In re Adoption of A.B.

• Decision Date: 28 January 2011
• Docket Number: No. 20080211.,20080211.
• Citation: 245 P.3d 711,2010 UT 55
• Parties: In the matter of the ADOPTION OF A.B. and D.T., persons under eighteen years of age. Navajo Nation, Appellant, v. State of Utah, Appellee.
• Court: Utah Supreme Court

245 P.3d 711

2010 UT 55

In the matter of the ADOPTION OF A.B. and D.T., persons under eighteen years of age.Navajo Nation, Appellant,

v.State of Utah, Appellee.

No. 20080211.

Supreme Court of Utah.

Sept. 28, 2010.

Rehearing Denied Jan. 28, 2011.

K. Andrew Fitzgerald, Moab, for appellant.

Mark L. Shurtleff, Att'y Gen., John M. Peterson, Carol L.C. Verdoia, Asst. Att'ys Gen., Wesley D. Hutchins, Salt Lake City, for appellee.

Martha M. Pierce, Salt Lake City, for the Office of the Guardian Ad Litem.

On Certification from the Utah Court of Appeals

NEHRING, Justice:

INTRODUCTION

¶ 1 This appeal arises from a juvenile court order that granted the adoption of two children who are both enrolled members of the Navajo Nation (the "Nation") by their non-Indian foster parents. The Nation challenges the adoption order and several other juvenile court orders concerning the children. The Nation, however, failed to comply with an essential procedural prerequisite to its appeal because its notice of appeal was not timely filed with the Nation's signature. This failure presents two jurisdictional issues of first impression: first, whether the Indian Child Welfare Act ("ICWA") preempts Utah's notice of appeal requirements; second, whether Indian tribes, as quasi-sovereign entities, are exempt from Utah's notice of appeal requirements. We hold that ICWA does not preempt Utah's notice of appeal requirements and that those requirements apply to Indian tribes. Our answers to these questions compel us to dismiss the Nation's appeal because we have no jurisdiction over it.

BACKGROUND

¶ 2 A.B. and D.T. were born to Thomasita Tsosie on July 16, 1999, and December 28, 2005, respectively. Ms. Tsosie, A.B., and D.T. are all enrolled members of the Navajo Nation, a federally recognized Indian tribe. Ms. Tsosie also had three other children: A1.B., O.R., and Baby Girl Tsosie. Because A1.B., O.R., and Baby Girl Tsosie are not at issue in this appeal, we do not reference them except to the extent that their affairsprovide context for the adoption of A.B. and D.T.¹

I. THE ODYSSEY OF THE TSOSIE CHILDREN

¶ 3 On September 25, 2005, the Salt Lake City Police Department contacted the Division of Child and Family Services ("DCFS") after a police officer found A.B. and D.T.'s four-year-old sibling, A1.B., crying alone by a dumpster in Salt Lake City. At the time, Ms. Tsosie was pregnant with D.T.² and resided with A1.B. and O.R. in Salt Lake City. A.B. was not in Ms. Tsosie's physical custody because he had been living with his grandmother, Lorene VanWinkle,³ on a Navajo Nation reservation in Arizona.

¶ 4 At a shelter hearing a few days later, the juvenile court ordered DCFS to return the children to Ms. Tsosie and to provide family preservation services to them. Two weeks later, the juvenile court ordered DCFS to contact the Nation "to determine if the protective supervision service case [could] be transferred to the tribe." On February 6, 2006, the Nation informed DCFS that Lorene VanWinkle would be willing to keep A.B.

¶ 5 A short time later, Ms. Tsosie was sent to jail after being found in contempt of court for intentionally failing to follow the court's orders that she participate in peer parenting, maintain contact with the DCFS caseworker, and take domestic violence classes. The juvenile court removed all four children from Ms. Tsosie's custody after finding that "continuation in the home would be contrary to the welfare of the children and removal [would be] in their best interests." A.B. was allowed to remain on an extended visit with Lorene VanWinkle in Arizona. D.T. was sent on an extended home visit with her aunt, Thomasita Tsosie, who failed to pass a DCFS background and federal criminal background check. With the failure of this placement, the court gave custody of D.T. to another relative, Ermalinda Tsosie. One week later, Ermalinda Tsosie contacted DCFS and requested that D.T. be removed from her home. As a result, D.T. was placed in the Christmas Box House in Salt Lake City.

