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NO. 29l47

IN THE SUPREME COURT OF THE STATE OF HAWAId

 
 
    

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In the Matter of the Adoption of §§
§
y 313
A FEMALE CHILD, B@RN @N OCTGBER 3, 2004, 39 §§
by P.N. and J.N., Petitioners-Appellants ¢§ ¢i
§
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on

CERTIORARI TO THE INTERMEDIATE COURT OF APPESLS
(FC-A NO. 01-1-OG29)

ORDER AFFIRMING IN PART AND VACATlNG IN PART THE FAMILY COURT
2008 ORDER DISMISSING 1

OF THE FIFTH CIRCUIT'S APRIL 24,
ADOPTION PROCEEDINGS AND VACATING THE MEMORANDUM OPINlON
AND JUDGMENT OF THE INTERMEDIATE COURT GF APPEALS

Moon, C.J., Nakayama, Acoba, Duffy, and
Recktenwald, JJ.)

and J.N.

(By:
[hereinafter,

Petitioners-appellants P.N.

Adoptive Parents] petition this court to review the Intermediate
2009 judgment on appeal,

Court of Appeals' (ICA) October 28,
2009 memorandum opinion.

entered pursuant to its September ll,
the ICA affirmed the Family Court of the Fifth

Therein,

Circuit’s1 April 24,
proceeding of respondent-appellee Mother's female child (Child)

and ordering return of Child to Mother.

2008 order dismissing the adoption

by Adoptive Parents,
On application, Adoptive Parents argue that the ICA

gravely erred in affirming the family court’s order dismissing

the adoption proceedings and ordering return of the child to

Mother because the family court “lacked jurisdiction to state
[Mother].” Adoptive

that the [C]hild should be returned to

The Honorable Calvin Murashige presided.
_l_

1
l

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Parents additionally argue that the family court should have
stayed the adoption proceedings in the family court in light of
the ongoing German adoption proceedings that were initiated by
Adoptive Parents prior to the date that Mother filed her motion
to dismiss. For the reasons discussed below, we hold that the
family court lacked subject matter jurisdiction over the adoption
proceedings pursuant to section l9ll(a) of the lndian Child
Welfare Act (ICWA).

In the instant case, Mother argued in her December l2,
2007 motion to dismiss that, under sections l903(l)(ii) and
(l)(iv) and l9ll(a) of the lCWA, the Sioux Indian tribe to which
she belongs has exclusive jurisdiction over the adoption of Child
because: (l) the adoption proceeding “falls within the
definition of a custody proceeding as set forth in section
l903(l)(ii) and (l)(iv)”; and, (2) Mother was domiciled within
the Indian reservation during the pregnancy and at the time Child
was born in Hawafi and, thus, Child was also “domiciled within
the reservation.”

Section l9ll(a) of the ICWA provides that “an indian
tribe shall have jurisdiction as to any [s]tate 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
[f]ederal law.” In turn, sections l903(l)(ii) and (l)(iv)

provide that,

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for purposes of this chapter, the term . . . “child custody
proceeding” shall mean and include . . . “termination of
parental rights” which shall mean any action resulting in
the termination of the parent-child relationship [and]
“adoptive placement” . . . shall mean the permanent
placement of an lndian child for adoption, including any

action resulting in a final decree of adoption.
Inasmuch as the instant case involves the adoption of Child who
is of Indian descent by Adoptive Parents, this case clearly
involves an “action resulting in the termination of the parent~
child relationship” and “the permanent placement of an Indian
child for adoption.” Hence, this constitutes a “child custody
proceeding” within the meaning of the lCWA. As such, the only
remaining inquiry pursuant to section l9ll(a) is whether Child
was “domiciled within the reservation” of the SiouX Indian tribe.

In MississiDpi Band of Choctaw Indians v. Holyfield,
490 U.S. 30 (l989), the United States Supreme Court considered
the issue whether twin babies were “domiciled within the
reservation” such that section l9ll(a) of the ICWA applied and
the tribal court had exclusive jurisdiction over the case. ;d;
at 42. In Holyfield, an Indian mother and father were
domiciliaries of the Choctaw reservation in Mississippi during
the mother’s pregnancy. ;d4 at 37. At some point, the natural
mother and father left the reservation, and the mother gave birth
in a hospital 200 miles away from the reservation. ;d4 Shortly
thereafter, the natural mother and father signed a consent to
adoption and surrendered the twins to their adoptive parents.

