dissenting:
¶ 1 The single most important consideration in this long and drawn out litigation is the best interests of Baby Girl, The legal issue currently before this Court is whether the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738 et seq., requires Oklahoma courts to recognize and enforce the custody determination contained in an adoption decree entered in the State of South Caroling. Oklahoma courts have been asked to facilitate enforcement of this adoption decree and to grant custody to Adoptive Couple despite the fact that since December of 2011 Baby Girl has resided in Oklahoma with her Father pursuant to a South Carolina court order. More importantly, South Carolina courts failed to hold any kind evidentiary hearing concerning the best interests of Baby Girl and the likelihood of psychological harm to the child resulting from a severance of the parent-child relationship. Additionally, Father's parental rights were terminated without proper notice and an opportunity to be heard. Everything in the life of Baby Girl has changed since 2011, and therefore, I cannot join the majority's decision to dissolve the temporary stay and to deny original jurisdiction.1 Although this is a complicated case, we should accept our legal responsibility to follow established law in making a determination having such a profound impact on the life of this child.
Facts & Procedural History
¶ 2 The specific facts of this case were discussed in detail in the opinions from both the South Carolina Supreme Court, see Adoptive Couple v. Baby Girl, 398 S.C. 625, 731 S.E.2d 550 (S.C.2012) and the U.S. Supreme Court, see Adoptive Couple v. Baby Girl, - U.S. -, 133 S.Ct 2552, 186 LEd.2d 729 (2013). In short, after Baby Girl's birth Adoptive Couple removed the child to South Carolina and filed a petition for adoption in South Carolina. The Cherokee Nation was not given notice of Baby Girl's birth before she was removed from the state. Father received notice of the adoption proceedings in January of 2010.2 The Cherokee Nation filed a Notice of Intervention in the South Carolina action in April of 2010.3 In May of 2010, Father filed an answer in the South Carolina adoption proceeding, stating he did not consent to the adoption of Baby Girl. He contested the adoption and sought custody of Baby Girl.
¶ 3 After a four-day hearing in September 2011, the South Carolina Family Court issued a final order on November 25, 2011, finding that the Indian Child Welfare Act applied to the case, the Father did not volun*922tarily consent to the termination of his parental rights or the adoption, and that the Adoptive Couple failed to prove by clear and convincing evidence that Father's parental rights should be terminated or that granting custody of Baby Girl to Father would likely result in serious emotional or physical damage to Baby Girl.4 The trial court found that Father "was a fit and proper person to have custody of Baby Girl and there was no conflict between the best interest of the child and parental rights."5 The trial court denied the adoption petition and ordered the Adoptive Couple to transfer the child to her Father.
¶ 4 Transfer of custody took place in Charleston, South Carolina, on December 31, 2011. Baby Girl has resided with her Father and his parents in Oklahoma since that time. Adoptive Couple appealed to the South Carolina Supreme Court. The South Carolina Supreme Court affirmed and found that the intent of ICWA was accomplished by denying the adoption petition and dismissing the case. Adoptive Couple, 398 S.C. at 641, 731 S.E.2d 550. It also affirmed the trial court's decision that it was in the best interests of Baby Girl to transfer custody to her Father. Id. at 655, 731 S.E.2d 550.
U.S. Supreme Court Opinion
¶ 5 The Adoptive Couple sought certiorari review in the U.S. Supreme Court, and in a 5-4 decision, the U.S. Supreme Court held that Sections 1912(F) and 1912(d) of ICWA did not bar the termination of Father's parental rights:
[W]e hold that 25 U.S.C. § 1912(f)-which bars involuntary termination of a parent's rights in the absence of a heightened showing that serious harm to the Indian child is likely to result from the parent's "continued custody" of the child-does not apply when, as here, the relevant parent never had custody of the child. We further hold that § 1912(d)-which conditions involuntary termination of parental rights with respect to an Indian child on a showing that remedial efforts have been made to prevent the "breakup of the Indian family"-is inapplicable when, as here, the parent abandoned the Indian child before birth and never had custody of the child. Finally, we clarify that § 1915(a), which provides placement preferences for the adoption of Indian children, does not bar a non-Indian family like Adoptive Couple from adopting an Indian child when no other eligible candidates have sought to adopt the child.6
Adoptive Couple, 133 S.Ct. at 2557.
