In re Adoption of B.B. ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 53
IN THE
SUPREME COURT OF THE STATE OF UTAH
In the Matter of the Adoption of B.B.,
a person under eighteen years of age
R.K.B. and K.A.B.,
Appellants,
v.
E.J.T.,
Appellee.
No. 20180612
Heard on June 19, 2019
Supplemental Briefing Submitted on July 9, 2019
Filed on July 28, 2020
On Direct Appeal
Third District, Salt Lake
The Honorable Keith A. Kelly
No. 142900417
Attorneys:
Larry S. Jenkins, Lance D. Rich, David A. Jaffa, Salt Lake City,
for appellants
Angilee K. Dakic, Salt Lake City, for appellee
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court,
in which CHIEF JUSTICE DURRANT and JUSTICE PETERSEN joined.
JUSTICE HIMONAS filed a dissenting opinion, in which
JUSTICE PEARCE joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 This is an adoption proceeding involving a child (B.B.)
whose unmarried biological parents are members of the Cheyenne
River Sioux Tribe. The child was born in Utah and placed for
adoption in a proceeding filed in the third district court in 2014. We
are hearing the case for the second time on appeal. In the first
appeal, a majority of this court reversed on the basis of a
IN RE ADOPTION OF B.B.
Opinion of the Court
determination that the child’s biological father (E.T.) had a right to
intervene as a “parent” under a newly established federal standard
of parentage under the Indian Child Welfare Act (ICWA).1 On
remand, both E.T. and the Cheyenne River Sioux Tribe moved to
transfer the case to the tribal court under section 1911(a) of ICWA,
which provides that an “Indian tribe” has exclusive jurisdiction
“over any child custody proceeding involving an Indian child who
resides or is domiciled within the reservation of such tribe, except
where such jurisdiction is otherwise vested in the State by existing
Federal law.” 25 U.S.C. § 1911(a). The district court granted the
motion on the ground that B.B. was “domiciled within the
reservation” at the time this action was filed. We reverse.
¶2 The district court based its decision on two alternative
grounds: (1) the child was domiciled on the reservation because his
mother (C.C.) was domiciled on the reservation at the time of the
child’s birth, and (2) the child was domiciled on the reservation
because C.C. had “abandoned” him and transferred his domicile to
that of E.T., who was domiciled on the reservation. We disagree on
both counts. We hold that (1) C.C. was domiciled in Utah at the
time of B.B.’s birth and (2) her initiation of formal adoption
proceedings did not constitute an abandonment that shifted B.B.’s
domicile to the reservation. We thus establish that the district court
has jurisdiction, and reverse and remand for further proceedings.
I. BACKGROUND
¶3 In December 2013, C.C. and E.T. were in a committed
relationship and engaged in sexual intercourse that led to the
conception of B.B. Both parents are members of the Cheyenne River
Sioux Tribe, and both resided on the Cheyenne River Sioux
Reservation in South Dakota at the time of conception and for the
first six months of the pregnancy.
¶4 While on the reservation, C.C. decided to place B.B. for
adoption.2 With that in mind, she contacted Heart to Heart, a Utah
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1 See In re Adoption of B.B., 2017 UT 59, ¶ 71, 417 P.3d 1. But see
id. ¶¶ 158–67 (Lee, A.C.J., joined by Durrant, C.J., dissenting)
(concluding that ICWA incorporates state law standards of
parentage and that the biological father in this case had failed to
perfect his parental rights under state law).
2Appellants dispute whether C.C. had “decided unequivocally
on adoption,” citing C.C.’s deposition—including portions not in
(continued . . .)
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adoption agency. Around June 2014, C.C. moved to Utah to be
closer to friends and family and to pursue housing and
employment opportunities. The stated plan was for E.T. to follow
C.C. to Utah. But after the move, C.C. stopped communicating
directly with E.T. and told him through family members that she
planned to return to the reservation “soon.”
¶5 C.C. gave birth to B.B. in Utah on August 29, 2014. The next
day, she signed a relinquishment of parental rights and consent to
adoption and gave physical custody of B.B. to Heart to Heart. C.C.
did not immediately inform E.T. of B.B.’s birth. Instead, she signed
a false statement naming her brother-in-law as B.B.’s biological
father. Heart to Heart then had C.C.’s brother-in-law sign a
contemporaneous relinquishment of parental rights and consent to
adoption in which he falsely represented that he was B.B.’s
biological father and neither an enrolled member of a Native
American tribe nor eligible for membership in one.
¶6 On September 4, 2014, the prospective adoptive parents
filed their adoption petition in the district court. Four days later,
C.C. went to court and executed a voluntary relinquishment of
parental rights, a consent to adoption, and a consent to an order
terminating her parental rights, again naming her brother-in-law as
B.B.’s biological father. On September 25, 2014, the district court
issued an order purporting to terminate C.C.’s rights and
determine the biological father’s rights. The court then transferred
legal custody of B.B. to Heart to Heart and authorized it to delegate
custody to the prospective adoptive parents.
¶7 That same month, C.C. returned to South Dakota and told
E.T. that she had given birth to B.B. and placed him for adoption.
Three months later, E.T. moved to intervene in the adoption
proceedings. The district court denied the motion. On appeal, this
court held that E.T. was a parent under a newly established federal
ICWA standard of parentage with a right to intervene in the
adoption proceedings. See In re Adoption of B.B., 2017 UT 59, ¶ 78,
417 P.3d 1. We reversed and remanded the case to the district court
on that basis. Id. ¶ 3.
¶8 On remand, E.T. and the Cheyenne River Sioux Tribe
asked the district court to transfer the adoption proceedings to the
tribal court under 25 U.S.C. section 1911. The district court granted
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the record. The extra-record citations were improper, but do not
affect our analysis because we conclude that the initiation of
adoption proceedings does not constitute abandonment.
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Opinion of the Court
the motion to transfer under section 1911(a), which provides that
an “Indian tribe” has exclusive jurisdiction “over any child custody
proceeding involving an Indian child who resides or is domiciled
within the reservation of such tribe, except where such jurisdiction
is otherwise vested in the State by existing Federal law.” 25 U.S.C.
§ 1911(a). The district court based its decision on two alternative
grounds. First, it held that B.B. was domiciled on the reservation at
the time of his birth because his mother, C.C., was domiciled there
at that time. Second, the court found that under the abandonment
standard found in comment e of the RESTATEMENT (SECOND) OF
CONFLICT OF LAWS § 22 (AM. LAW INST. 1971), C.C. had
“abandoned” the child by initiating adoption proceedings after the
child’s birth. The district court further interpreted this to mean that
B.B. took on the domicile of his father, E.T., which was the
reservation. Because the court deemed B.B. to be domiciled on the
reservation at the time of the filing of the adoption petition on
either or both of these grounds, it ordered the transfer of this case
to the tribal court under 25 U.S.C. section 1911(a). The prospective
adoptive parents then filed this appeal.
¶9 After oral argument, we issued a supplemental briefing
order asking the parties to further address the controlling standard
of “abandonment” in a case like this one. Specifically, we asked the
parties to address whether abandonment is a federal or state
standard in a case arising under 25 U.S.C. section 1911(a), and what
the standard should be if the standard is federal.
II. DISCUSSION
¶10 The jurisdictional question presented is controlled by
section 1911(a) of ICWA. That provision states that tribal courts
have “jurisdiction exclusive as to any State over any child custody
proceeding involving an Indian child who resides or is domiciled
within the reservation” of an Indian tribe. 25 U.S.C. § 1911(a). The
key question here is whether B.B. was “domiciled” on the
reservation at the time the adoption proceeding was filed. If so,
then the tribal court has exclusive jurisdiction and the case should
be dismissed on jurisdictional grounds. Otherwise, the child was
domiciled in Utah, the district court retained jurisdiction, and the
case should proceed to judgment here.
¶11 A child born out of wedlock typically takes on the domicile
of the birth mother. See RESTATEMENT (SECOND) OF CONFLICT OF
LAWS § 22 cmt. c (AM. LAW INST. 1971) (hereinafter RESTATEMENT).
That general rule holds unless and until the mother “abandons” the
child or takes other action. If and when there is an abandonment,
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the child takes on the domicile of the person who then acquires the
parental rights and obligations associated with the child. See id. § 22
cmt. e.
¶12 This background implicates the two questions answered
by the district court here—whether the mother, C.C., was
domiciled on the reservation at the time of the child’s birth, and
whether she “abandoned” the child and thereby transferred
parental rights and obligations to the father, E.T., who is domiciled
on the reservation. We disagree with the district court’s
determinations on both grounds.
¶13 Applying the uniform federal standard of domicile set
forth in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30
(1989), we hold that C.C. was domiciled in Utah in light of
uncontradicted evidence in the record of her intent to remain
permanently in Utah when she moved here. As to abandonment,
we hold that even if ICWA does mandate a uniform federal
standard of abandonment and that standard is found in the
Restatement, there is no basis for a determination that C.C.
abandoned her child and transferred parental rights and
obligations—and domicile—to E.T.
A. C.C.’s Domicile
¶14 The United States Supreme Court established a uniform
federal standard of “domicile” for ICWA proceedings in Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989). Citing the
Restatement, treatises, and “established common-law principles,”
the court endorsed “generally uncontroverted” principles of
domicile under which an adult’s “domicile is established by
physical presence in a place in connection with a certain state of
mind concerning one’s intent to remain there.” Id. at 47–48.
“‘Domicile’ is not necessarily synonymous with ‘residence,’” as
“one can reside in one place but be domiciled in another.” Id. at 48
(citations omitted). The key is the person’s state of mind—her
“intent to remain there” on a relatively permanent basis. Id. “One
acquires a ‘domicile of origin’ at birth, and that domicile continues
until a new one (a ‘domicile of choice’) is acquired” by moving to a
new place with an intent to remain there relatively permanently. Id.
Such intent may be established directly by express statements of
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intention,3 or indirectly by circumstantial evidence (such as a
decision to move to find new employment).4
¶15 C.C. was concededly domiciled on the reservation at the
time she became pregnant with her child. Her stay in Utah was also
brief—just a few months. And soon after giving birth and placing
her child for adoption, there is no question that C.C. decided to
return to live on the reservation. These seem to have been the
grounds for the district court’s determination that C.C. remained
domiciled on the reservation throughout her stay in Utah. The
court found that C.C.’s intent was “to return to the Cheyenne River
Sioux Reservation shortly after she relinquished her child.” In so
stating, however, the court never identified any evidence
suggesting that C.C. had that intent at the crucial time of relevance
to domicile—when she initially left the reservation and moved to
Utah. Instead it just pointed to the short duration of her stay in
Utah, noting that she “reside[d] in Utah for only three or four
months before returning to reside on the Reservation.” And in
concluding that C.C. “lack[ed] credibility” in her
relinquishment-form statement that she was not domiciled on the
reservation, the court again highlighted the brevity of her stay and
cited other events that happened after the move, such as C.C.’s
return to the reservation within a month of giving birth to B.B. and
misrepresentations about who B.B.’s biological father was. The
district court also found that she probably did not understand “the
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3 See RESTATEMENT (SECOND) OF CONFLICT OF LAWS Ch. 2 Topic 2
Special Note (AM LAW INST. 1971) (hereinafter RESTATEMENT) (“A
person’s declarations as to what he considers to be his home,
residence or domicil are generally admissible as evidence of his
attitude of mind. Such declarations are frequently contained in
formal legal documents, as wills, deeds and affidavits; they may
also appear in letters, in hotel and automobile registrations and, at
times, are made by word of mouth.”).
4 See id. (“In the absence of evidence as to the place where a
person lives, . . . he will probably be found to be domiciled in the
place where he works unless it can be shown that his job is only of
a temporary nature. . . . Beyond all this, the place to which a person
has the closest and most settled relationship is likely to be that
where he votes, where he belongs to a church, where he pursues
his various interests and where he pays taxes of the sort that are
payable only by persons who are domiciled there. The courts
frequently rely heavily upon such activities.”).
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meaning of domicile” when she asserted in her affidavit that she
was not domiciled on an Indian reservation.
¶16 A fact-intensive determination of a person’s domicile
would ordinarily be a matter worthy of some deference on appeal.5
But we defer to fact-intensive mixed determinations only where the
district court applies the correct legal standard.6 And here it
appears that the district court applied a mistaken understanding of
the standard of domicile. Nowhere in the written ruling did the
district court ever identify the relevant time for evaluating C.C.’s
intent in moving to Utah. In relying so heavily on the short duration
of her stay in Utah, moreover, it appears that the court was focused
on the wrong timeframe when it found that C.C. intended to return
to the reservation. The court seems to have determined only that
C.C. decided to move back to the reservation after placing her child
for adoption and that her stay here was short. That is insufficient,
as a person can establish a new domicile by moving somewhere
with an intent to remain quite permanently but change her mind
soon after arriving. See Gardner v. Gardner, 222 P.2d 1055, 1057 (Utah
1950) (“Short absence from a former abode may be sufficient to
evidence abandonment thereof, although the party might soon
change his intention. A floating intention to return to a former
abode is not sufficient to prevent the new abode from becoming
one’s domicile.”)
¶17 For the above reasons, we are not in a position to defer to
the district court’s determination of C.C.’s domicile. And we
conclude that all the evidence in the record indicates that she had
the intention of remaining here permanently when she moved to
Utah. In her affidavit submitted to the court, C.C. attested that
when she arrived in Utah, she and E.T. “had agreed that [she]
would move to Utah to be closer to some of [her] friends and
family” and “get settled in with the employment and housing
opportunities that had prompted th[e] move.” She also stated that
the plan then was for E.T. to “come join [her] in Utah.” E.T.
confirmed this understanding. In his affidavit of paternity, E.T.
stated that C.C. had “moved to Utah to be closer to friends and
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5 See In re Adoption of Baby B., 2012 UT 35, ¶¶ 42–43, 308 P.3d 382
(noting that a fact-intensive mixed determination is subject to
deferential review on appeal).
6 See Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 10, 977
P.2d 474 (“The question of the correct legal standard is a question
of law, which we review for correctness.”).
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Opinion of the Court
family” and that they had “agreed that [E.T.] would move to Utah
and join her once she got settled in to [their] new
apartment/home.” These are core hallmarks of domicile—they
indicate an intent to establish a new home and seek employment
and housing opportunities. And they are the only pieces of
evidence in the record that speak directly to C.C.’s intent upon
moving to Utah. We reverse on that basis. We hold that the
evidence in the record indicates that C.C. moved to Utah with the
intent to remain here.
¶18 C.C. made untruthful statements about the identity of
B.B.’s biological father. And her plans apparently changed soon
after she arrived in Utah. But none of that undermines our
conclusion about her intent at the time she first moved here. In fact,
the evidence in the record about her change of plans is consistent
with our analysis. In her affidavit, C.C. explained the change in
plans, noting that “shortly after” arriving in Utah she met a former
boyfriend who pressured her to reconcile with him and place the
child for adoption. It was only then that C.C. stopped talking with
E.T. and instructed family members to tell him that she “was fine”
and “would soon return to South Dakota.” That in no way
undermines the conclusion that C.C. initially moved to Utah with
the intent to remain here.