Id. at 37~38. As a result, the babies were never physically

j present on the Choctaw reservation. Id. at 38. Two months

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later, the Choctaw Indian tribe moved in the chancery court to
vacate the adoption decree on the grounds that, under the ICWA,
exclusive jurisdiction over the adoption proceedings was vested
in the tribal court. ;d; The chancery court overruled the
motion, reasoning that the babies were not “domiciled within the
reservation.” ldL at 39. The tribe appealed, and the Supreme
Court of Mississippi affirmed, concluding ¢hat, because the
babies were voluntarily surrendered outside of the reservation
and the natural parents “went to great lengths” to ensure that
the babies were born off the reservation, the babies were, at no
time, domiciled on the reservation. ;d;

The U.S. Supreme Court granted plenary review, stating
that the meaning of “domicile” must be examined in terms of
Congressi intent in legislating the ICWA. ;Q4 at 4l, 48.
Addressing the domicile of young children, the Court concluded

that,

[s]ince most minors are legally incapable of forming the
requisite intent to establish a domicile, their domicile is
determined by that of their parents. ln the case of an
illegitimate child, that has traditionally meant the
domicile of its mother. Under these principles, it is
entirely logical that “on occasion, a child’s domicile of
origin will be in a place where the child has never been.”

;dL at 48 (citations omitted). Looking to the facts of the case,
the Court determined that, because “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,” id;, “it is

clear that at their birth the twin babies were also domiciled on

the reservation, even though they themselves had never been

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there.” ;d$ at 48~49. Consequently, the Court held that “the
Choctaw tribal court possessed exclusive jurisdiction pursuant to
[section l9ll(a) of the lCWA]” and vacated the adoption decree.
;d4 at 53.

We conclude that the instant case is clearly analogous
to Holyfield because, Mother, like the natural parents in
Holyfield, was domiciled on the reservation at all relevant
times. Further, Child was surrendered to Adoptive Parents
immediately after the birth and, like the babies in Holyfield,
had never been physically on the reservation. Based on the
Court’s holding in Holyfield, we conclude that the Child was
“domiciled within the reservation” at the time the adoption
proceedings were commenced. Consequently, we hold that section
l9ll(a) applies in the instant case and that exclusive
jurisdiction over the adoption of Child rests with the Indian
tribal court. In other words, the family court lacked subject
matter jurisdiction over the instant adoption proceedings.

However, the ICA, on direct appeal, reached the merits
of the case and concluded that “the German family court decision
refusing to return Child did not deprive the Hawafi family court
of jurisdiction to dismiss the adoption proceeding pursuant to
25 U.S.C. § l9l3(c), which is the dispositive issue before us.”
In re Adoption of Female Child, b. 10/3/04, No. 29l47, slip op.
at 4-5 (Haw; Sept. ll, 2009) (mem.). In so concluding, the ICA

clearly overlooked the fact that the family court lacked subject

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matter jurisdiction over the instant adoption pursuant to section
l9ll(a) of the ICWA. As such, we hold that the ICA erred.

In light of the foregoing, we hold, based on the family
court’s lack of subject matter jurisdiction, that the dismissal
of the adoption proceedings was the correct result, We,
therefore, affirm that portion of the family court’s April 24,
2008 order dismissing the adoption proceedings. We also hold
that, without subject matter jurisdiction, the family court did
not have the authority to order that Child be returned to her
natural mother and, therefore, vacate that portion of the order
so directing.2 Additionally, we vacate the ICA's September ll,
2009 memorandum opinion and its 0ctober 28, 2009 judgment on
appeal.

DATED: Honolulu, Hawaidq March 4, 20l0.

P. N. and J. N.,  
petitioners-appellants,
appearing pro se

k
/->C¢ ¢,g_, ( LL     ii 
Emiko L. T. Meyers (of Legal

Aid Society of Hawafi~KauaUJ,

for natural mother /47/u_~{H*~’k4/\"\§`v
Wawm. €,  "
/47oov1 A1£0L¢Lc4¢»C¢4/

2 Because the family court lacked subject matter jurisdiction over the

instant adoption proceedings, all of its orders in this case are void

ab initio and, thus, do not have any effect. See In re Estate of Kam, ll0
Hawafi 8, 22, l29 P.3d 5ll, 525 (2006) (holding that orders entered by the
family court when it did not have subject matter jurisdiction were void ab
initio “and should not have been given any effect”).

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