3d 1191, 1197–98 (Cal. 2001) (applying plain language analysis to

“acknowledge” in paternity suit); Blythe v. Ayres, 31 P. 915, 922 (Cal. 1892) (stating that “[t]he word ‘acknowledge’ has no technical meaning” in the context of paternity proceedings); State v. Wolfe, 239 A.2d 509, 512–13 (Conn. 1968) (stating that “acknowledge” in paternity statute “can only be taken in its usual and common meaning which is ‘(t)o own, avow, or admit; to confess; to recognize one’s acts, and assume the responsibility therefor’” (citing editions of Black’s Law Dictionary and Webster’s Dictionary)). A plain language interpretation of “acknowledge” and “establish” furthers ICWA’s purpose by allowing reasonable methods of acknowledging or establishing paternity, and Birth Father’s actions fall plainly within that scope.

  1. Federal Law Applies to Give Context to the Plain Meaning of the Terms

¶ 59 Having found that a plain language analysis of the terms requires more than the dictionary definitions provide, we now turn to the question of whether the procedures and timing for acknowledging or establishing paternity are defined by state law. We reject the notion that courts should rely on state law to determine whether an unmarried biological father has acknowledged or established paternity under ICWA. Instead, we adopt the reasoning in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). In Holyfield, the Supreme Court stated that

the purpose of the ICWA gives no reason to believe that Congress intended to rely on state law for the definition of a critical term; quite the contrary. It is clear from the very text of the ICWA, not to mention its legislative history and the hearings that led to its enactment, that Congress was concerned with the rights of Indian families and Indian communities vis-à-vis state authorities.

Id. at 44–45. “Parent” is a critical term under ICWA. Whether an individual qualifies as a “parent” determines whether he or she may benefit from the heightened protections for parental rights available under ICWA. There is “no reason to believe that Congress intended to rely on state law for the definition of [this] critical term.” Id. at 44. Indeed, we must begin “with the general assumption that in the absence of a plain indication to the contrary, . . . Congress when it enacts a statute is not making the application of the federal act dependent on state law.” Id. at 43 (alteration in original) (internal quotation marks omitted). And although “Congress sometimes intends that a statutory term be given content by the application of state law,” this applies only in the context of fleshing out the federal standard—it does not mean the federal standard is replaced with fifty state standards. Id.

¶ 60 Additionally, Holyfield notes that Congress can and does expressly state when it wants a state or tribal law definition to apply. Id. at 47 n.22 (“Where Congress . . . intend[s] that ICWA terms be defined by reference to other than federal law, it state[s] this explicitly.”). For example, Congress explicitly stated that “extended family member” and “Indian custodian” are defined by reference to tribal law or custom or state law. 25 U.S.C. § 1903(2), (6). This, the Holyfield Court stated, is evidence that if Congress “did intend that ICWA terms be defined by reference to other than federal law,” “it would have said so.” 490 U.S. at 47 n.22. And this is not merely “another way of saying that the legislature could have spoken more clearly.” Craig v. Provo City, 2016 UT 40, ¶ 38, 389 P.3d 423. Rather, the explicit use of state or tribal law for “extended family member” and “Indian custodian” but not for other terms such as “acknowledge” and “establish” indicates that Congress “rejected the formulation embodied in the neighboring provision”—i.e., that it declined to incorporate state or tribal standards for acknowledging and establishing paternity. Id. ¶ 38 n.9. Because Congress did not mandate a state or tribal law definition for “acknowledge” or “establish,” we can and should rely instead on a federal definition.

¶ 61 In determining how to define the procedures for acknowledging and establishing paternity, we have a duty to “harmonize [a statute’s] provisions in accordance with the legislative intent and purpose.” Osuala v. Aetna Life & Cas., 608 P.2d 242, 243 (Utah 1980); see also Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 906– 07 (Utah 1984) (stating that the meaning of a statute’s sections could not be determined without taking into account “the purposes they were designed to effectuate”); B.L. Key, Inc. v. Utah State Tax Comm’n, 934 P.2d 1164, 1168 n.2 (Utah Ct. App. 1997) (“[T]he overarching principle, applicable to all statutes, [is] that [statutes] should be construed and applied in accordance with the intent of the Legislature and the purpose sought to be accomplished.” (third alteration in original) (citation omitted)). At times, it may be necessary to delve into legislative history to determine what and how many purposes the legislature intended. Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 15, 267 P.3d 863 (“[W]hen statutory language is ambiguous . . . we generally resort to other modes of statutory construction and ‘seek guidance from legislative history’ and other accepted sources.” (citation omitted)). But that is not the case here, where we have a clear directive in the statute itself that drives at a purpose:

to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 U.S.C. § 1902.

¶ 62 The dissent provides no support for its assertion that 25 U.S.C. section 1901(5) states that a “key countervailing purpose at stake under ICWA is the protection of the traditional jurisdiction of state courts over adoption proceedings.” Infra ¶ 159. And that is an odd statement given that, in context, section 1901(5) states that “the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” That is, ICWA represents an extraordinary act of federal intervention into family law precisely in response to Congress’s concern about state courts’ “alarming[]” tendency to disregard the interests of Indian parents and tribes. 25 U.S.C. § 1901(4). So, far from being “recognize[d] . . . to a large degree” as a “countervailing purpose,” infra ¶ 159, state courts’ wielding of their traditional jurisdiction is what led to the need for ICWA in the first place.

¶ 63 Notably, nothing in the “Congressional declaration of policy,” 25 U.S.C. § 1902, supports the assertion that protection of states’ traditional jurisdiction is part of ICWA’s purpose. And the fact that “ICWA does not oust the states of that traditional area of their authority,” infra ¶ 159, is not a reason to read in another purpose—it is simply how federalism works. See In re Adoption of Halloway, 732 P.2d 962, 967 (Utah 1986) (“Under general supremacy principles, state law cannot be permitted to operate as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (internal quotation marks omitted)).

¶ 64 The dissent also ignores Congress’s plenary powers in this arena by asserting that issues of paternity and other family matters have “never been a creature of federal law,” infra ¶ 163, and that the use of the past tense in section 1903(9) is significant because it means that Congress intended “acknowledged” and “established” to be defined by existing standards—by which it means state standards. Infra ¶ 171. This is not correct. First, acknowledgement or establishment of paternity under a federal standard is consistent with the use of the past tense because any action a putative father takes after the enactment of ICWA necessarily looks back to the standard ICWA had—in the past— established. Second, to the extent the dissent is attempting to guard against a perceived intrusion, it ignores the fact that this “intrusion” is taking place within the context of Indian welfare, an area in which

Congress has plenary authority. U.S. CONST. art. I, § 8(3) (“The

Congress shall have Power . . . To regulate Commerce . . . with the Indian Tribes.”); see Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) (“[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.”); Halloway, 732 P.2d at 967 (“The Supreme Court has made it clear that where Indian affairs are concerned, a broad test of preemption is to be applied.”).

¶ 65 This authority encompasses family matters such as childraising. Wakefield v. Little Light, 347 A.2d 228, 234 (Md. 1975) (“We think it plain that child-rearing is an essential tribal relation.” (internal quotation marks omitted)); see also 25 U.S.C. § 1901(2)–(3) (stating that Congress has “assumed the responsibility for the protection and preservation of Indian tribes and their resources” and that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children”). Indeed, the very point of ICWA is to regulate family law issues. 25 U.S.C. § 1902 (stating that the statute’s policy is to protect Indian children and families and establish standards for placing those children in foster or adoptive homes). 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.

¶ 66 The danger that ICWA “would be impaired if state law were to control” presents an additional, compelling reason “for the presumption against the application of state law.” Holyfield, 490 U.S. at 44 (citation omitted). And hewing closely to this presumption in the Indian affairs arena, in which Congress enjoys plenary power, strikes us as particularly appropriate where “the congressional findings that are a part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to correct.” Id. at 45; see also Halloway, 732 P.2d at 969 (stating that Utah court’s receptivity to placing Indian children in non-Indian homes “is precisely one of the evils at which the ICWA was aimed”); 25 U.S.C. § 1901(4) (indicating “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies”); id. § 1901(5) (expressing concern “that the States . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families”). The U.S. Supreme Court praised our “scholarly and sensitive” decision in Halloway for its sensitivity to the risk that state law could “be used to frustrate the federal legislative judgment expressed in the ICWA.” Holyfield, 490 U.S. at 52–53 (quoting Halloway, 732 P.2d at 970).

¶ 67 Furthermore, ICWA provides that “where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent . . . of an Indian child than the rights provided under [ICWA], the State or Federal court shall apply the State or Federal standard,” thus ensuring that parents of Indian children enjoy the highest level of protection of their parental rights available. 25 U.S.C. § 1921. 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. For a biological father to acknowledge paternity through a declaration of paternity, Utah law requires the birth mother’s signature in addition to the unmarried biological father’s signature. UTAH CODE § 78B-15-302(1)(c). Thus, in cases where the birth mother declines to sign the declaration, the unmarried biological father is precluded from acknowledging paternity under ICWA, if we look to Utah law for the definition of that term. See In re Adoption of R.M., 2013 UT App 27, ¶ 8, 296 P.3d 757 (“If the birth mother declines to acknowledge the unmarried biological father’s paternity and refuses to sign the declaration of paternity, he will have to comply with the paternity provisions in order for his consent to be required.”). The result is that, when applying Utah law, the unmarried biological father’s option to acknowledge paternity is essentially read out of ICWA. The district court’s opinion illustrates this result, as it does not seriously analyze whether Birth Father acknowledged paternity under Utah law, instead focusing on whether he complied with the requirements for establishing paternity under Utah law.

¶ 68 Also, as the district court recognized, “Utah’s requirements for establishment of paternity by unwed fathers are notoriously strict.” See In re Adoption of Baby E.Z., 2011 UT 38, ¶ 40, 266 P.3d 702 (“The Utah legislature has enacted strict requirements for unmarried birth fathers who seek to prevent adoption of their children.”).[14] Applying state law to a term as critical as the definition of a parent under ICWA is not in keeping with ICWA’s text and purpose. And applying Utah law specifically to eliminate the option of acknowledging paternity—and instead requiring an unmarried biological father of an Indian child to comply with some of the strictest requirements for establishing paternity in order to receive any protection of his parental rights under ICWA—“would, to a large extent, nullify the purpose the ICWA was intended to accomplish.” Holyfield, 490 U.S. at 52.

¶ 69 We also conclude that “Congress could hardly have intended the lack of nationwide uniformity that would result from state-law definitions of” who is a parent under ICWA. Id. at 45.23 In Holyfield, the U.S. Supreme Court concluded that ICWA did not incorporate statelaw definitions of domicile in large part to avoid the anomaly of different results depending on which state the mother traveled to in order to give birth. Id. at 46. It would be similarly anomalous—not to mention unfair and an unwarranted intrusion by states into Indian customs and practices—to make an unmarried biological Indian father’s status as a parent under ICWA depend on whether the mother gave birth in one state or another. “[A] statute under which different rules apply from time to time to the same” unmarried biological father, “simply as a result of” the mother’s decision to give birth in “one State [or] another, cannot be what Congress had in mind.” Id. Thus, we conclude that the interpretation of what is required to acknowledge or establish paternity under ICWA is not left up to state law.

¶ 70 We note that the dissent offers no persuasive reasoning for why we should presume that ICWA embraced state principles over those expressed in tribal law principles dealing with family issues. But, in any case, we likewise reject the notion that courts should look to tribal law to determine whether an unmarried biological father has acknowledged or established paternity under ICWA. As with state law, the application of tribal law to the definition of a parent under ICWA

                                                                                                                                                       

Utah law to show that actions outside of Utah’s paternity requirements are not per se unreasonable.

23 A principal reason for the presumption that Congress does not make “the application of . . . federal act[s] dependent on state law. . . . is that federal statutes are generally intended to have uniform nationwide application.” Holyfield, 490 U.S. at 43.

would result in a lack of nationwide uniformity. Based on Holyfield, we determine that Congress could hardly have intended that result.

  1. A Federal Standard of Reasonableness Applies

¶ 71 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. This comports with the canon of interpretation that where a statute is silent as to the time or manner of a subject, we presume a reasonability standard—an approach that is

                                                                                                                                                       

  • We concede that the courts in some cases we cite today did not look to a federal definition for acknowledging or establishing paternity, see, e.g., In re Adoption of a Child of Indian Heritage, 543 A.2d 925, 935 (N.J. 1988), but the dissent’s criticism on that issue misses the point. Infra ¶ 166 n.33. The federal standard of reasonableness sets the floor for how states can define acknowledging or establishing paternity in the context of ICWA. The fact that some state standards may be more protective of parents’ rights than the federal minimum does not mean they have rejected a reasonableness floor, and these standards are not inconsistent with our decision today. See 25 U.S.C. § 1921 (“In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard.”); see also Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 173 (Tex. App. 1995) (“Congress intended to defer to state or tribal standards for establishing paternity, as long as [those] standards were within contemplation of Congress and provide [a] realistic opportunity for unwed father[s] to establish [the paternal] relationship with [the] child.” (citation omitted)).

 

consistent with ICWA case law25 and has been applied by many states over many years and many different topics of law.[15] ICWA is silent

  • Other states have determined that an unmarried biological father of an Indian child can qualify as a parent under ICWA even if his actions were not sufficient to comply with state-law requirements for establishing paternity. For example, the Arizona Court of Appeals held that even though an unwed father had not complied with a state statute giving him thirty days after receiving notice of an adoption petition to serve the mother with notice that he had initiated a paternity proceeding—and therefore “the juvenile court would typically find he waived his right to further notification of any adoption hearing”—the record nonetheless reflected that he had taken adequate steps to acknowledge paternity for ICWA purposes. Jared P. v. Glade T., 209 P.3d 157, 160, 162 (Ariz. Ct. App. 2009). And the Alaska Supreme Court concluded, based on its analysis of cases from other states, “that to qualify as an ICWA parent an unwed father does not need to comply perfectly with state laws for establishing paternity, so long as he has made reasonable efforts to acknowledge paternity.” Bruce L. v. W.E., 247 P.3d 966, 979 (Alaska 2011). This is consistent with our conclusion that the definition of a parent under ICWA is not controlled by state law.

both as to the manner in which an unwed father may acknowledge or establish paternity and as to the time in which he must do so. Applying a reasonability standard here creates obvious stop-gaps and prevents the slippery-slope concerns of the dissent, as it requires more than “any bare acknowledgement by a putative father,” infra ¶ 198, and would not allow “a putative Indian father [to] come forward months or even years later and assert a right to disrupt even a finalized adoption.” Infra ¶ 201.[16]

the absence of a fixed statutory period of time”); Nw. Ohio Bldg. & Constr. Trades Council v. Conrad, 750 N.E.2d 130, 135–36 (Ohio 2001) (noting requirement that absent specific language administrative agency actions be performed “in a reasonable manner”); State v. Gaul, 691 N.E.2d 760, 767 (Ohio Ct. App. 1997) (applying the “reasonable manner” standard to a statute that commanded a public official to invest public money but did not specify how it was to be done); Commonwealth v. Bd. of Supervisors of Arlington Cty., No. 18747, 1976 WL 22828, at *2 (Va. Cir. Ct. Oct. 1, 1976) (county board must exercise its general powers in a reasonable manner); see also Lora v. Shanahan, 804 F.3d 601, 614 (2d Cir. 2015), cert. denied, 136 S. Ct. 2494 (2016) (analyzing “reasonable” time limit for immigration detention).

¶ 72 This approach is consistent with ICWA’s liberal administration. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,586 (Nov. 26, 1979) (stating that ICWA “shall be liberally construed”); see also Brenda O. v. Ariz. Dep’t of Econ. Sec., 244 P.3d 574, 577 (Ariz. Ct. App. 2010) (“ICWA is to be interpreted ‘liberally in favor of the Indians’ interest in preserving family units.’” (citation omitted)); In re Esther V., 248 P.3d 863, 869 (N.M. 2011) (noting that ICWA is a remedial statute that must be interpreted “liberally to facilitate and accomplish [its] purposes and intent” (citation omitted)). The BIA guidelines also support a federal reasonableness standard.28 Indeed, courts assessing paternity by unwed

                                                                                                                                                      

has not devolved into “chaos and unpredictability” as “each court faced with the . . . question . . . offer[s] its own subjective assessment of what is . . . ‘reasonable.’” Infra ¶ 200.

28 The BIA considered including a federal standard for what constitutes acknowledgement or establishment of paternity. Some commenters for the BIA’s proposed rule “recommended language requiring an unwed father to ‘take reasonable steps to establish or acknowledge paternity’” and requested clarification on time limits for acknowledging or establishing paternity. Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,795–96 (June 14, 2016). The BIA responded by stating that “[t]he Supreme Court and subsequent case law has already articulated a constitutional standard regarding the rights of unwed fathers” and that many states have held that, under ICWA, an unwed father “must make reasonable efforts to establish paternity, but need not strictly comply with State laws.” Id. (citing Bruce L., 247 P.3d at 978–79). Based on these holdings that a reasonableness standard for acknowledging or establishing paternity applies under ICWA—a set of holdings we join today—the BIA “d[id] not see a need to establish an ICWA-specific Federal definition for this term.” 81 Fed. Reg. at 38,796.

The U.S. Supreme Court relied on similar language from BIA guidelines in Holyfield. The guidelines declined to articulate a federal standard on the basis that “[t]here is no indication that these state law definitions [of “residence” and “domicile”] tend to undermine in any way the purposes of the Act.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,585 (Nov. 26, 1979). From this, the Supreme Court concluded that “[t]he clear implication is that

 

putative fathers under other federal statutes have also looked to “the history and tradition of liberal administration of benefits” in rejecting “[a]pplication of rigorous state law schemes for proof of paternity.” St. John Stevedoring Co. v. Wilfred, 818 F.2d 397, 399 (5th Cir. 1987). Put another way, the BIA guidelines did not adopt a uniform standard of reasonableness because the BIA correctly presumed that state courts already understood that strict compliance with state law was not necessary.