¶19 Because a change of domicile occurs once a person
establishes physical presence in a new jurisdiction with the intent
to remain, we hold that C.C. was a Utah domiciliary at the time of
B.B.’s birth. On that basis we reject the first rationale for the district
court’s determination that it lacked jurisdiction—the conclusion
that B.B. was domiciled on the reservation because his mother had
retained that domicile.
B. Abandonment
¶20 Above we noted that the United States Supreme Court has
established a uniform federal standard of “domicile” under section
1911 of ICWA. See supra ¶ 14 (citing Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 48 (1989)). The appellee in this case
asserts that this decision extends to the question of abandonment.
And he asks us to embrace the principles of abandonment set forth
in the Restatement—a resource relied on extensively in Holyfield—
in reviewing the district court’s determination that C.C. abandoned
her child and transferred the child’s domicile to E.T. (who
remained domiciled on the reservation).
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¶21 The question whether ICWA requires the establishment of
a uniform federal standard of abandonment is a difficult one. 7 We
need not resolve it to decide this case, however, because the
principles of abandonment in the Restatement are entirely
consistent with Utah law. We thus review the district court’s
decision without resolving the question whether abandonment in
a case like this one implicates a uniform federal standard or a state
standard.
¶22 In the paragraphs below, we first present the settled
principles of abandonment reflected in both the Restatement and
Utah law. Applying these principles, we conclude that the district
court erred in ruling that C.C. abandoned B.B. and thereby shifted
the child’s domicile to that of his biological father. Second, we
respond to an implicit premise of the analysis of the district court
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7 Because “abandonment [sometimes] affects domicile,” the
district court seems to have assumed that there must also be a
uniform federal standard of abandonment in ICWA cases. And it is
true that certain principles of “domicile” were federalized in
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989).
But it may not follow that all subsidiary determinations that inform
the domicile inquiry, such as abandonment, must also be
conducted under a uniform federal standard. We see a number of
grounds for disputing the breadth of such a conclusion:
(a) “domicile” is a “critical term” in ICWA, id. at 44, whereas
“abandonment” appears nowhere in the statute; (b) the elements of
domicile that were federalized in Holyfield were matters involving
“established common-law principles” that were “widely used” in
courts throughout the country, id. at 47–48, while many questions
affecting the law of abandonment differ from state to state; and
(c) the policy concerns that motivated the decision in Holyfield are
not implicated here.
To the extent the governing principle of abandonment turns on
premises on which the states are in disagreement, and on which
there is no “established” common-law standard, we see grounds
for the conclusion that ICWA permits the application of each state’s
law. See 25 U.S.C. § 1901(5) (discussing the states’ exercise of their
“recognized jurisdiction over Indian child custody proceedings
through administrative and judicial bodies”); id. § 1921 (requiring
the application of state law whenever it “provides a higher
standard of protection to the rights of the parent or Indian
custodian of an Indian child” than ICWA or other federal law). But
we need not resolve this question here for reasons explained herein.
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and the appellee—the notion that the jurisdictional regime set forth
in section 1911(a), as interpreted in Holyfield, prevents an unwed
Indian mother from evading tribal jurisdiction even when she is no
longer domiciled on the reservation if the child’s biological father
remains domiciled on the reservation. We show that this policy
finds no support in ICWA and is actively undermined by Holyfield.
1. Effect of Abandonment on a Child’s Domicile
¶23 Comment c to section 22 of the Restatement establishes the
general rule that “[a]n illegitimate child has the domicil of his
mother.” This and other comments also set forth a range of
exceptions to the general rule—circumstances in which the
domicile of a child born out of wedlock may transfer to the domicile
of someone other than the biological mother. The listed
circumstances speak to the roles of adoptive parents (comment g)
and unmarried biological fathers (comments a and c), making clear
that the domicile of a child born out of wedlock and placed for
adoption is that of the person who has parental rights in and
obligations to the child. And they establish that parental rights and
obligations—and thus domicile—remain with the birth mother
unless and until someone else has assumed parental rights in and
obligations to the child.
¶24 Yet another comment (comment e) establishes that an
“abandonment” may also transfer a child’s domicile. RESTATEMENT
§ 22 cmt. e. According to the Restatement, this occurs when a
parent “deserts the child” or “gives the custody of the child to
another with the intention of relinquishing his parental rights and
obligations.” Id. It was this comment—and this comment alone—
that the district court decided to focus on. Citing this standard, the
district court found that C.C. abandoned B.B. by “intend[ing] to
relinquish all parental rights and obligations just two or three
months into the pregnancy” and signing (invalid) relinquishment
forms. It then claimed that “federal law require[d]” it to “look to
Father’s domicile” because when an Indian child is abandoned by
one parent, “the tribe and the other parent domiciled on the
reservation . . . still have an interest in the exercise of exclusive
jurisdiction.”8
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8 The claim that this is a “requirement” of federal law is
incorrect because it relies on a quote from the dissent in Holyfield.
See 490 U.S. at 63 (Stevens, J., dissenting). We therefore decline to
address it further.
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¶25 This was error. When other comments in the Restatement
are also taken into account, it becomes clear that a birth mother’s
relinquishment of custody and signing away of parental rights in
the formal adoption context does not amount to an “abandonment”
because it is not done with the “intention of relinquishing . . .
parental rights and obligations” immediately or unconditionally
(let alone with an intent to surrender rights and obligations to an
unmarried biological father who is not even a party to the
adoption).9 A birth mother’s surrender of custody and waiver of
her parental rights and obligations in the context of a formal
adoption certainly evinces an intent to eventually turn over parental
rights and obligations to a specific, state-vetted adoption agency or
couple. But new rights in and obligations to the child will attach
and replace the birth mother’s only when certain conditions are
met—once the adoption is final. And for that reason, it is wrong to
say that a birth mother intends to immediately and unconditionally
relinquish parental rights and obligations—walk away from or
“abandon” her child—when she chooses to put her child up for
formal adoption rather than simply leave him at the doorstep,
daycare center, or family friend’s home. In this case, C.C.’s
“relinquishment of [her] parental rights and obligations” was both
specific to the adoption setting and contingent on the finalization
of the adoption. It was not done with an intent sufficient to
constitute abandonment and transfer parental rights and
obligations—along with the child’s domicile—to a third party as of
the date of the relinquishment form.
¶26 These conclusions follow from several of the other
comments to section 22 of the Restatement. The starting point is
comment c. That comment says that the domicile of a child born out
of wedlock will follow the domicile of the mother except in
specifically enumerated circumstances. Id. § 22 cmt. c. The listed
circumstances include abandonment under comment e and
conditions “stated immediately below” in comment c. Id. The
conditions “immediately below” indicate that the domicile of a
child born out of wedlock will transfer to the domicile of the
biological father only in limited circumstances—such as when he
marries the child’s biological mother. Comment c states this point
by negative (but clear) implication in the proviso that the child’s
domicile remains with the mother “[a]fter the mother’s marriage to
a man who is not the child’s father.” Id. (emphasis added). And the
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9While E.T. was eventually allowed to intervene in the case, he
was not a party to the adoption proceedings in September 2014.
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implication is made explicit in the general rule of comment a—that
a child born in wedlock “is assigned the father’s domicil.”10 Id. § 22
cmt. a. These provisions demonstrate that the domicile of a child
born out of wedlock shifts to that of an unmarried biological father
only when his inchoate parental rights are perfected, as upon
marriage of the biological mother and father.11 Where (as in the
instant case) that has not happened, comments a and c establish that
the child’s domicile remains that of the mother.12
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10 The full quote from comment a is that a “child is assigned the
father’s domicil when he lives with the father and has the same
home as his.” RESTATEMENT § 22 cmt. a. This adds another wrinkle
for an unmarried biological father who has never lived with his
child. Under the Restatement, even if E.T. married C.C. and thereby
became B.B.’s legal father, B.B. would not acquire E.T.’s domicile
unless and until B.B. lived with E.T. in his home.
11 We need not and do not decide whether there are other events
that could perfect an unwed biological father’s parental rights and
obligations. (If the unwed mother deserts both her child and the
unwed father, perhaps that would be such an event.) We hold only
that (1) the Restatement ties the domicile of a child born out of
wedlock to parental rights and obligations, (2) C.C. did not give up
parental rights and obligations in B.B. by initiating formal adoption
proceedings, and (3) in any case, E.T. had not perfected his parental
rights and obligations in B.B. when C.C. filed the adoption petition.
12 The law of relevance to this point has evolved somewhat since
the time of the Restatement. Today an unmarried biological father
may have the right to notice of a pending adoption and the
opportunity to contest the adoption. See Lehr v. Robertson, 463 U.S.
248, 261, 267–68 (1983) (holding that an unwed biological father
that “demonstrates a full commitment to the responsibilities of
parenthood by ‘com[ing] forward to participate in the rearing of his
child’” has a protected interest in “personal contact with his child”
under the Fourteenth Amendment’s Due Process Clause and that
adoption statutes distinguishing between biological mothers and
unwed biological fathers “may not constitutionally be applied in
that class of cases where the mother and father are in fact similarly
situated with regard to their relationship with the child” under the
Equal Protection Clause (alteration in original) (citation omitted)).
In the context of an adoption, the unmarried biological father has
the opportunity to seek to have his inchoate parental rights perfected
(continued . . .)
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¶27 Comment g is also significant because it speaks to the effect
of an adoption proceeding on a child’s domicile. This comment
provides that the “effect of an adoption is to substitute a new
parent-child relationship in place of that which formerly bound the
child to his natural parents.” Id. § 22 cmt. g. From that proviso, it is
clear that a mother taking a step toward an adoption that is not yet
final cannot amount to an immediate and unconditional intent to
relinquish her parental rights and obligations (an abandonment),
let alone an intent to relinquish them to the biological father.13
Instead, the initiation of an adoption is the start of a process that
anticipates the relinquishment of a birth mother’s parental rights
and obligations and the establishment of a new, specific
parent-child relationship. When that process is complete, then “the
domicil of the adopted child follows that of his adoptive parents.”
Id. But that shift in domicile does not take place until the adoption
is final. The child “takes the domicil of the adoptive parent” only
“at the moment of adoption.” Id. These are settled principles of
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and established. See id. at 262 (“The significance of the biological
connection is that it offers the natural father an opportunity that no
other male possesses to develop a relationship with his offspring.
If he grasps that opportunity and accepts some measure of
responsibility for the child’s future, he may enjoy the blessings of
the parent-child relationship and make uniquely valuable
contributions to the child’s development. If he fails to do so, the
Federal Constitution will not automatically compel a state to listen
to his opinion of where the child’s best interests lie.” (footnote
omitted)). But the upshot is the same—the child’s domicile follows
the legal parent, and thus does not shift to the unmarried biological
father automatically just because he has made some attempt to
assert his rights.
13 This is reflected in well-established principles of law
endorsed across the nation. See Stanton Phillips, Adoption Law,
Procedure and Practice, in 6 FAMILY LAW AND PRACTICE § 64.10[1]
(Arnold H. Rutkin ed., 2019) (“The properly executed consent to
adoption does not, in and of itself, normally terminate the parental
rights or responsibilities of the person signing the document.
Rather, most jurisdictions do not terminate the parental rights of
the parent until the granting of the final decree of adoption. . . . In
most jurisdictions, the birth parents’ parental rights remain in a
state of legal limbo from the time of the signing of the consent to
adoption until the entry of the final decree of adoption or legal
termination of their rights.”).
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IN RE ADOPTION OF B.B.
Opinion of the Court
adoption law. A birth mother thus retains her rights and
obligations to a child unless and until the adoption is finalized.14
¶28 These principles are also reflected in Utah law. The Utah
Code expressly provides that “[a] pre-existing parent of an adopted
child” retains “all parental rights and duties toward and all
responsibilities for” an adopted child until “the earlier of: (a) the
time the pre-existing parent’s parental rights are terminated; or
(b) . . . the time the final decree of adoption is entered.” UTAH CODE
§ 78B-6-138(1). True, once a birth mother signs a valid consent and
relinquishment form, her involvement in the proceeding is
normally over—the adoption is finalized, and parental rights and
obligations (and domicile) are transferred to the adoptive parents.
This is because a valid consent and relinquishment document is
irrevocable as a matter of Utah law. See id. § 78B-6-126. But such a
document (even an effective, irrevocable one) does not itself shift
parental rights (or domicile). The shift happens only if and when
the adoption is finalized or parental rights are terminated in a valid
order—a point the code confirms by acknowledging a court’s
authority to “enter a final order terminating parental rights before
a final decree of adoption is entered.” Id. § 78B-6-112(3).
¶29 The code confirms that unwed birth mothers remain legal
parents in failed adoptions by providing that a parent’s execution
of a relinquishment of parental rights and consent to adoption
“may not be considered as evidence” that the signatory “has
neglected or abandoned the child” in a case in which “the court
dismisses the adoption petition.” Id. § 78B-6-133(4). This is
significant. By stating that a relinquishment and consent “may not
be considered” as evidence of neglect or abandonment in a case in
which “the court dismisses the adoption petition,” see id., the
legislature is clarifying that Utah law is in line with the settled
standard set forth in the Restatement. The execution of this
document may function as a relinquishment of parental rights and
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14 We express no opinion on what challenges a birth mother may
or may not face in regaining the ability to exercise these parental
rights. See id. (“The period between the taking of the consent and
the termination of parental rights leaves open a variety of issues.
The child is still the legal child of the birth parent but such rights as
care, custody, control or visitation with the child are waived. Those
rights may be restored to a birth parent by an event, such as a
fall-through in the adoptive placement. Obligations of the birth
parent, particularly in the area of child support, will continue until
the parental rights are terminated.” (emphases added)).
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obligations to an adoption agency or the adoptive parents if the
adoption is finalized. But it does not amount to an “abandonment,”
or surrender of custody with an intent to immediately and
unconditionally relinquish parental rights and obligations to
anyone who might step into the parental role.15
¶30 The district court accordingly erred in its determination
that C.C.’s relinquishment forms in the formal adoption context
constituted an “abandonment” that resulted in the establishment of
a perfected legal relationship between the child and his unwed
biological father (and therefore a change in the child’s domicile).
The mother’s consent to adoption does not itself evince an intent to
immediately relinquish parental rights and obligations or establish
a new parent-child relationship with anyone. C.C. continued to
participate in the necessary court proceedings and did not leave
Utah until after the court had entered an order purporting to
terminate her parental rights. And a consent only waives the
mother’s rights vis-à-vis the adoption agency (or the prospective
adoptive parents with whom the child is to be placed).
¶31 So C.C.’s parental rights appear to remain intact to this
day16—although we again express no opinion on what steps she
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15 Appellants rightly called our attention to this statutory
provision in their briefing. But they quoted the operative statutory
language selectively, in a manner that was misleading. They
quoted the general proviso that a relinquishment or consent “may
not be considered as evidence” of abandonment, but omitted the
above-noted qualifier—the language indicating that this principle
applies only in a case in which “the court dismisses the adoption
petition.” UTAH CODE § 78B-6-133(4) (emphasis added). That is
troubling. Counsel should have quoted the full provision. The
selective quote was misleading and inappropriate.
