In re A.J.B.

               THE UTAH COURT OF APPEALS

            STATE OF UTAH, IN THE INTEREST OF A.J.B.,
            A PERSON UNDER EIGHTEEN YEARS OF AGE.


                             C.C.,
                           Appellant,
                               v.
                         STATE OF UTAH,
                           Appellee.

                             Opinion
                         No. 20160954-CA
                     Filed December 29, 2017

      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
                           In re A.J.B.


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 

 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.”


1. Notably, Mother does not appeal the merits of the juvenile
court’s order terminating her parental rights.

2. Father relinquished his parental rights to Child, and his
involvement in the case is not at issue in this appeal.




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¶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




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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

3. ICWA applies only “where the court knows or has reason to
know that an Indian child is involved.” See 

(a)
(2012).

4. The record does not tell us exactly when Mother’s parents
moved to Whiterocks. However, at the outset of the case, Mother
asserted that, prior to her May 2014 incarceration, she was
residing with her parents in Roosevelt. She further asserted that
Father lived with his parents in Neola. Thus, when DCFS filed
the Petition, neither Mother’s parents nor Father’s parents lived
in Whiterocks. The first time that Mother’s parents’ Whiterocks
address appears in the record is in December 2014.




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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 to the tribal court.
DCFS moved to strike Aunt and Uncle’s filings with the juvenile
court, a motion the juvenile court later granted.

¶9      On July 12, 2016, Ute Family Services (UFS) filed a motion
in the juvenile court, asking it to transfer jurisdiction of the case
to the tribal court because, according to UFS, Child “was
removed from the . . . [Uintah and Ouray] reservation or its
exterior boundaries.” That same day, the tribal court purported
to “accept jurisdiction” over Child. At a hearing the next day, the
juvenile court struck UFS’s motion to transfer, concluding that
“this is not an ICWA case.”

¶10 In September 2016, the juvenile court held a hearing on
DCFS’s motion to terminate Mother’s parental rights. At the
hearing, the court “identif[ied] for the record” that it had
conferenced with the parties the day prior via telephone.
Mother’s counsel noted that, during the telephone conference,
“the court overruled [Mother’s] request . . . that the court
postpone[] the trial to have a rule 100[5] type conference with”
the tribal court judge to discuss which court—the juvenile court
or the tribal court—would exercise jurisdiction over the case.

¶11 After the hearing, the juvenile court terminated Mother’s
parental rights, concluding, among other things, that “it is in the


5. Rule 100 of the Utah Rules of Civil Procedure is titled
“Coordination of Cases Pending in District Court and Juvenile
Court.” That rule, discussed more fully below, provides in part
that a judge assigned to a child custody case “shall communicate
and consult with any other judge . . . assigned to any other
pending case involving the same issues and the same parties or
their children.” Utah R. Civ. P. 100(b).




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child’s best interests that [Mother’s] parental rights [be]
terminated as to [Child] so that [Child] may be adopted.”


            ISSUES AND STANDARDS OF REVIEW

¶12 On appeal, Mother first argues that the juvenile court’s
August 2014 order resulted in a “placement” of Child onto the
Uintah and Ouray Reservation, and therefore the juvenile court’s
order “invoked the jurisdiction of the [Ute] tribe under its laws.”
Mother argues therefrom that the tribal court—and not the
juvenile court—should have been the court to exercise
jurisdiction over Child. 6 We review jurisdictional issues for
correctness. Nevares v. Adoptive Couple, 

, 

 (noting that whether a district court has subject matter
jurisdiction is a question of law reviewed for correctness).

¶13 Second, Mother argues that the juvenile court should
have contacted the tribal court “to discuss the tribe’s assertion of
jurisdiction” in compliance with rule 100 of the Utah Rules of
Civil Procedure. We review a court’s interpretation of a rule of

6. As we described above, Mother did not ever raise any specific
objection to the juvenile court’s exercise of jurisdiction in this
case. Two other parties (Aunt/Uncle and UFS) did raise such
objections, but those parties did not ask to intervene in the
juvenile court proceedings and are not parties to this appeal.
Despite some concerns with whether Mother properly preserved
a jurisdictional objection in the juvenile court, we proceed to
consider the merits of Mother’s argument here, chiefly because
neither DCFS nor the Guardian ad Litem made any argument in
their briefs that Mother had not properly preserved the issue. See
JP Morgan Chase Bank, NA v. Wright, 

, ¶ 8 n.6,

 (proceeding to the merits of an argument, despite
harboring some concerns about preservation, “because [appellee]
has not challenged the argument as unpreserved”).




