NEHRING, Justice:
¶ 1 This appeal arises from a juvenile court order that granted the adoption of two children who are both enrolled members of the Navajo Nation (the "Nation") by their non-Indian foster parents. The Nation challenges the adoption order and several other juvenile court orders concerning the children. The Nation, however, failed to comply with an essential procedural prerequisite to its appeal because its notice of appeal was not timely filed with the Nation's signature. This failure presents two jurisdictional issues of first impression: first, whether the Indian Child Welfare Act ("ICWA") preempts Utah's notice of appeal requirements; second, whether Indian tribes, as quasi-sovereign entities, are exempt from Utah's notice of appeal requirements. We hold that ICWA does not preempt Utah's notice of appeal requirements and that those requirements apply to Indian tribes. Our answers to these questions compel us to dismiss the Nation's appeal because we have no jurisdiction over it.
¶ 2 A.B. and D.T. were born to Thomasita Tsosie on July 16, 1999, and December 28, 2005, respectively. Ms. Tsosie, A.B., and D.T. are all enrolled members of the Navajo Nation, a federally recognized Indian tribe. Ms. Tsosie also had three other children: A1.B., O.R., and Baby Girl Tsosie. Because A1.B., O.R., and Baby Girl Tsosie are not at issue in this appeal, we do not reference them except to the extent that their affairs
¶ 3 On September 25, 2005, the Salt Lake City Police Department contacted the Division of Child and Family Services ("DCFS") after a police officer found A.B. and D.T.'s four-year-old sibling, A1.B., crying alone by a dumpster in Salt Lake City. At the time, Ms. Tsosie was pregnant with D.T.
¶ 4 At a shelter hearing a few days later, the juvenile court ordered DCFS to return the children to Ms. Tsosie and to provide family preservation services to them. Two weeks later, the juvenile court ordered DCFS to contact the Nation "to determine if the protective supervision service case [could] be transferred to the tribe." On February 6, 2006, the Nation informed DCFS that Lorene VanWinkle would be willing to keep A.B.
¶ 5 A short time later, Ms. Tsosie was sent to jail after being found in contempt of court for intentionally failing to follow the court's orders that she participate in peer parenting, maintain contact with the DCFS caseworker, and take domestic violence classes. The juvenile court removed all four children from Ms. Tsosie's custody after finding that "continuation in the home would be contrary to the welfare of the children and removal [would be] in their best interests." A.B. was allowed to remain on an extended visit with Lorene VanWinkle in Arizona. D.T. was sent on an extended home visit with her aunt, Thomasita Tsosie, who failed to pass a DCFS background and federal criminal background check. With the failure of this placement, the court gave custody of D.T. to another relative, Ermalinda Tsosie. One week later, Ermalinda Tsosie contacted DCFS and requested that D.T. be removed from her home. As a result, D.T. was placed in the Christmas Box House in Salt Lake City.
¶ 6 Shortly thereafter, Lorene and Laurie VanWinkle picked up D.T. from the Christmas Box House. Laurie is Lorene's daughter and the children's aunt.
¶ 7 On September 26, 2006—one year after DCFS first became involved with the children—the juvenile court removed A.B. and D.T. from Laurie VanWinkle's custody and placed them in the interim custody of DCFS. The court found that Ms. Tsosie and her family had been harassing and alienating Laurie VanWinkle and that continued custody by either Laurie VanWinkle or Ms. Tsosie would present "a substantial danger to the physical health or safety of the children." The court also found that DCFS "made reasonable efforts to prevent out of home care" by providing protective supervision services,
¶ 8 As required by ICWA, the State sent notice of the removal and interim custody by DCFS to the Nation. Approximately one week later, Joe Shirley, Jr., President of the Chinle Arizona chapter of the Nation, sent a letter to the juvenile court that requested the children be returned to Laurie VanWinkle "[i]n accordance with [ICWA] and the need to provide a safe and stable environment for the child[ren]." The next day, the court left a message with the Nation asking whether Mr. Shirley's letter was intended to communicate the Nation's intention to intervene in the child custody proceedings. The State also sent written notice to the Nation that it had "the right to intervene (be made a party) in this [child custody] proceeding" and "the right to request by petition that these proceedings be transferred to the Tribal Court." The Nation did not intervene at that time.