16 The court did enter an order purporting to terminate C.C.’s
parental rights based on her two signed
relinquishment-and-consent documents. In re Adoption of B.B., 2017
UT 59, ¶ 7, 417 P.3d 1. But the first one (signed the day after B.B.’s
birth) was invalid as a matter of federal law because it failed to
honor ICWA’s ten-day waiting period. 25 U.S.C. § 1913(a) (“Any
consent given prior to, or within ten days after, birth of the Indian
child shall not be valid.”). And the second one, though signed after
the ICWA waiting period, was signed after the relevant date of the
adoption petition. See Holyfield, 490 U.S. at 53 (holding that the
(continued . . .)
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IN RE ADOPTION OF B.B.
Opinion of the Court
might need to take to be in a position to exercise those rights. See
supra ¶ 27 n.14. Unless and until the adoption is finalized, B.B.’s
domicile follows the domicile of his birth mother.17 Everyone
agrees that the initiation of adoption proceedings (to which C.C.
consented) did not transfer domicile to that of the prospective
adoptive parents. By the same logic, it didn’t transfer domicile to
that of a third party like E.T., either.
¶32 We are aware of no legal authority that says that a birth
mother’s consent to an adoption amounts to an abandonment—a
surrender of custody with an immediate, unconditional intent to
relinquish parental rights regardless of the outcome of the adoption
proceeding.18 To sustain the district court’s holding, moreover, we
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tribal court had exclusive jurisdiction because the twin babies were
domiciled on the reservation “when adoption proceedings were
begun”); In re Adoption of Halloway, 732 P.2d 962, 966 (Utah 1986)
(holding that “the propriety of [a] trial court’s assumption of
jurisdiction turns on [the Indian child’s] domicile at the time the[]
proceedings [a]re initiated”). In any event, that second consent was
contingent on the entry of a final adoption order or an order
terminating the birth mother’s parental rights (conditions that have
yet to occur). See UTAH CODE § 78B-6-138 (stating that a birth parent
retains all rights and duties until “the earlier of: (a) the time the pre-
existing parent’s parental rights are terminated; or (b) . . . the time
the final decree of adoption is entered”).
17 In the context of an ICWA jurisdictional determination, B.B.’s
domicile remains that of his mother at the time the adoption
petition was filed. See supra ¶ 31 n.16. C.C. could not shift B.B.’s
domicile after the fact by changing her own domicile.
18 The authority that we have found cuts directly against this
proposition. In Utah and elsewhere, abandonment is the
permanent relinquishment of all rights in and obligations to a
child—the kind of relinquishment that results in “the destruction
of the parent-child relationship.” See State in Interest of Summers
Children v. Wulffenstein, 560 P.2d 331, 334 (Utah 1977) (“[T]he
father’s conduct demonstrated a conscious disregard of the
obligations owed by a parent to a child, leading to the destruction
of the parent-child relationship—an abandonment.”). And the
destruction of a parent-child relationship necessarily requires the
initiation of a new one. See HOMER H. CLARK, JR., 2 THE LAW OF
DOMESTIC RELATIONS IN THE UNITED STATES § 21.1 (2d ed. 1987) (“As
(continued . . .)
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would have to take this novel premise a step further. We would
have to hold not only that a birth mother’s consent to adoption is
an abandonment or immediate and unconditional relinquishment,
but also that her parental rights and obligations revert at the filing
of the adoption petition to a third party whose parental rights are
at best inchoate. This we decline to do.
¶33 So even if E.T. is correct that ICWA mandates a uniform
federal standard of abandonment and the district court was correct
to apply the standard found in section 22 of the Restatement, the
district court’s decision cannot stand. The Restatement regime
necessarily ties domicile to parental rights and obligations.19 And
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a result of the adoption decree the legal rights and obligations
which formerly existed between the child and his natural parents
come to an end, and are replaced by similar rights and obligations
with respect to his new adoptive parents.”).
A biological parent’s consent to the initiation of an adoption
proceeding may foreclose the right to rescind the relinquishment of
parental rights vis-à-vis the adoption agency or prospective
adoptive parents. See Phillips, supra ¶ 27 n.13, at § 64.10[1] (“The
period between the taking of the consent and the termination of
parental rights leaves open a variety of issues. The child is still the
legal child of the birth parent but such rights as care, custody,
control or visitation with the child are waived.”); UTAH CODE
§ 78B-6-126 (“A consent or relinquishment is effective when it is
signed and may not be revoked.”). But we are aware of no authority
that suggests such consent is an unconditional relinquishment
foreclosing the restoration of parental rights when an adoption fails
to come to fruition. Again, numerous authorities have reached the
opposite conclusion. See, e.g., Phillips, supra ¶ 27 n.13, at § 64.10[1]
(explaining that parental rights “may be restored to a birth parent
by an event, such as a fall-through in the adoptive placement”);
UTAH CODE § 78B-6-138(1) (stating that a birth parent retains all
rights and duties until “the earlier of: (a) the time the pre-existing
parent’s parental rights are terminated; or (b) . . . the time the final
decree of adoption is entered”).
19 The dissent’s contrary view rests on the unsupported
assertion that “a finding of abandonment for purposes of domicile”
“does not compel (or even influence)” a finding of abandonment
“for purposes of adjudicating parental rights.” Infra ¶ 132; see also
infra ¶¶ 57 n.23, 95 n.29, 106, 116, 118 n.31, 128–31. But this
(continued . . .)
17
IN RE ADOPTION OF B.B.
Opinion of the Court
there is thus no basis for the determination that the birth mother’s
relinquishment and consent to B.B.’s adoption shifted parental
rights and obligations—and domicile—to his biological father.
¶34 The dissent believes that it is comment e (which deals with
“abandonment”) that dictates the starting position in deciding the
domicile of a child born out of wedlock and placed for adoption—
not comment c (which deals specifically with “[i]llegitimate
child[ren]”) or comment g (which deals specifically with
“[a]dopted child[ren]”). See infra ¶¶ 123–27. This is incorrect for at
least two reasons.
¶35 First, B.B. is a child born out of wedlock and placed for
adoption first and an (allegedly) abandoned child second. That
alone should establish which comment sets the default rules in
B.B.’s case—comment c, which (1) states that “[a]t birth an
illegitimate child takes the domicil his mother has at the time as his
domicil of origin” and (2) suggests (in conjunction with comment a)
that the child’s domicile will not shift to that of the unwed
biological father except in limited circumstances—such as upon
marriage. See RESTATEMENT § 22 cmt. c (emphases added).
Likewise, comment g speaks to B.B.’s situation directly. It is
undisputed that B.B. was placed for adoption. It is the entire subject
of this appeal whether that placement also constituted
abandonment.
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distinction does not hold up under the law. The abandonment
standard for domicile purposes is the abandonment standard for
parental-rights purposes. The Restatement is not inventing a new,
freestanding principle of “abandonment” for the purpose of
establishing a child’s domicile, as the dissent seems to believe. See
infra ¶ 57 n.23 (lamenting the Restatement’s word choice as
“unfortunate”). It is invoking a preexisting, parental-rights
standard of abandonment in order to make a conflict-of-law
determination of domicile. The language of the Restatement
confirms that its use of “abandonment” is an intentional effort to
capitalize on a legal determination used to adjudicate parental
rights and obligations: “[A]bandonment . . . occurs when the parent
gives the custody of the child to another with the intention of
relinquishing his parental rights and obligations . . . . The rules of the
forum are applied . . . to determine whether an abandonment has
taken place.” RESTATEMENT § 22 cmt. e (emphasis added); see also id.
(“Under the local law of many states, a child who has attained years of
discretion becomes emancipated upon being abandoned by both
parents.” (emphasis added)).
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¶36 Second, comment c (the comment governing
“[i]llegitimate child[ren]”) must set the default rule in this case
because comment e assumes that the child at issue was born in
wedlock—it presupposes that the child has taken on the domicile
of his father. RESTATEMENT § 22 cmt. e (beginning by explaining
what happens when a father abandons the child and declaring that
“a child abandoned by both parents simultaneously retains the
domicil of the father at the time of the abandonment.” (emphases
added)). But this is the default for children born in wedlock, see id.
§ 22 cmt. a (“[T]he child takes as his domicil of origin the domicil
the father has at the time of the child’s birth . . . .”), not those born
outside it, id. § 22 cmt. c (“An illegitimate child has the domicil of
his mother . . . .”). No doubt this is why Justice Stevens cited
comment i’s standard—not comment e’s—in discussing what
happens to the domicile of a child when she is “abandoned by both
parents.” Holyfield, 490 U.S. at 62 (Stevens, J., dissenting). Put
simply, comment e starts from a place from which we know for a
fact B.B. did not—a birth in wedlock.
¶37 For these reasons, we are not “discard[ing]” or “ignor[ing]
the relevant comment—comment e.” Infra ¶¶ 118, 125. We are
reading it in the context of the default rules laid out for children
born out of wedlock (comment c) and subsequently placed for
adoption (comment g). Those comments capture the importance of
parental rights and obligations to the domicile determination and
explain B.B.’s situation perfectly. Holding up comment e without
accounting for the Restatement’s connection between parental
rights and domicile—or the default rules that come with a child’s
out-of-wedlock birth status and prospective adoption—leaves all
the important questions unanswered: With what “intention” did
C.C. give up custody? Who had “parental rights and obligations”
in B.B. at the time of the filing of the adoption petition? Despite its
claim that we are “ignor[ing] comment e’s directive to examine
Birth Mother’s ‘intention,’” infra ¶ 119, it is the dissent that glosses
over these questions.
¶38 We are likewise not holding that comment e’s provision on
abandonment “doesn’t apply” “whenever an adoption looms in the
background,” infra ¶ 119, or “whenever the abandoning parent
contemplates a future adoption,” infra ¶ 127. We do not doubt that
a parent “contemplat[ing] a future adoption” could still take
actions that amount to an abandonment. We hold only that giving
up custody and signing consent forms in order to start the formal
adoption process does not itself constitute abandonment under the
text of the Restatement. And we do so by focusing on the
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Opinion of the Court
“intention” with which a birth mother “gives . . . custody of the
child to another,”20 RESTATEMENT § 22 cmt. e, and by reading
comment e in conjunction with the comments governing children
born out of wedlock and placed for adoption. It is the dissent that
insists that other comments in the Restatement simply don’t apply
in the circumstances we confront today. See infra ¶ 116 (suggesting
comment a is “irrelevant”); infra ¶ 126 (claiming comment g—the
comment governing “[a]dopted child[ren]”—is “irrelevant to this
case”).
2. Indian Parents’ Domicile Changes under ICWA
¶39 In coming to a contrary conclusion, the district court seems
to have assumed that the jurisdictional regime set forth in 25 U.S.C.
section 1911(a) (as interpreted in Holyfield) prevents any Indian
parent from evading exclusive tribal jurisdiction—even if she is no
longer domiciled on the reservation—so long as the other Indian
parent remains a domiciliary of the reservation. (The appellee
appears to have made the same assumption.) The district court
highlighted the United States Supreme Court’s concerns about
reservation-domiciled Indian parents “undermin[ing]” ICWA’s
jurisdictional regime and echoed the Holyfield dissent’s assertion
that even when an Indian child “is abandoned by one parent to a
person off the reservation, the tribe and the other parent domiciled
on the reservation . . . still have an interest in the exercise of
exclusive jurisdiction.” 490 U.S. at 63 (Stevens, J., dissenting).
Likewise, E.T. claims that “C.C. cannot merely place the child for
adoption in Utah with non-Indians . . . in an effort to circumvent
the protections afforded the child’s father and the Cheyenne River
Sioux Tribe under ICWA.”
¶40 This policy, however, finds no support in ICWA and is
actively undermined by Holyfield. The concern that animates it,
moreover, is completely obviated once we apply a correct standard
of abandonment (informed not just by comment e taken out of
context, but by other surrounding provisions).
¶41 This case is distinguishable from cases like Holyfield and In
re Adoption of Halloway, 731 P.2d 962 (Utah 1986), in a significant
respect. Here, the birth mother was not domiciled on an Indian
______________________________________________________________________________
20 The record facts speak volumes on C.C.’s “intention” with
respect to her actions in these proceedings—she made
arrangements with Heart to Heart, participated in the necessary
court proceedings, and left Utah only once the district court had
entered an order purporting to terminate her parental rights.
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reservation. Rather, she moved to Utah and became a Utah
domiciliary before she gave birth to her child. See supra ¶¶ 14–19.
This is important, as neither Holyfield nor Halloway can be read to
foreclose an Indian parent’s right to legitimately change her
domicile and invoke the jurisdiction of her state’s courts.
a. ICWA, Holyfield, and Halloway
¶42 Section 1911(a) is not a straitjacket requiring exclusive
tribal court jurisdiction for any child born to Indian parents so long
as one of them remains domiciled on the reservation. ICWA calls
for exclusive tribal jurisdiction only where “an Indian child . . .
resides or is domiciled within the reservation.” 25 U.S.C. § 1911(a)
(emphasis added). But again, the domicile of a child born out of
wedlock follows the domicile of the mother. See RESTATEMENT § 22
cmt. c. So when the mother of an Indian child born out of wedlock
leaves the reservation and establishes a new domicile in one of the
states before the child’s birth, there is no basis for the exclusive
jurisdiction of a tribal court. An unwed mother who makes a
legitimate change of domicile is not undermining the exclusive
tribal court jurisdiction set forth in section 1911(a). See 25 U.S.C.
§ 1911(b) (granting tribal courts only concurrent jurisdiction where
the Indian child is “not domiciled or residing within the
reservation”).
¶43 This is exactly in line with the holding of Holyfield. Holyfield
says that section 1911(a) is offended where a mother domiciled on
a reservation is allowed to “obtain[] an adoption decree in state
court merely by transporting her [child] across state lines.” 490 U.S.
at 46. That is what happened in Holyfield. The birth parents were
domiciled on an Indian reservation and briefly left the reservation
just to give birth to twin children and place them for adoption in
Mississippi. Id. at 37–38. Under well-established domicile
standards followed in courts across the nation, the exclusive
jurisdiction of the tribal court should have remained intact despite
that temporary trip across state lines. The children should have
been considered domiciliaries of the reservation because their
domicile followed their mother and her brief trip across state lines
did not change her domicile. Yet the Mississippi Supreme Court
rejected that rule. Instead it held that the twins were not domiciled
on the reservation because they had never “resided on or [been]
domiciled within the territory set aside for the reservation.” Id. at
39 (citation omitted). This was the holding reversed in Holyfield.
And it was in rejecting that conclusion that the Holyfield court
warned of the peril of allowing a party to circumvent the exclusive
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Opinion of the Court
jurisdiction of the tribal court “merely by transporting” a child
“across state lines.” Id. at 46.
¶44 But the Holyfield court never suggested that ICWA’s
exclusive-jurisdiction provision would be undermined if an Indian
parent made a legitimate change of domicile. Quite the contrary. It
specifically held that “the law of domicile Congress used in . . .