¶ 73 By contrast, the dissent’s proposed standard would lead to absurd situations where an unwed father who clearly has acknowledged or established paternity under ICWA would not qualify under Utah law. Take, for example, a situation where a biological mother abandons a child with the unmarried biological father. If the father acted as the sole caretaker for his child, that would surely be a clear-cut case of acknowledgement of paternity. But under Utah law, the father would not have acknowledged paternity if he did not have a written agreement that the mother had also signed. Supra ¶ 67. This would provide the father with fewer rights than a reasonability standard under ICWA. We believe a common-sense reading of ICWA prohibits the dissent’s strict interpretation. See In re Adoption of Baby E.Z., 2011 UT 38, ¶ 40; In re J.S., 321 P.3d 103, 110 (Mont. 2014) (applying a “[c]ommon sense construction of the meaning of ‘active efforts’” in ICWA (alteration in original)); see also In re Adoption of Sara J., 123 P.3d 1017, 1036 (Alaska 2005) (applying “[c]ommon sense” to interpret ICWA’s placement preferences); In re T.S.W., 276 P.3d 133, 144 (Kan. 2012) (same).

¶ 74 Thus, we hold that Birth Father’s actions satisfied the requirements for acknowledging paternity under ICWA using a reasonability standard. Birth Father and Birth Mother resided together at the time of conception and for the first six months of Birth Mother’s pregnancy. During that time, Birth Father supported Birth Mother, paying for their rent, utilities, and groceries and Birth Mother’s phone bill. When Birth Mother moved to Utah six months into the pregnancy, the plan was for Birth Father to join her later, once she was settled into their new apartment. Birth Father stayed in contact with Birth Mother

                                                                                                                                                       

state law that did tend to undermine the ICWA’s purposes could not be taken to express Congress’ intent.” Holyfield, 490 U.S. at 51 n.26.

over the phone for the first few weeks after her move, until Birth Mother cut off communication with him. Birth Father was then told by family friends that Birth Mother was fine and would return to South Dakota soon. Birth Father indicated that he believed Birth Mother needed some space and that she would either return to South Dakota to deliver their baby or that she would return with the baby after the delivery. Instead, Birth Mother placed their child for adoption. Upon learning of the proceedings shortly after the September 25, 2014 order terminating parental rights was issued, Birth Father informed the tribe of the situation and consulted with Dakota Plains Legal Services. After being referred to Utah Legal Services, Birth Father filed a motion to intervene, a motion for paternity testing, and a paternity affidavit expressly acknowledging that he was the Child’s biological father. He also filed an Answer, Objection, and Verified Counterpetition to the Verified Petition for Adoption. When new ICWA guidelines were released on the day of the hearing on his motions, Birth Father acted immediately: the very same day, he submitted those guidelines to the court with a motion requesting the court to review them and drawing the court’s attention to pertinent provisions in the guidelines. In the April 21, 2015 order denying Birth Father’s motion to intervene on the basis that he was not a parent under ICWA, the district court itself stated that Birth Father has filed numerous documents with the Court in this case asserting paternity. In connection with this case, [Birth Father] has filed an affidavit setting forth his willingness and ability to parent the Child, his plans for care of the Child, and his willingness to pay child support and expenses related to the pregnancy and birth. He has filed a notice, with the Utah Department of Health, Office of Vital Records and Statistics, indicating that he has filed a paternity action regarding the Child (identifying this case as the paternity action). Thus, if one construes this action as a ‘paternity action,’ then [Birth Father] has now accomplished all of the tasks required by Utah’s statute.  

¶ 75 These actions, we hold, were both timely and sufficient for Birth Father to acknowledge paternity under ICWA, making Birth Father a “parent” for purposes of section 1914.[17]

  1. Birth Father Is a Parent Under Utah Law

¶ 76 As an alternative basis, I would hold that Birth Father also timely acknowledged and established his paternity under Utah law. As the district court indicated, Birth Father “accomplished all of the tasks required” by Utah Code section 78B-6-121(3), which relates to the consent of an unmarried biological father. And Birth Father accomplished these tasks within the timeframe required by Utah law. See UTAH CODE § 78B-6-121(3) (requiring the unmarried biological father to accomplish those tasks “prior to the time the mother executes her consent for adoption or relinquishes the child for adoption”). The district court concluded that Birth Father’s actions were untimely because he “completed these tasks no earlier than January 26, 2015,” which the court determined was after “the time the mother execute[d] her consent for adoption or relinquishe[d] the child for adoption.” Id. However, because Birth Mother never gave valid consent, supra ¶ 44, and because Birth Father has accomplished all the necessary actions, Birth Father timely established paternity even under Utah law. Thus, even if Utah law applied to define how to acknowledge or establish paternity under ICWA, Birth Father satisfies the statutory definition of a “parent.”

¶ 77 The actions Birth Father took illustrate that this case is a poster child for application of ICWA. Against the backdrop of 25 U.S.C. section 1902’s declaration of policy stating that ICWA is designed “to promote the stability and security of Indian tribes and families” and guard against state courts’ unnecessary removals of Indian children from their families, the majority would hold that an Indian father who took every necessary action to acknowledge paternity of his Indian child did too little, too late. I disagree. Because Birth Father acknowledged his paternity under both a federal reasonableness standard and a stricter Utah standard, he is a “parent” for purposes of ICWA. This status as a parent gives him standing under section 1914 to challenge the order terminating Birth Mother’s parental rights due to her invalid consent. 25 U.S.C. § 1914 (“[A]ny parent . . . may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.”).

D. Birth Father’s Status as a Parent, Along with His Custody of the Child, Gives Him the Right to Intervene

¶ 78 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.

¶ 79 We first note that legal custody alone suffices for section 1914 purposes. To hold otherwise would exclude a large number of fathers who were unable to obtain physical custody through circumstances that are out of their control. We believe that result would be seriously troubling, especially given that ICWA should be “liberally construed.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,586.

¶ 80 Our approach is consistent with how courts have interpreted “custody” in other ICWA settings. For example, section 1912(f), which states that “[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination . . . that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” refers to either physical or legal custody. D.J. v. P.C., 36 P.3d 663, 670 (Alaska 2001); see also Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2562 (2013) (addressing whether unwed father had “legal or physical custody” of the child (emphasis added)).

¶ 81 In this case, Birth Father had legal custody of the Child by virtue of his paternity. “[A] parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.” UTAH CODE § 78A-6-503(1).[18] This includes not just physical custody, but also legal custody, which is defined as a relationship including “the right to physical custody,” id. § 78A-6-105(22)(a), “the right and duty to protect, train, and discipline” the child, id. § 105(22)(b), and “the right to determine where and with whom the minor shall live,” id. § 105(22)(d). And Utah law appears to presume that a parent automatically enjoys legal custody, stating that the “fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child is recognized, protected, and does not cease to exist simply because a parent may fail to be a model parent or because the parent’s child is placed in the temporary custody of the state,” id. § 78A-6-503(4), and that “a parent has the right, obligation, responsibility, and authority to raise, manage, train, educate, provide for, and reasonably discipline the parent’s children,” id. § 503(10)(a). Thus, as a parent under ICWA, Birth Father had legal custody of the Child.

¶ 82 Although Birth Father’s legal custody of the Child is sufficient, we also note that his lack of physical custody was due to Birth Mother’s misrepresentations, which we will not hold against him for section 1914 purposes. We believe there is a meaningful distinction between a father who, albeit unsuccessfully, attempts to obtain physical custody and one who makes no such efforts. Compare In re Adoption of Baby Girl B., 67 P.3d 359, 366 (Okla. Civ. App. 2003) (stating that, in keeping with “the policies and purposes” of ICWA, where “a father has no reasonable notice of fatherhood, then [federal and state versions of ICWA] do not preclude him from asserting rights under those Acts simply because he had not been, through no fault of his own, a custodial parent”), with In re J.S., 321 P.3d 103, 113 (Mont. 2014)

(holding that father never had custody of child where he “was not

 

involved in the child’s life for the significant part of 15 years and only became interested in the action ten years after significant State involvement refocused his attention to the matter”); see also Adoptive Couple, 133 S. Ct. at 2571 (Breyer, J., concurring) (stating that majority’s conclusion that father lacked physical and legal custody did not address situations where a father has paid “all of his child support obligations” or “was deceived about the existence of the child or . . . prevented from supporting his child”). In this case, Birth Father lacked physical custody of the Child only because Birth Mother left the state, refused to communicate with him, and did not tell him when or where the Child was born. Until Birth Mother left, however, Birth Father had taken significant steps to care for his unborn child, including providing financial support during Birth Mother’s pregnancy. And after Birth Father found out about the Child’s birth, he filed numerous documents with the district court stating his willingness to care for and support the Child. 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. State ex rel. D.A.C., 933 P.2d 993, 999–1000 (Utah Ct. App. 1997) (stating that ICWA’s policies support application of the Act even where there was no existing Indian family); see also In re Baby Boy Doe, 849 P.2d 925, 932 (Idaho 1993) (calling “existing Indian family” exception an inappropriate “judicially created exception” that “circumvent[s] the mandates of ICWA”); In re A.J.S., 204 P.3d 543, 549 (Kan. 2009) (stating that the exception “appears to be at odds with the clear language of ICWA”); In re Baby Boy C., 805 N.Y.S.2d 313, 323 (App. Div. 2005) (noting that “the word ‘existing’ is not found anywhere in ICWA’s definitions sections and appears to have been supplied by judicial interpretation”). These courts have held that interpreting the “removal” language to mean that ICWA does not apply where there was no existing Indian family would frustrate the policies of ICWA.[19] State ex rel. D.A.C., 933 P.2d at 1000; In re Baby Boy C., 805 N.Y.S.2d at 324 (“Since ICWA was passed, in part, to curtail state authorities from making child custody determinations based on misconceptions of Indian family life, the [“existing Indian family”] exception, which necessitates such an inquiry, clearly frustrates this purpose[.]”). 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.

¶ 84  Thus, we hold that Birth Father was a parent who had custody of the Child. But we are split on the implications of this holding. A minority of the court would hold that he has statutory standing to raise the subject matter jurisdictional issues of Birth Mother’s consent, and, because he has standing to place them before our court, we have a responsibility to reach them.[20] But, aside from the

“existing Indian family” context, several courts at first relied heavily on the plain language of “removal” in various sections of ICWA, thereby denying Indian children ICWA’s heightened protections. But such a strangled view of ICWA was widely abandoned after the U.S. Supreme Court’s decision in Holyfield, as state courts recognized the “existing Indian family” doctrine’s “deviation from ICWA’s core purpose of ‘preserving and protecting the interests of Indian tribes in their children.’” In re A.J.S., 204 P.3d 543, 550 (Kan. 2009) (citation omitted); see also In re Adoption of Baade, 462 N.W.2d 485, 489 (S.D. 1990) (“Such a practice fails to recognize the legitimate concerns of the tribe that are protected under the Act.”). We therefore reject the dissent’s idea that giving force to ICWA’s stated purpose is a “purposivist approach” that will lead us on “an endless journey.” Infra ¶ 197 n.51. Rather, our opinion today is a recognition that the plain language of ICWA is informed by its “core purpose of preserving and protecting the interests of Indian tribes in their children,” In re Baby Boy C., 805 N.Y.S.2d 313, 323 (App. Div. 2005), and that this purpose argues for an interpretation that embraces a minimum federal standard—reasonableness—for an Indian father’s acknowledgement or establishment of paternity.

subject matter jurisdictional implications of Birth Father’s status as a parent, the majority holds that he was entitled to intervene in the adoption proceedings. We therefore remand on that basis.

¶ 85 In remanding for the district court to allow Birth Father to intervene, we are not blind to “the potential traumatic impact of a sudden, precipitous separation of a child from the only parents [he] has ever known.” In re Adoption of Baby Girl P., 242 P.3d 1168, 1176 (Kan. 2010). But “[w]hatever feelings we might have as to where [the Child] should live, . . . it is not for us to decide that question.” Holyfield, 490 U.S. at 53. It is our task to decide whether the district court exercised proper jurisdiction, but we are not tasked with deciding “what the outcome of that determination should be.” Id. And we hope that our guidance to district courts in adoption proceedings will prevent future heart-wrenching situations. See id. at 53–54 (“Had the mandate of the ICWA been followed [by the district court], much potential anguish might have been avoided, and in any case the law cannot be applied so as automatically to ‘reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation.’” (quoting In re Adoption of Halloway, 732 P.2d 962, 972 (Utah 1986))).33

                                                                                                                                                      

See infra ¶ 154. The district court lacked jurisdiction to proceed with the adoption, but it had proper jurisdiction to obtain consent from the birth parents and terminate their rights if appropriate. Therefore, I would hold that a remand to that stage of the court’s proceedings is appropriate. See In re Adoption of L.D.S., 155 P.3d 1, 8–9 (Okla. 2006), as supplemented on reh’g, No. 250 (Mar. 6, 2007) (finding decree of adoption void and directing the trial court on remand “to return the parties to the legal status they held before the erroneous declaration that the child was available for adoption without parental consent”). Among other outcomes, this could include Birth Mother’s providing valid consent, in which event Birth Father may be able to timely petition to intervene, or Birth Father, Birth Mother, and the prospective adoptive parents may file petitions for custody.

33 The majority notes possible procedural due process problems if Birth Mother does not receive notice. Infra ¶ 110. But Birth Mother had both notice and an opportunity to be heard on this appeal when her motion to withdraw her consent was denied. See Nelson v. Jacobsen, 669

P.2d 1207, 1211 (Utah 1983) (“Timely and adequate notice and an

 

III. THE DISTRICT COURT ERRED IN HOLDING

THAT THE ADOPTION PROCEEDINGS WERE

VOLUNTARY AS TO BIRTH FATHER

¶ 86 Under ICWA, a parent has a right to receive notice of and to intervene in any proceeding involving the involuntary termination of his or her parental rights. 25 U.S.C. § 1912(a) (“In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the . . . termination of parental rights to[] an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe . . . of the pending proceedings and of their right of intervention.”). As we discussed above, Birth Father is a “parent” under ICWA. Supra ¶¶ 74– 77. The district court held that the proceeding was voluntary as to Birth Father, which meant he was not entitled to notice and intervention. We reverse and hold that the proceeding was involuntary as to Birth Father.

¶ 87 Originally, these proceedings appeared to be voluntary on the part of both parents because Birth Mother misrepresented her brotherin-law as the biological father and had him sign a consent form for termination of parental rights in order to make the adoption go faster. Even after Birth Father filed a motion to intervene to establish paternity and after Birth Mother filed an affidavit informing the court that Birth Father was the biological parent and a member of the Cheyenne River Sioux Tribe, the court still believed the case to be “undoubtedly a voluntary proceeding” because it was “initiated not by the State but by Petitioners after the child’s mother indicated her (at the time) voluntary desire to relinquish her parental rights and place the child for adoption.” While we recognize that the proceedings were voluntary as to Birth Mother, it is clear that Birth Father never sought to

                                                                                                                                                       

opportunity to be heard in a meaningful way are the very heart of procedural fairness.”). I am also confident that were we to reinstate Birth Mother’s rights, any due process concerns could be addressed by requiring Birth Father to provide Birth Mother with notice that her parental rights have been reinstated and that she possesses the ability to waive her parental rights in compliance with ICWA’s timing requirements.

 

voluntarily terminate his parental rights. We disagree with the district court’s characterization of “involuntary proceedings” as “statesponsored 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.

¶ 88 ICWA does not define “involuntary proceeding” as used in 25 U.S.C. section 1912(a), so we look to the plain meaning of the term instead. The plain language in section 1912(a) refers to “any involuntary proceeding in a State court.” Black’s Law Dictionary defines “involuntary” as “[n]ot resulting from a free and unrestrained choice; not subject to control by the will.” Involuntary, BLACK’S LAW DICTIONARY (10th ed. 2014). When a parent’s rights are terminated against his or her will, the termination does not “result[] from a free and unrestrained choice” by that parent. Id. And if the proceedings are involuntary as to one parent, a plain language analysis leads to the conclusion that they are involuntary proceedings under ICWA, regardless of whether those proceedings are initiated by the state or by the other parent. Additionally, in light of ICWA’s policy “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families,” 25 U.S.C. § 1902, it would be inconsistent to deny a parent the right to receive notice and to intervene in proceedings for the termination of his or her parental rights just because the termination of the other parent’s rights was voluntary. Thus, we conclude that the proceedings in this case are involuntary as they pertain to Birth Father.[21] Birth Father therefore was entitled to notice of the proceedings and the opportunity to intervene.

CONCLUSION

¶ 89 Because the proceedings in this case were involuntary as to Birth Father, and because he acknowledged paternity as required under ICWA, he had a right to receive notice of and to intervene in the adoption proceeding. Consequently, we reverse the district court’s denial of Birth Father’s motion to intervene and remand for further proceedings consistent with this opinion.

¶ 90 In addition, I would hold that (a) Birth Mother did not give valid consent to the termination of her parental rights, (b) the district court therefore lacked jurisdiction to proceed with the adoption of the Child, and (c) the issue is properly before us. I dissent from the majority’s holding to the contrary on issues (b) and (c).

                                                                                                                                                      

the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Id. § 1912(f).

Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013), is not to the contrary. Adoptive Couple held that sections 1912(d) and (f) do not apply where “an Indian parent abandons an Indian child prior to birth and that child has never been in the Indian parent’s legal or physical custody,” such that “the Indian parent never had custody of the Indian child.” Id. at 2560, 2562. But, as the deciding vote in the case averred, it did not “involve special circumstances such as a father who was deceived about the existence of the child or a father who was prevented from supporting his child.” Id. at 2571 (Breyer, J., concurring). There is thus no controlling precedent on the precise issue before this court. Id. (noting that Adoptive Couple “need not, and in my view does not, . . . decide whether or how [sections] 1912(d) and (f) apply where those [special] circumstances are present”).