¶ 9 Once in DCFS custody, D.T. was placed in an emergency foster home, and then transferred to a legal-risk home. A.B. was also placed in an emergency foster home, and then transferred to two different specialized foster homes. On January 31, 2007, DCFS reported that the children were "doing well in their current foster care placements," that "there ha[d] been no visitation with [Ms. Tsosie]" because she "[would] not make those arrangements," and that the permanency goal for the children was guardianship with relatives. DCFS also reported that it had "been in constant contact with the Navajo Tribe" but the Nation was "still working on the home study for Lorene VanWinkle."
¶ 10 On April 12, 2007, the juvenile court held a pretrial hearing regarding the possible termination of Ms. Tsosie's parental rights. The court considered two letters written by Lorene VanWinkle that requested custody of the children as well as the Nation's request that the court transfer the children to its jurisdiction and the VanWinkle home. The Nation provided a home study and certification for Lorene VanWinkle. During the hearing, A.B.'s father objected to the children being placed with the Nation. Based on the father's objection, the juvenile court declined to give custody to Lorene VanWinkle or the Nation at that time. Instead, the court asked the parties to brief whether "good cause" existed under ICWA to deny the Nation's request that the court transfer jurisdiction over the children to the Navajo Tribal Court. Shortly thereafter, on April 18, 2007, the Nation, for the first time, moved to intervene in the proceedings pursuant to ICWA, 25 U.S.C. § 1911(c).
¶ 11 On May 18, 2007—nearly eight months after A.B. and D.T. were removed from Laurie VanWinkle's home and were placed in foster care—the juvenile court terminated Ms. Tsosie's parental rights to A.B. and D.T. The court also determined that D.T.'s unknown father had abandoned D.T. and terminated his parental rights. The Nation's attorney was present at the proceedings. The court first ruled that it had concurrent jurisdiction with the Navajo Tribal Court because the children resided in Salt Lake County when the initial pleadings were filed and because Ms. Tsosie lived in Salt Lake County when the children were placed in DCFS custody. Next, the court found that Ms. Tsosie had "neglected or abused the children," and that continued custody by Ms. Tsosie would likely result in serious emotional or physical damage to the children. The court also found that DCFS "made a diligent search to locate a placement that [met] the preferences established within ICWA" and that there was "good cause not to place the children according to [ICWA] placement preferences," including a prior placement of the children within the family on the reservation, the objection of the father to the transfer of jurisdiction to the tribe, and the recommendation of the children's therapist who opposed moving the children from their current foster home. Finally, the court explained that the children were "doing well in the adoptive home," and that DCFS had made "active efforts" to prevent the breakup of the family as required by ICWA, but that the active efforts were unsuccessful. The court's order contained a "Notice of Appellate Rights" that stated, in part,
¶ 12 In a separate order, the juvenile court denied the Nation's attempt to transfer jurisdiction over the children. Although ICWA creates a preference for tribal court jurisdiction, the court found that there was "good cause" under section 1911(b) of ICWA to deny the transfer of jurisdiction to the Navajo Tribal Court. The juvenile court explained that the Nation waited nineteen months to file its motion to transfer jurisdiction; thus, the Nation permitted the proceedings to reach an "advanced stage" because "the posture of the case was at a parental deprivation of rights trial, which is often the final proceeding in such matters, save for an adoption hearing." The court also noted that "DCFS sent eight different notices to the [Nation] to alert the [Nation] that the children were in state custody and subject to the jurisdiction of this court" and that the "Nation was involved in the case from the beginning, and often participated in hearings in this [c]ourt by phone. As such, the [c]ourt often took into consideration the [Nation's] wishes regarding the children." The Nation did not appeal either order.
¶ 13 Approximately five months later, the juvenile court terminated the parental rights of A.B.'s father. The court reiterated that it had concurrent jurisdiction with the Nation, that DCFS had made a diligent search to locate a placement that complied with ICWA, that there was "good cause" not to place the children according to ICWA preferences, and that DCFS made active but unsuccessful efforts to prevent the breakup of the family as required by section 1912(d) of ICWA. The court concluded that adoption was the most appropriate plan for the children. Although the Nation participated in the proceedings and the court's order again contained a "Notice of Appellate Rights," the Nation did not appeal.
¶ 14 On January 11, 2008, A.B. and D.T.'s non-Indian foster parents filed a Verified Petition for Adoption with the juvenile court. The Nation objected to the petition on the grounds that DCFS had not followed the placement preferences required by section 1915 of ICWA.
