author: VIGIL, Justice.

text:
    STATE of New Mexico, Plaintiff-Petitioner, v. Nathaniel YAZZIE, Defendant-Respondent.
    NO. S-1-SC-36508
    Supreme Court of New Mexico.
    Filing Date: January 24, 2019
    Hector H. Balderas, Attorney General, Marko David Hananel, Assistant Attorney General, Santa Fe, NM, for Petitioner
    Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM, for Respondent
   VIGIL, Justice.

I. INTRODUCTION

{1} With this opinion we revisit the circumstances under which an officer may make a warrantless entry into a home under the emergency assistance doctrine. Relying on cases interpreting the Fourth Amendment to the United States Constitution, this Court held in Ryon that a warrantless entry is reasonable under the emergency assistance doctrine when (1) law enforcement officers "have reasonable grounds to believe that there is an emergency at hand and an immediate need for assistance for the protection of life or property;" (2) the officers' primary motivation for the search is a "strong sense of emergency" and not "to arrest a suspect or to seize evidence[;]" and (3) the officers have some reasonable basis, approximating probable cause, to connect the emergency to the area to be searched. See 2005-NMSC-005, ¶ 39, 137 N.M. 174, 108 P.3d 1032.

{2} Since Ryon was decided, the United States Supreme Court has clarified that the emergency assistance doctrine under the Fourth Amendment focuses on the objective reasonableness of the officer's actions and does not include a subjective component. See Brigham City v. Stuart , 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ("The officer's subjective motivation is irrelevant."). Applying the interstitial approach, we hold that an officer's subjective motivation remains relevant to the reasonableness of a warrantless entry under Article II, Section 10 of the New Mexico Constitution. We further hold that the officer's warrantless entry in this case was reasonable under the Fourth Amendment and Article II, Section 10. The Court of Appeals having concluded otherwise, we reverse. In doing so, we reiterate our recent holding in State v. Martinez that the presence of video evidence in an appellate record does not affect the deference due to a district court's factual findings at a suppression hearing if those findings are supported by substantial evidence. See 2018-NMSC-007, ¶¶ 18-19, 410 P.3d 186.

II. BACKGROUND

{3} Defendant Nathaniel Yazzie entered a conditional plea of no contest to the offense of attempt to commit negligent child abuse following the district court's denial of his motion to suppress. Defendant had moved to suppress all of the evidence gathered after Officer William Temples of the Farmington Police Department entered his unlocked apartment without a warrant in response to a welfare check. Defendant argued in his suppression motion that Officer Temples' entry violated his right to privacy in his home under the Fourth Amendment and Article II, Section 10. The State responded that Officer Temples' entry was reasonable to ensure the safety of those inside the apartment, thereby making his actions constitutionally permissible under the emergency assistance doctrine.

{4} The district court held a hearing where it considered the officer's testimony as well as the lapel video from the night of the incident. The video was not played during the hearing, but the district court reviewed it prior to issuing its letter decision denying the motion to suppress. The letter decision did not include formal, enumerated findings of fact. On review, we will "draw from the record to derive findings based on reasonable facts and inferences." State v. Attaway , 1994-NMSC-011, ¶ 33, 117 N.M. 141, 870 P.2d 103. The record provides the following facts.

{5} Officer Temples was dispatched to Defendant's residence to conduct a welfare check at 9:43 p.m. on December 5, 2013 after Defendant's downstairs neighbor had reported a loud "thumping" sound coming from the apartment above. Officer Temples testified that no one answered Defendant's door after he loudly knocked and announced himself as a police officer over the course of eight to ten minutes. He told the district court that during that time, the only response to his knocking was an infant crying continuously and a young child "hollering, 'Mommy! Mommy, wake up!' " Officer Temples described the infant's cry as "a constant cry as if there was nobody caring for the child." He further testified that the doorknob rattled as though someone was trying, but unable, to open the door from the inside.

{6} Officer Temples explained at the hearing that these observations led him to believe that someone in the apartment was hurt or otherwise incapacitated, leaving the children unattended. He said he thought the children's mother may have required aid because "usually when a child ... asks their mommy to wake up several times, usually Mommy wakes up when she's sober or uninjured." Officer Temples testified that he opened the unlocked apartment door to peer inside once he concluded that his assistance was required within. When he did, he observed Defendant and an adult woman lying on the floor of the apartment with two children under six and an infant in the same room.