 

Cite as:  2017 UT 59

 

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court as to Part I, in which CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined; and a dissenting opinion as to Part II, in which CHIEF JUSTICE DURRANT joined:

¶ 91 Contested adoption proceedings are difficult. They cut at the heart of the most sacred, essential institution of our society—the family. And the disposition of such a case has profound effects on the lives of many—on the child in question and on all who assert an interest in the child’s parentage or upbringing.

¶ 92 The sensitivity of these issues is heightened when one or more of the interested parties hails from another state. And the difficulty is compounded further when, as here, a party claiming rights as a putative father is a member of an Indian tribe, protected by the Indian Child Welfare Act (ICWA).

¶ 93 For these and other reasons Justice Himonas is right to urge a course of caution. I could not agree more with the admonition that the “‘best interests’” of children and others involved in adoption proceedings require careful “obedience to the policies and procedures mandated by law.’’ Supra ¶ 1 (citation omitted).

¶ 94 That’s about as far as my agreement with the lead opinion goes, however. The lead opinion claims to be following the “majority” approach on a range of the issues it addresses. See supra ¶ 30 (asserting that its jurisdictional analysis is consistent with “the great majority of states’ views on the issue”); supra ¶ 71 (stating that the majority’s federal “reasonableness” standard of establishing or acknowledging “paternity” under ICWA “is consistent with ICWA case law” in other states). But the cited cases are easily distinguishable. And Justice Himonas’s approach is quite unique. No court that I am aware of (Justice Himonas cites none) has ever held that a timing defect in an earlier consent order is the sort of subject-matter jurisdictional defect that must be considered sua sponte by the court presiding over an adoption. And the court’s analysis of the ICWA standard of establishing or acknowledging “paternity” is equally novel. No court that I am aware of (and again the lead opinion cites none) treats the notion of “paternity” in ICWA as a purely federal standard—a standard of “reasonableness” to be developed on a case-by-case basis by the courts, and not by reference to standards established as a matter of state law.

 

 

¶ 95 On these and other points the lead opinion stretches existing law beyond recognition. Justice Himonas claims fealty to existing precedent but his approach is a novel one. It threatens to unsettle this important field on numerous points of heretofore settled law.

¶ 96 The question presented in this case is a simple one. We are asked to decide whether the district court erred in denying a motion to intervene filed by E.T., a member of an Indian tribe who asserts an interest in B.B. as a putative father. The district court denied that motion on the ground that E.T. could not qualify as a “parent” under Utah law or under ICWA, which excludes an unwed father whose “paternity has not been acknowledged or established.” 25 U.S.C. § 1903(9). The ICWA notion of acknowledgement or establishment of paternity, in the district court’s view, was an invocation of state law principles of paternity. And the district court denied E.T.’s motion to intervene because E.T. had not acknowledged or established his paternity as a matter of state law.

¶ 97 I would affirm that decision, which is entirely in line with the terms of ICWA and with established case law in other jurisdictions. I would hold that E.T. does not qualify as a “parent” because he did not acknowledge or establish his paternity under Utah law. While a majority of the court disagrees with my analysis on this point, a majority nonetheless rejects the lead opinion’s subject-matter jurisdiction analysis. Thus, the court concludes that there is no subjectmatter jurisdiction defect in this case.

¶ 98 Justice Himonas’s contrary conclusions are premised on a series of distortions of settled principles of law. First, the lead opinion distorts the law of appellate procedure and subject-matter jurisdiction. The root of its jurisdictional analysis is its decision to question a final order finding that the birth mother (C.C.) consented to the adoption more than ten days after the birth of the child as required by ICWA. That order was a final, appealable one when entered. But no one ever challenged it. Not C.C. And not even E.T.[22] And that should have rendered the merits of that decision final, foreclosing our prerogative of second-guessing it, under settled rules of finality and appellate procedure.

¶ 99 The lead opinion would unsettle our law of appellate procedure in reopening an order that no party ever sought to challenge. And it would distort the law of subject-matter jurisdiction by treating a purported defect in the consent order as a matter going to the adoption court’s subject-matter jurisdiction.

¶ 100 Second, the court distorts the standard set forth in ICWA. It does so by interpreting the statute’s reference to the acknowledgement or establishment of “paternity” to call for a wholly federal standard of paternity—a standard the court declines to define except to say that it calls for a case-by-case evaluation of “reasonableness.” Supra ¶¶ 71–72. This unsettles the law in this important field. No court to date has interpreted ICWA to call for a wholly federal standard of establishing paternity. By declaring the existence of such a standard without ultimately defining it, the court ensures chaos and unpredictability for years to come.

¶ 101 I find all of the above untenable. And easily avoidable. All we have to do is follow settled rules of procedure and jurisdiction and the plain text of ICWA. I would do so here. While a majority of the court holds that there is no defect in the district court’s subject-matter jurisdiction, I would also affirm the district court’s denial of the motion to intervene because E.T. did not timely acknowledge or establish his paternity.

                                                                                                                                                       

order—neither in the proceedings below nor on appeal. In resting on other grounds, E.T. accepted the validity of the consent order both before the district court and in his briefs on appeal. For this reason the court concludes that E.T. has waived any opportunity to challenge the consent and termination order. And the court’s analysis of the procedural impropriety of the lead opinion’s review of the consent and termination order is premised on the fact that E.T. failed to bring this issue within the scope of our review.

  1. SUBJECT-MATTER JURISDICTION

¶ 102 We have no quarrel with Justice Himonas’s assertion that our court has a duty to make a sua sponte assessment of our own subjectmatter 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.

  1. The Consent Order Is Not Properly Before Us

¶ 103 The heart of Justice Himonas’s jurisdictional analysis is his determination that the district court erred in concluding that C.C.’s consent complied with ICWA’s timing requirements. Because Justice Himonas would reverse the district court’s conclusions on this issue, he would determine that the district court lacked jurisdiction to proceed with the adoption.

¶ 104 But Justice Himonas cites no authority for the power to revisit a final order in a collateral termination proceeding not challenged by any of the parties at any stage of these proceedings— below or on appeal. When a court enters a final order stating its findings of fact and conclusions of law, that order is binding unless and until a litigant successfully challenges the order’s validity. See Snell v. Cleveland, Inc., 316 F.3d 822, 825–28 (9th Cir. 2002) (reversing district court’s sua sponte decision to vacate a final judgment in an earlier case on the basis of an alleged defect in diversity jurisdiction). This is true even in the context of subject-matter jurisdiction. See id. We have a sua sponte responsibility to raise issues of subject-matter jurisdiction during the pendency of an action. See id. at 826; UTAH R. CIV. P. 12(h)(2). But we do not have power to sua sponte reconsider the premises of jurisdiction of a final judgment that has not been collaterally attacked by a litigant. See Snell, 316 F.3d at 825–28; UTAH R. Civ. P. 60(b); Yanow v. Weyerhaeuser S.S. Co., 274 F.2d 274, 279–80 & n.8 (9th Cir. 1958) (citing Noble v. Union River Logging R. Co., 147 U.S. 165, 171–74 (1893)).

¶ 105 Granted, E.T. was unaware of the termination proceedings in which C.C. voluntarily relinquished her rights and consented to the adoption of B.B. Yet he had every opportunity to raise a rule 60(b) challenge to that final judgment in the context of his motion to intervene. And he failed to do so at any time prior to the court’s final adjudication of his motion to intervene. E.T.’s decision not to raise such a challenge constituted a waiver of the issue before the district court.

¶ 106 E.T.’s waiver is equally clear on appeal. His notice of appeal identifies only the order denying his motion to intervene and subsidiary orders. See Amended Notice of Appeal (June 8, 2015). It makes no mention of the consent order. And the consent order, as a distinct final judgment, was not a subsidiary order. That is fatal. An order not identified in the notice of appeal falls beyond our appellate jurisdiction. And the failure to identify an order is a non-waivable (jurisdictional) defect.[23]

¶ 107 “[T]he object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case. Respondent is entitled to know specifically which judgment is being appealed.” Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474 (quoting Nunley v. Stan Katz Real Estate, Inc., 388 P.2d 798, 800 (Utah 1964)). We decline to disregard this rule of appellate procedure in this case. Accordingly, we do not review the order adjudicating C.C.’s consent under ICWA because E.T. did not raise a rule 60(b) challenge to this order below and likewise did not identify this order in his notice of appeal.

¶ 108 We see no basis for the notion of a free-ranging duty to search the record to “ensure” that an adoption case is “as free as possible” from any “defects” we deem “fatal.” Supra ¶ 1. That premise runs counter to our settled rules of appellate procedure, which are rooted in the adversary system. Our law leaves it to the parties to identify legal deficiencies undermining the legality or finality of a judgment rendered in a collateral matter. Under our longstanding rules the appellant bears the burden of identifying any and all orders being challenged on appeal.

¶ 109 We follow that pattern here. We hold that the consent order in question is not properly presented for our review because it was not identified in the notice of appeal.

¶ 110 The effects of the lead opinion’s contrary conclusion would be substantial. In proposing the reversal of an order not identified in the notice of appeal and the sua sponte reconsideration of factual and legal conclusions underpinning a final judgment, the lead opinion would undermine the rights of a party who has not been heard at any point in the proceedings on appeal (C.C.). To our knowledge, C.C. has not received any notice that the termination order is under review on appeal. And were the lead opinion’s decision to control, we have no reason to believe that C.C. would receive formal notice that her rights had been reinstated by the lead opinion’s proposed vacatur of the termination order. This would be deeply problematic—and an apparent violation of C.C.’s right to procedural due process.

¶ 111 The proposal to disregard our settled rules of appellate procedure would come at a cost to the legitimacy of our judicial system. It would also threaten the certainty and predictability that are essential to a well-functioning adoption system.

¶ 112 Justice Himonas’s approach would inject uncertainty of an indefinite duration into the lives of those who place their children for adoption. This uncertainty is wide-ranging. A mother who consents to an adoption would never be certain that the child’s placement would be final. She would be left with the risk that a court might peer down long after judgment has become final and identify an error missed by the district court, counsel, and all parties.

¶ 113 Under Justice Himonas’s approach, such a mother need not even receive notice that the validity of her consent is being reviewed. Yet there would always be the possibility that lives might be turned upside down by a judicial decision vacating consent and re-imposing the obligations of parenthood. This would be more than unfair. It would be fundamentally at odds with our adoption statute. See UTAH CODE § 78B-6-102(5)(b) (“[A]n unmarried mother, faced with the responsibility of making crucial decisions about the future of a newborn child, is entitled to privacy, and has the right to make timely and appropriate decisions regarding her future and the future of the child, and is entitled to assurance regarding the permanence of an adoptive placement.”).

¶ 114 Justice Himonas’s approach would also jeopardize the security and reliance interests of adoptive children and adoptive parents.[24] We do not positively countenance C.C.’s conduct in this case. But the lead opinion’s proposal to cast aside settled rules of law governing appellate procedure would impact more than this case. It would disrupt a system that, while imperfect, is carefully tailored to protect the interests in certainty and finality of all persons who come before our courts.

¶ 115 This would be deeply problematic. In the field of adoption, clear legal rules, finality, and certainty align with the best interests of children. See UTAH CODE § 78B-6-102(5)(a). And all of those principles are undermined by the lead opinion’s proposal to sua sponte reconsider the validity of the order accepting C.C.’s consent and terminating her parental rights.

  1. Invalid Consent Under ICWA Section 1913 Is Not Void Ab Initio

¶ 116 Justice Himonas seeks to avoid the finality of the consent and termination order by concluding that a violation of section 1913 renders an untimely consent void ab initio. See supra ¶¶ 31–32, 44. But that conclusion is inconsistent with the text of the statute and with settled case law.

¶ 117 Section 1913(a) states that “[a]ny consent given prior to, or within ten days after, birth of the Indian child shall not be valid.” 25 U.S.C. § 1913(a). In isolation, this language does not answer the critical question—whether parties may waive an objection to a defect in the timing of consent by failing to timely challenge it. But section 1914 provides strong evidence that any defect in ICWA compliance is subject to waiver. It provides that “[a]ny Indian child . . . , any parent or Indian custodian . . . , and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.” Id. § 1914. The permissive “may petition” clearly implies a choice—to petition or not. To give meaning to that choice, the statute cannot be interpreted to void orders that have not been challenged under section 1914. The term “invalidate” also carries a negative implication. It suggests that unless a party affirmatively challenges a proceeding’s compliance with ICWA section 1913, the consent and resulting termination order are valid.

¶ 118 This conclusion is consistent with case law in other jurisdictions.[25] A few courts have held that section 1914 preempts rules governing preservation. But no court has ever raised an ICWA consent issue sua sponte.[26] Surely it is even more problematic to reconsider a consent order not identified in the notice of appeal.[27]

¶ 119 Where, as here, a district court expressly holds that its order complies with ICWA requirements, the courts have held that the time to challenge that determination under section 1914 expires upon the running of the time for an appeal. See In re Adoption of A.B., 2010 UT 55, ¶¶ 22–25, 245 P.3d 711; cf. Kiowa Tribe of Okla. v. Lewis, 777 F.2d 587, 592 (10th Cir. 1985) (“We cannot read § 1914’s reference to ‘any court of competent jurisdiction’ as the type of clear and manifest authorization that federal courts need before they upset the ordinary principles of federal-state comity embodied in 28 U.S.C. § 1738 and the Full Faith and Credit Clause. It seems rather to state simply where such actions may initially be brought. Regardless of whether we agree with the Kansas Supreme Court’s construction of the ICWA, here we must honor the judgment it has rendered on the subject.” (emphasis added)).

¶ 120 Accordingly, we hold that violations of ICWA subject to challenge under section 1914 do not render those actions void ab initio. Justice Himonas’s contrary conclusion is not just unprecedented; it would threaten the interests of the very population ICWA was intended to protect. By voiding an action not challenged by the Indian child, his mother, putative father, or his tribe, the lead opinion would slight the autonomy of the stakeholders Congress empowered by enacting section 1914. That smacks of paternalism. And it would disrupt finality and inject greater uncertainty into already complicated proceedings—at great cost to all involved. See supra ¶¶ 111–15. C. Consent to Adoption Is Not Jurisdictional

¶ 121 Even if a violation of section 1913 rendered consent void ab initio, we find no basis for the majority’s conclusion that a defect in consent deprives a district court of subject-matter jurisdiction. The concept of subject-matter jurisdiction encompasses (a) statutory limits on the “authority of the court to adjudicate a class of cases,” Johnson v. Johnson, 2010 UT 28, ¶ 10, 234 P.3d 1100; and (b) timing and other limits on the “justiciability” of the proceeding before the court (such as standing, ripeness, and mootness), see Carlton v. Brown, 2014 UT 6, ¶¶ 29–30, 323 P.3d 571. In extending the principle of subject-matter jurisdiction to include a mere legal prerequisite to the issuance of an order granting the relief sought by the plaintiff, the lead opinion would unsettle our law and open the door to any of a wide range of issues being injected sua sponte by the court—or by a party long after a case is otherwise finally decided.

¶ 122 In opening the door to reconsider the legal basis for an order that our law deems final and jurisdictionally insulated from review, the lead opinion would threaten the principles of efficiency and finality at the heart of our adoption system. And its novel conception of subjectmatter jurisdiction would sow the seeds of uncertainty that would threaten the finality of cases in other fields as well.

¶ 123 The adoption cases cited by Justice Himonas are all distinguishable on grounds mentioned above. Supra ¶ 121. None of

 

them supports the lead opinion’s novel theory. The cited Utah cases, see supra ¶ 25, are also distinguishable. Those cases go to a principle of justiciability and the propriety of a case being heard in a particular forum at a particular time (before a governmental entity has a chance to rule on a notice of claim, or before a party exhausts administrative avenues for relief). That is not at all what is at issue here. So the lead opinion’s view does not follow from existing cases. The lead opinion would open up a broad new category of subject-matter jurisdictional issues that would undermine the efficient operation of our justice system and the finality of our judgments for years to come.

¶ 124 We accordingly reject the notion that any defect in the timing of the mother’s consent deprived the district court of subject-matter jurisdiction. The timeliness of the entry of consent under ICWA has nothing to do with subject-matter jurisdiction as that term is understood in our law. Valid consent is just one of many statutory prerequisites to the issuance of a valid adoption decree. See UTAH CODE §§ 78B-6-101 et seq. (identifying a host of statutory requirements for the issuance of an adoption in varying circumstances). And a deficiency in this or any other prerequisite falls outside the traditional scope of subject-matter jurisdiction.

  1. Theory

¶ 125 The notion of “jurisdiction” is a slippery one.[28] This is a word that means different things in different circumstances. Sometimes it is used to characterize the scope of a court’s power to issue a certain form of relief.[29] In that sense we may speak of a court lacking “jurisdiction” to award relief that is precluded by the substantive law under the facts of a particular case. And we may identify legal preconditions to the availability of such relief as bars on the exercise of a court’s “jurisdiction.”9

¶ 126 Another conception of “jurisdiction” goes to the territorial authority of the court that issues a decision. This is the notion of personal jurisdiction. It may be invoked in a case in which a judgment is entered against a party lacking in a sufficient connection to the state in which the court sits.10 This is another instance in which we may speak

                                                                                                                                                       

jurisdiction over a particular case causes a judgment to be voidable rather than void.” (citation omitted)).