¶ 15 The juvenile court granted the non-Indian foster parents' Verified Petition for Adoption on February 21, 2008. The court's order echoed its previous orders. The court first ruled that it had concurrent jurisdiction with the Navajo Tribal Court and was, therefore, a competent forum to hear the adoption proceedings. Next, the court reaffirmed that there was "good cause" under ICWA section 1911(b) to deny the transfer of jurisdiction to the Navajo Tribal Court. Similarly, the court held that there was "good cause" under ICWA section 1915 to place A.B. and D.T. outside ICWA placement preferences. The court also found that A.B.'s and D.T.'s best interests would be promoted by the adoption. The court explained that A.B. and D.T. had resided with the non-Indian foster parents for nearly thirteen months and that the foster parents "have engaged, and have committed to continue to engage, in numerous efforts to educate [A.B. and D.T.] regarding their Navajo culture and traditions throughout their lives."
¶ 16 In response, the Nation sought extraordinary relief from the rulings of the juvenile court. We summarily denied the petition because the Nation was free to file a direct appeal. On March 7, 2008, the Nation filed a direct appeal from the district court's adoption decree. This was the first appeal the Nation chose to file since the shelter hearing was first held in September 2005. The Nation's notice of appeal, however, did not comply with Utah's notice of appeal requirements.
¶ 17 Under Utah law, a notice of appeal must be filed within fifteen days of the order appealed from and must contain the appellant's signature.
¶ 18 In this case, the Nation's original notice of appeal was defective. Even though it was filed within fifteen days of the adoption order and signed by the Nation's counsel, the notice of appeal did not contain the Nation's signature. And the Nation did not acquire the additional fifteen days to correct the deficiency because the Nation's counsel did not file a certification of diligent search.
¶ 19 Recognizing these errors, a clerk from the court of appeals sent a letter to the Nation's counsel explaining that the notice of appeal was deficient and would be dismissed if a certification of diligent search was not filed upon receipt of the letter. The Nation's counsel again failed to file a certification of diligent search. Instead, the Nation waited until March 24, 2008, to file an amended notice of appeal that included the signature of its representative. Thus, the Nation failed to "timely sign a notice of appeal" as required by Utah law.
¶ 20 On April 8, 2008, the Nation requested a ten-day extension to file its petition on appeal. The court of appeals granted the Nation's request. But rather than file a petition on appeal, the Nation challenged the court's jurisdiction by filing a "Motion for Summary Reversal Based on Lack of Jurisdiction and Memorandum of Points and Authorities in Support Thereof." The court of appeals entered an order that the Nation's motion was inappropriate in child welfare cases. Nonetheless, the court of appeals construed the motion as the petition on appeal and allowed the Nation to file an amended petition on appeal within ten days of its order. Twenty days later, on May 27, 2008, the Nation filed its amended petition on appeal. Despite the petition's untimeliness, the court of appeals ordered the parties to brief the relevant issues and subsequently certified the appeal to this court pursuant to section 78A-3-102(3)(b) of the Utah Code and Utah Rule of Appellate Procedure 43(a).
¶ 21 Whether this court has jurisdiction over an appeal is a question of law that can be raised for the first time on appeal.
¶ 22 In this appeal, the Nation asks us to vacate several of the juvenile court's orders involving A.B. and D.T. because the Nation claims that those orders violate ICWA. The Nation makes four arguments in support of this claim. First, the Nation contends that its tribal courts maintained exclusive jurisdiction over A.B. and D.T. and that we must, therefore, vacate all orders entered after A.B. and D.T. were removed from Laurie VanWinkle's custody in October 2006. Second, the Nation argues that the juvenile court erred when it exercised jurisdiction over D.T. because the State did not, prior to the shelter hearing concerning D.T., file a verified petition to commence proceedings in a juvenile court alleging that D.T. was abused, neglected, or dependent as required by Utah Code section 78-3a-305(3).
¶ 23 Before we can turn our attention to these claims, we must answer the threshold question of whether we have jurisdiction over this appeal. As explained above, the Nation's original notice of appeal did not contain the Nation's signature, the Nation did not receive the fifteen-day extension to file an amended notice of appeal because its counsel did not file a certification of diligent search, and the Nation's amended notice of appeal was filed more than fifteen days after the adoption order was entered.
¶ 24 Regardless of these shortcomings, the Nation contends that this court maintains jurisdiction over this appeal. The Nation defends this assertion by claiming that ICWA preempts Utah's notice of appeal requirements because section 1914 of ICWA gives Indian tribes the right to petition state courts at any time to invalidate any state action that violates ICWA. Alternatively, the Nation claims it was automatically entitled to the fifteen-day extension to file an amended notice of appeal because the rule 53(b) certification of diligent search requirement cannot apply to quasi-sovereign entities. We disagree with both assertions.
