Yancey v. Thomas , 441 F. App'x 552 ( 2011 )


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  •                                                                         FILED
    United States Court of Appeals
    Tenth Circuit
    September 20, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    FOR THE TENTH CIRCUIT
    CHRISTOPHER YANCEY,
    Plaintiff-Appellant,
    No. 10-6239
    v.                                            (D.C. No. 5:10-CV-00534-C)
    (W.D. Okla.)
    TIMOTHY THOMAS;
    TAMMY THOMAS,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior Circuit
    Judges.
    Christopher Yancey filed an action in the United States District Court for
    the Western District of Oklahoma contending that Oklahoma state-court rulings
    terminating his parental rights over his Indian child were invalid under the Indian
    Child Welfare Act (ICWA), 
    25 U.S.C. §§ 1901-1963
    . The district court
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    dismissed his action, determining that either federal abstention was mandated, or
    the action was barred by the Full Faith and Credit Clause of the United States
    Constitution (U.S. Const. art. IV, § 1) and 
    28 U.S.C. § 1738
    . Exercising
    jurisdiction under 
    28 U.S.C. § 1291
    , we affirm.
    I. Background
    Much of the early history of the litigation involving Yancey’s parental
    rights is described in an Oklahoma Supreme Court decision, In re Baby Boy L.,
    
    103 P.3d 1099
    , 1101-03 (Okla. 2004). Tiffany Leatherman and Yancey are the
    natural parents of Baby Boy L., born on October 4, 2002. Yancey is a member of
    the Muscogee (Creek) Indian Nation of Oklahoma (the Nation), but Leatherman is
    not a member of any Native American tribe. Yancey and Leatherman were
    teenagers when Baby Boy L. was conceived, and they never married. Before the
    child was born, Leatherman decided to place him for adoption, and she located a
    couple who were interested in adopting him, appellees Timothy and Tammy
    Thomas. Baby Boy L. has been in the Thomases’ custody since his birth.
    In December 2002, Leatherman brought an action in Oklahoma state court
    to terminate Yancey’s parental rights and to determine Baby Boy L.’s eligibility
    for adoption without Yancey’s consent. Leatherman appeared in court,
    relinquished her parental rights, and consented to the adoption. Yancey appeared
    in the proceedings and objected to the adoption. The Nation intervened and filed
    a motion to dismiss, seeking the court’s compliance with the child-placement
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    preferences of the ICWA. The ICWA provides “minimum Federal standards for
    the removal of Indian children from their families and the placement of such
    children in foster or adoptive homes which will reflect the unique values of Indian
    culture.” 
    25 U.S.C. § 1902
    . In particular, the ICWA gives preference in adoptive
    placement to members of the Indian child’s family or tribe, or other Indian
    families, in the absence of good cause. See 
    id.
     § 1915(a).
    In September 2003 the Oklahoma trial court determined that the ICWA was
    not applicable and that Baby Boy L. was eligible for adoption without Yancey’s
    consent. The Oklahoma Court of Civil Appeals affirmed, but the Oklahoma
    Supreme Court reversed and remanded, holding that the ICWA applied and there
    was insufficient evidence to find that Baby Boy L. was eligible for adoption
    without Yancey’s consent.
    On remand following the Oklahoma Supreme Court’s decision, the trial
    court appointed a guardian ad litem for Baby Boy L., and the Thomases’ attorney
    entered an appearance and filed a petition for adoption. After a hearing the court
    made the following findings in support of its granting the Thomases custody of
    Baby Boy L.:
    1. The court finds that the [ICWA] applies. 2. The petitioners,
    Timothy and Tammy Thomas have shown by clear an[d] convincing
    evidence, including the testimony of a qualified expert witness, that
    custody of the minor child by the father is likely to result in
    emotional damage to the child. See 25 USC Section 1912(e) . . . .
    That for good cause shown pursuant to 25 USC 1915 the child is to
    be placed with Timothy and Tammy Thomas instead of the
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    preferences set forth under ICWA. The child is at risk of emotional
    trauma if the child is removed from the Thomas placement.
    Aplt. App. at 112 (all-caps omitted). The Oklahoma Court of Civil Appeals
    affirmed, holding that clear and convincing evidence supported the trial court’s
    determination that there was good cause to deviate from the ICWA’s
    child-placement preferences. The Oklahoma Supreme Court denied Yancey’s
    petition for certiorari.
    After further proceedings, on February 19, 2008, the Oklahoma trial court
    denied Yancey’s motion to transfer the case to Tribal Court. Also, it entered an
    order that Baby Boy L. could be adopted without Yancey’s consent because clear
    and convincing evidence showed that, during the relevant period preceding the
    petition for adoption, Yancey had failed to contribute to the support of Baby Boy
    L. and had failed to establish or maintain a substantial and positive relationship
    with the child. On appeal the Oklahoma Court of Civil Appeals rejected
    Yancey’s claim that the trial court had failed to comply with the ICWA and
    affirmed the determination that Baby Boy L. was eligible for adoption without his
    consent. The Oklahoma Supreme Court and the United States Supreme Court
    denied Yancey’s petitions for review.
    On May 18, 2010, the Oklahoma trial court entered an order terminating
    Yancey’s parental rights over Baby Boy L. The court found that the ICWA had
    been complied with and that the Thomases had proved beyond a reasonable doubt
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    that Yancey’s custody of Baby Boy L. would be likely to result in serious
    emotional or physical damage to the child. There is no indication in the record
    that Yancey appealed this order.
    On May 19, 2010–the day after the Oklahoma trial court entered its order
    terminating his parental rights–Yancey filed this action against the Thomases.
    (He had filed three previous unsuccessful federal-court suits relating to Baby Boy
    L., one of which reached this court on appeal, Yancey v. Bonner, 323 F. App’x
    674 (10th Cir. 2009).) The Thomases moved to dismiss the action for lack of
    jurisdiction under Fed. R. Civ. P. 12(b)(1), arguing that it was barred by the
    Rooker-Feldman doctrine, see Rooker v. Fidelity Trust Co., 
    263 U.S. 413
     (1923),
    and District of Columbia Court of Appeals v. Feldman, 
    460 U.S. 462
     (1983). The
    doctrine says that because appellate jurisdiction to review a state-court judgment
    is lodged exclusively in the Supreme Court by 
    28 U.S.C. § 1257
    , it is
    impermissible for a suit in federal district court to be “brought by state-court
    losers complaining of injuries by state-court judgments rendered before the
    district court proceedings commenced and inviting district court review and
    rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
    