¶ 6 Shortly thereafter, Lorene and Laurie VanWinkle picked up D.T. from the Christmas Box House. Laurie is Lorene's daughter and the children's aunt. ⁴ DCFS continued to provide protective supervision services to the children. Approximately three months later, the juvenile court granted Laurie VanWinkle permanent legal custody of A.B. and D.T. and terminated DCFS's involvement with the children. But after only two weeks, Laurie VanWinkle informed the court that she wanted to relinquish custody of the children. Laurie VanWinkle requested that the children stay with their closest relatives in Salt Lake City until a permanent placement could be made and asked the court to "do what is best for the children and mother." The court treated Laurie VanWinkle's written request as a petition to transfer custody of the children.

¶ 7 On September 26, 2006—one year after DCFS first became involved with the children—the juvenile court removed A.B. and D.T. from Laurie VanWinkle's custody and placed them in the interim custody of DCFS. The court found that Ms. Tsosie and her family had been harassing and alienating Laurie VanWinkle and that continued custody by either Laurie VanWinkle or Ms. Tsosie would present "a substantial danger to the physical health or safety of the children." The court also found that DCFS "made reasonable efforts to prevent out of home care" by providing protective supervision services,making kinship placements, and creating a service plan for the mother and the custodian.

¶ 8 As required by ICWA, the State sent notice of the removal and interim custody by DCFS to the Nation. Approximately one week later, Joe Shirley, Jr., President of the Chinle Arizona chapter of the Nation, sent a letter to the juvenile court that requested the children be returned to Laurie VanWinkle "[i]n accordance with [ICWA] and the need to provide a safe and stable environment for the child[ren]." The next day, the court left a message with the Nation asking whether Mr. Shirley's letter was intended to communicate the Nation's intention to intervene in the child custody proceedings. The State also sent written notice to the Nation that it had "the right to intervene (be made a party) in this [child custody] proceeding" and "the right to request by petition that these proceedings be transferred to the Tribal Court." The Nation did not intervene at that time.

¶ 9 Once in DCFS custody, D.T. was placed in an emergency foster home, and then transferred to a legal-risk home. A.B. was also placed in an emergency foster home, and then transferred to two different specialized foster homes. On January 31, 2007, DCFS reported that the children were "doing well in their current foster care placements," that "there ha[d] been no visitation with [Ms. Tsosie]" because she "[would] not make those arrangements," and that the permanency goal for the children was guardianship with relatives. DCFS also reported that it had "been in constant contact with the Navajo Tribe" but the Nation was "still working on the home study for Lorene VanWinkle."

¶ 10 On April 12, 2007, the juvenile court held a pretrial hearing regarding the possible termination of Ms. Tsosie's parental rights. The court considered two letters written by Lorene VanWinkle that requested custody of the children as well as the Nation's request that the court transfer the children to its jurisdiction and the VanWinkle home. The Nation provided a home study and certification for Lorene VanWinkle. During the hearing, A.B.'s father objected to the children being placed with the Nation. Based on the father's objection, the juvenile court declined to give custody to Lorene VanWinkle or the Nation at that time. Instead, the court asked the parties to brief whether "good cause" existed under ICWA to deny the Nation's request that the court transfer jurisdiction over the children to the Navajo Tribal Court. Shortly thereafter, on April 18, 2007, the Nation, for the first time, moved to intervene in the proceedings pursuant to ICWA, 25 U.S.C. § 1911(c).

¶ 11 On May 18, 2007—nearly eight months after A.B. and D.T. were removed from Laurie VanWinkle's home and were placed in foster care—the juvenile court terminated Ms. Tsosie's parental rights to A.B. and D.T. The court also determined that D.T.'s unknown father had abandoned D.T. and terminated his parental rights. The Nation's attorney was present at the proceedings. The court first ruled that it had concurrent jurisdiction with the Navajo Tribal Court because the children resided in Salt Lake County when the initial pleadings were filed and because Ms. Tsosie lived in Salt Lake County when the children were placed in DCFS custody. Next, the court found that Ms. Tsosie had "neglected or abused the children," and that continued custody by Ms. Tsosie would likely result in serious emotional or physical damage to the children. The court also found that DCFS "made a diligent search to locate a placement that [met] the preferences established within ICWA" and that there was "good cause not to place the children according to [ICWA] placement preferences," including a prior placement of the children within the family on the reservation, the objection of the father to the transfer of jurisdiction to the tribe, and the recommendation of the children's therapist who opposed moving the children from their current foster home. Finally, the court explained that the children were "doing well in the adoptive home," and that DCFS had made "active efforts" to prevent the breakup of the family as required by ICWA, but that the active efforts were unsuccessful. The court's order contained a "Notice of Appellate Rights" that stated, in part,

You have the right to appeal any appealable order, decree or judgment. Appealsfrom juvenile court orders shall be taken within 15 days from entry of the order, decree or judgment appealed from. If an appeal is taken, it must be signed by the appellant's attorney and by appellant,

...