{7} The lapel video shows Officer Temples knocking six times in the span of roughly six minutes before opening the unlocked apartment door. After his first knock, movement can be heard within, the doorknob rattles, and a child can be heard calling to his or her mother. Moments later, an infant begins to fuss. Officer Temples knocks a second time and someone again rattles the doorknob but gives no additional response. After his fifth unanswered knock, Officer Temples announces that he is an officer of the Farmington Police Department and requests that someone come to the door. The fussing baby is heard again, but no one responds to his request. Officer Temples then says to himself, "Mom and Dad are obviously passed out." At this point in the video, the baby's crying increases in volume and tempo. A minute later Officer Temples knocks a sixth time and announces himself again. When he does not receive a response, Officer Temples opens the unlocked door of the apartment. He knocks a seventh time while standing in the doorway. About one minute later, Officer Temples calls for a backup officer and a portable breath test unit (PBT). He then fully enters the apartment, approximately eight minutes after his first knock.

{8} Officer Temples testified that once inside the apartment he performed a sweep of the adjoining rooms of the apartment to ensure officer safety, as well as to see if any other individuals in the apartment required assistance. During the sweep, Officer Temples observed empty alcohol bottles in the kitchen at the top of an open trash can.

{9} In the lapel video, Officer Temples performs a thirty-second sweep of the apartment, shining his flashlight into each of the rooms, including the kitchen. The lapel video shows that after the requested backup officer arrives, the pair of officers physically rouse the adults, question them, and administer the breath tests. They do not call for a medical response unit. Based on the results of the breath tests, they arrest both adults. This sequence of events is reflected in Officer Temples' arrest report. Defendant was later charged with negligent child abuse contrary to NMSA 1978, Section 30-6-1(D) (2009).

{10} In denying Defendant's motion to suppress, the district court concluded that the entry was justified under either the community caretaking or emergency assistance doctrines, citing Ryon . The district court explained that the entry was permissible because Officer Temples based his decision to enter on "what he was told and what he heard and observed at the apartment," which gave him "a reasonable concern that a medical emergency existed warranting immediate entry." The district court also concluded that the safety sweep was appropriate because "[i]t was a very brief inspection and was supported by what the officer observed upon entering the residence." Finally, the district court found that Officer Temples' "primary motivation was not criminal investigation but to render aid or protection from harm."

{11} Following the denial of his motion to suppress, Defendant pleaded no contest to the lesser offense of attempt to commit negligent child abuse, a fourth-degree felony in violation of Section 30-6-1(D). He entered a conditional plea, reserving his right to appeal the denial of the suppression motion.

{12} The Court of Appeals reversed the district court's denial of the motion to suppress. State v. Yazzie , No. 34,537, mem. op. ¶ 2, 2017 WL 2591505 (N.M. Ct. App. May 11, 2017) (non-precedential). The State petitioned for certiorari to review the issue of whether Officer Temples' entry and subsequent inspection were lawful under the emergency assistance doctrine. See N.M. Const. art. VI, § 2 ; NMSA 1978, § 34-5-14(B) (1972) ; Rule 12-502 NMRA. We granted certiorari and reverse.

III. STANDARD OF REVIEW

{13} "Appellate review of a motion to suppress presents a mixed question of law and fact. First, we look for substantial evidence to support the [district] court's factual finding, with deference to the district court's review of the testimony and other evidence presented." Martinez , 2018-NMSC-007, ¶ 8, 410 P.3d 186 (alteration in original) (internal quotation marks and citations omitted). "Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support a conclusion." In re Anhayla H. , 2018-NMSC-033, ¶ 36, 421 P.3d 814 (quoting State ex rel. Children, Youth & Families Dep't v. Patricia H. , 2002-NMCA-061, ¶ 22, 132 N.M. 299, 47 P.3d 859 ). Contested facts are reviewed "in a manner most favorable to the prevailing party." State v. Rowell , 2008-NMSC-041, ¶ 8, 144 N.M. 371, 188 P.3d 95. "We then review the application of the law to those facts, making a de novo determination of the constitutional reasonableness of the search or seizure." Martinez , 2018-NMSC-007, ¶ 8, 410 P.3d 186 (internal quotation marks and citation omitted). "Although our inquiry is necessarily fact-based it compels a careful balancing of constitutional values, which extends beyond fact-finding, to shape the parameters of police conduct by placing the constitutional requirement of reasonableness in factual context." Ryon , 2005-NMSC-005, ¶ 11, 137 N.M. 174, 108 P.3d 1032 (omission omitted) (internal quotation marks and citation omitted).

