The Appellate Group

In re Adoption of B.B.

In re Adoption of B.B., 2020 UT 53 (Lee, A.C.J.) (Himonas, J., dissenting)


Conceived on the Cheyenne River Sioux reservation and born in Utah, BB was placed for adoption by birth mother through subterfuge and against birth father’s wishes. After a first appeal in the Utah Supreme Court in 2017, the third district court transferred the case to the tribal court, determining that the tribal court had jurisdiction under 25 U.S.C. section 1911(a) of the Indian Child Welfare Act (ICWA). Adoptive parents appealed. The Utah Supreme Court reversed, holding:

  • The district court erred when it transferred the case to the tribal court. The Utah district court has jurisdiction despite section 1911(a). That section has no hold here because (1) birth mother had already transferred her domicile to Utah before BB was born and (2) because initiating adoption proceedings did not constitute abandonment of BB—and, by extension, did not transfer BB’s domicile to birth father’s domicile on the reservation. 
    • The record contains uncontroverted evidence that birth mother intended to remain permanently in Utah when she moved here. The district court erred when it found, against the evidence, that birth mother’s intent was to return to the reservation after she relinquished her rights to BB. The district court also applied the wrong legal standard of domicile. A person can establish a new domicile by moving somewhere with an intent to remain quite permanently but change her mind soon after arriving. 
    • Initiating an adoption is not abandonment within the meaning of ICWA. Adoption does not constitute abandonment because it does not transfer parental rights as of the date of the relinquishment form. A birth mother retains her rights and obligations to the child until the adoption is finalized. The Second Restatement of Conflict of Laws and Utah Law are consistent here.
  • FN: The court does not decide the question of whether ICWA permits the application of each state’s law pertaining to abandonment—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—because the principles of abandonment in the Restatement are consistent with Utah law. 
  • Dissent: The district court’s finding that birth mother abandoned BB was not clearly erroneous, because there was ample support for the district court’s finding that she had. The United States Supreme Court held that Congress intended for a uniform federal definition of domicile. ICWA and United States Supreme Court precedent require courts to determine abandonment under a uniform federal standard. BB’s birth mother legally “abandoned” him before filing the adoption petition, because she placed him the custody of the adoption agency with the intention of relinquishing her parental rights. As a result, BB took his birth father’s domicile at the reservation before the time of filing. And because he was domiciled at the reservation, the Cheyenne River Sioux Tribe has exclusive jurisdiction over this case.

Read the full court opinion