  • See, e.g., Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (“[T]he questions Steadman has raised do not go to subject-matter jurisdiction and instead concern only whether the trial court had particular-case jurisdiction. Or, more precisely, as ‘challenges to [the trial court’s] subsequent rulings and judgment,’ they ‘are questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction.’ In other words, they are allegations of pure legal error and not of a failure of the court’s power to act at all. And particularcase jurisdiction is subject to waiver.” (alterations in original) (citation omitted)); In re Adoption of M.A., 930 A.2d 1088, 1091 (Me. 2007) (reversing a district court’s dismissal of an adoption case for lack of subject-matter jurisdiction and distinguishing authority to issue an adoption under the governing statute from subject-matter jurisdiction which is determined solely on the basis of whether the case is within the class of cases over which a court has authority); Heath v. W.C.A.B. (Pa. Bd. of Prob. & Parole), 860 A.2d 25, 29 (Pa. 2004) (“[W]e have no quarrel with the Commonwealth Court’s asking sua sponte whether the

‘personal animus’ exception implicated its subject matter jurisdiction. Rather, we disagree with the Commonwealth Court’s ultimate conclusion that the exception is indeed jurisdictional. . . . [W]e determine whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case.” (citation omitted) (internal quotation marks omitted)).

  • g., Fenn v. Mleads Enters., Inc., 2006 UT 8, ¶ 10, 137 P.3d 706 (“[A] Utah state court may assert specific personal jurisdiction over a foreign defendant only if (1) the defendant has minimum contacts with Utah of a court lacking “jurisdiction” to enter an award against a particular party.

¶ 127 Yet neither of these notions of jurisdiction goes to a court’s subject-matter jurisdiction. Both of these forms of jurisdiction, moreover, are subject to the rules of preservation and waiver. A failure to raise them at the appropriate time results in a forfeiture of the issue.11 It is accordingly improper for a court to raise these “jurisdictional” matters sua sponte.

¶ 128 Subject-matter jurisdiction is special. It is distinct from other notions of jurisdiction in that we require our courts to consider such issues sua sponte, or in other words we do not allow the parties to waive or forfeit them from consideration.[30] The distinction is crucial, as it cuts

and (2) the assertion of jurisdiction would not offend the traditional notions of fair play and substantial justice.”).

  • See, e.g., State v. All Real Prop., Residence & Appurtenances, 2005 UT 90, ¶¶ 8–11, 127 P.3d 693 (holding that a failure to raise an objection to personal jurisdiction or defective notice at first opportunity in a proceeding results in waiver or forfeiture of the claim); State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (“As a general rule, claims not raised before the trial court may not be raised on appeal.”).

at the heart of our adversary system. If an issue is subject-matter jurisdictional, the general rules of finality and preservation are off the table. So for each such issue we undermine the premises of efficiency, speedy resolution, and finality that generally undergird our justice system.

¶ 129 That is why our law has been careful to cabin the notion of subject-matter jurisdiction.[31] We limit this concept carefully because an

302, 307 (Wyo. 2016) (“[Subject-matter jurisdiction] cannot be created or destroyed by procedural irregularities, such as, for example, a defect in the process by which intervention effectively adds a new party to a case. The rules of civil procedure cannot extend or limit subject matter jurisdiction, even though such rules may establish the proper method of invoking the jurisdiction of the court in particular cases. A court’s subject matter jurisdiction lies dormant until it is called upon to exercise it by some sort of initiating procedural mechanism, such as a pleading, complaint, or information. At that point, the court ‘acquires jurisdiction’ in the limited sense of procedurally having the authority to proceed and exercise its subject matter jurisdiction in a particular case. Consequently, a failure to adhere to the requirements governing the proper nature and filing of such case-initiating documents, even to the extent they may be characterized as substantive requirements, will not necessarily deprive a court of subject matter jurisdiction.” (citation omitted)).

                                                                                                                                                       

(citation omitted) (internal quotation marks omitted)); Cunningham v. Standard Guar. Ins. Co., 630 So. 2d 179, 181 (Fla. 1994) (“[S]ubject-matter jurisdiction concerns the power of the trial court to deal with a class of cases to which a particular case belongs. Stated differently: ‘Jurisdiction,’ in the strict meaning of the term, as applied to judicial officers and tribunals, means no more than the power lawfully existing to hear and determine a cause. It is the power lawfully conferred to deal with the general subject involved in the action. It does not depend upon the ultimate existence of a good cause of action in the plaintiff, in the particular case before the court. It is the power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case.”) (citation omitted) (internal quotation marks omitted)); Troupis v. Summer, 218 P.3d 1138, 1140–41 (Idaho 2009) (“Jurisdiction over the subject matter is the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some of the inherent facts that exist and may be developed during trial.” (citation omitted) (internal quotation marks omitted)); McCormick v. Robertson, 28 N.E.3d 795, 802 (Ill. 2015) (“So long as a claim meets the requirements for justiciability, it will be sufficient to invoke the court’s subject matter jurisdiction, even if the claim is defectively stated. The only consideration is whether it falls within the general class of cases that the court has the inherent power to hear and determine. If it does, then subject matter jurisdiction is present.” (emphasis in original) (citation omitted)); Holding v. Franklin Cty. Zoning Bd. of Adjustment, 565 N.W.2d 318, 319 (Iowa 1997) (“For several years we have sought to correct a formerly widespread misimpression that often confused a court’s lack of subject matter jurisdiction with a court’s lack of authority to act in a particular matter. . . . We hope the distinction is now clear as it is important: the term subject matter jurisdiction refers to the power of a court to hear and determine the class of cases to which the proceedings in question belong. Where subject matter jurisdiction exists, it does not necessarily follow that a court has authority to act in a specific case included within that general class.”); Duvall v. Duvall, 80 So. 2d 752, 754 (“Jurisdiction of the subject matter is the power of the court to hear and determine cases of the general class to which the expansive notion of subject-matter jurisdiction will undermine the basic premises of our justice system. And that is why the law has long defined the concept of subject-matter jurisdiction to consist of the two categories noted above—statutory limits on the class of cases assigned to the authority of a certain court, and other limits that go to the concept of justiciability.

¶ 130 These principles are well-embedded in our law. And cases in Utah and elsewhere have long warned of the perils of expanding these categories to encompass mere preconditions to the availability of a particular form of judicial relief.[32] We heed that warning here. We do

particular case belongs. . . . But if a court has jurisdiction of the subject matter, it has the power to decide the case according to its own view of the law and the facts; the test of jurisdiction is whether the court has the right to enter on the inquiry, and not whether its methods were regular, its findings right, or its conclusions according to law.”), overruled on other grounds, 81 So. 2d 695 (Miss. 1955); In re Expungement of Arrest Records Related to Brown v. State, 226 S.W.3d 147, 150 (Mo. 2007) (“Subject matter jurisdiction is a tribunal’s statutory authority to hear a particular kind of claim. The court must have cognizance of the class of cases to which the one to be adjudged belongs. The failure to distinguish between the erroneous exercise of jurisdiction and the want of jurisdiction is a fruitful source of confusion and errancy of decision.” (citation omitted) (internal quotation marks omitted)).

not treat a defect in a birth mother’s consent as a defect in an adoption court’s subject-matter jurisdiction.

¶ 131 Clearly our district courts have the statutory authority to issue an adoption decree. UTAH CODE § 78A-5-102(1); id. § 78B-6-105; In re Adoption of Baby E.Z., 2011 UT 38, ¶ 34, 266 P.3d 702 (“Utah district courts clearly have subject matter jurisdiction over adoption proceedings as a class of cases.”). Because there are no grounds for questioning the justiciability of this proceeding (no standing, ripeness, or mootness problem),[33] moreover, we find that there is no subjectmatter jurisdictional issue presented by this case.

when the court has jurisdiction and the parties had an opportunity to be heard.”); Troupis, 218 P.3d at 1140 (“Subject matter jurisdiction is a key requirement for the justiciability of a claim and cannot be waived by consent of the parties. Because of the serious ramifications of a court acting without subject matter jurisdiction, namely that the judgments of that court are void, the concept must be clearly defined.” (citation omitted)); Najera v. Chesapeake Div. of Soc. Servs., 629 S.E.2d 721, 723 (Va. Ct. App. 2006) (“Whether a judicial order can be attacked as void turns on the subtle, but crucial, difference between the power of a court to adjudicate a specified class of cases, commonly known as ‘subject matter jurisdiction,’ and the authority of a court to exercise that power in a particular case. This distinction guards against the faux elevation of a court’s failure to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction. In making that distinction, we focus on the statutory language delegating power to the courts to decide the issue and the legislative design it reveals.” (citation omitted) (internal quotation marks omitted)).

  1. Cases on Adoption and Jurisdiction

¶ 132 Justice Himonas claims to find support for his contrary conclusion in a line of adoption cases in other states. Those cases, in his view, establish the well-settled general rule that courts lack subjectmatter jurisdiction over adoption proceedings predicated on invalid consent. See supra ¶ 30 n.10. Justice Himonas also proffers support for his analysis in Utah precedent—in this court’s decision in Deveraux’ Adoption v. Brown, 268 P.2d 995 (Utah 1954), and in cases requiring a notice of claim under the Governmental Immunity Act and the exhaustion of administrative remedies as prerequisites to jurisdiction. See supra ¶ 25. Yet none of the cited cases supports the lead opinion’s framework. Here, a court rendered a final judgment that C.C.’s consent was valid and complied with ICWA. And no one has challenged that final judgment—either via direct appeal or collateral attack. No court that we are aware of—and Justice Himonas cites none—has ever revisited the factual or legal underpinnings of a mother’s consent sua sponte in a subsequent proceeding.

¶ 133 All of the cases cited by Justice Himonas are distinguishable. First, nearly all of them fit within the two categories of subject-matter jurisdiction identified above. And the few that do not fit this paradigm bear no resemblance to the facts of this case, as they involve statutory prerequisites to jurisdiction that are not present in our code.

¶ 134 Justice Himonas’s cases generally fall into three categories. In one category the courts are simply stating that a defect in a mother’s consent is a legal barrier to the issuance of an adoption order.16 No one

                                                                                                                                                      

legal defect in a court’s decision goes to “justiciability” (and must be raised sua sponte and may be considered at any time).

16 See, e.g., L.T. v. W.L., 159 So. 3d 1289, 1291 (Ala. Civ. App. 2014) (vacating adoption on biological mother’s petition to set aside judgment because Alabama statute requires that minors be represented by a guardian ad litem prior to giving consent; finding lack of jurisdiction to issue the adoption decree because mother, a minor at the time, was not represented by a guardian ad litem at any point in the proceedings); Westerlund v. Croaff, 198 P.2d 842, 845 (Ariz. 1948) (noting that district court had concluded that father was unwilling to consent and that his consent was required; concluding that writ of prohibition was appropriate to enjoin further adoption proceedings); Arnold v.

 

doubts that conclusion. A birth mother’s consent is undeniably a prerequisite to the issuance of an adoption decree. And in that sense it can certainly be said that the court lacks “jurisdiction” to issue an adoption decree. Yet these holdings appear in cases in which the birth parent appears and challenges the validity of the consent. So they tell us nothing useful about the question presented here—which is whether a failure of consent is a subject-matter jurisdictional defect that can be raised by the court sua sponte.[34]

¶ 135 Other cases cited in the lead opinion rest on principles of personal jurisdiction. In these cases courts have allowed a collateral

Howell, 219 P.2d 854, 858 (Cal. Dist. Ct. App. 1950) (setting aside adoption on the ground that consent was obtained by fraud, noting that consent is a jurisdictional prerequisite in the sense that it is a basis for setting aside an adoption where the issue is raised by a party); In re Adoption of List, 211 A.2d 870, 873–74 (Pa. 1965) (using the term “jurisdiction” and “jurisdictional” to identify statutory requirements for adoption and identifying a “presumption of [the adoption decree’s] validity and regularity and an implication . . . that the court did find the necessary facts and did perform all the steps essential to the jurisdiction of the court” and placing the “burden . . . on the person attacking an adoption decree to establish its invalidity by clear and convincing evidence”).

attack on a final order by a birth parent whose connection to or notice from the forum state was constitutionally defective.18 Occasionally the courts have offhandedly referred to such a defect as going to subjectmatter jurisdiction.[35] But, confusing terminology aside, this is decidedly

18 G.M.D. v. M.D., 610 S.W.2d 305, 307 (Mo. Ct. App. 1980) (vacating adoption on petition of parent whose consent was required and who had not been given adequate notice of the proceedings); In re Jackson, 28 P.2d 125, 129 (Nev. 1934) (same); In re Holder, 10 S.E.2d 620, 622 (N.C. 1940) (vacating adoption on petition from brother and legal heir of deceased biological mother on several grounds, including that the biological mother’s consent was required and she had not been given notice of the adoption proceedings and that the adoption order was never signed by the court); Adoption of Robin, 571 P.2d 850, 856 (Okla. 1977) (setting aside an adoption on petition of a biological father whose consent was required for the issuance of an adoption and who was deprived of due process by the adoptive parents’ fraud on the court and finding that birth mother’s consent was obtained by fraud and duress); Hughes v. Aetna Cas. & Sur. Co., 383 P.2d 55, 60 (Or. 1963) (granting biological child’s petition declaring him the legal heir of his deceased mother where the biological mother was not given notice of the adoption proceedings nor was her consent obtained and no exception to such requirement was satisfied).

not a matter of subject-matter jurisdiction. The lack of notice or connection to the forum goes to personal or territorial jurisdiction. And that sort of jurisdiction has long been understood as subject to the law of preservation and waiver—in that a failure to raise a personal jurisdiction defense at the first opportunity results in a forfeiture, and the matter is not the court’s to raise.20

¶ 136 Justice Himonas also cites a few cases where the states’ adoption statutes require that specific documents be filed simultaneously with the petition for adoption as a precondition to the court’s acquisition of subject matter jurisdiction over the case.21 Even under this third category of cases, jurisdiction is determined as of the

                                                                                                                                                       

the context of a case that turned on the failure of the adoption court to give notice to the biological mother of the adoption proceeding).

  • See, e.g., All Real Prop., Residence & Appurtenances, 2005 UT 90, ¶ 10 (holding that a failure to raise an objection to personal jurisdiction or defective notice at first opportunity in a proceeding results in waiver or forfeiture of the claim).
  • In re I.H.H-L., 251 P.3d 651, 656–57 (Kan. Ct. App. 2011) (interpreting the Kansas adoption statute to require attachment of consent to the petition as a precondition to a court’s jurisdiction to hear an adoption petition and concluding failure to do so precluded the district court from acquiring subject-matter jurisdiction over the adoption but also rejecting a rule where “subject matter jurisdiction could fluctuate moment to moment” and embracing the federal rule that subject-matter jurisdiction is determined at the time of filing of the complaint); In re Adoption of Kassandra B., 540 N.W.2d 554, 559 (Neb. 1995) (“The fact that the statute is phrased in the past tense indicates that the requisite consents should be obtained prior to filing the petition.”); In re Ralph, 710 N.Y.S.2d 500, 502–03 (App. Div. 2000) (concluding that failure to file complete adoption applications precluded the court’s exercise of jurisdiction and dismissing the action); In re JWT, 104 P.3d at 94 (identifying Wyoming statutory requirements that required particular documents to be filed “with the petition to adopt” and concluding that their absence at the time of filing rendered the adoption “invalid ab initio,” but noting that had the documents been filed—even if their content were false—jurisdiction might properly be found).

filing of the action. It is not divested by any subsequent interpretive error that may arise in the case.

¶ 137 Here Justice Himonas does not assert that there was any defect in jurisdiction at the time the case was initiated. He couldn’t. By statute, our Utah courts are expressly authorized to assume jurisdiction over adoption petitions and determine parental rights and consent at any time during the proceeding—prior to the issuance of the adoption.[36] And there is no dispute that the district court did in fact terminate C.C.’s rights and determine that no father had established rights in the child prior to proceeding on the petition for adoption. See Order Allowing Relinquishment of Parental Rights, Terminating Birth Mother’s Parental Rights, and Determining Birth Father’s Rights at 2 (Sept. 25, 2014).

¶ 138 The cases cited by Justice Himonas should also be viewed in historical perspective. Many of the cited cases are from a bygone era— in which adoption was disfavored and the rights of biological parents were elevated above the best interests of the child and the interests of adoptive parents.[37]

¶ 139 But these principles have no application to Utah adoption law today. Our Utah Adoption Act was enacted in 2008. And in enacting this law our legislature made express findings rejecting the notion that adoption is disfavored because it disrupts biological family ties. See UTAH CODE § 78B-6-102. Our legislature has thus rejected the premises underlying many of the cases cited by Justice Himonas. In Utah the best interests of the child are paramount. Id. § 78B-6-102(1). We also have recognized the fundamental interests of adoptive parents. Id. § 78B-6-102(5)(d). These are other grounds for suspicion of Justice Himonas’s reliance on the cited cases.

¶ 140 The issue presented in this case, moreover, is quite distinct from that presented in the cases cited by the majority. Here we are squarely presented with a question regarding subject-matter jurisdiction—whether we may consider a potential objection that no party has raised and that goes to an order that was rendered final and unappealable many months back. The lead opinion’s theory on this point is unprecedented. It has cited no authority for the proposal to review a final order that determined that valid consent was given and that was never challenged by the mother who gave the consent. Indeed, the district court’s order was not even challenged by the putative father—either below or on appeal. The lead opinion’s view that we have authority, indeed an obligation, to review the mother’s consent is without support in the cited cases.

                                                                                                                                                      

The courts are quite uniform in applying the rule of strict construction in favor of the parents’ natural rights in adoption proceedings.”); Adoption of Robin, 571 P.2d at 855 (“Adoption statutes are to be strictly construed in favor of the natural parents where the controversy is between the natural parents and persons seeking to destroy that status.”); Hughes, 383 P.2d at 59 (“[T]he right of adoption being in derogation of the common law, is a special power conferred by statute, and the rule is that such statutes must be strictly construed. . . . [T]he court in adoption proceedings is exercising a special statutory power not according to the course of the common law, and when its decree is called in question, even collaterally, no presumptions in favor of jurisdiction are indulged, but the facts necessary for jurisdiction must appear affirmatively, on the face of the record.” (citation omitted) (internal quotation marks omitted)).