ICWA cannot be one that permits individual reservation-domiciled
tribal members to defeat the tribe’s exclusive jurisdiction by the
simple expedient of giving birth and placing the child for adoption
off the reservation.” Id. at 53 (emphasis added). We made this same
point in Halloway. “To the extent that Utah abandonment law
operates to permit [an Indian] mother to change [her child’s]
domicile as part of a scheme to facilitate his adoption by
non-Indians while she remains a domiciliary of the reservation,” we
held that “it conflicts with and undermines the operative scheme
established by [ICWA] to deal with children of domiciliaries of the
reservation and weakens considerably the tribe’s ability to assert its
interest in its children.” 732 P.2d at 969 (emphases added).
¶45 As we explain, the recognition that an Indian parent can
properly “defeat” the tribal court’s exclusive jurisdiction through a
legitimate change of domicile was a point of common ground in
Holyfield. The only disagreement went to the implication of that
premise in a case in which the child remained domiciled on the
reservation because the unwed mother did not enter the state with
the intent to permanently remain.
b. The Holyfield dissent
¶46 Justice Stevens asserted in dissent that the placement of the
child for adoption was an “abandonment” sufficient to shift the
child’s domicile to that of the adoptive parents. 490 U.S. at 62 n.11
(Stevens, J., dissenting). He saw no difference under ICWA
between an Indian parent’s permanent change of domicile and an
Indian parent’s temporary trip across state lines to place a child for
adoption. Id. at 60–63. Because the state courts would have been
“required to give effect” to the Indian parents’ “choice of
jurisdiction” resulting from an actual change of domicile, Justice
Stevens thought that the courts should likewise defer “when the
parents . . . have expressed an unequivocal intent to establish a
domicile for their children off the reservation.” Id. at 62. Justice
Stevens proposed a basis for this conclusion in the law of
abandonment, citing the Restatement for the proposition that “[a]n
abandonment occurs when a parent deserts a child and places the
child with another with an intent to relinquish all parental rights
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and obligations.” Id. And he concluded that the parents in Holyfield
had abandoned their children by placing them for adoption in
Mississippi. Id. at 62 n.11.
¶47 Justice Stevens cited some of the Restatement principles
discussed above in reaching this conclusion—noting, in particular,
that when a “child is abandoned by both parents, he takes on the
domicile of a person other than the parents who stands in loco
parentis to him.” Id. at 62. Because the parents in Holyfield
relinquished their children for adoption under state law, Justice
Stevens said they had abandoned them and shifted their domicile
to that of the prospective adoptive parents. And Justice Stevens
thought that “no purpose of the ICWA [wa]s served by closing the
state courthouse door” to parents who had done so. Id. at 63. Thus,
in Justice Stevens’s view, ICWA “reflects a recognition that
allowing [an Indian] tribe to defeat the parents’ deliberate choice of
jurisdiction would be conducive neither to the best interests of the
child nor to the stability and security of Indian tribes and families.”
Id. at 60.
¶48 On this point the Holyfield majority disagreed. It thought
that the Congress that enacted ICWA “was concerned not solely
about the interests of Indian children and families, but also about
the impact on the tribes themselves of the large numbers of Indian
children adopted by non-Indians.” Id. at 49 (majority opinion). And
as noted above, the Court held that “the law of domicile Congress
used in the ICWA cannot be one that permits individual
reservation-domiciled tribal members to defeat the tribe’s exclusive
jurisdiction by the simple expedient of giving birth and placing the
child for adoption off the reservation.” Id. at 53. Applying these
premises, the Holyfield majority rejected the Holyfield dissent’s
abandonment determination. It held that the exclusive jurisdiction
of the tribal court (established by the fact that the parents, and thus
their children, were domiciled on the reservation) could not be
defeated by that fact that “the twins were ‘voluntarily surrendered’
by their mother” for adoption under state law. Id. at 49.
¶49 The interplay between the Holyfield majority and dissent
confirms three main propositions of relevance to this case: (1) the
dissent saw ICWA as respecting Indian parents’ “deliberate choice
of jurisdiction,” id. at 60 (Stevens, J., dissenting), while the majority
said that principle is limited by concerns about “impact[s] on the
tribes themselves,” id. at 34 (majority opinion); (2) both sides
agreed that reservation-domiciled parents may defeat the exclusive
jurisdiction of the tribal court by effecting a legitimate change in
domicile; and (3) the majority held that there was no abandonment
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Opinion of the Court
sufficient to shift the children’s domicile off the reservation while
the dissent thought otherwise. Each of these points is significant.
And together they sustain the conclusion we reach today.
¶50 The dissent in Holyfield clearly had a point about a
reservation-domiciled parent’s “deliberate choice of jurisdiction”
under ICWA. Under the terms of section 1911(a), there is no doubt
that Indian parents are entitled to evade the exclusive jurisdiction
of the tribal courts by making a legitimate change in domicile. See
25 U.S.C. § 1911(a) (“An Indian tribe shall have jurisdiction
exclusive as to any State over any child custody proceeding
involving an Indian child who resides or is domiciled within the
reservation of such tribe . . . .” (emphasis added)). This was common
ground in Holyfield. See 490 U.S. at 48–49 (“It is undisputed in this
case that the domicile of the mother (as well as the father) has been,
at all relevant times, on the Choctaw Reservation. Thus, it is clear
that at their birth the twin babies were also domiciled on the
reservation, even though they themselves had never been there.”
(citation omitted)); id. at 62 (Stevens, J., dissenting) (“If [the Indian
parents] had established a domicile off the reservation, the state
courts would have been required to give effect to their choice of
jurisdiction.”). The disagreement went to whether a
relinquishment for an adoption under state law is a parallel move
by an Indian parent—the kind of move that merits respect as a
“deliberate choice of jurisdiction.” The majority said no. And that
holding confirms the propriety of our abandonment analysis.
c. Application to this case
¶51 If the abandonment standard endorsed by the district
court and advocated by E.T. and (to a certain extent) the dissent
were correct, then the parents in Holyfield would have abandoned
their children and shifted their children’s domicile off the
reservation. The Indian parents in Holyfield left the reservation,
gave up custody of their children, signed a consent-to-adoption
form, and returned to the reservation. Id. at 37–38 (majority
opinion). This was an abandonment under the standard E.T.
advocates today. But such actions were deemed insufficient to
constitute abandonment in Holyfield. See id. at 51 n.26 (dismissing
the Mississippi Supreme Court’s “conclusory” abandonment
analysis and noting that the Indian parents’ consent to termination
of their parental rights was invalid under ICWA and as such could
not make the twins non-domiciliaries of the reservation). Only the
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Holyfield dissent advanced the view of abandonment E.T. asks us to
affirm today.21
¶52 Justice Stevens was right that when both parents abandon
a child, his domicile shifts to that of the “person other than the
parents who stands in loco parentis to him.” Id. at 62 (Stevens, J.,
dissenting) (quoting RESTATEMENT § 22 cmt. i). And of course
prospective adoptive parents usually do step into that role. But
Justice Stevens believed that a formal adoption amounts to
abandonment. And that is incorrect. Neither parental rights and
obligations nor domicile shifts upon the signing of a consent form
or relinquishment of custody. So there is no abandonment at the
operative moment of the initiation of the adoption in those
circumstances. This is a key takeaway from Holyfield. And it defeats
any concern about abandonment being used to circumvent the
exclusive jurisdiction of the tribal courts in this manner.
______________________________________________________________________________
21 This reveals another defect in the dissent’s analysis—its
proposed standard can be reconciled with ICWA precedent only by
tacking on a “caveat[]” to the Restatement. The dissent claims that
despite its text, the Restatement’s abandonment standard can cut
in only one direction—in favor of exclusive tribal court jurisdiction.
See infra ¶ 98 (asserting that its “doctrine of abandonment cannot
be used by Native American Indian parents as part of a scheme to
facilitate adoption of their children by non-Indians while they
remain domiciliaries of the reservation” (citation and internal
quotation mark omitted)). In other words, giving up custody of a
child and placing him for adoption is not a domicile-shifting
abandonment unless it results in exclusive tribal jurisdiction. This
is the only way to reconcile its standard with the result of Holyfield,
as the dissent partially admits. See infra ¶ 98 (“This exception . . .
fits the United States Supreme Court’s decision in Holyfield, which
. . . concluded . . . that the law of domicile Congress used in the
ICWA cannot be one that permits individual reservation-domiciled
tribal members to defeat the tribe’s exclusive jurisdiction by the
simple expedient of giving birth and placing the child for adoption
off the reservation.” (citation and internal quotation mark
omitted)); infra ¶ 136 (citing this caveat as a reason its proposed
standard would in fact have dictated the same result in Holyfield).
And the fact that the dissent’s interpretation of the Restatement
requires a special caveat to comport with this court’s and the High
Court’s precedent confirms that it is neither the most natural
reading of the text nor the most advisable.
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IN RE ADOPTION OF B.B.
Opinion of the Court
¶53 We decline to hold that ICWA mandates exclusive tribal
court jurisdiction in any case in which either parent of an Indian
child remains a domiciliary of the reservation, no matter what the
reservation-domiciled parent’s legal relationship to the child is at
the time of the filing of the adoption petition. That view distorts the
terms of 25 U.S.C. section 1911(a), which makes exclusive tribal
jurisdiction turn on the domicile of the Indian child, not the Indian
parent. And it runs counter to Holyfield and Halloway for the same
reason. We reject it on that basis.
III. CONCLUSION
¶54 The congress that enacted the Indian Child Welfare Act
was understandably concerned about the effects of “abusive child
welfare practices” in separating “large numbers of Indian children
from their families and tribes through adoption or foster care
placement.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
32 (1989). This federal statute, however, is not a directive for state
courts to restructure settled doctrines of family law in an ongoing
effort to advance those objectives alone. ICWA is a statute that
balances multiple, competing policies, under terms and conditions
voted into law in the text of ICWA.22
¶55 In Holyfield, the Supreme Court held that those terms and
conditions demand the application of a uniform federal standard
of “domicile” in determining whether a tribal court has exclusive
jurisdiction under 25 U.S.C. section 1911(a). And that requirement,
in turn, might ultimately direct us to incorporate a uniform federal
standard of abandonment lifted from section 22 of the Restatement.
But the district court did not follow that premise through to its
logical conclusion. It took a single comment of that section out of
context and established a novel standard of abandonment that runs
counter to the Restatement as a whole and thwarts the express
terms of the operative statute.
¶56 Section 1911(a) clearly allows an unwed birth mother
initially domiciled on an Indian reservation to legitimately
establish a new domicile in Utah and invoke the jurisdiction of the
______________________________________________________________________________
22 See In re Adoption of B.B., 2017 UT 59, ¶ 180, 417 P.3d 1 (Lee,
A.C.J., joined by Durrant, C.J., dissenting) (noting that ICWA is
aimed not only at “protecting the integrity of Indian families” but
also “at preserving the sovereignty of the state courts over adoption
and paternity” and “protecting the children whose interests are so
keenly implicated in adoption proceedings”).
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mother of that option, the district court was not advancing the
purposes of ICWA or following a uniform federal standard of
abandonment. It was advancing a new policy preference and
causing unnecessary delay to the outcome of a proceeding in which
time is of the essence. We reverse the district court on that basis,
remanding the matter so that this adoption might be brought to a
speedy conclusion.
JUSTICE HIMONAS, dissenting:
INTRODUCTION
¶57 The majority stumbles in holding that the Cheyenne River
Sioux Tribe doesn’t have exclusive jurisdiction over this case.
Unlike the majority, I would hold that, for purposes of determining
domicile under a conflict-of-laws analysis, B.B.’s birth mother
abandoned him before the filing of the adoption petition.23 And as
a result of that abandonment, I would hold that B.B. took his birth
father’s domicile (the Cheyenne River Sioux Reservation) by the
time of the filing. In these circumstances—when an Indian child is
domiciled on a tribe’s reservation—the plain language of the Indian
Child Welfare Act (ICWA or the Act), 25 U.S.C. §§ 1901–63, vests
exclusive jurisdiction over all child custody proceedings with the
apposite tribal court. And because ICWA requires that we dismiss
this case and cede jurisdiction to the Cheyenne River Sioux tribal
court, I respectfully dissent.
STANDARD OF REVIEW
¶58 We review questions of law for correctness, granting no
deference to the lower court’s decision. See Smith v. Robinson, 2018
______________________________________________________________________________
23 The Second Restatement of Conflict of Laws uses the rather
unfortunate verb abandon when writing about a child’s domicile,
and so I feel constrained to do the same. See, e.g., RESTATEMENT
(SECOND) OF CONFLICT OF LAWS § 22 cmt. e (AM. LAW INST. 1971)
(“[A] child domiciled with his mother and abandoned by her takes
the domicil of his father if he has not been abandoned by him.”). I
say unfortunate because in the vernacular, in the context of the
parent-child relationship, the word “abandoned” is pejorative,
conjuring up images of parents furtively leaving their infants on
the doorsteps of strangers. But in the parlance of the Second
Restatement, even the most selfless behavior can constitute
abandonment, such as when a mother places a child for adoption
with the dream of improving that child’s lot. See infra ¶¶ 100–10.
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UT 30, ¶ 8, 422 P.3d 863. And we review a district court’s findings
of fact for clear error, setting aside those findings only if they’re
against the clear weight of the evidence. See Fort Pierce Indus. Park
Phases II, III & IV Owners Assoc. v. Shakespeare, 2016 UT 28, ¶ 16, 379
P.3d 1218.
ANALYSIS
¶59 We need to decide which court has jurisdiction over this
case under ICWA. To answer that question, we have to decide
where B.B. was domiciled when the adoption petition was filed.
And to do that, we must analyze how abandonment affects an
Indian child’s domicile under ICWA.
¶60 I start with a review of ICWA and United States Supreme
Court precedent interpreting ICWA. I conclude that ICWA and
precedent mandate that courts apply a uniform federal standard of
abandonment when determining whether abandonment has
caused a change in an Indian child’s domicile. I also conclude that
the proper uniform federal standard of abandonment to establish
domicile under ICWA is set forth in section 22 of the Second
Restatement of Conflict of Laws. See RESTATEMENT (SECOND) OF
CONFLICT OF LAWS § 22 (AM. LAW INST. 1971) (hereinafter SECOND
RESTATEMENT). By assessing the facts of this case under that
standard, I show that the district court correctly determined that
C.C. (Birth Mother) abandoned B.B. before the time of filing and
that B.B. was therefore domiciled on the Cheyenne River Sioux
Reservation when the adoption petition was filed. I thus conclude
that under ICWA, the Cheyenne River Sioux tribal court has
exclusive jurisdiction over this case and that we’re obligated to
dismiss it for want of subject matter jurisdiction.
I. OVERVIEW OF ICWA
¶61 ICWA is a unique statute that represents an extraordinary
act of federal intervention into an area of law generally reserved to
the states. It helps to review both ICWA itself and United States
Supreme Court precedent interpreting ICWA before delving into
the legal analysis in this case.
A. ICWA’s Background, Congressional Findings,
and Operative Provisions
¶62 To paint a clear picture of ICWA, I begin with the Act’s
background, and then I move on to its congressional findings,
which are explicitly set forth in the Act itself. I end with its relevant
operative provisions.
