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State ex rel. A.J.B.

Court of Appeals of Utah

December 29, 2017

State of Utah, in the interest of A.J.B., a person under eighteen years of age.
v.
State of Utah, Appellee. C.C., Appellant,

         Eighth District Juvenile Court, Duchesne Department The Honorable Keith E. Eddington No. 1100877.

          Herbert Wm. Gillespie, Attorney for Appellant

          Sean D. Reyes, Carol L.C. Verdoia, and John M. Peterson, Attorneys for Appellee

          Martha Pierce, Guardian ad Litem

          Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Kate A. Toomey concurred.

          HARRIS, JUDGE.

         ¶1 C.C. (Mother) appeals the juvenile court's order terminating her parental rights to A.J.B. (Child), and asks us to consider two arguments. First, Mother argues that the juvenile court did not have jurisdiction to adjudicate the case, and asserts instead that the case should have proceeded in the Ute Tribal Juvenile Court (the tribal court). Second, Mother argues that, at a minimum, the juvenile court should have contacted the tribal court to discuss jurisdictional issues prior to commencing its termination hearing.[1] Because we conclude that the juvenile court properly exercised its jurisdiction and did not abuse its discretion in declining to contact the tribal court, we affirm.

         BACKGROUND

         ¶2 In June 2014, the State of Utah, Division of Child and Family Services (DCFS), filed a Verified Petition for Protective Services (the Petition), alleging that Mother had abused and neglected Child and seeking protective supervision of Child. In the Petition, DCFS alleged that Child resided in Duchesne County, Utah and that (prior to their respective incarcerations) both Mother and Child's father (Father) resided in Neola, Utah, a community in Duchesne County.[2] The Petition also stated that "neither parent is a member of a federally recognized Indian tribe, " and that Child was therefore "not an 'Indian Child'" as defined by the Indian Child Welfare Act (ICWA). See 25 U.S.C. §§ 1901 to 1963 (2012).

         ¶3 The Petition further alleged that, in May 2014, Mother, Father, and Child had been living in Neola at Father's parents' residence when police responded to a "call for assistance" and found "drug paraphernalia, including drug pipes, old tin foil with drug residue, including white powder, [and] a prescription pill bottle [] containing whole pills and crushed up powder pills." The Petition sought, among other things, an order from the court determining that the court had "original exclusive jurisdiction of the child and subject matter of [the] petition pursuant to Utah Code § 78A-6-103."

         ¶4 In her response to the Petition, Mother denied that she or Child resided in Neola, and asserted instead that she and Child resided with her parents in Roosevelt, Utah. She further asserted that she was at her parents' residence in Roosevelt when police found the drug paraphernalia at Father's parents' residence in Neola. Mother also generally denied the allegations of the Petition.

         ¶5 Early in the case, in June 2014, the parties agreed to mediate the dispute, an effort that was at least partially successful. After mediation, the parties were able to "agree[] on the facts" of the Petition, as amended, and agreed to "adjudicate" the Petition. Just a few days after the mediation was completed, DCFS filed an Amended Petition, and therein stated that the juvenile court had "original exclusive jurisdiction of the child" and that, at the time of the Petition, Child resided in Duchesne County. The Amended Petition also restated the allegations from the original Petition that "neither parent is a member of a federally recognized Indian tribe, " and that Child was therefore "not an 'Indian Child'" as defined by ICWA. At a subsequent hearing, the juvenile court found that Mother requested that the facts recited in the Amended Petition "be deemed true" under rule 34(e) of the Utah Rules of Juvenile Procedure, which allows a respondent to admit or deny allegations of abuse and neglect at a pretrial hearing, and that Mother's request was voluntary.

         ¶6 On August 12, 2014, the court reduced the parties' agreement to a court order. Specifically, the court entered findings of fact and conclusions of law, finding that Child resided in Duchesne County and concluding that (1) although Mother is a member of the Timpanogos Tribe, that particular tribe is not a federally recognized tribe and therefore Child is "not an Indian Child" under ICWA, and that "the provisions of ICWA do not apply in this case";[3] and (2) the court had jurisdiction. Mother did not take issue with these findings or conclusions. The court also ordered, pursuant to the mediated agreement of the parties, that Child reside with Mother's parents, who at the time apparently still resided in Roosevelt.

         ¶7 At some point in the latter part of 2014, Mother's parents moved to Whiterocks, Utah, a community that is inside the exterior boundaries of the Uintah and Ouray Reservation of the Ute Indian Tribe.[4] Over a year later, however, in March 2016, the court ruled that Mother's parents were in violation of prior court orders, and ordered a change of custody as a consequence. At that point, the juvenile court ordered that Father's parents would be given sole temporary custody of Child, and that they could relocate with Child to Oklahoma. After the juvenile court transferred custody of Child to Father's parents, DCFS moved to terminate Mother's parental rights to Child.

         ¶8 Shortly after the court placed Child with Father's parents, other parties appeared in the case. In May 2016, Child's maternal aunt and uncle (Aunt and Uncle), who are members of the Ute Indian Tribe, filed a Petition for Custody of Child with the tribal court. Aunt and Uncle also filed a Notice of Lack of Jurisdiction with the juvenile court, asserting that the juvenile court did not have jurisdiction to make custody orders with regard to Child, and seeking an order transferring the case ...


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