{14} After the Court of Appeals decided Yazzie , we reaffirmed in Martinez that appellate courts must afford a high degree of deference to the district court's factual findings if supported by substantial evidence. 2018-NMSC-007, ¶¶ 3, 15, 410 P.3d 186. In particular, an appellate court must presume that the district court credited an officer's testimony, even if that testimony is not perfectly aligned with video evidence. See id. When video evidence conflicts with other evidence, an appellate court must defer to the district court's factual findings if supported by evidence in the record. See id. ¶ 17. We accord such deference here.

IV. DISCUSSION

{15} This case centers on the reasonableness of Officer Temples' warrantless entry and search of Defendant's apartment under the emergency assistance doctrine. The emergency assistance doctrine is an exception to the warrant requirement of the Fourth Amendment. See Brigham City , 547 U.S. at 403, 126 S.Ct. 1943. It permits law enforcement officers to "enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." Id. The emergency assistance doctrine arises from a police officer's duty as community caretaker to assist those "who are seriously injured or threatened with such injury." Id. This duty is "totally divorced" from law enforcement's separate goal of gathering evidence and investigating crime. See Cady v. Dombrowski , 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

{16} The "ultimate touchstone" of any Fourth Amendment search and seizure analysis is "reasonableness." Brigham City , 547 U.S. at 403, 126 S.Ct. 1943 (internal quotation marks and citations omitted). In assessing reasonableness, courts must balance the public interest and an individual's right to be free from police interference upon personal liberty. See State v. Williams , 2011-NMSC-026, ¶ 10, 149 N.M. 729, 255 P.3d 307. Such balancing requires a close examination of the facts. Defendant challenges the constitutionality of Officer Temples' search under both the Fourth Amendment and Article II, Section 10. We first determine whether the entry and search were reasonable under the Fourth Amendment. If we conclude that Officer Temples' conduct was reasonable under the Fourth Amendment, we then apply our interstitial approach to examine the reasonableness of his actions under Article II, Section 10. See State v. Gomez , 1997-NMSC-006, ¶¶ 19-21, 122 N.M. 777, 932 P.2d 1 (adopting the interstitial approach for determining whether a parallel provision of the New Mexico Constitution provides greater protection than its federal counterpart).

A. Reasonableness of the Entry and Search Under the Fourth Amendment

{17} The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. This protection is only conferred when individuals have a reasonable expectation of privacy in the place to be searched or the thing to be seized. See Katz v. United States , 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The parties do not dispute that Defendant had a reasonable expectation of privacy in his home. We agree. See Florida v. Jardines , 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ("[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment's very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." (internal quotation marks and citation omitted) ).

{18} As an individual's privacy interests are strongest in the home, warrantless searches of a home are "presumptively unreasonable." See Brigham City , 547 U.S. at 403, 126 S.Ct. 1943 (internal quotation marks and citation omitted). That presumption can be overcome in certain exigent circumstances where an officer's warrantless entry is justified by a compelling need of law enforcement. See id. Acting to provide emergency assistance to "protect or preserve life or avoid serious injury" is such a justification which serves the public interest and tips the constitutional balance in favor of obviating the warrant requirement. See id. (internal quotation marks and citations omitted).

{19} In Ryon , this Court adopted a widely-used analysis of the emergency assistance doctrine under the Fourth Amendment. See 2005-NMSC-005, ¶¶ 26, 29, 137 N.M. 174, 108 P.3d 1032 ("The emergency assistance doctrine, which may justify more intrusive searches of the home or person, must be assessed separately by a distinct test."). At the time, the United States Supreme Court had acknowledged that a warrantless entry into a home may be justified by the need to render emergency aid, but the United States Supreme Court had not yet articulated the appropriate reasonableness analysis under the emergency assistance doctrine. In Mincey v. Arizona , the United States Supreme Court observed that "the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.... But a warrantless search must be strictly circumscribed by the exigencies which justify its initiation[.]" 437 U.S. 385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (internal quotation marks and citation omitted).