 

¶ 141 Utah law is likewise unhelpful to the lead opinion. The Deveraux’ Adoption case is similar to the line of adoption cases cited by Justice Himonas.[38] Deveraux speaks of a court “never obtain[ing] jurisdiction to exercise the power to grant” an adoption in a case in which there was a defect in a birth mother’s consent. Deveraux’ Adoption v. Brown, 268 P.2d at 998. But the Deveraux court’s notion of “jurisdiction” goes only to the legal authority of the court to award certain relief (to issue an adoption decree). Deveraux had no occasion to consider whether a defect in the birth mother’s consent deprived the court of subject-matter jurisdiction because the birth mother herself intervened in the adoption and “objected that her consent was never validly given.” Supra ¶ 21 (citing Deveraux, 268 P.2d at 996). So Deveraux likewise tells us nothing of relevance to the matter before us.

  1. Governmental Immunity Act and Administrative Exhaustion

¶ 142 That leaves only the governmental immunity and administrative exhaustion cases cited by Justice Himonas. The lead opinion cites those cases to support its view that “[t]here are often prerequisites individual litigants must meet to show that they have satisfied the requirements of subject matter jurisdiction even when we unquestionably have subject matter jurisdiction over” a general category of cases. Supra ¶ 25. We have no quarrel with that general proposition. The “categories” of cases over which our courts have subject-matter jurisdiction certainly have boundaries to them. And litigants must make a case-by-case showing as to whether they fall within the relevant boundaries. But that unobjectionable proposition is hardly a license for us to treat mere preconditions to the issuance of a given type of order as a bar to the exercise of subject-matter jurisdiction.

¶ 143 Conditions that go to subject-matter jurisdiction are clearly denominated as such.[39] And they are, by necessity, conditions that can be established fairly easily at the outset of the litigation. Familiar examples in federal court are the existence of a federal question or the diversity of citizenship of the parties (and a sufficient amount in controversy). See 28 U.S.C. §§ 1331–32. But in Utah our district courts are courts of general jurisdiction. They have general power to hear “all matters civil and criminal” so long as they are “not excepted in the Utah Constitution and not prohibited by law.” UTAH CODE § 78A-5102(1). The code, admittedly, places certain restrictions on the jurisdiction of our district courts. But they are expressly denominated as such—as jurisdictional limits.[40] And they are matters that may be easily assessed at the outset of the litigation, unlike legal preconditions to the issuance of a given form of judicial relief.

¶ 144 It is true that the governmental immunity and administrative exhaustion cases identify “case-specific procedural facts” that have been deemed to go to subject-matter jurisdiction. Supra ¶ 24. But these cases provide no authority to treat any legal precondition to the issuance of a form of judicial relief as subject-matter jurisdictional. Instead these cases fit comfortably within the settled paradigm.

¶ 145 It is also true that we have held that the filing of a notice of claim with the government is a statutory “prerequisite to vesting a district court with subject matter jurisdiction over claims against governmental entities.” Wheeler v. McPherson, 2002 UT 16, ¶ 9, 40 P.3d 632. But that does not at all mean that any statutory prerequisite to a successful tort claim is subject-matter jurisdictional. It means that our law treats the failure to file a notice of claim as a matter rendering the judicial proceeding unripe. This fits comfortably within the traditional notion of justiciability. A failure to file a claim with a non-judicial department of government can be understood to deem the judicial filing premature. And a premature filing can easily be viewed as a categorical defect that goes to subject-matter jurisdiction; it is subjectmatter jurisdictional in that it deems the non-judicial department the appropriate body to resolve the matter, and accordingly holds that the filing in court is premature. That is ultimately what our cases say. See Rushton v. Salt Lake Cty., 1999 UT 36, ¶¶ 18–21, 977 P.2d 1201 (“A notice of claim provides the entity being sued with the factual details of the incident that led to the plaintiff’s claim. Moreover, it ‘provide[s] the governmental entity an opportunity to correct the condition that caused the injury, evaluate the claim, and perhaps settle the matter without the expense of litigation.’” (alteration in original) (quoting Larson v. Park City Mun. Corp., 955 P.2d 343, 345–46 (Utah 1998)). We leave it at that, as doing so avoids the slippery slope introduced by the lead opinion.

¶ 146 The exhaustion cases are similar. They hold that a court lacks subject-matter jurisdiction where a plaintiff has failed to exhaust its avenues for relief in an administrative agency. See Hous. Auth. of Salt Lake v. Snyder, 2002 UT 28, ¶ 11, 44 P.3d 724. But again this is no broad conclusion that all legal preconditions to a successful claim are subjectmatter jurisdictional. It goes to traditional justiciability in the sense of ripeness. So our exhaustion cases similarly identify a categorical defect that goes to subject-matter jurisdiction. They conclude that a nonjudicial entity is the appropriate body to resolve the matter, and that a court lacks jurisdiction because the case belongs in an administrative proceeding and not in court.[41]

¶ 147 We follow these precedents but do not extend them in the manner devised by the lead opinion. Doing so would expand on traditional conceptions of subject-matter jurisdiction in a manner that jeopardizes some central tenets of our justice system.

  1. Systemic Costs and Slippery Slope

¶ 148 The lead opinion’s framework may appear to protect the interests of a sympathetic party. See supra ¶ 1 (expressing concerns about the “septic” nature of this case, infected by a birth mother who “perpetrated a fraud” and deprived a birth father of his chance to intervene to protect his interests). But it would do so at a substantial cost to the coherence of our law and to basic tenets of our judicial system—to the law of subject-matter jurisdiction, to rules of waiver and preservation, and to principles of finality and efficiency embedded deeply in our jurisprudence. Such costs are immediately apparent in

                                                                                                                                                      

administrative exhaustion); Tolman v. Logan City, 2007 UT App 260, ¶ 9, 167 P.3d 489 (“However, an as applied challenge does not become ripe until the challenging party has exhausted its administrative remedies and received a final decision from the relevant administrative agency.”). Our approach, moreover, is consistent with parallel case law in other jurisdictions. See Crow v. Penrose-St. Francis Healthcare Sys., 169 P.3d 158, 161 (Colo. 2007) (“Because the Hospital’s governing board has not rendered a final decision in his matter, Crow has not exhausted his available administrative remedies, and his case is not ripe for judicial review.”); Molo Oil Co. v. City of Dubuque, 692 N.W.2d 686, 693 (Iowa 2005) (“Exhaustion of one’s administrative remedies is a condition precedent to ripeness.”).

We do not mean to suggest that administrative exhaustion is on all fours with the doctrine of ripeness. There are certainly conceptual differences between the two sets of principles. See Ticor Title Ins. Co. v. F.T.C., 814 F.2d 731, 734–35 (D.C. Cir. 1987) (identifying the overlap as well as differences between administrative exhaustion requirements and the doctrine of ripeness). But this is a coherent way to understand administrative exhaustion as subject-matter jurisdictional. And the lead opinion’s contrary view—treating exhaustion as jurisdictional because it is a legal prerequisite to the issuance of relief—would open a perilous slippery slope.

the adoption setting; but the decision proposed in the lead opinion would also reverberate in other fields.

¶ 149 If Justice Himonas’s view prevailed, it would be the judge’s duty (both in the district court and on appeal) to search the record for statutory prerequisites to an adoption that may not have been fulfilled. And whenever such a defect was found, the subject-matter jurisdiction of the adoption court would be in jeopardy. Such jeopardy would last for at least a year beyond the entry of the adoption decree. See supra ¶ 32 n.11. And throughout such proceedings, both in the district court and during any appeal, the parties could expect a more sluggish and less efficient disposition—as judges would be required to make ongoing assessments on issues heretofore left to the adversary system. All interested parties would suffer as a result.

¶ 150 The lead opinion purports to limit its rule to a specific prerequisite to the issuance of an adoption decree—to the validity of the birth mother’s consent. But the logic of its analysis sweeps more broadly. Any and all “case-specific procedural facts” would be eligible for classification as subject-matter jurisdictional. See supra ¶ 24. All that matters under the lead opinion is that the matter in question be an important precondition to the availability of the relief sought by the plaintiff. The possibilities for inclusion are endless.[42] And the timeframe for upsetting a final adoption is potentially unlimited.29

¶ 151 Justice Himonas says that a defect in the mother’s consent deprives the district court of subject-matter jurisdiction because “absent consent,” the court is “without authorization to interfere with the fundamental right that is the parent-child relationship.” Supra ¶ 20. The lead opinion even goes so far as to say that without valid consent “no child has been made available for adoption.” Supra ¶ 27.

¶ 152 But that is an unvarnished judicial fiction. Of course there is a child to be adopted. We call him “B.B.” here to protect his anonymity. But he is a real child with a real interest in these proceedings. And he has been living with his would-be adoptive parents since just after his birth in 2014. Since that time all of these individuals have proceeded in

                                                                                                                                                      

important. And that would leave lower courts without any basis for discerning what other statutory requirements might properly be deemed a matter of equal importance.

The slippery slope problem would remain, moreover, even assuming that “consent” problems are the only “case-specific procedural facts” that would be deemed to go to subject-matter jurisdiction. ICWA prescribes a range of requirements affecting a parent’s consent: that consent be given before a judge, 25 U.S.C. § 1913(a); that the judge engage in an adequate colloquy regarding the parent’s rights, id.; that the colloquy be fully understood, id.; that the judge certify that the colloquy was understood, id.; that the colloquy be interpreted where it might not be understood in English, id.; and that the consent not be improperly prohibited from being withdrawn, id. § 1913(c). And state law of course also regulates consent—by mothers and fathers. See, e.g., UTAH CODE § 78B-6-120; id. § 78B-6-120.1; id. § 78B6-121; id. § 78B-6-125. These and other elements of valid consent would seem to be “case-specific procedural facts” implicating subject-matter jurisdiction under the lead opinion’s theory. The lead opinion would thus invite litigation—and uncertainty and delay—on the question of whether these and other elements of “consent” may be questioned in a manner reopening an adoption that is otherwise final.

29 See supra ¶ 32 n.11 (acknowledging the possibility that the oneyear limitation on challenges to an adoption decree in Utah law, Utah Code section 78B-6-133(7)(b), may not apply in the face of a jurisdictional defect stemming from ICWA, and citing at least one case that supports that conclusion—Hughes v. Aetna Cas. & Sur. Co., 383 P.2d 55, 66 (Or. 1963)).

reliance on the finality of the order terminating the birth mother’s parental rights. They may not yet have an adoption decree. But they have rested easily on the conclusion that the birth mother no longer has a right to interfere with the adoption because her consent was deemed valid, her rights were terminated, and the time for questioning the basis for those decisions has long passed. So the lead opinion may say there is no child to be adopted, but all those who had anything to do with B.B. have long thought otherwise.

¶ 153 What the lead opinion is really saying is that it thinks the validity of a mother’s consent is particularly important. It says as much in asserting that the “requirement of consent is mandatory and jurisdictional because it goes to the soul of the adoption.” Supra ¶ 23. Fair enough. We don’t doubt that a mother’s consent is a crucial step in the proceedings. But subject-matter jurisdiction is different. Our law has long assessed subject-matter jurisdiction at the categorical level— encompassing only statutory limits on the classes of cases to be decided by the court and traditional limits on justiciability. A defect in consent fits in neither category. So if a consent problem is a jurisdictional problem then so are many other legal grounds for challenging the propriety of a district court’s decision. That cannot be—unless we are prepared to abandon the central tenets of finality and adversariness at the heart of our justice system. We are not. And we reject the lead opinion’s view that a defect in consent might deprive our courts of subject-matter jurisdiction over an adoption proceeding.

  1. Jurisdiction Is Proper Under the Lead Opinion’s Theory

¶ 154 If a defect in a birth mother’s consent really deprived the district court of subject-matter jurisdiction, then the proper course would be an order of vacatur and dismissal.[43] Yet the lead opinion would not dismiss the case. It would remand to allow the mother to decide whether to enter a valid consent. See supra ¶ 84 n.32.

¶ 155 That is telling. What it tells us is that even the lead opinion would not ultimately conclude that the district court lacks subjectmatter jurisdiction over any of the issues it undertakes to review— namely the adjudication of C.C.’s consent and the denial of the E.T.’s motion to intervene. Even taking the lead opinion’s view of the cases at face value, there isn’t a single case for the proposition that a district court lacks jurisdiction to decide whether consent was validly given or to determine whether a party claiming an interest in the child may properly intervene in the proceedings. These are pre-adoption issues that, under any view, a district court has power to decide.

¶ 156 The lead opinion tries to split the baby. It concludes that the court has jurisdiction to take “valid consent” but lacks jurisdiction to take “invalid consent.” See supra ¶ 84 n.32. But there is no such thing as a defect in subject-matter jurisdiction that arises only if the court decides an issue one way. What the lead opinion is really trying to do is reopen the merits of the termination order. But the merits of the termination order are foreclosed from our consideration here for all of the reasons set forth in Part I.A above.

¶ 157 We leave the matter there. The contrary path articulated in the lead opinion would upend the settled law of subject-matter jurisdiction in troubling ways. We decline to take that path.

  1. MOTION TO INTERVENE AND FEDERAL PATERNITY STANDARD

¶ 158 The lead opinion’s decision on the merits of E.T.’s motion to intervene is likewise problematic. Here a majority of the court expands the reach of ICWA in a manner that its plain language cannot bear— and that ignores a countervailing purpose that Congress was also balancing in enacting ICWA. I respectfully dissent.

¶ 159 ICWA, like most statutes, is not “aimed at advancing a single objective at the expense of all others.” Myers v. Myers, 2011 UT 65, ¶ 27, 266 P.3d 806. It is a “result of a legislative give-and-take that balances multiple concerns.” Id. A key countervailing purpose at stake under ICWA is the protection of the traditional jurisdiction of state courts over adoption proceedings. See 25 U.S.C. § 1901(5) (noting that states possess “recognized jurisdiction over Indian child custody proceedings”).31 ICWA does not oust the states of that traditional area of their authority. Id. It recognizes it to a large degree—balancing against the interests of the integrity of Indian families the rights of the states to vindicate the important interests protected by their laws of adoption and parental rights.

¶ 160 In other words, ICWA does not create an independent federal adoption regime. Its substantive provisions function only within the context of a state or tribal adoption proceeding. See id. §§ 1911–13. And Congress did not override the traditional jurisdiction inherent in adoption cases. It simply mandated some minimum standards that state adoption schemes must satisfy. See id. § 1902.

¶ 161 This confirms that Congress understood the importance of state law in this field. And it recognized the fundamental nature of the interests protected by such law—including the welfare and best interests of children, which are implicated whenever an adoption

                                                                                                                                                      

31 ICWA admittedly provides for a degree of federal “intervention” into state sovereignty in this field. See supra ¶ 62. But the Act also preserves “traditional” state sovereignty to some degree. That is reflected not only in the text of section 1901(5) but also in other statutory sections that make reference to mechanisms and terms of state law. See 25 U.S.C. § 1912(a) (identifying additional federal standards to apply to “any involuntary proceeding in a State court”); id. § 1913(b) (identifying a right to “withdraw consent to a foster care placement under State law”); id. § 1919(a) (authorizing the establishment of jurisdiction agreements between states and tribes); id. § 1922 (authorizing “emergency removal . . . under applicable State law”). To that extent there is no mistaking the fact that ICWA balances the protection of “the essential tribal relations of Indian people,” see supra ¶ 62, against the “traditional” sovereignty of the states.

I am not advocating that we ignore the former, as the majority suggests. I am just urging that we keep both sets of interests in mind— and that we look to the text of the statute in deciding where Congress has intervened and where it has preserved traditional state sovereignty. Thus, I would give full effect to ICWA’s text where the statute identifies unique federal standards. But I would not go beyond the text of the statute to displace state law where Congress has not spoken.

 

 

proceeding is underway. Thus, ICWA does not guarantee an unfettered right of members of Indian tribes to intervene in or object to an adoption in any circumstance or at any time. It sets forth specific, limited rights of tribal members.

¶ 162 The provision at issue here is along these lines. It does not guarantee a right to notice and intervention to any tribal member with a claimed interest in a child in an adoption proceeding. It limits that right to a “parent.” 25 U.S.C. § 1912(a). And ICWA defines “parent” in a careful, limited way. It states that a “parent” is “any biological parent or parents of an Indian child,” not including “the unwed father where paternity has not been acknowledged or established.” Id. § 1903(9).

¶ 163 To me this is an obvious invocation of state law. I say obvious because paternity has never been a creature of federal law. It has always been a matter within the exclusive sovereignty of the states. The longstanding rule in Utah and elsewhere is that an unwed father’s legal rights as a father—his “paternity”—is established by the law of the state in which his putative child’s adoption goes forward. See generally In re Adoption of Baby B., 2012 UT 35, 308 P.3d 382; see also HOMER H.

CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES, 309 (2d ed. 1972). Admittedly, there are constitutional limitations on this general rule—circumstances in which the state law of paternity must give way to federal constitutional limitations (such as due process). See, e.g., Stanley v. Illinois, 405 U.S. 645, 649–58 (1972) (holding that “a presumption that distinguishes and burdens [only] all unwed fathers” was unconstitutional). But no one has suggested that any such limitation would apply here. So the obvious place to look to decide whether E.T. has “acknowledged” or “established” his “paternity” is Utah law.

¶ 164 I would decide this case on that basis. I would conclude, as have other courts confronting this question,[44] that an Indian parent has a right to notice and intervention under 25 U.S.C. section 1912(a) only if his paternity has been “acknowledged or established” as a matter of state law (or perhaps tribal law). And I would affirm the district court’s decision here because it was properly based on the Utah standard.

