Adoption B.B. v. R.K.B.

Decision Date31 August 2017
Docket NumberNo. 20150434,20150434
Parties In the MATTER OF the ADOPTION OF B.B., a Minor, E.T., Appellant, v. R.K.B. and K.A.B., Appellees.
CourtUtah Supreme Court

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.

On Certification from the Court of Appeals

Justice Himonas, opinion of the Court as to Parts II.B., II.D., and III:


¶ 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


¶ 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.3 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-in-law] 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...

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