Hammer v. State (In re B. H.)

• Docket Number: 119,429
• Decision Date: 11 October 2022
• Citation: 519 P.3d 91
• Parties: In the MATTER OF B. H. and J. H., Minor Children Anthony Hammer, Respondent/Appellant, v. State of Oklahoma, Petitioner/Appellee.
• Court: Oklahoma Supreme Court

519 P.3d 91

In the MATTER OF B. H. and J. H., Minor Children Anthony Hammer, Respondent/Appellant,

v.State of Oklahoma, Petitioner/Appellee.

No. 119,429

Supreme Court of Oklahoma.

Filed October 11, 2022

Anthony Hammer, Appellant, pro se.

Darby, C.J.:

¶1 Pro Se respondent/appellant, Anthony Hammer (Father), is a member of the Cherokee Nation. In a collateral attack on an already final order, Appellant invoked McGirt v. Oklahoma , 591 U.S. ––––, 140 S. Ct. 2452, 207 L. Ed. 2d 985 (2020) ; the United States’ 1866 treaty with the Cherokee, Treaty with the Cherokee, U.S.-Cherokee Nation, July 19, 1866, 14 Stat. 799; and the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq., and moved to vacate the Oklahoma district court's order terminating Father's parental rights to his children, B.H. and J.H. (Indian Children or Children). Father argued the order is void—that the district court never acquired jurisdiction because Children were domiciled or resided in the Muscogee (Creek) Nation's reservation.

¶2 Foremost, this appeal involves the application of Oklahoma's Civil Procedure Code for when a district court may vacate a judgment as void. See 12 O.S. 2011, § 1038.¹ The sole issue is whether the district court abused its discretion in denying Father's motion to vacate.² Because Father failed to affirmatively show the district court lacked jurisdiction of the termination proceeding, we affirm. Scoufos v. Fuller , 1954 OK 363, ¶ 20, 280 P.2d 720, 723 ; see also Thomason v. Thompson , 1926 OK 865, ¶ 3, 253 P. 99, 101, 123 Okla. 218, 253 P. 99 ("All presumptions are in favor of the validity of the judgments in a court of general jurisdiction. A judgment is void on its face when it so appear[s] by an inspection of the judgment roll, but would not be held void on its face unless the record thereof affirmatively shows the court was without jurisdiction.") (citations omitted).

FACTS AND PROCEDURAL HISTORY

¶3 On December 11, 2017, the Department of Human Services (DHS) through the McIntosh County District Attorney's Office filed an application to place B.H. (age 6) and J.H. (age 9) into emergency custody citing an imminent safety threat. A DHS worker's affidavit attached to the application reported Children's Cherokee tribal affiliation. The affidavit also listed Children's address prior to removal. The listed address is within the boundaries of McIntosh County, Oklahoma.

¶4 After the emergency custody hearing, the district court found ICWA applied, that the Cherokee Nation and Bureau of Indian Affairs (BIA) had been notified, and that reasonable and/or active efforts were made to prevent the breakup of Indian Children's family. The State filed a petition seeking to adjudicate Children deprived. The petition asserted the State's exercise of jurisdiction was proper pursuant to the Uniform Child Custody Jurisdiction Enforcement Act, 43 O.S. 2011, §§ 551-101 et seq. , and 10A O.S. 2011, § 2-2-102. ¶5 Father did not challenge the district court's exercise of jurisdiction, and voluntarily stipulated to the petition. The court initially approved a reunification permanency plan; that effort, however, failed and the court approved adoption as the new plan. After the state filed a termination petition, Father voluntarily relinquished his parental rights. On January 24, 2020, the district court entered the order terminating Father's rights. That order was a final judgment from which Father could appeal. 10A O.S. 2011, § 1-5-103(A). Father did not appeal.

¶6 Months later, on July 9, 2020, the United States Supreme Court decided McGirt , which held Congress never disestablished the Creek Nation's historical reservation. McGirt , 140 S. Ct. at 2468. As a consequence, a significant portion of eastern Oklahoma was recognized as "Indian country." Id. at 2459-60, 2468. On January 26, 2021, a year after the order was final, Father filed a motion to vacate. He argued for the first time that the McIntosh County district court never acquired jurisdiction over the proceedings, and as such, the order was void ab initio . Father claimed that only an Indian tribe could exercise jurisdiction over the termination proceedings under ICWA because Children resided or were domiciled within the historic boundaries of the Creek reservation.³ The district court denied Father's motion as untimely and without merit.⁴ Father appeals the denial of his motion to vacate the judgment. We retained this appeal.