¶ 6 The majority opinion recognized that "Baby Girl is an 'Indian Child' as defined by *923the ICWA." Id. at 2557 n. 1. The Court also assumed without deciding that Father was a "parent" within the meaning of ICWA. Id. at 2560 n. 4. The Court made no mention of the South Carolina Supreme Court's finding that Father was a fit parent, and did not overturn the South Carolina Supreme Court's finding that it was in the best interests of Baby Girl to live with her Father in Oklahoma.
Remand to the South Carolina Supreme Court
¶ 7 On remand from the U.S. Supreme Court, Father filed a Motion to Remand with the South Carolina Supreme Court, arguing the case should be remanded to the Family Court for a hearing on: 1) whether the case should be transferred to Oklahoma where Baby Girl has lived for almost two years, where the relevant witnesses are all located, and where competing adoption petitions are pending; 2) whether, on the current record, Father's parental rights may be terminated, or whether it is in Baby Girl's best interests for her to remain with the natural parent who has cared for her and with whom she has bonded over those 18 months; and 3) whether, in light of the competing, adoption petitions, the ICWA placement preferences preclude adoption of Baby Girl by the Adoptive Couple.7
¶ 8 The South Carolina Supreme Court denied Father's motion in its entirety. Adoptive Couple v. Buby Girl, 404 S.C. 483, 746 S.E.2d 51, 54 (2013). It. remanded the case to the Family Court "for the prompt entry of an order approving and finalizing Adoptive Couple's adoption of Baby Girl, and thereby terminating Birth Father's parental rights."8 Id.
¶ 9 The South Carolina Family Court, as ordered, held no final hearing on the adoption and entered the adoption decree in favor of the Adoptive Couple, apparently relying on the record made at the hearing in September of 2011. Although there was a hearing held on July 81, 2018, at which Father's attorneys and attorneys for the Cherokee Nation were present, the order from the Family Court indicates the adoption decree had already been entered prior to the hearing.9 The objections to jurisdiction or change in custodial placement were not addressed on their merits.10
South Carolina's "custody determination" did not comply with the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A et seq.
¶ 10 I would decline to recognize the adoption decree entered by South Carolina under the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738 et seq.,11 and issue a writ of *924prohibition directing the trial court to refuse enforcement of the adoption decree. I would find that under the PKPA, the adoption decree is a custody determination 12 and that South Carolina relinquished jurisdiction over Baby Girl by failing to comply with the PKPA. -
¶ 11 The PKPA requires the courts of every state to enforce a child custody determination of sister states made consistently with the provisions of the Act, 28 U.S.C. § 1738A¥(e), provides that "[bl]efore a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child." 28 U.S.C. § 1788A¥(e) (emphasis added). Father's parental rights had not been terminated before the entry of the final adoption decree, and as such, under both the PKPA and South Carolina statutes 13 he was enti tled to notice and a hearing before such rights were terminated.14
*925¶ 12 Ironically, the South Carolina Supreme Court refused to recognize a sister state's custody order under § 1788A(e) for failure to comply with the notice and hearing requirements of the PKPA. In Doe v. Baby Girl, 376 S.C. 267, 657 S.E.2d 455 (2008), one of the issues presented was whether South Carolina was required to recognize and enforce an Illinois custody. determination under the PKPA. Specifically, the South Carolina Supreme Court held that the Ilinois order was "flawed because [adoptive parents] were not named as parties to the Illinois actions and were not given proper notice and an opportunity to be heard." Id. at 464 (emphasis added). This is precisely what oc curred in South Carolina in this case. Father's parental rights were terminated and a custody placement was made without giving interested parties an opportunity to be heard on the issues they had raised.15
¶ 13 More importantly, the South Carolina Family Court held no hearing concerning the best interests of Baby Girl and the likelihood of psychological harm to the child resulting from severance of the parent-child relationship. There was not one shred of evidence presented to indicate how such a custody transfer would affect the rights and well-being of Baby Girl. Other jurisdictions facing circumstances similar to those before us have found that a custody determination is in derogation of the PKPA when made without conducting a hearing to determine the best interests of a child.
