Nation v. State (In re Adoption of L.O.)

• Decision Date: 13 April 2012
• Docket Number: No. 20100082.,20100082.
• Parties: In the matter of the ADOPTION OF L.O., a minor child. Navajo Nation, Petitioner and Appellant, v. State of Utah, Respondent and Appellee.
• Court: Utah Supreme Court

282 P.3d 977
706 Utah Adv. Rep. 36
2012 UT 23

In the matter of the ADOPTION OF L.O., a minor child.
Navajo Nation, Petitioner and Appellant,
v.
State of Utah, Respondent and Appellee.

No. 20100082.

Supreme Court of Utah.

April 13, 2012.

[282 P.3d 978]

K. Andrew Fitzgerald, Moab, for appellant.

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

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

Frank N. Call, Salt Lake City, for the adoptive family.

On Certiorari to the Utah Court of Appeals.
Associate Chief Justice NEHRING, opinion of the Court:
INTRODUCTION

¶ 1 This case involves a dispute over the Division of Child and Family Services' (DCFS) compliance with the Indian Child Welfare Act (ICWA). The Navajo Nation (Nation) moved the juvenile court to transfer jurisdiction to the Nation. The juvenile court denied this motion. The Nation appealed to the Utah Court of Appeals. The court of appeals dismissed the case. We granted certiorari to determine whether the court of appeals erred in (1) holding that it lacked appellate jurisdiction over the Nation's direct appeal of the juvenile court's denial of a renewed motion to transfer jurisdiction and (2) declining to permit full briefing under rule 58 of the Utah Rules of Appellate Procedure. Because the Nation's consent to the child's adoption placement renders these procedural questions moot, we decline to address the issues raised on certiorari.

BACKGROUND

¶ 2 L.O., an enrolled member of the Navajo Nation, was born on December 1, 2005. Upon adjudication of parental neglect, DCFS took custody of L.O. and placed the child with a foster family. After L.O.'s natural parents relinquished parental rights, the child's foster family filed a petition for adoption on September 23, 2008.

¶ 3 On December 5, 2008, the Nation filed an objection to the adoption because DCFS failed to abide by the placement preferences contained in ICWA. ICWA provides,

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.¹

On March 6, 2009, the Nation submitted a motion to transfer jurisdiction pursuant to 25 U.S.C. § 1911. Under that statute, a state court handling any “proceeding for the foster care placement of, or termination of parental rights to, an Indian child ..., in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe.” ² In its order dated May 19, 2009, the

[282 P.3d 979]

juvenile court denied the transfer motion, indicating that ICWA does not allow transfer of jurisdiction to tribal court after parental rights have been terminated or, in the alternative, that the Nation waited too long to request the transfer. The juvenile court also found that good cause did not exist for deviation from the placement preferences under ICWA and therefore granted the Nation's objection to the adoption.³

¶ 4 Subsequently, the foster family filed a second petition for adoption. On August 13, 2009, the Nation filed an objection to the second petition for adoption and a renewed motion to transfer jurisdiction to the Nation. On August 24, 2009, the juvenile court denied the transfer motion. The Nation filed a petition for permission for interlocutory appeal, which the court of appeals denied. The Nation also filed a direct appeal. The court of appeals held that the order denying the motion to transfer jurisdiction was not a final, appealable order under rule 3(a) of the Utah Rules of Appellate Procedure, and dismissed the appeal for lack of jurisdiction.⁴ The Nation then petitioned for certiorari. We granted the Nation's petition for certiorari on two issues: (1) whether the court of appeals erred in holding it lacked appellate jurisdiction over Petitioner's direct appeal of the juvenile court's denial of a renewed motion to transfer jurisdiction, and (2) whether the court of appeals erred in declining to permit full briefing under rule 58 of the Rules of Appellate Procedure.

¶ 5 After we granted certiorari, the juvenile court granted the foster family's petition to adopt L.O. Filed with the adoption order was a document titled “Navajo Nation's Consent to Adoption,” wherein the Nation agreed permanently to waive any right, power, or privilege to invalidate L.O.'s adoption. Also filed was a document titled “Stipulations Relating to Appeals,” signed by the Assistant Attorney General, the authorized representative for the adoptive family, and the authorized representative for the Nation. The Stipulations Relating to Appeals state,

Although a party may file a suggestion of mootness in order to comply with Rule 37 of the Utah Rules of Appellate Procedure, the parties stipulate and agree that the Petitioners' adoption of [L.O.] does not moot any of the issues relating to the Navajo Nation's appeal that is currently pending before the Utah Supreme Court.

The Guardian ad Litem subsequently filed a suggestion of mootness on the basis that the child's adoption with the Nation's consent moots the procedural questions raised in the appeal. We have jurisdiction pursuant to Utah Code section 78A–3–102(3)(a).

ANALYSIS

¶ 6 Although all parties have consented to the adoption of L.O., the State and the Guardian ad Litem agreed to argue that the appeal should not be dismissed on mootness grounds. The parties' agreement to sidestep the...