STANDARD OF REVIEW

¶7 The district court's decision denying Father's motion to vacate comes to this Court "clothed with a presumption of correctness. Every fact not disputed by the record must be regarded as supportive of the trial court's ruling." Willis v. Sequoyah House, Inc. , 2008 OK 87, ¶ 15, 194 P.3d 1285, 1290 (footnotes omitted). Father, as appellant, bears total responsibility for including in the appellate record all materials necessary to support his claim for corrective relief. Davidson v. Gregory , 1989 OK 87, ¶¶ 11-12, 780 P.2d 679, 682 ; see also Hamid v. Sew Original , 1982 OK 46, ¶ 6, 645 P.2d 496, 497 ("Legal error may not be presumed in an appellate court from a silent record. The opposite is true. Absent a record showing otherwise, this court presumes that the trial court did not err.").

¶8 The appeal does not concern the correctness of the original order, but the correctness of the district court's response to Father's motion to vacate. Yery v. Yery , 1981 OK 46, ¶ 14, 629 P.2d 357, 363. On appeal we review the trial court's denial of a motion to vacate for abuse of discretion. Ferguson Enters., Inc. v. H. Webb Enters., Inc. , 2000 OK 78, ¶ 5, 13 P.3d 480, 482. When a party files a motion to vacate, the trial court "must first decide whether a sufficient ground for granting the application exists...." Poff v. Lockridge , 1908 OK 209, ¶ 10, 22 Okla. 462, 98 P. 427, 429 quoting 15 William M. McKinney, The Encyclopedia of Pleading and Practice 287. If such sufficient ground exists for modifying or vacating a judgment, then the trial court is to "decide upon the validity of the defense offered." Id. ¶ 9, 98 P. at 429.

An application for the opening or vacation of a judgment is addressed to the sound legal discretion of the court, and while his disposition of the application may be reviewed on appeal, it will not be reversed, unless it clearly appears that this discretion has been abused .... The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles . It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law, and in a manner to subserve, and not to impede or defeat the ends of substantial justice . In a plain case this discretion has no office to perform, and its exercise is limited to doubtful cases, where an impartial mind hesitates. If it be doubtful whether the excuse offered is sufficient or not, or whether the defense set up is within or without merit in foro legis, when examined under those rules of law by which judges are guided to a conclusion, the judgment of the court below will not be disturbed.

Id. ¶¶ 16-18 (emphasis added) (citations and quotation marks omitted).

ANALYSIS

¶9 A district court's power to vacate or otherwise modify a final judgment or order is generally a matter of procedure and is limited. 12 O.S. 2011, §§ 1031 - 1038.⁵ Father cited no specific ground authorizing the court to vacate the termination order. See e.g. , 12 O.S. 2011, § 1031.⁶ Instead, Father referred to ICWA and McGirt , and then generally claimed the district court lacked jurisdiction.

¶10 In the original termination case, an Oklahoma state district court, not a tribal court, decided the matter. Implicit in the district court's exercise of jurisdiction was its finding that Children were not domiciled on a reservation. At no point in time did any interested party dispute the Children's status as Indian children or where they lived. Likewise no party made a direct appeal from the original order alleging as error any of the district court's findings or the court's exercise of jurisdiction. Father was represented by counsel and the tribes were involved in the district court proceedings below. It was only after McGirt —and years after the initial petition was filed listing their specific addresses—that Father claimed Children actually resided or were domiciled on a reservation.⁷

¶11 Father argues this would constitute a ground to vacate the final order because such a finding would necessarily mean the state court lacked jurisdiction over the termination proceedings. Father did not refer to any specific ground in his motion, he only claimed that the district court lacked jurisdiction based on his bare assertions that Children are domiciled within the Creek reservation.

¶12 But a district court's power to vacate an order is a matter of procedure. It is only authorized to vacate its order as void for lack of jurisdiction if such defect is affirmatively shown within the framework of the Oklahoma Civil Procedure Code. 12 O.S. 2011, § 1031(3) ; § 1038. A void judgment may be vacated at any time. 12 O.S. 2011, § 1038.⁸ In order for a judgment to be void, it must be demonstrably void on the face of the judgment roll;⁹ no extrinsic evidence is admissible to show the judgment is void. Scoufos v. Fuller , 1954 OK 363, ¶ 17, 280 P.2d 720, 723.

¶13 The record in this appeal includes the entirety of the court clerk's file and no more; it includes all the filings but no additional evidentiary materials. Father cannot demonstrate the original termination order is void. Further, Father fails to identify how the McIntosh County court's exercise of jurisdiction was deficient and how such defect in jurisdiction is obvious from the record.

CONCLUSION

¶14 We decide Father's appeal from the denial of a motion to vacate on procedural grounds. 12 O.S. 2011, § 1038. We hold the district court...