¶ 14 In the case of E.E.B. v. D.A., 89 N.J. 595, 446 A.2d 871 (1982), the New Jersey Supreme Court faced a custody dispute between prospective adoptive parents from New Jersey and a natural mother living in Ohio. The minor child at the center of this custody battle was born in Ohio on October 13, 1978. Id. at 873. Three days after the child's birth, the natural parents executed permanent relinquishments to custody, and the infant was placed with a county welfare department. Id. On October 19, 1978, the child was placed with the adoptive parents. Id. Mother attempted to revoke her relinquishment on October 28, 1978... Id. After the county welfare agency failed to inform the Ohio Juvenile Court of mother's revocation, the assigned judge authorized the child's placement with the adoptive parents. Id.
¶ 15 Natural mother filed an action seeking a writ of habeas corpus for the return of her biological child. Id. Relief was denied by the lower court and the Ohio Court of Appeals affirmed that judgment in June of 1979. Id. Natural mother sought review in the Ohio Supreme Court. In October of 1979, the adoptive parents moved with the child to New Jersey. Id. at 874. The Ohio Supreme Court reversed the prior decisions on July 23, 1980, and remanded the matter to the Juvenile Court. Id. After rehearing in the Ohio Supreme Court was denied, the Juvenile Court issued a writ of habeas corpus on September 29, 1980-without conducting a best interests hearing. Id. at 874, 877. The adoptive parents then initiated a custody proceeding in the New Jersey court system on September 29, 1980. Id. at 874. Following a hearing to determine the best interests of the minor child, the lower court found she should remain in the custody of the adoptive parents. Natural mother appealed the ruling, challenging the authority of New Jersey courts to issue a custody determination and the system's failure to recognize and enforce the prior issued Ohio custody order under the PKPA. >
¶ 16 The New Jersey Supreme Court ree-ognized that the PKPA would permit modification of the Ohio order only if two conditions were met: (1) the forum/modifying state has subject matter jurisdiction; and (2) the original issuing state has either lost or declined jurisdiction. Id. at 877 (citing 28 U.S.C. § 1788A(f)). Because the child had been residing in New Jersey for the majority of her life, the court found the state had subject matter jurisdiction over the child. Id. More importantly, the court found Ohio had relinquished jurisdiction over the child when it failed to conduct a hearing to address the best interests of the child:
*926We hold that Ohio's failure to conduct a best interest hearing constitutes a refusal to exercise jurisdiction under 28 U.S.C.A. § Under PKPA, therefore, New Jersey is free to modify the Ohio decree. This result comports with the congressional intent that child custody decisions be made in the state best able to - determine the best interest of the child. See Pub.L.No. 96-611, § 7, 94 Stat. 8568.
Id. (emphasis added); see also People ex rel A.J.C., 88 P.8d 599, 612 (Colo.2004) (determining that because Missouri failed to conduct a best interests analysis in issuing its custody decree, it declined jurisdiction to modify that order under section 1738A(f)); In re Baby Girl L., 2002 OK 9, 128, 51 P.3d 544 (noting that "[the Legislature has endeavored to avoid serious psychological harm to children resulting from failed adoptions." It has sought this goal by a "best interests" hearing after the failed adoption and by applying certain requirements for temporary custody orders. How the biological parents, adoptive parents, and the courts treat the temporary custody of young children must reflect the Legislature's concern.") South Carolina's failure to conduct a best interests hearing constitutes a refusal to exercise jurisdiction under the PKPA. Baby Girl has resided in Oklahoma since December 2011, so Oklahoma has the right to exercise jurisdiction and could modify the custody determination after Baby Girl's best interests have been fully considered.
Conclusion
17 Baby Girl deserves her day in court. We cannot ignore the fact that Baby Girl, at the age of 27 months, has already been moved from one set of "parents" to another, after lengthy judicial consideration of her best interests. Under the issues presented to this court, an immediate change of custody without any consideration of her best interests will require a four-year-old child to resolve her feelings of loss and grief for a second time.
118 Because the courts of the state of South Carolina refused to allow a hearing on the what is in the best interests of Baby Girl and Father's parental rights were terminated without proper notice and an opportunity to be heard, I would assume original jurisdiction, stay the transfer of Baby Girl, and find that Oklahoma is not required to recognize and enforce the South Carolina adoption decree. I would consolidate the appeal from the Cherokee County habeas corpus proceeding with this proceeding and stay the transfer of Baby Girl in that case as well. I would order a hearing on the best interests of Baby Girl as required by the law of this state before any change of custody is considered.16 see In re Baby Girl L., 2002 OK 9, 51 P.3d 544.
. Baby Girl celebrated her fourth birthday on September 15, 2013.