    544 U.S. 280
    , 284 (2005). Alternatively, the Thomases contended that if the
    state-court proceedings remained pending because the adoption of Baby Boy L.
    had not been finalized, the federal court should abstain from exercising
    jurisdiction under Younger v. Harris, 
    401 U.S. 37
     (1971), which generally
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    forecloses federal-court interference with ongoing state-court proceedings.
    Yancey responded that Rooker-Feldman did not apply because 
    25 U.S.C. § 1914
    provides for federal-court review of state-court decisions under the ICWA. And
    he asserted that federal abstention was inappropriate because state-court
    proceedings were no longer pending – his parental rights had been terminated in a
    final state-court order. In their reply the Thomases raised the additional argument
    that Yancey’s federal-court action was precluded by res judicata because he was
    seeking to relitigate the same issues that had been decided by the Oklahoma state
    court.
    The district court did not address the Rooker-Feldman issue. 1 Nor did it
    1
    We, too, need not address Rooker-Feldman. Although the doctrine poses a
    jurisdictional bar to our consideration of a claim, the bar is based on a statute, not
    Article III of the Constitution, so we can avoid the issue if we dismiss a claim on
    any other ground. In rejecting the so-called doctrine of “hypothetical
    jurisdiction,” which permits a court to assume jurisdiction for the purpose of
    dismissing a claim on the merits, the Supreme Court in Steel Company v. Citizens
    for a Better Environment, 
    523 U.S. 83
     (1998), repeatedly spoke in terms of
    Article III jurisdiction, rather than jurisdiction in general. See 
    id. at 95-101
    ; see
    also Restoration Pres. Masonry, Inc. v. Grove Europe Ltd., 
    325 F.3d 54
    , 59-60
    (1st Cir. 2003) (Steel Co. requires courts to resolve Article III jurisdictional
    disputes before addressing merits, but courts may dismiss on the merits and
    thereby bypass problematic jurisdictional issues that do not implicate Article III
    case-or-controversy requirements); Marquez-Almanzar v. INS, 
    418 F.3d 210
    , 216
    n.7 (2d Cir. 2005) (same); Jordon v. Att’y Gen., 
    424 F.3d 320
    , 325 n.8 (3d Cir.
    2005) (same). Therefore, we may avoid the Rooker-Feldman issue because,
    as explained below, we can dismiss Yancey’s claim on the merits. See Torromeo
    v. Town of Fremont, 
    438 F.3d 113
    , 115 (1st Cir. 2006) (bypassing
    Rooker-Feldman issue to consider district court’s alternative ruling that action
    was barred by res judicata). But cf. Edwards v. City of Jonesboro, 
    645 F.3d 1014
    ,
    (continued...)
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    resolve whether the state-court proceedings were final, concluding that it would
    have to deny relief regardless. It held that if the state-court proceedings remained
    pending, it would abstain from exercising jurisdiction under Younger; and if the
    state-court proceedings were final, Yancey’s claim was foreclosed by the
    res-judicata effect of the state judgment. After concluding that amendment of the
    complaint would not cure the defect, the court dismissed Yancey’s action with
    prejudice. Yancey filed a timely notice of appeal.
    II. Discussion
    Yancey argues on appeal that Younger abstention is inappropriate in this
    case because the Oklahoma trial court entered a final order terminating his
    parental rights over Baby Boy L. The appellees agree that the termination order
    was final under 
    Okla. Stat. tit. 10, § 7505-7.1
    (C). And so do we. Accordingly,
    Younger is inapplicable. As a result, we need resolve only whether the district
    court erred in dismissing Yancey’s action as precluded by the state-court
    judgment.
    A. Standards of Review
    We review de novo a district court’s application of res judicata,
    see MACTEC, Inc. v. Gorelick, 
    427 F.3d 821
    , 831 (10th Cir. 2005), and its
    1
    (...continued)
    1017-18 (8th Cir. 2011) (noting conflicting decisions on whether Rooker-Feldman
    must be addressed before dismissing on merits).
    -7-
    construction of a federal statute, see Rosette Inc. v. United States, 
    277 F.3d 1222
    ,
    1226 (10th Cir. 2002).
    B. The Merits
    Yancey argues that his claim is not barred by res-judicata doctrine because
    § 1914 permits federal-court review of state-court decisions under the ICWA.
    Section 1914 states:
    Any Indian child who is the subject of any action for foster care
    placement or termination of parental rights under State law, any
    parent or Indian custodian from whose custody such child was
    removed, and the Indian child’s tribe may petition any court of
    competent jurisdiction to invalidate such action upon a showing that
    such action violated any provision of sections 1911, 1912, and 1913
    of this title.
    