¶ 25 We hold that (I) ICWA does not preempt Utah's notice of appeal requirements and (II) Utah appellate courts lack jurisdiction over an appeal, even when the appellant is an Indian tribe, if the notice of appeal is not filed in strict compliance with Utah's notice of appeal requirements. Thus, because the Nation's notice of appeal was not timely filed with the Nation's signature, we dismiss this appeal for lack of jurisdiction.
¶ 26 The Nation first argues that Utah's notice of appeal requirements are preempted by ICWA. We have not addressed this preemption issue before. The United States Supreme Court has recognized three categories of federal preemption: (A) express preemption, (B) field preemption, and
¶ 27 The Nation contends that section 1914 of ICWA gives an Indian child's tribe the right to petition any court of competent jurisdiction to invalidate any child custody action that violates sections 1911, 1912, or 1913 of ICWA. And because section 1914 itself neither imposes time limits to file such petitions nor provides that such petitions are subject to state-imposed time limits, the Nation claims that section 1914 petitions can presumably be filed at any time. The Nation also argues that under section 1921 of ICWA, state law only applies in child welfare proceedings involving Indian children if the state law provides higher standards of protection to Indian tribes than ICWA.
¶ 28 For analytical clarity, we first examine the Nation's preemption argument under the three traditional categories of federal preemption: (A) express preemption, (B) field preemption, and (C) conflict preemption. We then balance the Nation's interests under ICWA with Utah's interest that appeals from child custody proceedings be dismissed if a signed notice of appeal is not timely filed by the appellant. We conclude that Utah's notice of appeal requirements are not preempted by ICWA.
¶ 29 Express preemption occurs "when the language of the federal statute reveals an express congressional intent to preempt state law."
¶ 30 ICWA does not contain any explicit statement that Congress intended ICWA to preempt state rules of appellate procedure. Furthermore, ICWA clearly contemplates that state courts will adjudicate a number of child custody cases involving Indian children.
¶ 31 Field preemption occurs "`when the scope of a statute indicates that Congress
¶ 32 ICWA clearly contemplates that state courts will adjudicate some child welfare cases involving Indian children.
These minimum standards do not wholly repudiate state rules of appellate procedure.
¶ 33 Conflict preemption occurs "where it is impossible . . . to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."
By its plain language, section 1914 does not conflict with Utah's notice of appeal requirements. Section 1914 gives Indian tribes the right to appeal state court actions "for foster care placement or termination of parental rights . . . upon a showing that such action violated any provision of sections [1911, 1912, and 1913] of [ICWA]."
¶ 34 We also note that the plain language of section 1914 does not give an Indian tribe the right to appeal adoption proceedings involving Indian children. Rather, the plain language of section 1914 grants an Indian tribe the right to petition any court of competent jurisdiction to invalidate any action "for foster care placement or termination of parental rights under [s]tate law."
¶ 35 Having determined that Utah's notice of appeal requirements are not preempted under the three traditional preemption categories, we finally balance the "nature of the competing interests at stake."
¶ 36 As discussed above, ICWA was enacted "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" by establishing minimum federal standards that apply in state court actions involving Indian children.
¶ 37 Consistent with section 1914, Utah law guarantees Indian tribes the right to appeal state court proceedings that involve Indian children.
¶ 38 Having concluded that ICWA does not preempt Utah's notice of appeal requirements, we next address whether Indian tribes are exempt from those requirements in light of their unique status as quasi-sovereign entities.
¶ 39 The Nation contends that its failure to timely file a signed notice of appeal does not divest this court of jurisdiction to hear this appeal. The Nation reasons that it was automatically entitled to the fifteen-day extension to file a signed notice of appeal under rule 53(b) when it filed "the original notice of appeal with a signature line for the Nation, but without [its] signature" because a certification
¶ 40 The Nation cites no authority for its position. Rather, it contends that the certification of diligent search "is unnecessary when the appellant is a sovereign entity" because the certification form itself only evidences "counsel's efforts to locate a client who has indicated a desire to appeal but has failed to maintain contact with their attorney during the process." The Nation claims that it had already determined to appeal the adoption order and had signed a notice of appeal, but the notice of appeal was misplaced and the Nation's representative was temporarily unavailable during the fifteen-day filing period. The Nation concludes that its counsel was not required to file the certification of diligent search because its "representative had not lagged in its duty to keep in contact with its counsel . . . and was not going to disappear during the process." We disagree.