¶ 165 The majority’s contrary conclusions cannot stand. The statutory text undermines the majority’s approach. And Congress’s legislative purpose, as interpreted in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), cannot properly be construed to support the court’s conclusions. Holyfield is easily distinguishable, as it involved a statutory term (domicile) of “generally uncontroverted” meaning. Id. at 48.

¶ 166 That cannot be said of the notion of the acknowledgement or establishment of paternity. These are terms that impose varying standards throughout the fifty states (and the laws of Indian nations). We cannot possibly interpret this language of ICWA to prescribe a uniform federal standard. The only way to achieve uniformity would be to legislate a specific, binding federal standard. Yet even the majority declines to do that. It just says it thinks that a reasonability standard would work the best.33 And it provides no analysis under that standard

                                                                                                                                                      

paternity, courts have resolved the issue under state law.”); In re Adoption of a Child of Indian Heritage, 543 A.2d 925, 935 (N.J. 1988) (“We conclude, therefore, that Congress intended to defer to state or tribal law standards for establishing paternity, so long as these approaches are permissible variations on the methods of acknowledging and establishing paternity within the general contemplation of Congress when it passed the ICWA. . . .”); In re Adoption of Baby Girl B., 67 P.3d 359, 367 (Okla. Civ. App. 2003) (relying on state law but warning that its application cannot frustrate the purpose of ICWA).

33 The majority seeks support for its approach in a supposed “canon of interpretation” presuming a “reasonability” standard in the face of statutory silence “as to the time or manner of a subject.” Supra ¶ 71. And it claims that such a canon is “consistent with ICWA case law.” Supra ¶ 71. I’m unsure of the basis or applicability of this supposed “canon” as a general matter. But whatever its merits in other settings, it is not consistent with the ICWA cases cited by the majority. Neither the Arizona Court of Appeals nor the Alaska Supreme Court adopted a federal reasonability standard for acknowledging or establishing paternity. To the contrary, both courts held that the undefined terms other than to say that E.T. has acknowledged or established paternity under any possible standard.

¶ 167 To me that suggests that we are not really interpreting the terms of the governing federal statute. If we are unable to state a meaningful legal standard, we are not really judging in accordance with a rule of law. We are only picking a winner in litigation. I cannot agree with this decision. And I respectfully disagree with the majority’s analysis for these reasons, which I explain in more detail below.

  1. ICWA Invokes State Law

¶ 168 The starting place for our analysis should be the statutory text. And that text strongly signals the congressional adoption of a state standard of paternity. It does so by employing legal terms of art with settled meaning in family law.

¶ 169 A person cannot qualify as a parent under ICWA if he is an “unwed father” whose “paternity has not been acknowledged or established.” 25 U.S.C. § 1903(9). Four elements of this phrasing cut against the majority’s conclusion that ICWA directs state courts to establish a uniform federal standard of paternity.

¶ 170 First, the words acknowledgement and establishment of paternity are long-established terms of art in state family law. All fifty states prescribe their own standards and procedures for acknowledging or establishing paternity.34 But the phrases employed in ICWA encompass

                                                                                                                                                       

invoked state law. Jared P., 209 P.3d at 161 (”ICWA does not, however, define how paternity can be acknowledged or otherwise detail any procedure to establish paternity. Consequently, we look to state law to determine whether paternity has been acknowledged or established.” (emphasis added)); Bruce L. v. W.E., 247 P.3d 966, 978 (Alaska 2011) (following courts that “have looked to state law . . . to determine whether paternity has been acknowledged or established under ICWA.”).

Granted, both the Arizona and Alaska courts concluded that the putative father did not have to perfectly comply with applicable state law in some circumstances. But that is a far cry from the adoption of a uniform federal reasonability standard.

  • “All states have programs under which birthing hospitals give unmarried parents of a newborn the opportunity to acknowledge the concepts that most all states share in common: (a) the notion of an acknowledgement of paternity, which generally refers to a writing by a father (with or without a requirement of consent by the mother), where the writing itself has the legal effect of sustaining a father’s parental rights to some degree;35 and (b) the concept of an establishment of

                                                                                                                                                       

father’s paternity of the child. States must also help parents acknowledge paternity up until the child’s eighteenth birthday through vital records offices or other offices designated by the state. Paternity can also be established at a court or administrative hearing or by default if the man was served notice of a paternity hearing but did not appear.”

DEPARTMENT OF HEALTH AND HUMAN SERVICES ADMINISTRATION FOR

CHILDREN AND FAMILIES OFFICE OF CHILD SUPPORT ENFORCEMENT, HANDBOOK ON CHILD SUPPORT ENFORCEMENT 14 (2008) (emphasis added).

  • Even in 1978, when ICWA was enacted, “acknowledge” was a term of art that indicated a specific process under state law—though varying from state to state. No later than 1921, there was already debate about what steps an unwed father should be required to take to legally “acknowledge” paternity. WALTER TIFFANY, HANDBOOK ON THE LAW OF PERSONS AND DOMESTIC RELATIONS 302–03 (Roger W. Cooley ed., 3d ed. 1921) (“The courts are not in agreement as to what constitutes a sufficient acknowledgment of the child to legitimate it. In a few instances it has been held that the acknowledgment must be by an instrument executed for the express purpose, but the better rule seems to be that the writing need not be made for the express purpose of acknowledging the child, but that the acknowledgment is sufficient if made in any written instrument, collateral or otherwise.”). In the 1970s there was still “great variety in the methods prescribed [by the states] for making the acknowledgment.” HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 173 (1987). “In some states,” the acknowledgement had to be “in writing and witnessed, in others it [had to] be executed before a notary or other officer, in others it [had to] be merely in writing, in others it [had to] be ‘general and notorious’ and in still others no formalities whatever [were] required.” Id. In an effort to eliminate the inconsistency that stemmed from states’ exclusive jurisdiction to prescribe the acknowledgement process, the National Conference of Commissioners on Uniform State Laws published the Uniform Parentage Act of 1973. Pursuant to the Act, an unwed father

 

paternity, which is initiated by a court filing and culminates in the issuance of a judicial order (sometimes contested but not necessarily) establishing the father’s parental rights and obligations.36 Surely it was no accident that Congress utilized terms with accepted meaning in state family law. And because it did, we should presume that ICWA embraced the principles embedded in these state law terms.

¶ 171 Second, the statute speaks in the past tense. It forecloses the right to notice and intervention for unwed fathers whose paternity “has not been acknowledged or established.” 25 U.S.C. § 1903(9). This backward-looking phrasing further underscores the state term-of-art premise of the ICWA definition. Congress made the putative father’s right to notice and intervention dependent on what had been acknowledged or established—past tense. And there is not and never has been any way for a father to “acknowledge” or “establish” his parental rights as a matter of federal law. There is no such thing as federal family law (see more on that below). And for that reason it would be very odd for Congress to be speaking of a federal

                                                                                                                                                       

could acknowledge paternity “in a writing filed with the appropriate court or Vital Statistics Bureau” if the mother “does not dispute the acknowledgment within a reasonable time after being informed thereof.” UNIF. ACT ON PARENTAGE § 4 (NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 1973). As of 2000, nineteen states had enacted the Uniform Parentage Act in its entirety and many others had enacted “significant portions of it.” Prefatory Note to UNIF. PARENTAGE ACT

(NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 2002). But there is still no national, uniform standard. This is purely a matter of state law, and the standards vary widely across the fifty states.

  • Even prior to ICWA, “statutes ha[d] been enacted in most if not all jurisdictions creating judicial proceedings to establish the paternity of an illegitimate child. . . .” 59 A.L.R. 3d 685 (1974) (emphasis added); see also 14 C.J.S. Children Out-of-Wedlock 111 (describing the different burdens of proof in suits to establish paternity); UNIF. ACT ON PARENTAGE §§ 3, 6 (NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS 1973) (authorizing a “natural father” to establish his paternity through court action).

acknowledgement or establishment of paternity as a prerequisite to a right to notice and intervention.37

¶ 172 Third, the statutory duty to provide notice to those whose paternity has been acknowledged or established indicates that these are established, formal mechanisms. A family who wishes to adopt a child of Indian heritage has a statutory duty to provide notice to any parent. But if parent includes anyone who has vaguely acknowledged paternity in some informal way, the adopting family will have no way to know how to fulfill its obligations under ICWA. And an Indian mother would have no way of assuring that her child will actually be given to the adoptive couple, even after her own parental rights have been terminated. That is a further strike against the majority’s construction.

Surely Congress didn’t mean to require biological mothers and

                                                                                                                                                      

  • The majority appears to ignore this point in its reasonableness analysis. Rather than focusing exclusively on E.T.’s actions prior to the termination order, it spends significant time on the actions E.T. took after the termination order. But E.T. could not possibly have been entitled to notice and intervention at the time the proceeding began—or even at the time of his motion to intervene—based on actions he took after that time.

I am also skeptical that the actions he took prior to the custody proceedings satisfied even the majority’s reasonability standard for acknowledging paternity. My skepticism stems not from any “socioeconomic [or] cultural assumptions,” supra ¶ 75 n.29, but from the inherent difficulty of administering a “reasonability” standard that credits purely private conduct. The relevant “actions” boil down to E.T. providing for C.C. for the first six months of pregnancy and believing that C.C. would come back to South Dakota or that he would join C.C. in Utah after the baby was born. If this amounts to a reasonable acknowledgment of paternity, almost anything will. After all, E.T. appears to have provided for C.C. even before the child was conceived, and he does not assert that he articulated or documented his beliefs regarding future plans before the custody proceedings were initiated. Under those circumstances I cannot see how the adoptive parents or the district court would have any way of knowing that E.T. had an interest in the child—or of providing E.T. notice at the time the adoption petition was filed. And this only exacerbates the practical problems of the majority’s standard.

adoptive families to give notice to persons whose acknowledgement of paternity was so vague and informal that they cannot reasonably be identified. And the majority’s decision to require this only enhances the practical concerns identified above. See supra ¶¶ 111–15.

¶ 173 A fourth and related point builds on a series of established canons or norms of statutory construction in this field. When Congress passed ICWA, it was surely aware that (a) “[t]he whole subject of the domestic relations of husband and wife, parent and child” has long been understood to “belong[] to the laws of the states, and not to the laws of the United States,” Ex parte Burrus, 136 U.S. 586, 593–94 (1890);[45] (b) state courts have “virtually exclusive primacy” in the area of family law, while “federal courts, as a general rule, do not adjudicate issues of” family law “even when there might otherwise be a basis for federal jurisdiction,” United States v. Windsor, 133 S. Ct. 2675, 2691 (2013); and (c) for these and other reasons, family law terms in federal statutes are ordinarily deemed to be “determined by state, rather than federal law,” De Sylva v. Ballentine, 351 U.S. 570, 580 (1956).

¶ 174 These principles lend a heavy dose of skepticism to the view that Congress intended to delegate to state courts the power to prescribe a set of uniform federal standards of paternity. That would be an extraordinary delegation of federal policymaking power. To me it’s unimaginable that Congress would have meant to delegate that power to a judicial branch of another sovereign—fifty sovereigns, really—in a field traditionally left to that sovereign’s sole authority.[46]

¶ 175 The exercise of this power is a matter of legislative policymaking. There is no “right” answer to the question of what it takes for an unwed father to acknowledge or establish paternity. So to make law on the appropriate standards, we would have to step into the role long held by our legislature. I have no idea how to do that. (Should we hold legislative hearings the way the legislature does when it adopts or amends laws in this field?) And I am certain Congress didn’t mean for the Utah Supreme Court to have the final say on the matter. We are one of fifty state courts of last resort. So to interpret ICWA to give this body the power to decide on an ideal standard for the acknowledgement or establishment of paternity is to assure a lack of a uniform standard. That cannot be what Congress had in mind—even under the majority’s strong purposivist view of ICWA. See supra ¶ 69 (concluding that Congress’s purpose of assuring uniformity sustains the conclusion that this court should prescribe a federal standard of acknowledging or establishing paternity).

¶ 176 This is a strong indication that we are treading into a domain not meant for us under the terms of the governing statute. “When presented with alternative interpretations of a statutory scheme, we should choose the one that involves the judiciary least in the enterprise of legislative policymaking.” State v. Parduhn, 2011 UT 55, ¶ 72, 283 P.3d 488 (Lee, J., dissenting). Courts should not go looking for opportunities to “become a policymaker instead of an interpreter.” Id. “We should presume that the legislature intended to preserve the respective legislative and judicial roles, with the legislature making policy and the courts construing and applying that policy to cases that come before them.” Id. “If one of two interpretations of a statute

                                                                                                                                                       

that “bear no relation” to the governing terms of the law. Id. For that reason the majority’s Fourth Amendment example is beside the point. See supra ¶ 71 n.27. The text of the Fourth Amendment is framed in terms of “unreasonable searches and seizures.” U.S. CONST. amend. IV. So of course the Fourth Amendment test is framed as an inquiry into “reasonableness.” See supra ¶ 71 n.27. But that tells us nothing of relevance to the proper test under ICWA.

conflates those roles, it should accordingly be rejected as contrary to legislative intent.” Id.[47]

¶ 177 This should be doubly true in a case, like this one, where the statute we interpret is a federal law addressing a domain long governed exclusively by state law. I see no room for the conclusion that Congress meant for this court to put our policymaker hats on and decide on the best standard for the acknowledgement or establishment of paternity. Surely it’s more likely that its use of settled terms of state law was a signal that Congress was asking us to apply established state law.

  1. Response to Majority

¶ 178 The majority finds it “obvious that the plain language” of ICWA does not dictate the application of state law standards of paternity. Supra ¶ 50. It bases that conclusion on its sense of Congress’s “purpose” in enacting ICWA, and on analysis in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), that it views as supportive of its holding. And it claims that my approach violates the traditional meaning of the phrase “term of art.” I find none of these points persuasive.

¶ 179 First, the purported “purpose” of ICWA cannot override the terms of the statute. ICWA, as noted, balances multiple purposes. And we overstep our bounds if we fail to credit the compromised balance of those purposes reflected in the statutory text. Myers v. Myers, 2011 UT 65, ¶ 27, 266 P.3d 806; Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 23 n.6, 248 P.3d 465.

¶ 180 As noted above, ICWA, at a minimum, is also aimed at preserving the sovereignty of the state courts over adoption and paternity—and in protecting the children whose interests are so keenly implicated in adoption proceedings. Thus, it is entirely correct to say that ICWA was aimed at protecting the integrity of Indian families. But because the statutory purpose was not to advance that purpose at all costs, our inquiry cannot end at that high level of generality. We must consider how Congress struck the balance at the specific level of the terms of the statute.[48]

¶ 181 The Holyfield opinion is not to the contrary. Nor does it support the majority’s holding in this case. In Holyfield, the court interpreted a provision in ICWA granting tribal courts the exclusive jurisdiction over custody proceedings involving an Indian child “who resides or is domiciled within” a tribe’s reservation. 490 U.S. at 36 (quoting 25 U.S.C. § 1911(a)). And, as the majority here indicates, the Holyfield court interpreted the term “domicile” to prescribe a federal standard. Id. at 43–47. In so concluding, moreover, the Holyfield court stated a “general assumption that ‘in the absence of a plain indication to the contrary, . . . Congress when it enacts a statute is not making the application of the federal act dependent on state law.’” Id. at 43

(alteration in original) (quoting Jerome v. United States, 318 U.S. 101, 104 (1943)).

¶ 182 Yet Holyfield announces no hard and fast rule. Indeed it acknowledges that “Congress sometimes intends that a statutory term be given content by the application of state law.” Id. And the grounds for the court’s holding in Holyfield simply do not apply here. Holyfield is distinguishable.

¶ 183 Holyfield does not conclude that ICWA’s purpose of protecting Indian families mandates a uniform federal standard for all terms in the statute. It acknowledges the contrary. Id. And it begins its analysis with “‘the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.’” Id. at 47 (quoting Richards v. United States, 369 U.S. 1, 9 (1962)). Thus, the core holding in Holyfield is different from the one described by the majority in this case. Holyfield is based on the statutory text. And it holds that “domicile” is a statement of a uniform standard not because ICWA’s broad purpose demands uniformity in all cases, but because “‘[d]omicile’ is . . . a concept widely used in both federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is generally uncontroverted.” Id. at 48 (emphasis added). And the uncontroverted meaning includes the standards for demonstrating domicile that are almost universally accepted among federal and state jurisdictions. See id.

¶ 184 Thus, the Holyfield opinion is quite different from the majority opinion in this case. The Holyfield court did not construct its own preferred standard of domicile—a standard informed only by a vague sense that Congress must have meant to provide “less exacting” requirements for Indian parents than the laws of many states. Supra ¶ 71. The Holyfield analysis is textual. It is rooted in the “generally accepted meaning of the term ‘domicile.’” Holyfield, 490 U.S. at 47.

¶ 185 As noted above, there is no such thing as a “generally accepted meaning” of acknowledging or establishing paternity in the sense discussed in Holyfield. As a product of our federalism, the fifty states have adopted a range of procedures and standards for the acknowledgement or establishment of paternity.[49] This could not have been a surprise for the Congress that enacted ICWA.