    25 U.S.C. § 1914
     (emphasis added). Yancey contends (1) that Baby Boy L. is an
    Indian child subject to a state-court action for termination of parental rights;
    (2) that Yancey, as a parent from whose custody Baby Boy L. was removed, may
    petition a court of competent jurisdiction to invalidate that state-court action by
    showing that it violated the ICWA; and (3) that a federal district court is a court
    of competent jurisdiction. In support of this construction, Yancey points to the
    Supreme Court’s discussion of the legislative history of the ICWA in Mississippi
    Band of Choctaw Indians v. Holyfield, 
    490 U.S. 30
     (1989), particularly the
    Court’s reliance on the congressional finding that “‘the States, exercising their
    recognized jurisdiction over Indian child custody proceedings through
    administrative and judicial bodies, have often failed to recognize the essential
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    tribal relations of Indian people and the cultural and social standards prevailing in
    Indian communities and families.’” 
    Id. at 35-36
     (quoting 
    25 U.S.C. § 1901
    ); see
    also 
    id. at 45
     (“Congress perceived the States and their courts as partly
    responsible for the problem it intended to correct [by passing the ICWA].”).
    Yancey maintains that “in light of this historical distrust of the state courts, . . .
    [t]he only rational interpretation [of § 1914] is that Congress intended the federal
    courts to serve as courts of competent jurisdiction, to review and invalidate, if
    necessary, the decisions of the state courts which violate the ICWA.” Aplt. Br.
    at 15.
    Yancey also relies on the Ninth Circuit’s decision in Doe v. Mann,
    