. Father received notice of the adoption proceedings approximately four months after Baby Girl's birth. A process server presented Father "legal papers entitled 'Acceptance of Service and Answer of Defendant, which stated he was not contesting the adoption of Baby Girl and that he waived the thirty day waiting period and notice of the hearing." Adoptive Couple, 731 S.E.2d at 555. After consulting with his parents and a JAG lawyer at his military base, Father contacted a lawyer the next day and began contesting the adoption. Id.
. "Since subject matter jurisdiction concerns the competency of the court to determine the particular matter, it cannot be waived by the parties or conferred upon the court by their consent and it may be challenged at any time in the course of the proceedings." In re A.N.O., 2004 OK 33, ¶ 9, 91 P.3d 646, 649.
. Adoptive Couple, 731 S.E.2d at 556.
. Supplement to First Appendix to Response Brief on Behalf of the Real Party in Interest at 000236 (citing South Carolina Family Court Order, November 25, 2011) (emphasis added).
. The majority opinion from the U.S. Supreme Court arguably disregards the express Congressional purpose of ICWA. see 25 U.S.C. § 1901. Regardless, a narrow reading of the opinion leads to the conclusion that although Sections 1912(f) and 1912(d) of ICWA do not apply in this case, ICWA may still apply to this adoption proceeding because "Baby Girl is an 'Indian child'" and the "case concerns a 'child custody proceeding,' as defined by ICWA to include proceedings that involve 'termination of parental rights' and 'adoptive placement.'" Adoptive Couple, 133 S.Ct. at 2557 n. 1. see also Cherokee Nation v. Nomura, 2007 OK 40, 11, 160 P.3d 967, 969 (holding that the Oklahoma Indian Child Welfare Act must be applied to every adoption of Indian children born to an Oklahoma Indian parent, even if the parent chooses out of state non-Indian adoptive parents).
As Justice Sotomayor predicted in her dissent, Section 1915(a)'s adoption-placement preference became applicable after remand from the U.S. Supreme Court. Adoptive Couple, 133 S.Ct. at 2585 (Sotomayor, J., dissenting) ("[T}he majority does not and cannot foreclose the possibility that on remand, Baby Girl's paternal grandparents or other members of the Cherokee Nation may formally petition for adoption of Baby Girl.")
Baby Girl's grandfather, who is a member of the Cherokee Nation, and grandmother filed a Petition for Guardianship on July 2, 2013, in the Cherokee Nation District Court and asked that in the event Father's rights were terminated, they be allowed to adopt Baby Girl. see Petitioners' Index at Joint Brief of Dusten Brown and the Cherokee Nation in Support of Objection to the Recognition Registration and/or Enforcement of the Decree of Adoption and/or Custody Determination at 10. Baby Girl's stepmother and Father also filed a stepparent adoption proceeding on July 1, 2013, in the District Court of Nowata County and asked that in the event Father's parental rights were terminated they be allowed to adopt Baby Girl. Id.
. See Petitioners' Index at Joint Brief of Dusten Brown and the Cherokee nation in Support of Objection to the Recognition Registration and/or Enforcement of the Decree of Adoption and/or Custody Determination at 10.
. Two dissenting Justices cautioned against remanding the case without a hearing, suggesting that ICWA's adoptive preference provisions might now be applicable and that Baby Girl's best interests would not be fully considered without a hearing on remand. Id. (Pleicones, Beatty, JJ., dissenting) ("I would remand but I would not order any specific relief at this juncture, as I believe this is a situation where the decisions that are in the best interests of the child, given all that has happened in her short life, must be sorted out in the lower court(s)").
. The order entered by the South Carolina Family Court on August 1, 2013, states:
2. Adoption Decree Entered: At the beginning of the hearing, the Court informed the parties that the Decree of Adoption had been issued as set out in the order of the South Carolina Supreme Court from July 17 and July 24, 2013, and that the parental rights of the natural parents in and to the child were terminated and that the child was the child of the adoptive parents. A copy of the Decree of Adoption was distributed and served upon the parties (the Adoptive Parents, the Birth Father, the Guardian ad Litem, and the Cherokee Indian Nation) by serving the same on their attorneys at the beginning of the hearing. Service of the Decree of Adoption is effective on this day of service.
Custody Transition Order at 2 (S.C.Fam.Ct. 9th Jud. Cir. Aug. 1, 2013) (emphasis added).
. Id.