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civil procedure for correctness. Bennett v. Bigelow, 

, 

. And because we conclude that the juvenile
court’s decision not to contact the tribal court is governed by
Utah’s version of the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA), which states that “[a] court of this
state may communicate with a court in another state,” see Utah
Code Ann. § 78B-13-110(1) (LexisNexis 2012) (emphasis added),
we review the juvenile court’s ultimate decision not to contact
the tribal court for abuse of discretion, see Zaragoza v. State, 

, ¶¶ 17–19 (observing that the legislature’s use of the
word “may” means that “a district court enjoys wide latitude” in
making a decision authorized by statute, and that such decisions
are reviewed for abuse of discretion).


                            ANALYSIS

                                  I

¶14 The jurisdictional question in this case is answered by the
UCCJEA. See Utah Code Ann. §§ 78B-13-101 to -318 (LexisNexis
2012). That statute was created and enacted to facilitate cases
where courts in multiple jurisdictions could potentially exercise
simultaneous and concurrent jurisdiction over child custody
cases. See Nevares, 

 (stating that “[t]he model act
exists to avoid jurisdictional competition and conflict with courts
of other States in matters of child custody” (citation and internal
quotation marks omitted)). 7



7. The Ute Indian Tribe has apparently not adopted any version
of the UCCJEA. Nevertheless, the UCCJEA applies here, and
provides the framework that the Utah Legislature has instructed
Utah courts to use in inter-jurisdictional custody situations. Cf.
Utah Code Ann. § 78B-13-104(2) (LexisNexis 2012) (stating that
“[a] court of this state shall treat a tribe as a state” for purposes
                                                        (continued…)


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¶15 Under the UCCJEA, a Utah court has jurisdiction to make
an initial custody determination 8 only if any one of several
different jurisdictional prerequisites are met. Applicable here, a
Utah court has jurisdiction if Utah is “the home state of the child
on the date of the commencement of the proceeding.” Utah Code
Ann. § 78B-13-201(1)(a). The UCCJEA defines “home state” as
“the state in which a child lived with a parent . . . for at least six
consecutive months immediately before the commencement of a
child custody proceeding.” Id. § 78B-13-102(7). Here, the Petition,
which DCFS filed in June 2014, alleged that Child lived in
Duchesne County, Utah and that Child was born in 2012.
Although the Petition did not specifically allege that Child had
lived in Duchesne County for six consecutive months prior to
the filing of the Petition, the Petition did not allege that Child
had ever lived in any other state, country, or Indian reservation.
The reasonable inference to be drawn from the Petition is that
Child had lived in Duchesne County, and not on any Indian
reservation, from the time he was born in 2012 all the way
through June 2014. Mother does not argue otherwise, and she
even concedes on appeal that “the juvenile court may have had
jurisdiction at the commencement of the case.” Therefore, we are


(…continued)
of the UCCJEA); id. § 78B-13-105(1) (stating that “[a] court of this
state shall treat a foreign country as a state” for purposes of the
UCCJEA). The UCCJEA contains no provision instructing courts
not to apply its principles in the event that the other state (or
tribe or country) has not adopted a similar statute.

8. An “initial determination” is defined in the UCCJEA as “the
first child custody determination concerning a particular child.”
See Utah Code Ann. § 78B-13-102(8). And a “child custody
determination” is defined as “a judgment, decree, or other order
of a court providing for the legal custody, physical custody, or
parent-time with respect to a child.” Id. § 78B-13-102(3).




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satisfied that Utah was Child’s home state at the commencement
of the proceedings, and the juvenile court therefore had
jurisdiction under section 201 of the UCCJEA to make an initial
custody determination regarding Child.