    415 F.3d 1038
    , 1040 (9th Cir. 2005), which held that the Rooker-Feldman
    doctrine did not bar a federal district court from exercising jurisdiction to review
    a state-court judgment terminating a parent’s rights over an Indian child. In Doe
    the mother of an Indian child had filed an action in federal court challenging a
    state court’s jurisdiction to terminate her parental rights and approve the adoption
    of the child. See 
    id.
     The Ninth Circuit held that the federal district court had
    federal-question jurisdiction over the claims and that § 1914 grants federal district
    courts authority to invalidate state-court actions that violate certain provisions of
    the ICWA. See id. at 1041. Although acknowledging that federal statutes
    permitting federal courts to review state-court judgments are rare, see id. at 1043,
    the court examined the language of § 1914 and held that the “action” that a parent
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    of an Indian child may petition to invalidate includes a state-court proceeding
    terminating parental rights; that Congress authorized “a court of competent
    jurisdiction” to invalidate such state-court actions; and that a federal district court
    is a “court of competent jurisdiction” under § 1914, id. at 1046-47.
    The Ninth Circuit distinguished this circuit’s decisions in Morrow v.
    Winslow, 
    94 F.3d 1386
    , 1393-96 (10th Cir. 1996), Kiowa Tribe of Oklahoma v.
    Lewis, 
    777 F.2d 587
    , 590, 591-92 (10th Cir. 1985), and Comanche Indian Tribe of
    Oklahoma v. Hovis, 
    53 F.3d 298
    , 302-03, 304 (10th Cir. 1995), because none of
    these cases addressed the applicability of Rooker-Feldman. See Doe, 
    415 F.3d at
    1044 n.8. The court declined, however, to determine the relationship between
    § 1914 and either the full-faith-and-credit provisions of 
    25 U.S.C. § 1738
     or the
    doctrines of res judicata and collateral estoppel. See 
    id.
     at 1042 n.5.
    We are not persuaded. We agree with the Thomases that Yancey’s action is
    barred by res judicata and that the state-court rulings must be given full faith and
    credit under § 1738.
    Under Oklahoma law, “The principle of res judicata as claim preclusion
    teaches that a final judgment on the merits of an action precludes the parties from
    relitigating not only the adjudicated claim, but also any theories or issues that
    were actually decided, or could have been decided, in that action.” Read v. Read,
    
    57 P.3d 561
    , 567 n.18 (Okla. 2001). Yancey does not dispute that the issues he
    raised in this action were actually litigated between the same parties in the
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    Oklahoma trial court and decided by that court. He argues only that a state-court
    judgment from which an appeal is pending cannot serve as a basis for res judicata.
    See Coppedge v. Clinton, 
    72 F.2d 531
    , 534-36 (10th Cir. 1934) (Oklahoma
    state-court judgment pending appeal was not a bar under res judicata). But
    Yancey fails to point to a pending appeal of any of the state-court decisions he
    seeks to challenge in this action. He fully exhausted his state-court appellate
    remedies with respect to several of the Oklahoma trial court’s orders, and he
    elected not to appeal that court’s order terminating his parental rights. The latter
    order became final for purposes of res judicata when he failed to perfect an
    appeal. See Hubbard v. Kaiser-Francis Oil Co., 
    256 P.3d 69
    , 74 (Okla. 2011)
    (“The doctrine of res judicata teaches that when the appeal time expires a decision
    under this rubric becomes impervious to reconsideration and hence binding and
    conclusive upon the parties.” (internal quotation marks omitted)).
    Moreover, our decisions in Kiowa and Comanche foreclose Yancey’s
    contention that, despite § 1738, a federal district court is authorized by § 1914 to
    review and invalidate a state court’s final decision in Indian child-custody
    proceedings as violative of the ICWA. In Kiowa a Tribe filed a federal-court
    action attacking a Kansas state-court judgment allowing a non-Indian couple to
    adopt an Indian child. See 
    777 F.2d at 589
    . Like Baby Boy L., the child in
    Kiowa was born out of wedlock to an Indian father and a non-Indian mother. See
    
    id.
     The mother consented to the baby’s adoption by a non-Indian couple, who
    -11-
    took custody of the child immediately after his birth. See 
    id.
     The father’s Tribe
    moved to intervene in the adoption proceedings, but the state court held that the
    ICWA did not apply and denied the Tribe’s motion. See 
    id.
     The Tribe appealed
    to the Kansas Supreme Court, which affirmed the trial court’s determination that
    the ICWA was inapplicable. See 
    id. at 590
    . Rather than seeking review of the
    Kansas Supreme Court’s decision in the United States Supreme Court, the Tribe
    filed an action in federal district court, which the court dismissed as barred by
    res judicata. See 
    id.
    On appeal, citing § 1738, we said that “[b]y statute, federal courts must
    give the same preclusive effect to state court judgments that those judgments
    would be given in the courts of the state in which the judgments were rendered.”
    Id.; see also § 1738 (“[J]udicial proceedings . . . shall have the same full faith and
    credit in every court within the United States and its Territories and Possessions
    as they have by law or usage in the courts of such State, Territory or Possession
    from which they are taken.”). We held that the doctrine of res judicata precluded
    the Tribe from relitigating its claims under the ICWA in a new federal-court
    action. See Kiowa, 
    777 F.2d at 590
    . The Tribe argued, as Yancey does here, that
    § 1914 creates an exception to § 1738’s rule of full faith and credit. See id. at
    591. But we rejected that contention. We emphasized “that an exception to
    § 1738 will not be recognized unless a later statute contains an express or implied
    partial repeal.” Id. at 592. Examining the language of § 1914, we concluded:
    -12-
    We cannot read § 1914’s reference to “any court of competent
    jurisdiction” as the type of clear and manifest authorization that
    federal courts need before they upset the ordinary principles of
    federal-state comity embodied in 
    28 U.S.C. § 1738
     and the Full Faith
    and Credit Clause. It seems rather to state simply where such actions
    may initially be brought. Regardless of whether we agree with the
    Kansas Supreme Court’s construction of the ICWA, here we must
    honor the judgment it has rendered on the subject.
    