{20} The Ryon Court noted that, following Mincey , some courts had adopted a "purely objective test" to assess an entry under the emergency assistance doctrine, but the majority of courts had adopted the test first articulated in People v. Mitchell , 39 N.Y.2d 173, 347 N.E.2d 607, 383 N.Y.S.2d 246 (1976) (abrogated by Brigham City , 547 U.S. 398, 126 S.Ct. 1943, 164 L.Ed.2d 650 ). Ryon , 2005-NMSC-005, ¶ 29, 137 N.M. 174, 108 P.3d 1032. In addition to assessing whether an officer reasonably believed that entry was necessary to respond to an imminent emergency and gauging whether the search was limited in scope to the emergency which justified the entry, the Mitchell test also inquired into an officer's subjective beliefs and motivations for the warrantless entry:

First, "the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property." Second, "the search must not be primarily motivated by intent to arrest or seize evidence ." Third, "there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched."

Ryon , 2005-NMSC-005, ¶ 29, 137 N.M. 174, 108 P.3d 1032 (alterations and citations omitted) (emphasis added).

{21} This Court recognized that a subjective inquiry is unusual in the Fourth Amendment context but nonetheless adopted the Mitchell test in full. See Ryon , 2005-NMSC-005, ¶ 33, 137 N.M. 174, 108 P.3d 1032 ("The second part of the three-part Mitchell test is more controversial. Federal and state courts, including New Mexico, usually do not consider the subjective intent of an officer in a search and seizure analysis."). In doing so, this Court reasoned that questioning the officer's subjective intent was critical to limiting the application of the emergency assistance doctrine, which could otherwise give law enforcement an easy way around the warrant requirement. See id. ¶ 34 ("A subjective test addresses the chief concern raised by a warrantless search purportedly justified by the community caretaker exception or emergency assistance doctrine: the possibility that the police will use the doctrine as a subterfuge or pretext when the real purpose of the search is to arrest a suspect or gather evidence without probable cause."). Mindful that the need to render emergency assistance may arise in the course of a criminal investigation, we clarified that "[a]lthough the police need not be totally unconcerned with the apprehension of suspects or the collection of evidence, the motivation for the intrusion must be a strong sense of emergency[.]" Id. ¶ 39.

{22} The year after the Ryon decision, the United States Supreme Court ruled in Brigham City that an officer's subjective motivation was irrelevant in assessing the reasonableness of an entry under the emergency assistance doctrine. 547 U.S. at 404, 126 S.Ct. 1943 ("An action is reasonable ..., regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively , justify [the] action." (alteration in original) (internal quotation marks and citation omitted) ). Despite that clear direction from the Supreme Court, New Mexico courts continued to use the Ryon test in Fourth Amendment cases. Notably, the decisions in cases decided on appeal rested solely on the first prong of the test. See, e.g. , State v. Cordova , 2016-NMCA-019, ¶¶ 8 n.1, 13, 366 P.3d 270 (concluding that the officers did not have "reasonable grounds to believe" that the defendant was injured, stating that the subjective prong of the Ryon / Mitchell test was "immaterial" to the analysis, and noting that the subjective prong was eliminated by the Supreme Court in Brigham City ); State v. Trudelle , 2007-NMCA-066, ¶ 37, 142 N.M. 18, 162 P.3d 173 (stating that the officers could not "show reasonable grounds to believe there was an emergency requiring immediate assistance for the protection of life or property"); State v. Baca , 2007-NMCA-016, ¶ 27, 141 N.M. 65, 150 P.3d 1015 (concluding that the officer lacked "specific and articulable facts" to reasonably conclude there was an emergency at hand and a need for assistance).

