Amicus Curiae Brief — R. K. B., et al., Petitioners v. E. T.

APPENDIX

APPENDIX TABLE OF CONTENTS

Utah Supreme Court Opinion,

E.T. v. R.K.B. (In re B.B.), 2017 UT 59 ............ 1a

Order staying proceedings pending Petition for Certiorari,

E.T. v. R.K.B. (In re B.B.) ............................. 146a

Utah District Court Memorandum Decision,

In re Adoption of B.B. .................................... 147a

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Note: This Opinion is subject to revision before publication in the official reporter.

The Supreme Court of the State of Utah

______________________

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

minor,

_____________________

E.T.,

Appellant

v.

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

Appellees

______________________

Utah Supreme Court No. 20150434,

Appeal from the Third District, Salt Lake, No.

142900417, The Honorable Ryan M. Harris

_____________________

On Certification from the Court of Appeals

______________________

Decided: August 31, 2017

______________________

Judges: 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

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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.

For Appellant: Angilee K. Dakic, Salt Lake City,

for appellant.

For Appellees: Larry S. Jenkins, Lance D. Rich,

Salt Lake City, for appellees.

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

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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.

1 I refer to E.T., the unmarried biological father, as “Birth Fa-

ther,” C.C., the unmarried biological mother, as “Birth Mother,”

and B.B. as the “Child.”

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¶ 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

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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.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

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.

3 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.

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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 [birthdate], 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 [redacted], 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

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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 “immedi-

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ately 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

4 Birth Mother claims that “within one week of th[e] court enter-

ing 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

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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 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

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.’

5 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).”

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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.”

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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

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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-3-102(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, 171 P.3d 426. “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 v. 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

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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.

I. 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

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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.6

6 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 en-

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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,

88 Utah 437, 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

titled 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.

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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

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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).7 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.

7 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. v. 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-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 Conn. Super. LEXIS

943, 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 Tex. App.

LEXIS 9785, 2011 WL 6351850, at *3 (Tex. App. Dec. 14, 2011).

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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 parentchild 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.

¶ 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

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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.

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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).8

¶ 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

8 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.

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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.T.V.,

No. 11AP-617, 2011-Ohio-5367, 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 deli-

22a

cate 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

23a

(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

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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.9

¶ 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

9 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 non-Indian foster and adoptive homes and

institutions; and . . . 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.”).

25a

legal prerequisite to the issuance of an [adoption] order,” infra ¶ 121, flies in the face of holding after holding.10

10 See, e.g., L.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 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

26a

¶ 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 ir-

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.”).

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revocability 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

11 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 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,

28a

¶ 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 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, 234 P.3d 1100 (stating that “parties

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).

29a

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

30a

statutory schemes that, like ours,12 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[.]”);13 Brown, 766 S.E.2d at

378 (“Consent lies at the foundation of the adoption

process[.]” (citation omitted));14 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.”).15 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]

12 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.”).

13 ALASKA STAT. § 25.23.005 (The adoption “chapter shall be lib-

erally construed to the end that the best interests of adopted

children are promoted.”).

14 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.”).

15 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”).

31a

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

32a

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 [birthdate], and Birth

Mother attempted to consent for the first time on

[date redacted], 2014. Both parties agree that this

consent was invalid. Birth Mother again attempted

to consent at 1:29 p.m. on [date redacted], 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)).

33a

¶ 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-to-midnight 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-

34a

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, 117677 (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

35a

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

36a

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.16 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

16 The majority takes the position that the action is merely void-

able 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).

37a

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.

II. 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-6121(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

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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

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 expires upon the running of the

time for an appeal.” Infra ¶ 119. But our holding in the first case,

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of adoption 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

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.”).

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conclude that Birth Father has standing to raise the

defect in Birth Mother’s consent and the resultant

failure of subject matter jurisdiction.

¶ 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

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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.19 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

19 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 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.

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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, 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

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.