¶ 186 The majority takes issue with this analysis. It claims that I am relying on “an erroneous view of the definition of a term of art.” Supra ¶ 55. Thus, the majority insists that a term of art must have a single “core meaning.” Supra ¶ 56. And the majority rejects my approach on the ground that the state-by-state definitions of acknowledge and establish “do not share a common core.” Supra ¶ 56. From that premise, the majority proceeds to the conclusion that the words acknowledgement and establishment of paternity are ordinary (not legal) terms as used in ICWA. Supra ¶ 58. And the court cites a few cases that purportedly support this conclusion. Supra ¶ 58.[50]

¶ 187 None of this adds up in my view. The court’s starting premise is overbroad; it misses the obvious implications of our American federalism. The law of paternity is like many other pockets of state law, with substantial variation from state to state. State law varies widely on a wide range of questions, such as negligence, strict liability, breach of contract, divorce, child custody, and intestate succession. But a federal statute invoking legal terminology from one of these fields would not properly be understood as using the words of the law in an ordinary (non-legal) sense just because there are legal variations from state to state.[51]

¶ 188 The terms in question here—acknowledgement and establishment of paternity—moreover, are legal terms with a common “core meaning.” At the heart of every state’s standards for acknowledgement of paternity is the question whether the purported parents have shown that they accept responsibility for the child.

read extratextual requirements into undefined terms. See State v. Wolfe, 239 A.2d 509, 512 (Conn. 1968); Carpenter v. Hawley, 281 S.E.2d 783, 786 (N.C. Ct. App. 1981). The other two cases are even less helpful to the majority’s cause. One was decided long before state paternity schemes were fleshed out, see Blythe v. Ayres, 31 P. 915, 922 (Cal. 1892), and the other is not a custody proceeding at all. See Estate of Griswold, 24 P.3d 1191, 1194–95 (Cal. 2001) (determining whether a father’s admission of paternity in a “bastardy proceeding” was sufficient to acknowledge paternity under a different state’s probate code). In any event, none of the cases interpret a federal statute. So none of them supports the majority’s conclusion that terms utilized by every state’s adoption scheme must be given an independent, ordinary (non-legal) meaning under a federal statute regulating those schemes.

Acknowledge, BLACK’S LAW DICTIONARY (9th ed. 2009) (defining “acknowledge” as “[t]o show that one accepts responsibility for <acknowledge paternity of the child>”). Establishment of paternity also has a core meaning. This is the legal notion that the purported parents “settle, make, or fix firmly” that they are the true parents of the child. Establish, BLACK’S LAW DICTIONARY (9th ed. 2009).45 There are variations across the fifty states as to the procedure or standards for acknowledging or establishing paternity. But those variations stem from each state’s policy preferences and prerogatives. They do not undefine these legal terms of art.

¶ 189 If a statute speaks the language of the law, then we interpret that term in accordance with established legal conventions. This is a settled tenet of the law of interpretation.[52] And that tenet does not change just because we find a lack of a single, clear meaning of the legal term in question.[53]

45 See also 14 C.J.S. Children Out-of-Wedlock § 111 (describing the different burdens of proof in suits to establish paternity); UNIF. ACT ON PARENTAGE §§ 3, 6 (1973) (authorizing a “natural father” to establish his paternity through court action).

¶ 190 Where a legal term is employed, we can understand the term only by reference to the norms and conventions of that language. The language of the law is like a distinct dialect.48 And we will misunderstand the dialect if we ignore its norms and conventions.

¶ 191 Granted, it is possible to speak of acknowledging or establishing paternity without reference to the law. But a statutory reference to these established legal terms should be viewed against the backdrop of the law. And we will misunderstand or misuse the terminology if we ignore its legal context.[54] The majority commits this fatal error in its approach.

¶ 192 In my view it is beside the point that “Utah law requires the birth mother’s signature in addition to the unmarried biological father’s signature” as a condition of an acknowledgement “through a declaration of paternity.” Supra ¶ 67. Surely that does not mean that “the unmarried biological father’s option to acknowledge paternity is . . . read out of ICWA.”[55] Supra ¶ 67. It simply means that E.T. failed to

48 See Michael B. Rappaport & John O. McGinnis, The Constitution and the Language of the Law (San Diego Legal Studies Paper No. 17-262, 2017), https://ssrn.com/abstract=2928936.

secure his paternity through an acknowledgement under Utah law. ICWA’s bare reference to acknowledgement or establishment of paternity cannot properly be read as a guarantee that a given putative father will qualify under either. It is simply an indication that either means of securing rights of paternity in a given state’s law will suffice as a matter of federal Indian law. And certainly E.T. could have secured his paternity rights under Utah law; he simply failed to do so in any of the means required by our law.

¶ 193 There is likewise nothing “anomalous” about the notion that “an unmarried biological Indian father’s status as a parent under ICWA” depends on his compliance with the laws of the state where the child is born. Supra ¶ 69. That is not some unforeseen oddity of my reading of ICWA; it is an inherent feature of our longstanding system of federalism that was well-known to Congress—a system in which parental rights are a creature of state law, and thus may be established under the various laws of the fifty states.

¶ 194 The alternative, moreover, is a make-it-up-as-we-go standard—a standard without any real content, except the notion that a biological father must meet an undefined “reasonability standard” that is “less exacting” than the requirements of Utah law. Supra ¶ 71. That seems close to an admission that the court has no standard. And the lack of a standard assures that the majority cannot ultimately live up to its premises.

¶ 195 Instead the majority offers only a bare holding—that E.T.’s “actions satisfied the requirements for acknowledging paternity under ICWA using a reasonability standard.” Supra ¶ 74. And the court simply lists the facts it deems sufficient under the circumstances of this case. That is a further admission that we are not stating a legal standard but only a disposition of this case.

¶ 196 Perhaps that’s understandable. The logic of the court’s opinion, after all, is one that can lead only to the conclusion that any bare “acknowledgement” of paternity, however minimal, must suffice as a matter of federal Indian law. To support its holding, the majority points to hurdles set by Utah law that E.T. has not satisfied. See supra ¶ 67. And it concludes that Utah law is too “exacting.” Supra ¶ 71.

                                                                                                                                                      

of ICWA.” It says only that E.T. cannot secure his rights through such a filing.

Thus, it is unacceptable, in the court’s view, to allow “state law to determine who is a parent under ICWA” because that “would, in some cases, provide a lower level of protection of parental rights than ICWA intends.” Supra ¶ 67. With this in mind, the court sets forth a vague reasonability standard that purports to be more protective “of parental rights pertaining to Indian children.” Supra ¶ 71.

¶ 197 But why stop there? The logic of the court’s opinion will lead inevitably to the most minimally “exacting” acknowledgement of paternity imaginable. Anything less, after all, could sustain the same conclusion reached in this case—that ICWA’s purpose is to protect the rights of Indian tribal members, and that allowing state law (or any law except a minimalist acknowledgement) “to determine who is a parent under ICWA would . . . provide a lower level of protection of parental rights than ICWA intends.”[56] Supra ¶ 67.

¶ 198 The majority apparently perceives the problem with that approach. If any bare acknowledgement by a putative father will do, then the statutory definition will be eviscerated: All unwed putative fathers will become entitled to notice and a right to intervene because any father can plausibly say he made a bare acknowledgement of paternity at some point. And that cannot be. See VCS, Inc. v. Utah Cmty. Bank, 2012 UT 89, ¶ 18, 293 P.3d 290 (noting that an interpretation that would “swallow” statutory language “runs afoul of the settled canon of preserving independent meaning for all statutory provisions”).

¶ 199 Presumably that is why the court stops short of stating a meaningful standard. Perhaps it acknowledges that we cannot defensibly pick a paternity standard out of the air. But unless we are willing to set the bar at the lowest imaginable level, the logic of the court’s opinion will always call for us to set it lower; otherwise we will have a standard that is too “exacting” to satisfy the purpose of ICWA. So the court, naturally, is left to state no meaningful standard at all.

¶ 200 And that is also untenable—and completely at odds with the core premise of the court’s opinion. The majority’s premise is that Congress could not have intended a state-law-based notion of acknowledgement or establishment of paternity because it intended a nationwide uniform standard. See supra ¶ 71. Yet the court’s holding assures the exact opposite. This court today says that Utah law has set the paternity bar too high. But absent any meaningful legal standard, our opinion today assures a complete lack of uniformity. If today’s opinion takes hold in other states, it will guarantee chaos and unpredictability—not uniformity. It will invite each court faced with the paternity question to offer its own subjective assessment of what is a “reasonable” acknowledgment of paternity and whether the state or tribal paternity laws in question are too “exacting.” Supra ¶ 71.

¶ 201 The majority’s approach may also produce devastating unintended consequences. By recognizing an unwed father’s right to notice and intervention upon a vague, informal “acknowledgement” of paternity, and ignoring the backward-looking requirement of paternity that “has . . . been acknowledged,” the court opens the door to the possibility that a putative Indian father will come forward months or even years later and assert a right to disrupt even a finalized adoption. If and when this eventuality arises, perhaps the courts will find a “reasonability” time bar or estoppel basis to avoid this disruption. But I see no basis for it on the face of ICWA. So as the law stands there is no assurance that an adoption of an Indian child will ever be truly final. The court’s approach leaves open the possibility of disruption of any adoption of an Indian child whose biological father might one day claim to have “acknowledged” his paternity.

¶ 202 This cannot be what Congress had in mind when it limited the rights of notice and intervention to unwed fathers who have had their paternity acknowledged or established. Surely Congress meant for courts to apply a fixed legal standard. And because ICWA uses settled terms of art from family law, I would interpret it to incorporate state (and tribal) law on this question. I would accordingly affirm the district court’s denial of E.T.’s motion to dismiss.

III. CONCLUSION

¶ 203 For reasons stated in Part I of this opinion a majority of the court finds no defect in subject-matter jurisdiction. A different majority nonetheless reverses the denial of the motion to intervene. I dissent from that decision for reasons set forth in Part II of my opinion. I would also affirm the district court’s denial of E.T.’s motion to dismiss and remand for finalization of the adoption.

 

 

[1] I refer to E.T., the unmarried biological father, as “Birth Father,” C.C., the unmarried biological mother, as “Birth Mother,” and B.B. as the “Child.”

[2] In its decision, the district court listed facts that “the Court from a careful review of the parties’ submissions believe[d] . . . to be undisputed, and [did] not by th[e] factual recitation intend to resolve disputed factual issues, if any.” We mirror the district court in this regard, reciting facts from the record that appear largely undisputed.

[3] There are exceptions to the requirement of parental consent where, for example, abuse, neglect, or other “parental unfitness” is at issue. See Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 202–03 (Utah 1984), abrogated on other grounds by In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009 (“Constitutionally protected parental rights can be . . . [voluntarily] surrendered pursuant to statute. . . . Parental rights can also be terminated through parental unfitness or substantial neglect.”); In re J.P., 648 P.2d 1364, 1375 (Utah 1982) (“[A]ll unwed mothers are entitled to a showing of unfitness before being involuntarily deprived of their parental rights.”). Neither party argues that those exceptions apply in this case, so I focus only on the lack of consent.

[4] We have also consistently regarded our appellate deadlines as jurisdictional, even though our rules of appellate procedure do not explicitly contain a jurisdictional statement. See, e.g., Union Pac. R.R. Co.

  1. Utah State Tax Comm’n, 2000 UT 40, ¶ 25, 999 P.2d 17 (“UPRR’s petitions for judicial review in both this court and the district court were filed late, thus depriving both courts of jurisdiction.”); Johnson v. Office of Prof’l Conduct, 2017 UT 7, ¶ 10, 391 P.3d 208 (holding that “we lack jurisdiction to hear the merits of [the] appeal” where appellant’s petition was outside of the Utah Rules of Appellate Procedure’s thirty-

(cont.)

[5] The majority is correct that Governmental Immunity Act cases and administrative exhaustion cases involve ripeness, which “fits comfortably within the traditional notion of justiciability.” Infra ¶ 145. I agree that ripeness is an appropriate jurisdictional issue, and it applies directly to this case because until parental consent is obtained, the adoption case is unripe. See infra ¶ 27.

[6] The majority also laments that recognizing the subject matter jurisdictional nature of consent in an adoption proceeding will mean that district courts will be forced to carefully review adoption proceedings to ensure that they are error-free. Infra ¶ 149. I cannot conceive of how this is a problem. We have encouraged, and continue to encourage, district courts to tread carefully “in this highly sensitive area of child adoption.” In re Adoption of W.A.T., 808 P.2d 1083, 1085 (Utah 1991). This is particularly important in the ICWA context, where state courts’ being too quick to remove Indian children from their families “is precisely one of the evils at which the ICWA was aimed.” In re Adoption of Halloway, 732 P.2d 962, 969 (Utah 1986); see also 25 U.S.C. § 1901(4)–(5) (“Congress finds . . . that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in nonIndian foster and adoptive homes and institutions; and . . . that the States, exercising their recognized jurisdiction over Indian child

[7] UTAH CODE § 78B-6-102(1) (“It is the intent and desire of the Legislature that in every adoption the best interest of the child should govern and be of foremost concern in the court’s determination.”).

[8] ALASKA STAT. § 25.23.005 (The adoption “chapter shall be liberally construed to the end that the best interests of adopted children are promoted.”).

[9] S.C. CODE § 63-9-20 (“[W]hen the interests of a child and an adult are in conflict, the conflict must be resolved in favor of the child.”).

[10] OKLA. STAT. tit. 10, § 7501-1.2(A)(1) (stating that one purpose of the Oklahoma Adoption Code is to “[e]nsure and promote the best interests of the child in adoptions”).

[11] The majority takes the position that the action is merely voidable because the phrase “may petition” in section 1914 “suggests that unless a party affirmatively challenges a proceeding’s compliance with ICWA section 1913, the consent and resulting termination order are valid.” Infra ¶ 117. I reject this attempt to pit sections 1914 and 1913’s protections against each other. Section 1914 is a mechanism for bringing voidness to the attention of a court; it does not negate section 1913’s language about untimely consent “not be[ing] valid.” The majority’s contrary interpretation contravenes our principle of interpreting statutes “in harmony with other provisions in the same statute and with other statutes under the same and related chapters.” Sill v. Hart, 2007 UT 45, ¶ 7, 162 P.3d 1099 (citation omitted).

[12] Section 1914 reads in full:

Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from

(cont.)

[13] This underscores why acknowledgement or establishment of paternity is not, as the dissent contends, like a declaration of bankruptcy. Infra ¶ 191 n.49. Declaring bankruptcy—as a legal term of art—certainly has different effects than “just say[ing] the word bankruptcy.” Infra ¶ 191 n.49. But the dissent ignores that the steps one must take to declare bankruptcy and the legal effects it has are the same in all fifty states. But that is far from the case for acknowledging and establishing paternity.

[14] This is not to say that Utah’s standards for acknowledging paternity are unreasonable. Rather, we point out the strict nature of

(cont.)

[15] Coulter & Smith, Ltd. v. Russell, 966 P.2d 852, 858 (Utah 1998) (“[I]f a contract fails to specify a time of performance the law implies that it shall be done within a reasonable time under the circumstances.”); see Laurelle v. Bush, 119 P. 953, 956 (Cal. Dist. Ct. App. 1911) (“It is a wellrecognized rule of statutory construction that a general grant of power, unaccompanied by specific directions as to the manner in which the power is to be exercised, implies the right and duty to adopt and employ such means and methods as may be reasonably necessary to a proper exercise of the power” in the context of granting a permit for a license.); Spiegelberg v. Gomez, 379 N.E.2d 1135, 1136 (N.Y. 1978) (implying a reasonableness condition on time before city may raise the rent on property it acquires); Lance Int’l, Inc. v. First Nat’l City Bank, 927 N.Y.S.2d 56, 58 (App. Div. 2011) (implying a reasonable period of time for winding up a dissolved corporation’s affairs when statute is silent on time periods); Jonathan Neil Corp. v. State Liquor Auth., 491 N.Y.S.2d 632, 633 (App. Div. 1985) (using a “reasonable time” standard for how long a party should keep records on its premises “[i]n

[16] The dissent’s arguments about a standard of reasonableness seem to stem not from a belief that ICWA could not have intended a reasonableness standard but from discomfort with any reasonableness standard. See infra ¶ 172 (equating “reasonably” with “vaguely”). We find it hard to believe that a state court would be baffled by application of a reasonableness standard in the federal context and would feel the need to resort to legislative-like hearings, see infra ¶ 175, given that we frequently are called upon to apply a federal standard of reasonableness in other contexts, such as interpreting the Fourth Amendment of the U.S. Constitution. State v. Maxwell, 2011 UT 81, ¶ 14, 275 P.3d 220 (discussing “reasonableness” in Fourth Amendment context); State v. Simons, 2013 UT 3, ¶ 40, 296 P.3d 721 (Lee, J., concurring) (noting that “the touchstone under the Fourth Amendment is reasonableness, and that standard affords flexibility”). And although states may differ in their interpretation of “reasonableness,” see generally State v. Martinez, 2017 UT 43, ¶ 18, __ P.3d __ (rejecting New Mexico Court of Appeals’ holding on “reasonable Fourth Amendment privacy considerations of passengers” (citation omitted)), the country

[17] The dissent’s skepticism that “the actions [Birth Father] took prior to the custody proceedings satisfied” a reasonability standard, infra ¶ 171 n.37, echoes socioeconomic and cultural assumptions that ICWA itself aims to uproot. See 25 U.S.C. § 1901(5) (stating “that the States . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families”); H.R. REP. No. 95-1386, at 10 (1978) (discussing how “many social workers [are] ignorant of Indian cultural values and social norms” and therefore “make decisions that are wholly inappropriate in the context of Indian family life”).

[18] Under ICWA, “legal custody” is defined by reference to tribal or state law. See 25 U.S.C. § 1903(6) (defining “Indian custodian” as “any Indian person who has legal custody of an Indian child under tribal law or custom or under State law”); Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38,792 (stating that a parent may have legal custody “under any applicable Tribal law or Tribal custom or State law”).

[19] We see important parallels between the rise and fall of the “existing Indian family” doctrine and the case before us today. In the

[20] Because I believe that Birth Mother’s consent was invalid, I would hold that this should result in a remand for a lack of subject matter jurisdiction. I reject the majority’s notion that a lack of subject matter jurisdiction would bind the court to an order of vacatur and dismissal.