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¶63 Congress passed ICWA in 1978 in response to “rising
concern in the mid–1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child welfare
practices that resulted in the separation of large numbers of Indian
children from their families and tribes through adoption or foster
care placement, usually in non-Indian homes.” Miss. Band of
Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989) (emphasis added).
Studies conducted in 1969 and 1974 estimated that 25 to 35 percent
of all Indian children had been separated from their families and
tribes and placed with adoptive families, foster care, or institutions.
Id. Furthermore, about 90 percent of such adoptive placements
were in non-Indian homes. Id. at 33.
¶64 Before enacting ICWA, Congress heard testimony from
several witnesses that spoke to the effect that these adoptions had
on Indian children, as well as on the parents and the tribes
themselves. Id. Although most of the testimony focused on the
harm to parents and children, there was also “considerable
emphasis” on the harm to the tribes themselves caused by the
“massive removal” of Indian children. Id. at 34. The Tribal Chief of
the Mississippi Band of Choctaw Indians testified, for example, that
Indian children are “the only real means for the transmission of
tribal heritage” and that the removal of Indian children to non-
Indian homes “seriously undercut[s] the tribes’ ability to continue
as self-governing communities.” Id. He also testified that “[m]any
of the individuals who decide the fate of our children are at best
ignorant of our cultural values, and at worst contemptful of the
Indian way and convinced that removal, usually to a non-Indian
household or institution, can only benefit an Indian child.” Id. at 35.
¶65 These concerns are reflected in the congressional findings
of ICWA, which state that Congress found “there is no resource
that is more vital to the continued existence and integrity of Indian
tribes than their children.” 25 U.S.C. § 1901(3). ICWA also
recognizes that Congress found “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.” Id.
§ 1901(5).
¶66 Based on these findings, Congress expressed its goal to
protect Indian tribes, families, and children from the corrosive
effect of the removal of Indian children from their families:
[I]t is the policy of this Nation to protect the best
interests of Indian children and to promote the
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Himonas, J., dissenting
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.
Id. § 1902.
¶67 The operative provisions of ICWA, in turn, reflect the
congressional findings and declaration of policy. Relevant here,
section 1911(a) provides that “[a]n Indian tribe shall have
jurisdiction exclusive as to any State over any child custody
proceeding involving an Indian child who resides or is domiciled
within the reservation of such tribe, except where such jurisdiction
is otherwise vested in the State by existing Federal law.” Id.
§ 1911(a).
¶68 ICWA, then, goes to extraordinary lengths to delineate its
own legislative intent: “to protect the rights of the Indian child as
an Indian and the rights of the Indian community and tribe in retaining
its children in its society.” Holyfield, 490 U.S. at 37 (emphasis added)
(citation omitted).
B. ICWA Domicile Under U.S. Supreme Court Precedent
¶69 Having discussed ICWA’s background, congressional
findings, and operative provisions, I now concentrate on how one
of the Act’s key terms—domicile—has been interpreted by the
United States Supreme Court.
¶70 The Supreme Court addressed and explored the issue of
domicile in an ICWA case in quite some depth. In Holyfield, the
Court had to determine whether twin Indian children were
domiciled on the Choctaw Reservation. 490 U.S. at 42. The twins
were born out of wedlock to two enrolled members of the
Mississippi Band of Choctaw Indians, both of whom were
domiciled on the Choctaw Reservation. Id. at 37. The mother gave
birth to the twins off the reservation—in Mississippi—and both
parents executed consents to adoption in Mississippi state court. Id.
at 37–38. The trial court issued a final decree of adoption a short
while later. Id. at 38. The Mississippi Band of Choctaw Indians
moved to vacate the adoption decree because, in its view, the tribal
court retained exclusive jurisdiction over the proceedings under
section 1911(a). Id. The trial court denied the motion, and the
Supreme Court of Mississippi affirmed. Id. at 38–39.
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¶71 In its opinion reversing the Supreme Court of Mississippi’s
decision, the U.S. Supreme Court began by noting that ICWA itself
does not define “domicile” and that the “meaning of ‘domicile’ in
the ICWA is . . . a matter of Congress’ intent.” Id. at 43. The initial
question the Court had to confront, then, was “whether there is any
reason to believe that Congress intended the ICWA definition of
‘domicile’ to be a matter of state law.’” Id. The Court held that there
was no reason to look to state law, and that it was “beyond dispute
that Congress intended a uniform federal law of domicile for the
ICWA.” Id. at 47. The Court based this conclusion on three
premises, two of which are unique to ICWA.
¶72 The Court began with the general premise 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) (citation
omitted). As the Court explained, the primary reason for this rule
is that “federal statutes are generally intended to have uniform
nationwide application.” Id. And conditioning the application of a
federal act on state law runs the risk that “the federal program
would be impaired.” Id. at 44 (citation omitted). The Court then
looked to the purpose of ICWA to determine what Congress
intended. In doing so, the Court found “two principal reasons” for
the conclusion that Congress intended a uniform federal definition
of domicile for ICWA. Id.
¶73 “First, and most fundamentally,” the Court found that
“the purpose of the ICWA gives no reason to believe that Congress
intended to rely on state law for the definition of a critical term;
quite the contrary.” Id. at 44. Looking to the text of ICWA, as well
as ICWA’s legislative history, the Court determined that “Congress
was concerned with the rights of Indian families and Indian
communities vis-à-vis state authorities” and that “its purpose was,
in part, to make clear that in certain situations the state courts did
not have jurisdiction over child custody proceedings.” Id. at 45. For
that reason, the Court found it “most improbable that Congress
would have intended to leave the scope of the statute’s key
jurisdictional provision subject to definition by state courts as a
matter of state law.”24 Id.
______________________________________________________________________________
24 The Court’s reference to ICWA’s “key jurisdictional
provision” is a reference to section 1911. See Holyfield, 490 U.S. at 36
(“At the heart of the ICWA are its provisions concerning
jurisdiction over Indian child custody proceedings. Section 1911
lays out a dual jurisdictional scheme.”).
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Himonas, J., dissenting
¶74 Second, the Court noted the lack of nationwide uniformity
that would result if domicile under ICWA hinged on state-law
definitions of domicile. Id. The Court then explained that different
states had ruled in opposite directions on factually similar cases
that required an underlying finding of domicile—some finding the
children to be domiciled on the reservation and others finding the
children to be domiciled in the state. Id. at 45–46. The Court found
that “a statute under which different rules apply from time to time
to the same child, simply as a result of his or her transport from one
State to another, cannot be what Congress had in mind.” Id. at 46.
¶75 Having held that Congress intended for a uniform federal
definition of domicile to control in ICWA cases, the Court then
determined what that definition should be. To do so, the Court
“look[ed] both to the generally accepted meaning of the term
‘domicile’ and to the purpose of the statute.” Id. at 47.
¶76 Citing the Second Restatement of Conflict of Laws, the
Court began by noting that domicile is “a concept widely used in
both federal and state courts for jurisdiction and conflict-of-laws
purposes, and its meaning is generally uncontroverted.” Id. at 48
(citing SECOND RESTATEMENT §§ 11–23). A child born out of
wedlock traditionally takes the domicile of its mother. Id. (citing
SECOND RESTATEMENT § 22 cmt. c). Because it was undisputed in
Holyfield that the mother was domiciled on the reservation, the
twins were also domiciled on the reservation at birth. Id. at 48–49.
¶77 The Court then explained that the domicile of the twins
could not be different “simply because the twins were ‘voluntarily
surrendered’ by their mother.” Id. at 49. This is because exclusive
tribal jurisdiction under section 1911(a) “was not meant to be
defeated by the actions of individual members of the tribe, for
Congress was concerned not solely about the interests of Indian
children and families, but also about the impact on the tribes
themselves of the large numbers of Indian children adopted by
non-Indians.” Id. The Court thus thought it clear that “a rule of
domicile that would permit individual Indian parents to defeat the
ICWA’s jurisdictional scheme is inconsistent with what Congress
intended.” Id. at 51.
II. ABANDONMENT UNDER ICWA
¶78 This case turns on where B.B. was domiciled when the
adoption petition was filed. In re Adoption of Halloway, 732 P.2d 962,
966 (Utah 1986) (“[T]he propriety of the trial court’s assumption of
jurisdiction turns on [the Indian child’s] domicile at the time these
proceedings were initiated.”). Where B.B. was domiciled depends
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on whether, for purposes of establishing B.B.’s domicile, Birth
Mother abandoned B.B. before the filing of the adoption petition.
We invited the parties to provide supplemental briefing on this
issue. More specifically, we asked the parties to brief whether
Congress intended for a uniform federal standard of abandonment
to control in ICWA cases for purposes of establishing an Indian
child’s domicile and, if so, what that standard is. I conclude that
Congress unmistakably intended for a uniform federal standard of
abandonment to control in these cases. And I further conclude that
the uniform federal standard of abandonment Congress intended
is the one in the Second Restatement of Conflict of Laws.
A. Abandonment Can Affect a Minor Child’s Domicile
¶79 Upon birth, a child acquires a “domicile of origin,” and
that domicile continues until the child acquires a new domicile. See
Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).
Because most minors are legally incapable of forming the requisite
intent to establish their own domicile, their domicile depends on
the domicile of their parents. Id. When a child is born out of
wedlock, the child’s domicile of origin is that of the mother. Id.; see
also Halloway, 732 P.2d at 966. This domicile continues until some
action brings about a change of the child’s domicile. Halloway, 732
P.2d at 966.
¶80 It is a generally accepted principle that, for conflict-of-laws
purposes, abandonment of a minor child can change that child’s
domicile. This principle can be found in both the First and Second
Restatements of Conflict of Laws. See RESTATEMENT (FIRST) OF
CONFLICT OF LAWS § 33(1) (AM. LAW INST. 1934) (“[A] child
abandoned by one parent has the domicil of the other parent, and
. . . a child abandoned by both parents has the domicil of the parent
who last abandoned it at the time of the abandonment; if both
parents abandon it at the same time, it has the domicil of the father
at the time of abandonment.”); SECOND RESTATEMENT § 22 cmt. e
(“If a child is abandoned by his father, he takes the domicil of his
mother if he has not been abandoned by her. So too, a child
domiciled with his mother and abandoned by her takes the domicil
of his father if he has not been abandoned by him. Except as stated
in Comments f–i, a child abandoned by both parents retains the
domicil possessed by the parent who last abandoned him at the
time of the abandonment; a child abandoned by both parents
simultaneously retains the domicil of the father at the time of the
abandonment.”).
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Himonas, J., dissenting
¶81 This principle can also be found in federal case law. See,
e.g., Simonds v. Simonds, 154 F.2d 326, 327–28 (D.C. Cir. 1946)
(“Customarily a legitimate child takes the domicile of the father if
he be living. One of the recognized exceptions to the basic rule has
grown from the abandonment situation. Where the father is found
to have abandoned the child it will take the domicile of the mother
during the remainder of its minority, provided, of course, that the
mother has not also abandoned the offspring.” (citations omitted)).
¶82 It turns up in state case law from around the country, too.
See, e.g., Allman v. Register, 64 S.E.2d 861, 862 (N.C. 1951)
(“Ordinarily the domicile of an unemancipated child, during its
minority, follows that of the father. However, . . . where a father
abandons the mother and child, the child’s domicile follows that of
the mother.” (citations omitted)); Halloway, 732 P.2d at 966 (“The
law of domicile applicable here is well-established. At birth, an
illegitimate child acquires the domicile of his or her mother. If the
parents abandon the child, the child acquires the domicile of the
party who stands in loco parentis to him or her and with whom he
or she lives at the time of abandonment. However, unless a child is
abandoned, or his or her domicile is otherwise lawfully changed,
the child retains the mother’s domicile, even if he or she lives apart
from her.” (citations omitted)).
¶83 Most relevant to this case is the rule that “a child domiciled
with his mother and abandoned by her takes the domicil of his
father if he has not been abandoned by him.” SECOND RESTATEMENT
§ 22 cmt. e; see also 25 AM. JUR. 2D Abandoned Child § 40 (2019) (“A
child abandoned by the mother acquires the domicil of the father
while a child abandoned by the father acquires the domicil of the
mother.”).
¶84 Here, the district court found that Birth Mother abandoned
B.B. before the filing of the adoption petition and therefore that B.B.
had taken E.T.’s (Birth Father’s) domicile by the time of filing. Thus,
the question we must answer is whether Birth Mother abandoned
B.B. before the filing. To answer that question, I first determine
what standard of abandonment applies to ICWA cases to establish
an Indian child’s domicile.25
______________________________________________________________________________
25 A footnote in Holyfield seems, at first blush, to suggest that it
isn’t a generally accepted principle that abandonment can carry out
a change in a child’s domicile. See 490 U.S. at 51 n.26 (“There is some
(continued . . .)
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B. ICWA and U.S. Supreme Court Precedent Mandate a Uniform
Federal Standard of Abandonment to Establish Domicile Under ICWA
¶85 ICWA and United States Supreme Court precedent require
the courts to determine abandonment—for the purposes of
establishing ICWA domicile—under a uniform federal standard.
The majority doesn’t decide this issue, claiming that “the principles
of abandonment in the Restatement are entirely consistent with
Utah law.” Supra ¶ 21. Unlike the majority, I would decide this
issue—given how essential it is to a proper domicile analysis—and
conclude that a uniform federal standard applies because of ICWA
itself and the U.S. Supreme Court’s decision in Holyfield.
¶86 ICWA does not mention the words “abandon” or
“abandonment,” let alone define them. But ICWA does use the
word “domicile,” and the exclusive-jurisdiction provision in
section 1911(a) depends on the Indian child’s domicile. And while
______________________________________________________________________________
authority for the proposition that abandonment can effectuate a
change in the child’s domicile, In re Adoption of Halloway, 732 P.2d
at 967, although this may not be the majority rule. See SECOND
RESTATEMENT § 22 cmt. e (abandoned child generally retains the
domicile of the last-abandoning parent).”). But the correct reading
of this footnote is that abandonment does not always necessarily
effect a change in a child’s domicile. Holyfield’s citation to
comment e of the Second Restatement proves this point.
Comment e does provide that an abandoned child generally retains
the domicile of the last-abandoning parent, as the footnote in
Holyfield suggests, but only if the child is abandoned by both
parents. SECOND RESTATEMENT § 22 cmt. e (“[A] child abandoned
by both parents retains the domicil possessed by the parent who
last abandoned him at the time of the abandonment.”). So, when
the child has been abandoned by both parents, an “abandoned
child generally retains the domicile of the last-abandoning parent,”
as Holyfield suggests. 490 U.S. at 51 n.26. In that context,
abandonment would not necessarily effect a change in a child’s
domicile—assuming the child’s domicile was already that of the
last-abandoning parent. But as comment e also provides,
abandonment can and does bring about a change in a child’s
domicile under other circumstances. See SECOND RESTATEMENT § 22
cmt. e (“If a child is abandoned by his father, he takes the domicil
of his mother if he has not been abandoned by her. So too, a child
domiciled with his mother and abandoned by her takes the domicil
of his father if he has not been abandoned by him.”).