. "The primary purposes of the PKPA are to: (1) promote cooperation between State courts so that a determination of custody is rendered in the State which can best decide the case in the interest of the child; (2) facilitate the enforcement of custody decrees of sister States; (3) discourage continuing interstate controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child; and (4) avoid juris*924dictional competition and conflict between State courts in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being." Doe v. Baby Girl, 376 S.C. 267, 657 $.E.2d 455, 460 (2008) (citing PKPA, Pub.L. No. 96-611, § 7(c) (1980)).
. The phrase custody determination is specifically defined by § 1738A(b)(3) as "a judgment, decree, or other order of a court providing for the custody of a child, and includes permanent and temporary orders, and initial orders and modifications." The majority of courts across the country addressing this issue have concluded that both the PKPA and the UCCJEA apply to adoption proceedings. See, e.g., In re Adoption of Baby E.Z., 266 P.3d 702, 708 (recognizing the majority of jurisdictions apply PKPA to adoptions); Brookshire v. Blackwell, 384 S.C. 333, 682 S.E.2d 295, 298 (S.C.Ct.App.2009) (recognizing that both PKPA and UCCJA apply to adoption cases); In People ex rel A.J.C., 88 P.3d 599 (Colo.2004) (finding custody determinations included adoptions).
. S.C.Code Ann. § 63-9-730 provides in relevant part:
(A) Notice of any proceeding initiated pursuant to this article must be given to the persons or agencies specified in subsection (B) of this section, unless the person has given consent or relinquishment or parental rights have been terminated.
(B) The following persons or agencies are entitled to notice as provided in subsection (A):
(1) a person adjudicated by a court in this State to be the father of the child;
(2) a person or agency required to give consent or relinquishment pursuant to Section 63-9-310(A) or (B) from whom consent or relinquishment cannot be obtained;
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(F) When notice of intent to contest, intervene, or otherwise respond is filed with the court within the required time period, the person or agency must be given an opportunity to appear and to be heard before the final hearing on the merits of the adoption. *
S$.C.Code Ann. § 63-9-730.
. Additionally, the South Carolina Adoption Code requires a final hearing before an adoption can be finalized. No final adoption hearing was held upon remand from the U.S. Supreme Court. S.C.Code Ann. § 63-9-750. South Carolina's adoption code, § 63-9-520(A)(1)(b), also provides that "if the waiting period for an adoptive placement exceeds one year from the date the preplacement investigation report is completed, the report must be updated before the placement of a child for the purpose of adoption to determine any change in circumstances." S.C.Code Ann. § 63-9-520(A)(1)(b).
The preplacement investigation was conducted sometime before September of 2011. Baby Girl has lived with her father in Oklahoma since December 201 1-at least two years from the date of the original preplacement investigation. Because the preplacement investigation report was not updated, the adoption should not have been finalized.
Additionally, Section 63-9-520(A)(2) of the South Carolina adoption code states that: "A postplacement investigation and report of this investigation must be completed after the filing of the adoption petition. Copies of this report must be provided to the adoption petitioner and must be filed with the court at the final hearing on the adoption provided for in Section 63-9-750." A postplacement investigation and report of this investigation must include, among other things, a determination that adoption by the adoptive parents, is in the best interest of the adoptee. As mentioned above, Baby Girl has lived in Oklahoma for almost two years now. Any postplacement investigation report filed with the South Carolina Family Court before Baby Girl's transfer to Oklahoma in December 2011 would have considered her best interests then, not now.
Finally, § 63-9-520(B) states that "the investigators and all persons participating in, conducting, or associated with the preparation of reports required under this section must be available for examination and cross-examination by any party to an adoption proceeding concerning the contents of and recommendations contained in the reports." Although new reports should have been filed, Father was not given the opportunity to question the investigators about the contents *925of the old reports because no final adoption hearing was held.
. Custody Transition Order at 2 (S.C.Fam.Ct. 9th Jud. Cir. Aug. 1, 2013).
. It is hard to fathom this Court allowing the enforcement of an adoption decree entered in direct contravention of the Oklahoma and U.S. Constitutions. - Our decision in In re Baby Girl L., 2002 OK 9, 51 P.3d 544, recognized the right of legal strangers to assert continued custodial rights after a failed adoption; yet we fail to protect a biological parent's right to present evidence concerning his continued custody of Baby Girl following the legal debacle that is this case.