[21] Regardless of whether the proceedings are voluntary, because Birth Father is a parent for purposes of ICWA, see supra ¶¶ 74–77, he was “entitled to the protections under [25 U.S.C. sections] 1912(d) and (f) and other applicable provisions.” Bruce L. v. W.E., 247 P.3d 966, 979 (Alaska 2011). But nothing in the record indicates that Birth Father was provided with, for example, any “remedial services and rehabilitative programs designed to prevent the breakup of the Indian family[.]” 25 U.S.C. § 1912(d). And the district court has made no “determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by

(cont.)

[22] Justice Himonas posits that E.T. lacked an opportunity to challenge

C.C.’s consent because he was never a party to the proceedings. But E.T. had every opportunity when he moved to intervene. At that point he had a full and fair opportunity to identify any grounds for his intervention. Yet he never challenged the validity of the consent

(cont.)

[23] See Jensen v. Intermountain Power Agency, 1999 UT 10, ¶¶ 6–9, 977 P.2d 474 (notice of appeal must identify orders for review, orders not identified are beyond the jurisdiction of the court to review); Holbrook v. Hodson, 466 P.2d 843, 845 (Utah 1970) (untimely notice of appeal is a defect in appeal requiring dismissal); Utah Down Syndrome Found., Inc. v. Utah Down Syndrome Ass’n, 2012 UT 86, ¶ 13, 293 P.3d 241 (non-parties have no appeal of right).

[24] See, e.g., UTAH CODE § 78B-6-102(5)(a) (identifying the state’s “compelling interest” in both “providing stable and permanent homes for adoptive children in a prompt manner” and “preventing the disruption of adoptive placements”); id. § 78B-6-102(5)(c) (finding that “adoptive children have a right to permanence and stability in adoptive placements”); Wells v. Children’s Aid Soc. of Utah, 681 P.2d 199, 203 (Utah 1984) (“The state has a strong interest in speedily identifying those persons who will assume the parental role over [adoptive] children, not just to assure immediate and continued physical care but also to facilitate early and uninterrupted bonding of a child to its parents. . . . To serve its purpose for the welfare of the child, a determination that a child can be adopted must be final as well as immediate.”), abrogated on other grounds by In re Adoption of J.S., 2014 UT 51, 358 P.3d 1009.

[25] See, e.g., In re of Petition of Phillip A.C., 149 P.3d 51, 60 n.44 (Nev. 2006) (noting that “a voluntary proceeding that violates § 1913(a) is merely voidable, not automatically void”); In re Adoption of Erin G., 140 P.3d 886, 892–94 (Alaska 2006) (holding that section 1914 challenge was subject to state statute of limitations).

[26] See generally In re Enrique P., 709 N.W.2d 676, 684–90 (Neb. Ct. App. 2006) (collecting ICWA cases raising challenges under section 1914).

[27] Henry M. v. Ariz. Dep’t of Econ. Sec., No. 2 CA-JV 2011-0146, 2012 WL 2859979, at *3–4 (Ariz. Ct. App. July 12, 2012) (declining to review an ICWA compliance issue under section 1914 where the order was not identified in the notice of appeal).

[28] See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996) (“‘Jurisdiction,’ it has been observed, ‘is a word of many, too many, meanings . . . .’”)); Chen v. Stewart, 2004 UT 82, ¶ 35, 100 P.3d 1177 (“Jurisdiction is ‘a many-hued term.’”), abrogated on other grounds by State v. Nielsen, 2014 UT 10, 326 P.3d 645.

[29] See, e.g., Bank of Am., N.A. v. Kuchta, 21 N.E.3d 1040, 1046 (Ohio 2014) (“A court’s jurisdiction over a particular case refers to the court’s authority to proceed or rule on a case that is within the court’s subjectmatter jurisdiction. This latter jurisdictional category involves consideration of the rights of the parties. If a court possesses subjectmatter jurisdiction, any error in the invocation or exercise of

[30] See, e.g., Petersen v. Utah Bd. of Pardons, 907 P.2d 1148, 1151 (Utah 1995) (“[S]ubject matter jurisdiction is an issue that can and should be addressed sua sponte when jurisdiction is questionable.”); see also Steadman, 411 S.W.3d at 722 (recognizing that subject-matter jurisdiction cannot be waived or forfeited); Heath, 860 A.2d at 29 (“We begin with the well-established principle that subject matter jurisdiction is a question that is not waivable and may be raised by a court on its own motion.”); Estate of Brown, 402 S.W.3d 193, 198–99 (Tenn. 2013) (distinguishing subject-matter jurisdiction, which cannot be waived, from other statutory prerequisites to relief like a statute of limitations, which may be waived or forfeited); Bd. of Supervisors of Fairfax Cty. v. Bd. of Zoning Appeals of Fairfax Cty., 626 S.E.2d 374, 379 (Va. 2006) (identifying the “fundamental distinction between the element of subject matter jurisdiction and the other jurisdictional elements” as the inability of this issue to be waived or forfeited and a court’s obligation to raise it sua sponte (citation omitted) (internal quotation marks omitted)); CSC Grp. Holdings, LLC v. Automation & Elecs., Inc., 368 P.3d

[31] See In re Adoption of Baby E.Z., 2011 UT 38, ¶¶ 31–34, 266 P.3d 702; Johnson, 2010 UT 28, ¶¶ 9–10; In re Estate of McLaughlin, 754 P.2d 679, 681–82 (Utah Ct. App. 1988). This is by no means a unique feature of Utah law. Courts far and wide have long cabined the concept of subject-matter jurisdiction in this way. See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160–61 (2010) (“‘Jurisdiction’ refers to a court’s adjudicatory authority. Accordingly, the term ‘jurisdictional’ properly applies only to prescriptions delineating the classes of cases (subjectmatter jurisdiction) and the persons (personal jurisdiction) implicating that authority.” (citation omitted) (internal quotation marks omitted)); Amodio v. Amodio, 724 A.2d 1084, 1086 (Conn. 1999) (“Answering this certified question requires us to review the distinction between a trial court’s ‘jurisdiction’ and its ‘authority to act’ under a particular statute. Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it.”

[32] We have routinely rebuffed attempts by litigants to recast merits arguments as issues of subject-matter jurisdiction. See, e.g., Johnson, 2010 UT 28, ¶ 10 (warning that “[b]ecause parties can raise subject matter jurisdiction at any time during a proceeding, it makes sense to cabin the issues that fall under the category” and rejecting just such an attempt in the divorce context); Chen, 2004 UT 82, ¶ 36 (concluding that the parties had mischaracterized a merits claim as an issue of subject-matter jurisdiction in an effort to avoid waiver). The same is true in other jurisdictions. See, e.g., In re Adoption of D.P.P., 158 So. 3d 633, 636–37 (Fla. Dist. Ct. App. 2014) (“We disagree with the lower court’s determination concerning subject matter jurisdiction in the adoption proceeding. A court has subject matter jurisdiction when it has the authority to hear and decide the case. . . . Because the finality of judgments is favored, it is well established that errors, irregularities and even wrongdoing in the proceeding do not render a judgment void

[33] Justice Himonas disagrees. He asserts that without valid consent “there is no justiciable matter and therefore nothing for the district court to exercise jurisdiction over.” Supra ¶ 20. But this is just a restatement of the lead opinion’s proposed holding. Justice Himonas offers no support for the proposition that a failure of consent—the failure of a mere precondition to the issuance of certain relief—is a matter that goes to “justiciability.” And it certainly does not. Or, more properly, if it does then the exception has swallowed the rule, and any

[34] See In re JWT, 104 P.3d 93, 94 (Wyo. 2005) (distinguishing a failure to file all of the statutorily required documents with the adoption petition—a Wyoming statutory precondition to suit that if not followed will void the proceedings “ab initio”—from “a case where mother file[s] a false affidavit” which [on its face meets the statutory requirements], concluding that where the necessary documents are filed—albeit falsely—“the district court might have . . . jurisdiction to proceed with the adoption”); McGinty v. Jewish Children’s Bureau, 545 N.E.2d 1272, 1275 (Ohio 1989) (per curiam) (rejecting a habeas petition challenging the court’s subject-matter jurisdiction to issue an adoption where there was an alleged defect in consent; concluding that “once a final determination has been made that the parents validly consented to the adoption, that determination removes the basis for a habeas corpus attack on the ground that the court ordering the adoption lacked subject matter jurisdiction”).

[35] C.T. v. J.S., 951 P.2d 1199, 1200 (Alaska 1998) (using the term subject-matter jurisdiction but reasoning only that the lower court ruling that mother was estopped from refusing consent was in error and reversing adoption on that basis); G.M.D., 610 S.W.2d at 307 (mentioning the term subject-matter jurisdiction in stating the rule 60(b) standard but making no reference to it thereafter in assessing the validity of a challenge raised by biological mother—not by the court sua sponte); In re Holder, 10 S.E.2d at 622 (using the terminology of subject-matter jurisdiction in reference to the fact that “neither parent was made a party” to the adoption proceeding); In re Adoption of L.D.S., 155 P.3d 1, 8 (Okla. 2006), as supplemented on reh’g, No. 250 (Mar. 6, 2007) (holding district court was divested of jurisdiction during pendency of appeal and voiding adoption issued during the time when the district court lacked jurisdiction on account of a pending appeal);

Hughes, 383 P.2d at 60–63 (using the term subject-matter jurisdiction in

[36] See UTAH CODE § 78B-6-109(1)–(2) (allowing determination of parental rights to occur at any point in an adoption proceeding prior to issuance of the adoption); id. § 78B-6-105 (identifying the filing of an adoption petition as the only thing required to initiate an adoption proceeding); id. § 78B-6-112(2)(a) (authorizing a court to terminate parental rights in the adoption proceeding).

[37] See, e.g., Westerlund, 198 P.2d at 843–44 (“As adoption is in derogation of the common law, generally speaking it may be said that adoptive statutes should receive a strict construction, particularly with respect to the jurisdiction of the court or where the effect of the adoption would be to deprive a natural parent of the possession of his child.”); In re Jackson, 28 P.2d at 127 (“The act of adoption takes a child away from its parent by destroying the legal and natural relation between them and creating in its stead an artificial relation deemed by law to be for the best interests of the child. It is in derogation of the common law which regards the natural rights of the parents to be of a sacred and enduring character. As the statute confers a special power of this kind which may be exerted in opposition to the wishes, or without the consent of the parents, it should be strictly construed in their favor.

[38] Deveraux likewise suffers from the background principles problem. It long predates Utah’s current adoption act. And it identifies adoptions as disfavored and fails to mention principles of the best interests of the child or the rights of adoptive parents—elevating the rights of biological parents above all else. See Deveraux’ Adoption v.

Brown, 268 P.2d 995, 997 (Utah 1954).

[39] See, e.g., Labelle v. McKay Dee Hosp. Ctr., 2004 UT 15, ¶ 8, 89 P.3d 113 (“Article VIII, section 5 of the Utah Constitution vests in the district court ‘original jurisdiction in all matters except as limited by this constitution or by statute.’ We presume that our district courts retain their grant of constitutional jurisdiction in the absence of a clearly expressed statutory intention to limit jurisdiction.”); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 515–16 (2006) (“If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” (footnote omitted) (citation omitted)).

[40] See, e.g., UTAH CODE § 34A-2-407(12)(a)–(b) (identifying claims within the “exclusive jurisdiction” of the Labor Commission “[s]ubject to appellate review”); id. § 78A-6-103(2) (identifying “exclusive jurisdiction” of juvenile courts over certain matters).

[41] Our courts have not always framed this jurisdictional problem in these precise terms. But that is the conceptual essence of our cases. See Salt Lake City Mission v. Salt Lake City, 2008 UT 31, ¶ 14, 184 P.3d 599

(equating ripeness requirements in federal law with the requirement of

(cont.)

[42] Justice Himonas responds by insisting that we have identified “no situation in which a party would be able to use [his] opinion to ask a court to improperly expand subject matter jurisdiction to any statutory requirement.” Supra ¶ 29. But this misses our point—that the logic of the lead opinion sweeps broadly to encompass any “case-specific procedural fact[]” affecting the validity of the adoption decree. That premise forms the basis for the legal standard the lead opinion would apply in future cases. And lower courts would have to take the opinion seriously as long as it remained in place. So it’s possible that this court would hold the line—refusing to extend the standard Justice Himonas would announce today to other “case-specific procedural facts” affecting the validity of an adoption decree. But the lower courts would still be left to field any of a series of challenges to adoption decrees as long as the lead opinion’s theory remained.

The lead opinion, after all, rests on no settled legal principle. It is based only on the insistence that consent is historically and logically

(cont.)

[43] See, e.g., Ramsay v. Kane Cty. Human Res. Special Serv. Dist., 2014 UT 5, ¶ 17, 322 P.3d 1163 (“[W]hen a court determines it lacks subject matter jurisdiction, it ‘retains only the authority to dismiss the action.’” (quoting Varian–Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989)); Salt Lake Cty. v. Bangerter, 928 P.2d 384, 386 (Utah 1996) (“When it is ascertained that there is no jurisdiction in the court because of the absence of a justiciable controversy, then the court can go no further, and its immediate duty is to dismiss the action. . . .” (internal quotation marks omitted) (quoting Baird v. State, 574 P.2d 713, 716 (Utah 1978)).

[44] See Jared P. v. Glade T., 209 P.3d 157, 161 (Ariz. Ct. App. 2009) (“ICWA does not, however, define how paternity can be acknowledged or otherwise detail any procedure to establish paternity. Consequently, we look to state law to determine whether paternity has been acknowledged or established.”); In re Daniel M., 708, 1 Cal. Rptr. 3d 897, 900 (Cal. Ct. App. 2003) (“Moreover, because the ICWA does not provide a standard for the acknowledgment or establishment of

[45] See also Haddock v. Haddock, 201 U.S. 562, 575 (1906) (“No one denies that the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce.”), overruled in part on other grounds by Williams v. North Carolina, 317 U.S. 287 (1942); United States v. Windsor, 133 S. Ct. 2675, 2689–90 (2013) (“By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States.”).

[46] My point is not to state a general objection to an inquiry into “reasonableness”—or even to “subjective standards generally.” See Oliver v. Utah Labor Comm’n, 2017 UT 39, ¶ 84 n.18, __ P.3d __ (Lee, A.C.J., concurring). It is to emphasize the need to tie our legal standards

“to the statutory text,” and to urge caution for “fuzzy” legal inquiries

(cont.)

[47] See Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329– 30 (2006); State v. Herrera, 895 P.2d 359, 362 (Utah 1995); Bastian v. King, 661 P.2d 953, 956 (Utah 1983).

[48] The majority does refer to some textual provisions of the statute in support of its view. For one, it cites ICWA for the proposition that a parent of an Indian child is entitled to the “higher standard of protection” set forth in state or federal law when such laws “provide[] a higher standard of protection” than that set forth in ICWA. Supra ¶ 67 (quoting 25 U.S.C. § 1921). And the majority says that this ensures “that parents of Indian children enjoy the highest level of protection of their parental rights available.” Supra ¶ 67. But this is circular. We cannot say whether a supposedly federal standard yields a higher level of protection than that set forth in state law until we know the contents of the federal standard. And, as noted below, the majority ultimately is unwilling to articulate a federal standard.

[49] See supra ¶ 170 nn. 34–36.

[50] The cited cases say little or nothing of relevance to the interpretation of a federal statute regulating state custody proceedings.

Two of the cited cases simply stand for the axiom that courts must not

(cont.)

[51] One example is evident in ICWA itself. ICWA recognizes as a parent “any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom.” 25 U.S.C. § 1903(9) (emphasis added). The reference to an adoption clearly invokes state law, as there is no such thing as a federal adoption. Yet under the majority’s approach, the term “adopt” would invoke a new federal standard incorporating the ordinary sense of adopt and ignoring state standards of adoption (which vary widely from state to state). That of course makes no sense. And it makes no more sense as applied to the acknowledgement or establishment of paternity.

[52] See F.A.A. v. Cooper, 566 U.S. 284, 292 (2012) (citing cases for the “cardinal rule of statutory construction” that “when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken” (citation omitted) (internal quotation marks omitted); Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (“When the legislature ‘borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.’” (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)).

[53] See Cooper, 566 U.S. at 292–94 (noting that “the meaning of ‘actual damages’ [in the federal Privacy Act, 5 U.S.C. § 552a(g)(4)(A)] is far from clear,” in that it “is sometimes understood to include nonpecuniary harm” but also “has been used . . . more narrowly to authorize damages for only pecuniary harm,” but proceeding to find a legal definition based on the “particular context in which the term appears” in the statute).

[54] An acknowledgement or establishment of paternity is like a declaration of bankruptcy. We can speak of declaring bankruptcy in the ordinary sense of a mere utterance. But in so doing we will be misusing the language—by missing its clear legal connotation. Cf. The Office: Money (NBC television broadcast Oct. 18, 2007) (Michael Scott: “I DECLARE BANKRUPTCY!” Oscar: “Hey, I just wanted you to know, that you can’t just say the word bankruptcy and expect anything to happen.” Michael Scott: “I didn’t say it, I declared it.” Oscar: “Still … that’s … it’s not anything.”).

[55] I see nothing telling about the fact that the district court in this case did not “seriously analyze whether Birth Father acknowledged paternity under Utah law, instead focusing on whether he complied with the requirements for establishing paternity under Utah law.” Supra ¶ 67. Presumably, that is just a reflection of the parties’ advocacy—of the fact that E.T. didn’t argue that he secured his paternity through an acknowledgement because he knew he could not qualify under Utah law. That doesn’t tell us that acknowledgement of paternity is “read out

(cont.)

[56] This is the problem with the purposivist approach to statutory interpretation. If we view statutes as aimed at accomplishing their perceived purpose at all costs, we are embarked on an endless journey. We may say that ICWA is aimed at articulating a uniform standard to protect the rights of Indian families. But if that’s all it is, then we must stop at nothing in our efforts to vindicate that purpose. And the only way to stop at nothing is to say that even the barest acknowledgement of paternity is enough to satisfy the statute.

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