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ICWA itself does not define “domicile,” the U.S. Supreme Court
did so in Holyfield.
¶87 As discussed above, see supra ¶¶ 72–74, the Holyfield court
found that it is “most improbable that Congress would have
intended to leave the scope of [section 1911] subject to definition by
state courts as a matter of state law” and that “a statute under
which different rules [of domicile (and thus of jurisdiction)] apply
from time to time to the same child, simply as a result of his or her
transport from one State to another, cannot be what Congress had
in mind.” 490 U.S. at 45–46. Holyfield therefore held that “Congress
intended a uniform federal law of domicile for the ICWA.” Id. at 47.
So, while we may lack explicit guidance on the narrow issue of how
abandonment affects domicile under ICWA, we emphatically don’t
lack for guidance on how the law of domicile is supposed to
function under ICWA.
¶88 If there’s to be a true uniform federal law of domicile for
ICWA, then subsidiary determinations that effectively determine
the domicile question, such as abandonment, must also rest on
uniform federal law.26 If different standards of abandonment were
to apply to the domicile inquiry depending on the state in which
the proceeding takes place, then the work of Holyfield requiring a
uniform federal law of domicile for ICWA would be all but undone.
Applying state abandonment law to determine domicile would
lead to an ICWA “under which different rules [of domicile (and
thus of jurisdiction)] apply from time to time to the same child,
simply as a result of his or her transport from one State to another,”
a result that Holyfield declared “cannot be what Congress had in
mind.” Id. at 46. So, I think it beyond dispute that, given Congress’s
intent to have a uniform federal law of domicile to control in ICWA
cases, Congress also intended for a uniform federal standard of
abandonment to establish domicile under ICWA.
C. The Uniform Federal Standard of Abandonment
Is in the Second Restatement of Conflict of Laws
¶89 Having established that a uniform federal standard of
abandonment must control in ICWA cases to determine domicile, I
now turn to what that standard is. After considering the parties’
arguments and surveying domicile law, I conclude that the best
recitation of a uniform federal standard of abandonment to
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26“Whether a child has been abandoned so as to bring the case
within the scope of this Comment is a question involving the rules of
domicil.” SECOND RESTATEMENT § 22 cmt. e (emphasis added).
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determine domicile in ICWA cases is in the Second Restatement of
Conflict of Laws: “An abandonment [for purposes of establishing
the domicile of a minor] occurs in two situations. It occurs when
the parent deserts the child; it likewise occurs when the parent
gives the custody of the child to another with the intention of
relinquishing his parental rights and obligations.” SECOND
RESTATEMENT § 22 cmt. e; accord Halloway, 732 P.2d at 966 (“As a
general matter, abandonment occurs when a parent deserts a child
or places a child with another with an intent to relinquish all
parental rights and obligations.”). Thus, I would hold that, to
determine domicile in ICWA cases, an abandonment occurs when:
(1) a parent deserts their child; or (2) a parent gives the custody of
their child to another with the intention of relinquishing their
parental rights and obligations, which is precisely what occurs in
an adoption. I reach this conclusion for many reasons.
¶90 Restatements generally provide a helpful overview of the
law as it exists across the country. “Restatements of law published
by the American Law Institute purport to offer a synthesis of
American common law, which articulates the reasoned,
mainstream, modern consensus on principles of broad application
intended to govern large numbers of cases.” Tincher v. Omega Flex,
Inc., 104 A.3d 328, 353 (Pa. 2014). This means that restatements can
be especially useful in a case such as this in which we must explain
a uniform federal standard without express direction from
Congress.27
¶91 Beyond just having theoretical value as a bellwether of
what uniform federal standard of abandonment should apply here,
the Second Restatement has been central to ICWA cases that turn
on a determination of an Indian child’s domicile.
¶92 Perhaps most importantly, the United States Supreme
Court relied heavily on the Second Restatement in deciding
Holyfield. The Holyfield majority cited the Second Restatement’s
chapter on domicile for the proposition that domicile is “a concept
widely used in both federal and state court for jurisdiction and
______________________________________________________________________________
27 In this spirit, this court has previously looked to restatements
to help gain a better understanding of certain law as it exists across
the country. For example, this court recently looked to restatements
“as helpful bookends in our survey of the ‘generally recognized
[law] in a majority of jurisdictions.’” C.R. England v. Swift Transp.
Co., 2019 UT 8, ¶ 18, 437 P.3d 343 (alteration in original) (citation
omitted).
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IN RE ADOPTION OF B.B.
Himonas, J., dissenting
conflict-of-laws purposes, and its meaning is generally
uncontroverted.” 490 U.S. at 48 (citing SECOND RESTATEMENT §§ 11–
23). The Holyfield majority also cited the Second Restatement for the
proposition that children born out of wedlock traditionally take the
domicile of their mother at birth. Id. (citing SECOND RESTATEMENT
§ 22 cmt. c). Both propositions were crucial to the Court’s
conclusion that, under generally accepted law of domicile, the
twins took the domicile of their biological mother at birth. See id. at
48–49 (“It is undisputed in this case that the domicile of the mother
(as well as the father) has been, at all relevant times, on the Choctaw
Reservation. Thus, it is clear that at their birth the twin babies were
also domiciled on the reservation, even though they themselves
had never been there.” (citation omitted)).
¶93 Even the dissent in Holyfield contemplated the
abandonment issue and drew from the Second Restatement in its
analysis. The dissent pointed out that the twins in Holyfield may
have been abandoned by both parents. Id. at 62. And the dissent
turned to the Second Restatement for a standard of abandonment:
“[a]n abandonment occurs when a parent deserts a child and places
the child with another with an intent to relinquish all parental
rights and obligations.” Id. (citing SECOND RESTATEMENT § 22
cmt. e). So, while the Holyfield majority didn’t address the issue of
abandonment—and therefore we have no binding Supreme Court
precedent on the issue—it’s persuasive that both the majority and
the dissent chose to draw heavily from the Second Restatement,
with the latter raising it in its discussion of abandonment. At the
very least, this gives us some insight into what the Supreme Court
might consider to be a uniform federal standard for abandonment
when determining domicile in ICWA cases.
¶94 The U.S. Supreme Court isn’t the only court to have looked
to the Restatement when faced with the issue of an abandonment
potentially affecting domicile in an ICWA case. Quite the opposite.
The Restatement’s standard for abandonment appears to be a
mainstay of post-Holyfield opinions that have confronted this issue.
In In re Adoption of S.S., the Illinois Supreme Court cited the
Restatement when it recognized that there are exceptions to the
general rules of domicile in cases involving abandonment and that
“[f]or purposes of establishing domicile, abandonment occurs
when the parent deserts the child or when the parent gives custody
of the child to another with the intention of relinquishing his
parental rights and obligations.” 657 N.E.2d 935, 942 (Ill. 1995).
Similarly, the Colorado Court of Appeals has concluded that the
common-law concept of abandonment in the Restatement and cited
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Himonas, J., dissenting
in the Holyfield dissent could properly “determine whether the
child [in that case] has been abandoned so as to change his domicile
for the purpose of determining jurisdiction under the ICWA.” In re
S.M.J.C., 262 P.3d 955, 962 (Colo. App. 2011), cert. granted, judgment
vacated, No. 11SC371, 2011 WL 4018031 (Colo. Sept. 12, 2011).28
Likewise, the Western District of Oklahoma has relied on the
Restatement in assessing how abandonment affects the domicile of
an Indian Child. Comanche Indian Tribe of Okla. v. Hovis, 847 F. Supp.
871, 880–84 (W.D. Okla. 1994), rev’d on other grounds, Comanche
Indian Tribe of Okla. v. Hovis, 53 F.3d 298 (10th Cir. 1995). Although
the Western District of Oklahoma didn’t discuss the standard for
abandonment set out in comment e to section 22 of the Second
Restatement—and relied on by the Holyfield dissent, In re Adoption
of S.S., and In re S.M.J.C.—the court did cite extensively to section
22 generally in making its abandonment determination. Id. at 880–
84. In sum, these cases demonstrate that courts at both the federal
and state levels have turned to the Restatement to assess whether
an abandonment has effectuated a change of domicile in ICWA
cases.
¶95 Given the general purpose of the Restatement—to survey
broad swaths of common law and distill widely applicable rules of
law—and given the citations to the Second Restatement in ICWA
cases from courts across the country, I believe that the standard of
abandonment in the Second Restatement is the best approximation
of the uniform federal standard Congress intended. As a result, an
abandonment occurs for purposes of establishing domicile in
ICWA cases when (1) a parent deserts their child or (2) a parent
______________________________________________________________________________
28 The Colorado Supreme Court vacated the judgment in In re
S.M.J.C. and remanded to the trial court for factual findings on the
issue of abandonment in light of its ruling in D.P.H. v. J.L.B., 260
P.3d 320 (Colo. 2011), which was a non-ICWA case that clarified the
factual findings that a trial court must make before making a
finding of abandonment for purposes of terminating parental
rights, see id. at 324–26. To the extent that the Colorado Supreme
Court intended for the In re S.M.J.C. trial court to rely on state
standards of abandonment for terminating parental rights on
remand in order to make a determination of domicile in an ICWA
case, I respectfully submit that this isn’t what Congress intended.
See supra ¶¶ 85–88.
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IN RE ADOPTION OF B.B.
Himonas, J., dissenting
gives custody of their child to another with the intention of
relinquishing their parental rights and obligations.29
D. Caveats to Second Restatement Standard
¶96 Having identified a uniform federal standard of
abandonment, I now quickly note two caveats to the Restatement
standard that are dictated by ICWA.
¶97 First, the language in the Second Restatement stating that
the “rules of the forum are applied . . . to determine whether an
abandonment has taken place” is inapplicable in ICWA cases.
SECOND RESTATEMENT § 22 cmt. e. Instead, the rules applied in
ICWA cases are simply the rules from the Second Restatement itself
as I have set forth in this dissenting opinion. This is so because
Holyfield requires a uniform federal law of domicile in ICWA cases.
For that reason, the Holyfield court similarly concluded that because
Congress could not have intended for different rules of domicile to
apply simply as a result of an Indian child’s transport from state to
state, “the general rule [from the Second Restatement] that domicile
is determined according to the law of the forum can have no
application here.” 490 U.S. at 46 n.21 (citation omitted). Because
domicile can turn on abandonment, the abandonment inquiry must
also be conducted on a uniform federal basis, not according to the
rules of the forum.
¶98 Second, I agree with the Illinois Supreme Court that “the
doctrine of abandonment cannot be used by Native American
______________________________________________________________________________
29 Appellants R.K.B. and K.A.B. rightly point out that ICWA
requires the application of state law if the relevant state law
provides a higher standard of protection of parental rights to an
Indian child than those provided under ICWA. See 25 U.S.C. § 1921.
This “ensur[es] that parents of Indian children enjoy the highest
level of protection of their parental rights available.” In re Adoption
of B.B., 2017 UT 59, ¶ 67, 417 P.3d 1. R.K.B. and K.A.B. argue that
Utah state abandonment law should apply here if that application
would result in greater protection of Birth Mother’s rights, such as
her right to have the consequences of a voluntary relinquishment
explained to her under section 1913(a), her right to withdraw her
consent to adoption at any time prior to the entry of a final decree
under section 1913(c), and her right to object to transfer to a tribal
court under section 1911(b). These arguments are totally misplaced,
however, because a finding of abandonment for purposes of
establishing an Indian child’s domicile doesn’t affect Birth Mother’s
parental rights under ICWA. Infra ¶¶ 128–32.
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Indian parents as part of a scheme to facilitate adoption of their
children by non-Indians while they remain domiciliaries of the
reservation.” In re Adoption of S.S., 657 N.E.2d at 942. This exception
aligns with our decision in Halloway, in which this court expressed
that Utah’s abandonment law “conflicts with and undermines the
operative scheme established by [section 1911(a)] to deal with
children of domiciliaries of the reservation and weakens
considerably the tribe’s ability to assert its interest in its children”
if it “operates to permit [a parent] to change [a child’s] domicile as
part of a scheme to facilitate [the child’s] adoption by non-Indians
while [the parent] remains a domiciliary of the reservation.” 732
P.2d at 969. It also fits the United States Supreme Court’s decision
in Holyfield, which cited Halloway favorably and concluded, “We
agree with the Supreme Court of Utah that the law of domicile
Congress used in the ICWA cannot be one that permits individual
reservation-domiciled tribal members to defeat the tribe’s exclusive
jurisdiction by the simple expedient of giving birth and placing the
child for adoption off the reservation.” 490 U.S. at 53. Because I
ultimately conclude that exclusive jurisdiction lies with the
Cheyenne River Sioux tribal court, see infra ¶ 137, I need not
consider this exception here.
III. BIRTH MOTHER ABANDONED B.B.
¶99 I next turn to the issue of whether Birth Mother abandoned
B.B. under the uniform federal standard of abandonment. I agree
with the majority that Birth Mother was domiciled in Utah when
the adoption petition was filed.30 Below, I show that Birth Mother
had abandoned B.B. for the purposes of domicile by the time the
adoption petition was filed. Then I show why, under the
Restatement standard, the majority errs by holding that B.B.’s
domicile didn’t shift to that of his father before the filing.
______________________________________________________________________________
30 I note, however, that Birth Mother submitted an affidavit in
the district court after this appeal was filed that cuts against that
finding. She testified in the affidavit that “she went to Utah to have
the baby because [she] did not want anyone interfering with [her]
choice of putting [her] son up for adoption,” that “she told people
[she] was going to Utah for other reasons, but the adoption was the
actual reason,” and that she “intended to return to South Dakota
after placing [her] son for adoption.” But I don’t consider this
affidavit on appeal because it’s not part of the appellate record, was
unavailable to the district court when making its decision, and
hasn’t been brought to our attention by the parties.
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IN RE ADOPTION OF B.B.
Himonas, J., dissenting
A. Birth Mother Gave Up Custody of B.B. with
the Intention of Relinquishing Her Parental Rights
¶100 Whether Birth Mother gave custody of B.B. to another
with the intent to relinquish her parental rights is a question of fact
that this court reviews for clear error. See Fort Pierce Indus. Park
Phases II, III & IV Owners Assoc. v. Shakespeare, 2016 UT 28, ¶ 16, 379
P.3d 1218. The district court found that “Birth Mother abandoned
B.B. as that term is used in . . . the Restatement (Second) of Conflict
of Laws § 22 Comment e.” Because I find ample support for the
district court’s factual findings in the record, I conclude that the
district court’s findings were not clearly erroneous.
¶101 The district court found that Birth Mother had
abandoned B.B. for three reasons: (1) “Birth Mother, prior to B.B.’s
birth, intended to relinquish all parental rights and obligations”;
(2) “just over 24 hours after birth she formally relinquished her
parental rights”; and (3) “she then came into Court a few days later
to again relinquish her parental rights—executing the consent to
adoption in court.” The district court also found that Birth Father
was domiciled on the Cheyenne River Sioux Reservation when the
adoption petition was filed. That’s why the district court found that
B.B.’s domicile at that time was the Cheyenne River Sioux
Reservation.