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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, MERRIAM-WEBSTER,

available at https://perma.cc/HMQ9-MHP8. Other

definitions of “acknowledge” in Merriam-Webster’s

online dictionary include “to recognize as genuine or

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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,

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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

46a

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 “long-established” 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.21 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

21 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.

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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

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‘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.

2. 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

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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

50a

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

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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 rec-

52a

ognized 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

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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 child-raising. 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

54a

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 nonIndian 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

55a

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

56a

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

L.M. v. J.B., 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.”).22 Applying state law to a term

22 This is not to say that Utah’s standards for acknowledging paternity are unreasonable. Rather, we point out the strict nature

57a

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

of 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.

58a

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

3. 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

24 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

59a

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 consistent with ICWA case law25 and has been applied

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)).

25 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

60a

by many states over many years and many different

topics of law.26 ICWA is silent both as to the manner

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.

26 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 well-recognized 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 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.

61a

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 ¶ 201.27

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, 195 L.

Ed. 2d 824 (2016) (analyzing “reasonable” time limit for immigration detention).

27 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 has not devolved

into “chaos and unpredictability” as “each court faced with the .

62a

¶ 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., 2011- NMSC 005, 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 putative fathers under

. . 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.

63a

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

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 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.

64a

of ICWA prohibits the dissent’s strict interpretation.

See In re Adoption of Baby E.Z., 2011 UT 38, ¶ 40,

266 P.3d 702; 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 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 terminat-

65a

ing 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.

66a

¶ 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 1914.29

C. 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

29 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”).

67a

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.”).

68a

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.

69a

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).30 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,”

30 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”).

70a

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

71a

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, 9991000 (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

72a

of ICWA.31 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.

31 We see important parallels between the rise and fall of the

“existing Indian family” doctrine and the case before us today.

In 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.

73a

¶ 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.32 But, aside from the 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

32 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. 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.

74a

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

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 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.

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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 brother-in-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

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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 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

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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.34 Birth Father therefore was entitled to notice

of the proceedings and the opportunity to intervene.

34 Regardless of whether the proceedings are voluntary, because

Birth Father is a parent for purposes of ICWA, see supra ¶¶ 7477, 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 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”).

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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).

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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 ¶

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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 subjectmatter 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

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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.1

1 Justice Himonas posits that E.T. lacked an opportunity to chal-

lenge C.C.’s consent because he was never a party to the proceedings. But E.T. had every opportunity when he moved to in-

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And that should have rendered the merits of that decision final, foreclosing our prerogative of secondguessing 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.

tervene. 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 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.

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¶ 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.

I. 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 subject-matter 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.

A. 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

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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. 1959) (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

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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.2

¶ 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

2 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).

86a

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.

87a

¶ 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.3 We do not positively

3 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)

88a

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.

B. 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.

(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.

89a

¶ 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.4 A few courts have held that section 1914 preempts rules governing preservation. But

no court has ever raised an ICWA consent issue sua

4 See, e.g., In re of Petition of Phillip A.C., 149 P.3d 51, 60 n.44

(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).

90a

sponte.5 Surely it is even more problematic to reconsider a consent order not identified in the notice of

appeal.6

¶ 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 federalstate 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

5 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).

6 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).

91a

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

92a

would threaten the principles of efficiency and finality at the heart of our adoption system. And its novel

conception of subject-matter 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 circum-

93a

stances). And a deficiency in this or any other prerequisite falls outside the traditional scope of subjectmatter jurisdiction.

1. Theory

¶ 125 The notion of “jurisdiction” is a slippery one.7

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.8 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

7 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.

8 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 subject-matter jurisdiction. This latter jurisdictional

category involves consideration of the rights of the parties. If a

court possesses subject-matter jurisdiction, any error in the invocation or exercise of jurisdiction over a particular case causes

a judgment to be voidable rather than void.” (citation omitted)).

9 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

94a

¶ 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

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