¶16 “Once a state makes an initial child custody
determination, that state obtains exclusive, continuing
jurisdiction, which exists until that state relinquishes or is
divested of its exclusive jurisdiction in accordance with the
UCCJEA or a similar act.” Nevares, 

, (citing Utah
Code section 78B-13-202); see also Utah Code Ann. § 78B-13-
207(1) (providing that a Utah court can decline to exercise its
jurisdiction if that court determines that it is an inconvenient
forum and that another court is a more appropriate forum); In re
Z.Z., 

, ¶ 11, 

 (stating that, once a
court makes an initial custody determination, it has “exclusive,
continuing jurisdiction over the custody determination it
made”). The juvenile court did not ever relinquish its jurisdiction
over the case, whether pursuant to section 207 of the UCCJEA or
any other statute.

¶17 Mother argues, however, that the fact that Child ended up
living in Whiterocks—a community within the exterior
boundaries of the Uintah and Ouray Reservation—changed
everything, and effectively divested the juvenile court of
jurisdiction over Child and vested jurisdiction in the tribal court.
We disagree with this contention for three reasons.

¶18 First, as discussed above, Utah was Child’s home state
when the juvenile court made its initial custody determination,
and the juvenile court did not relinquish its jurisdiction. Once
the juvenile court made its initial custody determination, it
retained exclusive and continuing jurisdiction until either (a) it
determined that Child no longer had “a significant connection”
with Utah and that “substantial evidence is no longer available
in [Utah] concerning” Child; or (b) the juvenile court or “a court



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of another state” determined that “neither the child, nor a
parent, nor any person acting as a parent presently resides” in
Utah. See Utah Code Ann. § 78B-13-202(1)(a)–(b). The juvenile
court did not make either of those determinations; indeed, it did
not even undertake an inconvenient forum analysis under
section 207. See Id. § 78B-13-207(1). Moreover, there is no
indication in the record that any “court of another state,”
including the tribal court, ever made a specific determination
that Child and both of his parents had moved outside of Utah.
Thus, because neither of the necessary conditions for loss of
jurisdiction occurred, the juvenile court maintained jurisdiction
over Child throughout the proceedings.

¶19 Second, although the exact timing is not completely clear,
the record establishes that Mother’s parents moved to
Whiterocks after DCFS filed the Petition. This move did not
divest the juvenile court of its exclusive and continuing
jurisdiction. See Z.Z., 

, ¶ 16 (observing that
parties cannot divest the juvenile court of its exclusive,
continuing jurisdiction by relocating during the pendency of a
custody proceeding).

¶20 Finally, although we acknowledge that tribal law issues
have not been exhaustively briefed in this case, we have not yet
seen any cogent argument, under any of the tribal laws that have
been cited to us, in favor of tribal court jurisdiction. As far as we
have been told, under tribal law the tribal court has jurisdiction
only “over any Indian or Member child . . . and over all persons
having the care, custody or control of such children.” See Law
and Order Code of the Ute Indian Tribe of the Uintah and Ouray
Reservation Utah § 4-3-1 (2013). As noted, all parties are in
agreement in this case that Child is not a member of the Ute
Indian Tribe, and is not an “Indian Child” under ICWA.
Therefore, at least based on what has been cited to us, it does not




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appear that tribal law gives the tribal court jurisdiction over
Child. 9

¶21 Accordingly, we conclude that the juvenile court had
jurisdiction at the outset of the case to make an initial custody
determination with regard to Child, and that the juvenile court
never lost that jurisdiction at any point during these
proceedings. The juvenile court’s determination that it had
jurisdiction was therefore correct.

                                 II

¶22 Second, Mother argues that the juvenile court erred by
declining her invitation to communicate with the tribal court
regarding the jurisdictional issues presented here. To support
her argument, Mother relies nearly entirely upon her citation to
rule 100 of the Utah Rules of Civil Procedure.

¶23 On its face, however, rule 100 does not apply. That rule is
titled, “Coordination of Cases Pending in District Court and
Juvenile Court,” and we infer from its title as well as from
various portions of its text that the rule was intended to apply
only to situations in which multiple cases are simultaneously
pending in Utah state courts (whether district or juvenile). In
addition to the rather clear titular language, the rule also
contains provisions discussing whether to “consolidate cases

9. Moreover, even if the tribal court did have jurisdiction over
Child, that jurisdiction would apparently be concurrent with the
juvenile court, rather than exclusive. See Law and Order Code of
the Ute Indian Tribe of the Uintah and Ouray Reservation Utah
§ 1-2-6 (2013) (stating that “[t]he jurisdiction invoked by this
Code over any person, cause of action, or subject shall be
concurrent with any valid jurisdiction over the same of the
courts of the United States, any state, or any political subdivision
thereof”).