¶102 To support a finding of abandonment under the Second
Restatement, Birth Mother must have either (1) deserted B.B. or
(2) given custody of B.B. to another with the intention of
relinquishing her parental rights and obligations. Neither party
asserts that Birth Mother deserted B.B.; nor did the district court
make any factual findings on that question. So, I review the district
court’s findings only as to the second type of abandonment—
whether Birth Mother gave custody of B.B. to another with the
intent to relinquish her parental rights before the adoption petition
was filed. She unquestionably did so.
¶103 First, Birth Mother gave up custody of B.B. before the
adoption petition was filed. Although the district court’s ruling
does not directly discuss whether Birth Mother had given up
custody of B.B. by the petition’s filing, the parties agree—and the
record supports a finding—that Birth Mother had indeed done so.
And when asked at oral argument, appellants R.K.B. and J.K.B.
confirmed that they had taken physical custody of B.B. before the
filing. This is also corroborated by the transcript of a hearing on the
adoption petition held after the filing, in which the judge remarked
that R.K.B. and J.K.B. had “a beautiful little [baby] with [them] [that
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day],” showing that B.B. arrived to court that day with R.K.B. and
J.K.B. So although the district court didn’t make an explicit finding
of fact about whether Birth Mother gave up custody of B.B. before
the filing of the adoption petition, neither party disputes this fact
and the record evidence supports such a finding. I thus conclude
that Birth Mother had given up custody of B.B. by the time the
adoption petition was filed.
¶104 Second, the district court didn’t clearly err in finding that
Birth Mother intended to relinquish her parental rights. Birth
Mother formed the intent to place B.B. for adoption months before
delivery. At her deposition, Birth Mother said that she first decided
to place B.B. for adoption “probably a couple months into the
pregnancy . . . like two, three months into the pregnancy.” She also
said that she first contacted the adoption agency, Heart to Heart,
four to five months before B.B.’s birth.
¶105 Birth Mother not only formed an intent to place B.B. for
adoption, but she also followed through on that intent soon after
B.B.’s birth. Just twenty-four hours after B.B.’s birth, Birth Mother
signed a notarized document titled “Relinquishment of Parental
Rights and Consent of Natural Birth Mother to Adoption.” Both the
introductory and concluding paragraphs of that document provide
that “[b]y signing this document you are giving up your rights as a
parent” and that “[y]ou cannot revoke the consent to your child’s
adoption once you sign this document.” And the last line item that
Birth Mother initialed states, “I understand that if I choose
adoption for my child and sign the relinquishing papers, all my
rights and responsibilities for this child will be ended, and that my
consent is final, irrevocable and legally binding.” The consent to
adoption also states, “I, [Birth Mother] do hereby relinquish and
surrender said child for adoption to: Heart to Heart Adoptions.”
Birth Mother initialed every line item and signed the consent to
adoption.
¶106 To be sure, this consent to adoption would not be legally
sufficient to terminate Birth Mother’s parental rights under ICWA,
which prohibits any consent being given within ten days after the
birth of an Indian child. See 25 U.S.C. § 1913(a). But it’s still highly
indicative of Birth Mother’s intent to relinquish her parental rights
for the purposes of abandonment. See Holyfield, 490 U.S. at 62 n.11
(Stevens, J., dissenting) (“[E]ven a consent to adoption that does not
meet statutory requirements may be effective to constitute an
abandonment and change the minor’s domicile.”); In re Adoption of
M.L.L., 810 N.E.2d 1088, 1092 (Ind. Ct. App. 2004) (holding that a
birth mother abandoned her child for purposes of jurisdiction
43
IN RE ADOPTION OF B.B.
Himonas, J., dissenting
under the Uniform Child Custody Jurisdiction Act when she took
the child to live with a couple in another state, “signed a consent to
guardianship and a consent to adopt, and helped them pack [her
child’s] belongings, including [the child’s] birth certificate and
social security card”).
¶107 Apparently not content with signing only the consent to
adoption, Birth Mother also signed a statement about paternity in
which she fraudulently named her brother-in-law as the biological
father of B.B. Based on this misrepresentation, Heart to Heart and
counsel for R.K.B. and J.K.B. had Birth Mother’s brother-in-law sign
an affidavit declaring that he was B.B.’s biological father,
relinquishing his rights to B.B., consenting to the adoption, and
declaring that he was neither an enrolled member of nor eligible for
membership in a Native American tribe. As we noted in In re
Adoption of B.B., Birth Mother seems to have had her brother-in-law
sign the affidavit “in order to make the adoption go faster.” 2017
UT 59, ¶ 87, 417 P.3d 1.
¶108 Birth Mother’s actions before the filing are sufficient on
their own to support a finding of abandonment, but her
postpetition actions confirm that she intended to relinquish her
parental rights by the time the adoption petition was filed.
Specifically, Birth Mother, a few days after the filing, appeared in
court and signed a document entitled “Voluntary Relinquishment
of Parental Rights, Consent to Adoption, and Consent to Entry of
Order Terminating Parental Rights.” In this sworn document, Birth
Mother stated, “I hereby voluntarily relinquish permanently and
completely all of my parental rights and interests in the
guardianship, custody, care and control of B.B. to Heart to Heart
Adoptions.” She also reaffirmed her earlier untrue statement that
her brother-in-law was B.B.’s biological father and confirmed that
she understood that, by voluntarily relinquishing her parental
rights, she would “be relieved of all parental duties, obligations
and responsibilities” and “have no further rights regarding future
care, custody, visitation or adoption” of B.B.
¶109 Appellants R.K.B. and K.A.B. argue that this postpetition
reaffirmation is irrelevant to whether Birth Mother abandoned B.B.
before the petition. I disagree because the reaffirmation helps
clarify Birth Mother’s intent before the filing, much in the same way
district courts may “allow parties to use post-breach evidence to
establish and measure their expectation damages.” Trans–W.
Petroleum, Inc. v. U.S. Gypsum Co., 2016 UT 27, ¶ 21, 379 P.3d 1200.
The district court thus didn’t abuse its discretion by considering it.
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Himonas, J., dissenting
¶110 In sum, the record evidence confirms the district court’s
finding that Birth Mother intended to relinquish her parental rights
to B.B. by the time the adoption petition was filed.
B. The Majority Errs in Interpreting and
Applying the Second Restatement Standard
¶111 The majority holds that “giving up custody and signing
consent forms in order to start the formal adoption process does
not itself constitute abandonment under the text of the
Restatement.” Supra ¶ 38. It also holds that B.B.’s domicile did not
shift to that of his birth father at the time of the filing. Supra ¶ 2.
That holding is based mainly on a misreading of the Second
Restatement but also on some faulty assumptions about
abandonment in the domicile context.
¶112 The proper interpretation of the Second Restatement—
that the domicile of a child born out of wedlock switches to that of
his father upon being abandoned by his mother—flows from a
straightforward reading of its text. That’s all that we need because
the Second Restatement addresses head-on how to determine the
domicile of a child born out of wedlock. The analysis it provides is
simple and starts with the general rule in comment c that a child
born out of wedlock “has the domicil of his mother.” SECOND
RESTATEMENT § 22 cmt. c. Comment c then points us to comments e
through i for exceptions to this general rule. Id. Two of these
exceptions merit some discussion here. One kicks in when the child
born out of wedlock is abandoned (comment e). Id. cmt. e. The
other comes into play when the child born out of wedlock becomes
adopted (comment g). Id. cmt. g.
¶113 I discuss comment g below; for now, I focus on
comment e. Comment e, entitled “abandoned child,” states that a
“child domiciled with his mother and abandoned by her takes the
domicil of his father if he has not been abandoned by him.” Id.
cmt. e. What it means to abandon a child is also found in
comment e: “An abandonment, as the term is used here, . . . occurs
when the parent deserts the child; it likewise occurs when the
parent gives the custody of the child to another with the intention
of relinquishing his parental rights and obligations.” Id.
¶114 These provisions are clear-cut. A child born out of
wedlock has the domicile of his mother. Id. cmt. c. That means that
B.B. (a child born out of wedlock) would normally have Birth
Mother’s domicile. But if the mother abandons the child—if the
mother deserts the child or “gives the custody of the child to
another with the intention of relinquishing [her] parental rights and
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Himonas, J., dissenting
obligations”—the child “takes the domicil of his father if he has not
been abandoned by him.” Id. cmt. e.
¶115 One crucial question thus determines the outcome of this
appeal: Did Birth Mother, before the adoption petition’s filing,
abandon B.B. by giving custody of B.B. to another with the
intention of relinquishing her parental rights and obligations? The
answer, as shown above, is unquestionably yes. Supra ¶¶ 100–10.
And, as a result, B.B. took the domicile of Birth Father (the
Cheyenne River Sioux Reservation), giving the tribal court
exclusive jurisdiction over B.B.’s adoption proceedings.
¶116 The majority rejects this uncomplicated analysis,
misreading the Second Restatement. First, it eschews the Second
Restatement’s clear provisions, almost ignoring its key provisions
while overemphasizing irrelevant ones. Second, it confuses
abandonment in the domicile context with abandonment in the
termination-of-parental-rights context. Third, it asserts that if the
abandonment standard that I endorse “were correct, then the
parents in Holyfield would have abandoned their children and
shifted their children’s domicile off the reservation.” Supra ¶ 51.
1. The Majority Misinterprets the Second Restatement
¶117 The majority misinterprets section 22 of the Second
Restatement in two key ways. First, it errs by concluding “that the
domicile of a child born out of wedlock will transfer to the domicile
of the biological father only in limited circumstances—such as
when he marries the child’s biological mother.” Supra ¶ 26. Second,
it errs by assuming that abandonment for the purposes of domicile
doesn’t apply in the adoption context. Supra ¶ 25. These errors are
intertwined, and so I discuss each of them throughout this section.
¶118 The majority correctly recognizes the general rule for the
domicile of a child born out of wedlock, which is in comment c.
Supra ¶ 26. But it doesn’t pay respect to a key exception that
comment c scoops out of that general rule: the exception for
abandoned children (comment e). SECOND RESTATEMENT § 22
cmt. e. The majority discards comment e because it believes that “a
birth mother’s relinquishment of custody and signing away of
parental rights in the formal adoption context does not amount to
an ‘abandonment’ because it is not done with the ‘intention of
relinquishing . . . parental rights and obligations’ immediately or
unconditionally (let alone with an intent to surrender rights and
obligations to an unmarried biological father who is not even a
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party to the adoption).”31 Supra ¶ 25 (footnote omitted) (alteration
in original).
¶119 Practically speaking, under the majority’s standard,
whenever an adoption looms in the background, comment e
doesn’t apply and a child’s domicile doesn’t change until an
adoption is completed—even if a birth mother shows an intent to
relinquish her parental rights and gives up custody of the child
before the adoption petition’s filing. Supra ¶ 27 (“[A] mother taking
a step toward an adoption that is not yet final cannot amount to an
immediate and unconditional intent to relinquish her parental
rights and obligations (an abandonment) . . . .”). The majority
characterizes “birth mother’s surrender of custody and waiver of
her parental rights and obligations in the context of a formal
adoption” as “certainly evinc[ing] an intent to eventually turn over
parental rights and obligations to a specific, state-vetted adoption
agency or couple.” Supra ¶ 25. But it holds that those actions don’t
qualify as abandonment because a birth mother doesn’t “intend[]
to immediately and unconditionally relinquish parental rights and
obligations—walk away from or ‘abandon’ her child—when she
chooses to put her child up for formal adoption rather than simply
leave him at the doorstep, daycare center, or family friend’s home.”
Supra ¶ 25. By so holding, not only does the majority inject new
qualifiers into the abandonment standard—“immediately and
unconditionally”—it also ignores comment e’s directive to examine
Birth Mother’s “intention” for giving up custody. See SECOND
RESTATEMENT § 22 cmt. e. Under comment e, if Birth Mother gave
custody of B.B. to the adoption agency “with the intention of
relinquishing [her] parental rights and obligations,” she has
abandoned the child for purposes of domicile. Id. It doesn’t matter
whether she was successful in relinquishing those rights and
obligations, as long as she intended to. By signing the
relinquishment forms here (which provided that “[b]y signing this
document you are giving up your rights as a parent” and that
“[y]ou cannot revoke the consent to your child’s adoption once you
sign this document”), Birth Mother clearly intended to relinquish
______________________________________________________________________________
31 I don’t advocate that Birth Mother’s abandonment
relinquished her parental rights to anyone. I’m merely saying that
she gave custody of B.B. to another with the intention of
relinquishing her parental rights, thereby effecting an
abandonment under the Second Restatement, which changed B.B.’s
domicile (but left her parental rights fully intact).
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Himonas, J., dissenting
her parental rights and obligations32—even though she didn’t
accomplish that goal—and she, to that end, abandoned B.B. for
purposes of domicile.
¶120 Besides holding that comment e doesn’t apply because
Birth Mother didn’t abandon B.B., the majority makes it very hard
for the domicile of a child born out of wedlock to change to that of
the birth father, even if the birth mother has abandoned the child:
“[T]he domicile of a child born out of wedlock will transfer to the
domicile of the biological father only in limited circumstances—
such as when he marries the child’s biological mother.” Supra ¶ 26.
Under the majority’s reading of the Restatement, then,
abandonment can never change the domicile of a child born out of
wedlock to that of the birth father. See supra ¶ 36 (declining to apply
comment e because the comment “starts from a place from which
we know for a fact B.B. did not—a birth in wedlock” (emphasis
added)). In the majority’s view, other than the presence of potential
other unnamed “limited circumstances,” only marriage between
the child’s biological parents can do so. Supra ¶ 26.
¶121 This interpretation is wrong, given that comment c—the
comment about the domicile of a child born out of wedlock—points
to abandonment under comment e as a way for the domicile of a
child born out of wedlock to switch from that of the mother to that
of someone else. SECOND RESTATEMENT § 22 cmt. c. Comment e, in
turn, states that a “child domiciled with his mother and abandoned
by her takes the domicil of his father if he has not been abandoned
by him.” Id. cmt. e. Read in conjunction with comment c, the
reference to “father” in comment e logically refers to the father of
the child born out of wedlock (at least when determining the
domicile of a child born out of wedlock).
¶122 As supposed support for its conclusion, the majority
relies first on comments a and c of section 22 of the Second
Restatement—which are about the domicile of fathers and children
born out of wedlock, respectively—and then on comment g, which
is about adopted children. Supra ¶¶ 25–27. I now examine each of
these comments.
¶123 I turn first to comments a and c. The majority recognizes
that there are exceptions to when the domicile of a child born out
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32This is strong evidence that Birth Mother even intended to
“immediately and unconditionally relinquish” her parental rights
and obligations, if I were to apply the majority’s abandonment
standard.
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of wedlock follows the domicile of the mother. Supra ¶ 26. Indeed,
comment c announces that “[a]n illegitimate child has the domicil
of his mother, except as stated in Comments e–i.” SECOND
RESTATEMENT § 22 cmt. c. Comment c also says that “[u]pon a
change of domicil by the mother during the child’s minority, the
child takes the mother’s new domicil whether the child lives with
the mother or not, except as stated immediately below and in
Comments e–i.” Id. (emphasis added).