¶ 41 Indian tribes are not relieved from Utah's clearly stated notice of appeal requirements. Rule 53(b) only excludes "a minor child or state agency" from the signature requirement; the Nation concedes it is neither. Furthermore, Utah's notice of appeal requirements comport with ICWA's minimum requirements and even surpass those minimum requirements by providing Indian tribes with a right to appeal child adoption proceedings. In addition, Utah's notice of appeal requirements promote Utah's legitimate interests by ensuring that Indian tribes intend to meaningfully participate in appeals from child welfare proceedings.
¶ 42 We also note that the Nation chose to wait until the final hour—in this case, the adoption proceedings—to appeal. The Nation could have appealed several orders involving A.B. and D.T., including the order removing A.B. and D.T. from the VanWinkle home, the order terminating the parental rights of Ms. Tsosie and D.T.'s father, the order denying the Nation's motion for transfer of jurisdiction over the children, and the order terminating the parental rights of A.B.'s father. Instead, the Nation waited nearly two-and-one-half years to appeal. This is precisely the type of behavior that the Utah notice of appeal requirements are intended to prevent and is similar to the behavior that constitutes "good cause" to deny a transfer of jurisdiction to an Indian tribe under the BIA Guidelines.
¶ 43 Accordingly, because the Nation did not file its notice of appeal in conformity with Utah's notice of appeal requirements, we are
¶ 44 The Adoptive Parents
¶ 45 The Adoptive Parents argue that the Nation's track record before the juvenile court and on appeal
The Adoptive Parents also argue that this appeal and other attempts to challenge these proceedings "are not grounded in fact, are not warranted by existing law, or based on a good faith argument to extend, modify, or reverse existing law."
¶ 46 The Nation counters that tribal sovereign immunity bars an award of attorney fees. The Nation also argues that this appeal is not frivolous because it "is grounded in fact, warranted and supported by existing law, and is based in good faith." The Nation explains that the decision in this case is important because case law on ICWA that pertains to the circumstances presented on appeal is lacking and because "[a]ll of the parties indicated a request for oral argument and published opinion" should this court reach the merits of the case. The Nation also argues that its brief "puts forth several justiciable questions and contains extensive legal citation and analysis of the law intertwined with the facts of this case." As support that the appeal was not intended to cause delay, the Nation explains that "[w]hen a Navajo child is removed from its parent and placed into DCFS care, the Nation's policy is not to immediately intervene and request jurisdiction of the case" because "[i]mmediate intervention and removal of the child to tribal land would interfere with any hope of reunification of the child with the parent." The Nation also posits that its efforts
¶ 47 We need not address the issue of tribal sovereign immunity. Rather, we hold that the Nation's appeal is neither frivolous nor interposed for the purpose of delay. First, this appeal is not frivolous. As the Nation correctly notes, there is little case law that pertains to the issues on appeal. Indeed, this appeal presents two issues of first impression related to this court's jurisdiction. Furthermore, the Nation made a good faith argument with proper legal citations to extend or modify existing law related to ICWA. Second, there is no evidence that the purpose of this appeal was to harass the appellees, needlessly increase the costs of litigation, or gain time to benefit the Nation. Rather, the Nation contends that it delayed intervention and appeal in this case in order to avoid interfering "with any hope of reunification of the child with the parent." Although the wisdom of this course of action is debatable, we cannot say that it was pursued for delay. We therefore deny the Adoptive Parents' request for attorney fees and costs under rule 33.
¶ 48 We hold that Utah's notice of appeal requirements are not preempted by ICWA and that those requirements apply to Indian tribes. Because the Nation did not timely file a notice of appeal that contained its signature, we are required to dismiss this appeal for lack of jurisdiction. We also deny the Adoptive Parents' request for attorney fees and costs.
¶ 49 Chief Justice DURHAM, Associate Chief Justice DURRANT, and Justice PARRISH concur in Justice NEHRING's opinion.
¶ 50 Justice WILKINS sat for oral argument. Due to his retirement from this court, however, he does not participate in this opinion.
Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,590 (Nov. 26, 1979) (emphases added). Although the BIA Guidelines "are not intended to have binding legislative effect," we include them here because they "represent the interpretation of the Interior Department" and are intended to "help assure that rights guaranteed by [ICWA] are protected when state courts decide Indian child custody matters." Id. at 67,584.