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within a county” or to “transfer a case to the court of another
county,” provisions that make no sense in an interstate context.
See Utah R. Civ. P. 100(d)(1)–(2). Furthermore, the rule contains
references to Utah Code of Judicial Administration 3-108, see 

R. 100(e), a rule discussing the manner in which Utah senior or
active judges may preside over cases outside their usual
jurisdictional ambit, and contains references to domestic
relations “commissioners,” who are Utah quasi-judicial officers
that preside over domestic relations cases in certain Utah judicial
districts, see 

 R 100(b); see also Utah R. Jud. Admin. 3-201. In
our view, rule 100 does not apply in the interstate context.

¶24 Communication between judicial officers in the interstate
context is instead covered by the UCCJEA, which specifically
provides that “[a] court of this state may communicate with a
court in another state concerning a proceeding” that invokes the
UCCJEA. See Utah Code Ann. § 78B-13-110(1) (emphasis added).
As noted, the statute directs Utah courts to treat Indian tribes as
“states” under the UCCJEA. Id. § 78B-13-104 (stating that a
“court of this state shall treat a tribe as a state” for purposes of
UCCJEA jurisdictional analysis). Thus, when an interstate
jurisdictional issue arises under the UCCJEA, a Utah court may
contact the court in the other state/tribe to discuss the
jurisdictional quandary.

¶25 We note that the UCCJEA uses the permissive term
“may,” rather than a mandatory term such as “must” or “shall,”
in describing a Utah court’s responsibility to communicate with
a court of another state or tribe. The use of the term “may”
means that a court is certainly authorized to communicate with a
court of another state, but absent unusual circumstances is not
necessarily required to do so. See 

(1)(g)
(LexisNexis 2016) (indicating that “‘may’ means that an action is
authorized or permissive”); see also Card v. Card, 

, 

 (per curiam) (stating that “a statute’s use of
the word ‘may’ indicates a court’s discretionary power” (citation



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and additional internal quotation marks omitted)); State v.
Draper-Roberts, 

, ¶ 14 & n.5, 

(stating that “[a]ccording to its ordinary construction the word
‘may’ means permissive,” and indicates that something is
“optional” and “not required” (citations and internal quotation
marks omitted)).

¶26 When a statute indicates that a court “may” take a certain
action, we review the court’s decisions for abuse of discretion.
See Mota v. Mota, 

, 

 (stating
that “a statute’s use of the word ‘may’ indicates a court’s
discretionary power, the exercise of which we review for an
abuse of discretion”). Our supreme court has instructed that a
district court abuses its discretion “only if its decision was
beyond the limits of reasonability,” an event that occurs when
the district court has taken actions that are “inherently unfair” or
that “no reasonable person would take.” Ross v. State, 

, 

 (brackets, citation, and internal quotation
marks omitted).

¶27 Here, the juvenile court’s decision to decline to contact the
tribal court was not an abuse of discretion. As discussed, Mother
stipulated to the juvenile court’s jurisdiction, and the juvenile
court never concluded that it did not have jurisdiction or that a
more convenient forum existed; Mother’s parents’ relocation to
Whiterocks did not divest the court of its exclusive, continuing
jurisdiction; and no party gave the juvenile court any credible
reason to believe that, even under tribal law, jurisdiction over
this case should rest with the tribal court. Given these facts, we
cannot conclude that the juvenile court abused its discretion
when it elected not to contact the tribal court. 10


10. As noted, the applicable statutory provision does not require a
Utah court to communicate with a court of another state or tribe
in the UCCJEA context. Despite the lack of compulsion, we note
                                                    (continued…)


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                        CONCLUSION

¶28 The juvenile court had jurisdiction over this case from the
outset, and properly exercised its exclusive and continuing
jurisdiction to make a child custody determination. Although it
may have been advisable for the juvenile court to communicate
with the tribal court in this case, we cannot conclude that the
juvenile court abused its discretion in declining to do so.
Accordingly, we affirm.




(…continued)
that in cases like this one—where the sister court in question is
the court of a sovereign Indian tribe housed in relatively close
proximity—principles of comity, respect, and good community
relations counsel strongly in favor of making a communication.




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