¶124 The majority latches onto the exceptions “stated
immediately below” and doesn’t let go of them. Supra ¶ 26. There
are two exceptions listed. First, “[t]he child’s domicil will not follow
that of a stepfather.” SECOND RESTATEMENT § 22 cmt. c. Second,
“[a]fter the mother’s marriage to a man who is not the child’s father,
the child’s domicil will be that of the mother.” Id. The majority
relies on these exceptions to conclude “that the domicile of a child
born out of wedlock will transfer to the domicile of the biological
father only in limited circumstances—such as when he marries the
child’s biological mother.” Supra ¶ 26. This conclusion, says the
majority, is reinforced by comment a, which says “that a child born
in wedlock ‘is assigned the father’s domicil.’” Supra ¶ 26 (citing
SECOND RESTATEMENT § 22 cmt. a).
¶125 This is flatly wrong. Not only does the majority ignore
the relevant comment—comment e—neither exception in
comment c “stated immediately below” applies here. No stepfather
is involved, and B.B.’s domicile hasn’t changed because of a
marriage. Although the exceptions imply that children born out of
wedlock take their father’s domicile upon their father’s marriage to
their mother, they do not say or imply that the only way for children
born out of wedlock to take their father’s domicile is for their
mother to marry him. And, as mentioned above, comment c—the
comment about the domicile of children born out of wedlock—
incorporates abandonment under comment e, proving that the
domicile of a child born out of wedlock can change as a result of an
abandonment. SECOND RESTATEMENT § 22 cmt. c. And comment e
even tells us how the child’s domicile can change upon being
abandoned by the mother: it switches to that of the father. Id. cmt. e.
¶126 Having discussed comments a and c, I now touch upon
comment g—the comment about the effect of adoption on a child’s
domicile. This comment is irrelevant to this case. Comment g
merely tells us the domicile of an adopted child: an adopted child
“takes the domicil of the adoptive parent” but only at the “moment
of adoption.” SECOND RESTATEMENT § 22 cmt. g. Discussing
comment g, the majority asserts that the “shift in [the child’s]
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IN RE ADOPTION OF B.B.
Himonas, J., dissenting
domicile does not take place until the adoption is final.” Supra ¶ 27.
I agree. But here we aren’t concerned about whether B.B. has taken
the domicile of adoptive parents; he isn’t an adopted child. We care,
rather, only about whether B.B. took the domicile of his birth father
before the adoption petition was filed. Halloway, 732 P.2d at 966
(“[T]he propriety of the trial court’s assumption of jurisdiction
turns on [the Indian child’s] domicile at the time these proceedings
were initiated.”). But comment g doesn’t help us decide that issue.
Under comment g, when an adoption is contemplated for a child,
that child’s domicile doesn’t flip to that of the adoptive parents until
the adoption is final. But comment g doesn’t say or imply that—
before an adoption petition is filed—the child’s domicile can’t
change to that of the birth father, even when an adoption is
contemplated. It most certainly can. Comments c and e allow that
to happen through abandonment. SECOND RESTATEMENT § 22
cmts. c, e. So, comments c and e—not comment g—are the relevant
provisions here.
¶127 In all its discussion, the majority merely glosses over
comment c’s reference to comment e—the comment about
abandonment. This, perhaps, is because the majority’s
interpretation, practically speaking, doesn’t apply comment e’s
provision on abandonment whenever the abandoning parent
contemplates a future adoption. Supra ¶¶ 25, 27. That cannot be. In
defining abandonment, comment e uses language about “the
intention of relinquishing . . . parental rights and obligations.”
SECOND RESTATEMENT § 22 cmt. e. That language is a term of art that
repeatedly appears in the adoption context.33 And it makes sense
______________________________________________________________________________
33 See, e.g., In re Estate of Hannifin, 2013 UT 46, ¶ 13, 311 P.3d 1016
(discussing agreements in which “a child’s parents agree with the
adoptive parents to relinquish all their rights to the child” (citation
omitted)); State ex rel. N.M., 2018 UT App 141, ¶ 13, 427 P.3d 1239
(chronicling how a birth mother “advised the court that she wished
to relinquish her parental rights to Child to allow Maternal
Grandparents to adopt Child”); State ex rel. E.C., 2015 UT App 227,
¶ 4, 359 P.3d 1264 (per curiam) (noting that the mother
“relinquish[ed] her parental rights so that the children could be
adopted”); State ex rel. J.C.R., 2011 UT App 263, ¶ 3, 259 P.3d 1076
(per curiam) (noting that a father had “confirmed that he wished to
voluntarily relinquish his parental rights to his children, and
acknowledged that he would have no further rights regarding the
children’s future care, custody, visitation, or adoption”); State ex rel.
(continued . . .)
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that adoption-like language appears in a section about
abandonment and domicile, given that many courts have
recognized that the actions a parent takes while contemplating an
adoption can arise to an abandonment, thus changing the child’s
domicile or otherwise affecting the court’s jurisdiction.34
Comment e thus suggests that abandonment applies in the
adoption context and that events preceding an adoption petition’s
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M.M., 2000 UT App 151U, para. 1 (dismissing a challenge to an
adoption that alleged that the State “fraudulently misrepresented
[the birth mother’s] competency to voluntarily relinquish her
parental rights and consent to her child’s adoption”); In re Adoption
of J.J., 1999 UT App 362, ¶ 1, 993 P.2d 257 (per curiam) (noting that
a mother “signed a relinquishment of parental rights believing her
children would be adopted by . . . relatives”); In re Adoption of Infant
Anonymous, 760 P.2d 917, 918, 920 (Utah Ct. App. 1988) (holding
that a consent to adoption—which stated, “I hereby relinquish all
of my parental rights”—was knowing and voluntary).
34 See, e.g., Halloway, 732 P.2d at 967 (recognizing that “the trial
court properly could find” that a child’s natural mother abandoned
him before appearing in court and signing a consent to adoption
when she “learned that [her child] was in an adoptive home and
that an adoption was contemplated, yet she permitted him to
remain there” and holding that “[u]nder traditional rules of law,
[the child’s] domicile” would’ve changed at that time); In re
Adoption of M.L.L., 810 N.E.2d at 1092 (holding that a birth mother
abandoned her child for the purposes of jurisdiction when, before
the filing of the adoption petition, she requested that others take
the child “to live with them in [another state], signed a consent to
guardianship and consent to adopt, and helped them pack [her
child’s] belongings, including [her child’s] birth certificate and
social security card”); In re Guardianship of Brazeal, 254 P.2d 886, 887
(Cal. Dist. Ct. App. 1953) (holding that birth parents abandoned
their child for the purposes of the minor’s residence and
jurisdiction when they gave custody of their child to another couple
shortly after the child’s birth with the “express understanding . . .
that they should raise the child as their own child and that the child
should not be informed as to her true parents” and the birth parents
urged the couple to legally adopt the child).
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Himonas, J., dissenting
filing can effect a change in the domicile of a child born out of
wedlock. That’s what happened here.35
2. The Majority Confuses Abandonment in the Domicile Context
with Abandonment in the Context of Termination of Parental
Rights
¶128 Besides misinterpreting the Second Restatement, the
majority jumbles abandonment in the domicile context with
abandonment in the context of termination of parental rights. It
holds that the “district court . . . erred in its determination that
[Birth Mother’s] relinquishment forms in the formal adoption
context constituted an ‘abandonment’ that resulted in the
establishment of a perfected legal relationship between the child
and his unwed biological father (and therefore a change in the
child’s domicile).” Supra ¶ 30. Similarly, the majority asserts that to
affirm the district court’s ruling, it would “have to hold . . . that her
parental rights and obligations revert at the filing of the adoption
petition to a third party whose parental rights are at best inchoate.”
Supra ¶ 32. From these statements, it appears that the majority
believes that if it were to find that Birth Mother abandoned B.B.
before the adoption petition’s filing, then it would have to hold that
her parental rights have been terminated and surrendered to Birth
Father. Not so.
¶129 The majority confuses abandonment—as the term is
used in the context of terminating parental rights—with
abandonment as used in the context of establishing domicile. In
cases that involve the termination of parental rights, the term
abandonment is used in a pejorative sense and typically serves as a
proxy for a total abdication of parental responsibilities. See, e.g.,
State ex rel. T.E., 2011 UT 51, ¶ 20, 266 P.3d 739 (“[A] showing of
abandonment requires satisfaction of a two-part test. First, the
petitioner must demonstrate that the respondent parent has
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35 There are scenarios in which the tribe no longer has exclusive
jurisdiction. For example, once Birth Mother moved to Utah, she
became a Utah domiciliary. Because B.B. is a child born out of
wedlock, he took her domicile (Utah) when he was born. Utah. So,
if Birth Mother hadn’t abandoned B.B. before the petition’s filing,
B.B. would’ve been a Utah domiciliary, giving Utah courts
jurisdiction over the adoption petition. But because she did
abandon him before the petition’s filing, B.B.’s domicile switched
from that of Birth Mother (Utah) to that of Birth Father (the
Cheyenne River Sioux Reservation), giving the tribal court
exclusive jurisdiction.
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Himonas, J., dissenting
engaged in conduct that implies a conscious disregard for his or her
parental obligations. Second, the petitioner must show that the
respondent parent’s conduct led to the destruction of the parent-
child relationship.” (citations omitted)). In those cases, it makes
sense that abandonment would carry with it a negative
connotation. Indeed, courts should not terminate parental rights—
in the absence of a voluntary relinquishment—without first finding
by clear and convincing evidence that the parent is no longer
deserving of that constitutionally protected right. See, e.g., In re K.S.,
737 P.2d 170, 172 (Utah 1987) (“The parent-child relationship is
constitutionally protected, and termination of that relationship is a
drastic measure to be used only when the evidence is clear and
convincing that the parent is unable or unwilling to perform the
duties and responsibilities of a parent.”).
¶130 But no parental rights are being adjudicated here. This
appeal is purely about domicile and jurisdiction. Despite the
majority’s characterization otherwise, we’re not deciding the
adoption petition on the merits. All that’s to be decided today is
which court gets to adjudicate the parties’ parental rights.36 And so
our case law discussing abandonment in the context of terminating
parental rights is generally inapposite here.
¶131 A finding of abandonment for purposes of establishing
an Indian child’s domicile doesn’t affect Birth Mother’s parental
rights. See supra ¶ 127 n.33. Indeed, courts often decide whether a
child has been abandoned for purposes of jurisdiction, without
deciding whether the abandonment terminated the abandoning
parent’s parental rights. See supra ¶ 127 n.33.
¶132 In sum, a finding of abandonment for purposes of
domicile is separate from a finding of abandonment for purposes
of adjudicating parental rights. While the two determinations may
turn on similar—if not identical—sets of facts, a finding of
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36 We have done this before. In Halloway, we determined that
the tribal court of the Navajo Nation had exclusive jurisdiction over
an adoption proceeding and dismissed the adoption petition for
lack of jurisdiction. 732 P.2d at 972. After picking up the baton, the
Navajo tribal court adjudicated the Indian birth mother’s parental
rights less than one year later. T.R. Reid, Mormon-Navajo Adoption
Fight Settled, WASH. POST (Oct. 30, 1987),
https://www.washingtonpost.com/archive/politics/1987/10/30
/mormon-navajo-adoption-fight-settled/21450d04-6b25-467e-
8e92-c5f5ba11ed6e/?noredirect=on&utm_term=.0829663044d1.
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Himonas, J., dissenting
abandonment in one context does not compel (or even influence) a
finding of abandonment in the other. For that reason, the majority’s
assertions that our decision today could somehow impact Birth
Mother’s parental rights under ICWA are misguided.
3. The Majority Misapplies the Standard That I Endorse Today
¶133 Finally, the majority asserts that, to a certain extent, “[i]f
the abandonment standard endorsed by . . . the dissent were
correct, then the parents in Holyfield would have abandoned their
children and shifted their children’s domicile off the reservation.”
Supra ¶ 51. That conclusion is incorrect for three reasons.
¶134 First, the Holyfield parents relinquished custody and their
parental rights at the same time. Holyfield, 490 U.S. at 37. Thus, even
if they abandoned the children, the children’s domicile would’ve
still been the Choctaw Reservation because the children’s father
was domiciled there. See SECOND RESTATEMENT § 22 cmt. e (“Except
as stated in Comments f–i, . . . a child abandoned by both parents
simultaneously retains the domicil of the father at the time of the
abandonment.” (emphasis added)); Id. cmt. g (explaining that, in
the context of adoption, a child doesn’t take “the domicil of the
adoptive parent” until “the moment of adoption”).
¶135 Second, I see nothing in the Holyfield opinion that
suggests that the parents gave up custody of their children before
the adoption petition was filed. See Holyfield, 490 U.S. at 37–38. And
without a transfer of custody, there would’ve been no
abandonment before filing the petition. See SECOND RESTATEMENT
§ 22 cmt. e (noting that one situation in which an abandonment
occurs is “when the parent gives the custody of the child to another
with the intention of relinquishing his parental rights and
obligations.” (emphasis added)); accord Halloway, 732 P.2d at 966
(“As a general matter, abandonment occurs when a parent . . . places
a child with another with an intent to relinquish all parental rights
and obligations.” (emphasis added)).
¶136 Third, under the standard I endorse today, “the doctrine
of abandonment cannot be used by Native American Indian
parents as part of a scheme to facilitate adoption of their children
by non-Indians while they remain domiciliaries of the reservation.”
Supra ¶ 98. For that reason, the parents in Holyfield—who were
domiciliaries of the Choctaw Reservation—could not have used
abandonment to evade the tribal court’s jurisdiction. The result of
Holyfield, therefore, would’ve been the same under the
abandonment standard that I endorse.
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IV. WE LACK JURISDICTION
¶137 Having established that B.B. was domiciled on the
Cheyenne River Sioux Reservation when the adoption petition was
filed, ICWA prescribes the outcome: the Cheyenne River Sioux
tribal court has exclusive jurisdiction over this case. 25 U.S.C. § 1911
(“An Indian tribe shall have jurisdiction exclusive as to any State over
any child custody proceeding involving an Indian child who
resides or is domiciled within the reservation of such tribe . . . .”
(emphasis added)). Thus, no Utah state court has jurisdiction and
the case must be dismissed. See, e.g., Ramsay v. Kane Cty. Human Res.
Special Serv. Dist., 2014 UT 5, ¶ 17, 322 P.3d 1163.
CONCLUSION
¶138 Under the uniform federal standard of abandonment for
establishing domicile in ICWA cases, Birth Mother abandoned B.B.
before the filing of this adoption petition. For that reason, B.B. had
taken the domicile of Birth Father and was domiciled on the
Cheyenne River Sioux Reservation at the time of filing. Thus, under
ICWA, the Cheyenne River Sioux tribal court has exclusive
jurisdiction over this case, and this case must be dismissed for lack
of subject matter jurisdiction. Because the majority holds otherwise,
I respectfully dissent.
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