    Id.
    We recognize that in Roman-Nose v. New Mexico Department of Human
    Services, 
    967 F.2d 435
    , 438 n.2 (10th Cir. 1992), we construed Kiowa as holding
    only that “a state-court determination that the [ICWA] is not applicable in a
    particular custody proceeding is res judicata in a subsequent proceeding to
    invalidate the state action under . . . § 1914.” We indicated that it was an open
    question whether § 1738 precluded a plaintiff from litigating in federal court
    whether a state-court proceeding applying the ICWA had in fact complied with
    the ICWA. See id.
    But that question is no longer open. It was resolved in Comanche, at least
    in cases in which the state court had actually determined that the ICWA had been
    followed. Comanche involved state-court proceedings to terminate a non-Indian
    mother’s parental rights over an Indian child. See 
    53 F.3d at 299
    . Over the
    mother’s objection, the father’s Tribe moved to transfer the proceedings to Tribal
    Court. See 
    id. at 300
    . Applying the ICWA, the state court determined that the
    -13-
    Tribal Court did not have exclusive jurisdiction. 2 See 
    id.
     Rather than appealing
    the state court’s decision, the Tribe filed a federal-court action seeking a
    declaratory judgment that the Tribal Court had exclusive jurisdiction under the
    ICWA. See 
    id. at 300-01
    . The federal district court entered judgment in favor of
    the Tribe. See 
    id. at 301
    .
    On appeal to this court the appellants contended that the federal court failed
    to give full faith and credit to the state court’s prior ruling. See 
    id.
     We agreed,
    holding that the Tribe’s federal-court action was barred by collateral estoppel
    under Oklahoma law. See 
    id. at 304
    . We rejected the Tribe’s contention–again,
    the same as Yancey’s–that § 1914 nonetheless granted it the right to challenge in
    federal court the state court’s ruling under the ICWA. We stated:
    The question before us is not whether the federal district court is a
    ‘court of competent jurisdiction.’ Rather the question is whether the
    Tribe can institute an action in federal district court after it has lost
    in state court following full consideration, briefing, and argument on
    the identical issue of fact and law relating to jurisdiction to
    terminate parental rights.
    2
    Under 
    25 U.S.C. § 1911
    (a), “[a]n Indian tribe shall have jurisdiction
    exclusive as to any State 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 Federal law.”
    The question in Comanche was whether the child was domiciled within the tribe’s
    reservation. See 
    53 F.3d at 300
    .
    -14-
    
    Id.
     (emphasis added). And we held:
    Under Kiowa, it is clear that § 1914 is not an independent ground to
    relitigate state court decisions. Once the Tribe chose to litigate in
    State Court, review of the State Court’s decision was limited to
    timely appeal to the state appellate courts and was not “appealable”
    in federal district court. Under the circumstances presented in this
    case, we must honor the judgment rendered on the merits by the State
    Court.
    Id. at 304-05 (citation omitted).
    Yancey’s argument that our interpretation of § 1914 is not supported by the
    language of the statute is unavailing. He cites to the dissenting opinion in
    Morrow and the Ninth Circuit’s decision in Doe v. Mann. But we are bound by
    our precedent in Kiowa and Comanche, unless and until this court grants en banc
    reconsideration or the Supreme Court issues a contrary decision. See In re Smith,
    
    10 F.3d 723
    , 724 (10th Cir. 1993).
    III. Conclusion
    The district court did not err in dismissing Yancey’s federal-court action
    because it was barred by res judicata. Therefore, the judgment of the district
    court is AFFIRMED. Yancey’s motion to proceed in forma pauperis on appeal is
    GRANTED.
    Entered for the Court
    Harris L Hartz
    Circuit Judge
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