{23} We are constrained by the Supreme Court's precedent in Brigham City and therefore eliminate the separate inquiry under Ryon into the officer's subjective intent for the entry and search under the Fourth Amendment. Accordingly, a warrantless entry and search of a home is permitted under the emergency assistance doctrine if the state establishes just two elements. First, "[p]olice must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property[.]" Ryon , 2005-NMSC-005, ¶ 39, 137 N.M. 174, 108 P.3d 1032. Second, "there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched." Id. This two-part test controls whether Officer Temples' entry and subsequent search of Defendant's home was lawful under the emergency assistance doctrine of the Fourth Amendment.

1. Objective reasonableness of the entry

{24} In applying the first step of this analysis, we consider whether the district court's factual findings were supported by substantial evidence and whether those findings support a conclusion that Officer Temples' entry was objectively reasonable. An objective review requires us to assess the totality of the circumstances to determine whether a "prudent and reasonable official [would] see a need to act to protect life or property[.]" Wayne v. United States , 318 F.2d 205, 212 (D.C. Cir. 1963) ; see also Ryon , 2005-NMSC-005, ¶¶ 30-31, 137 N.M. 174, 108 P.3d 1032 (explaining that "reasonableness is tested objectively under the totality of the circumstances").

{25} Law enforcement must have "credible and specific information" that a victim is in need of emergency aid before a warrantless entry may be justified under the emergency assistance doctrine. See Ryon , 2005-NMSC-005, ¶¶ 42-43, 137 N.M. 174, 108 P.3d 1032. In Ryon , officers responded to a " '911 call welfare check' " about a " 'possible stabbing victim.' " Id. ¶ 2. When they arrived at the scene, they learned from the bleeding victim that the perpetrator lived down the street. Id. A dispatch went out to locate the suspect who was thought to be on his way to his residence. Id. ¶ 4. As additional officers were en route to the suspect's home, the dispatcher told them that the suspect might be injured. Id. Upon their arrival at the house, the officers noticed that the lights were on and the front door was slightly ajar. Id. The officers did not receive a response when they knocked and announced their presence. Id. Relying on information that the suspect may be injured and finding it odd that the door would be open in the cold weather, the officers entered the home. Id. Inside they observed a bloodied knife in the kitchen sink, the knowledge of which they used to obtain a search warrant for the home. Id. ¶ 5.

{26} To aid in its determination of whether the officers' entry was objectively reasonable, this Court weighed "the purpose and nature of the dispatch, the exigency of the situation based on the known facts, and the availability, feasibility and effectiveness of alternatives to the type of intrusion actually accomplished." Id. ¶¶ 32, 43-44 (internal quotation marks and citation omitted). The Court concluded that the known facts-the knowledge that the suspect may be injured, the state of the house, and the lack of response at the door-did not point to an imminent emergency and that the officers did not do enough to corroborate the information they were given before entering without a warrant. Id. ¶¶ 43-45. The Court noted that the officers did not even know whether the suspect was home, let alone whether he was actually injured. Id. ¶ 43

{27} The State argues that this case is distinguishable from Ryon and that Officer Temples' entry was objectively reasonable as the information available to him caused him to reasonably believe entry was necessary to protect Defendant's children and give aid to their mother. The State notes that Officer Temples' reasonable perception of the emergency came into focus with each new fact he learned while standing outside the apartment. At first, Officer Temples knew he was responding to a welfare check based on the neighbor's report of a loud thumping sound coming from Defendant's apartment. When Officer Temples arrived at the apartment, the thumping sound had been replaced with the sounds of a small child hollering in an attempt to rouse his or her mother and a baby fussing and then crying continuously. In addition, Officer Temples noticed the doorknob rattling several times as though someone were attempting to open the door. Crucially, he did not hear the children's mother-or any adult-moving within the apartment, even though the child was yelling for his or her mother to wake up. The State asserts that each of these observations compounded upon the next to form a sufficient reasonable basis for Officer Temples to conclude that the nonresponsive mother required medical attention and that, due to her condition, the children were left alone in a dangerous situation.

{28} Defendant argues that the facts available to Officer Temples were not enough to support a reasonable belief that a sufficiently compelling emergency existed within the apartment. Defendant focuses primarily on facts that were not present when Officer Temples knocked on the door-facts that would more clearly indicate an emergency. For example, there were no loud noises coming from the apartment when Officer Temples arrived and no sounds to indicate violent behavior inside. Additionally, there were no concerned neighbors gathered outside, no damage to the windows or building to indicate an altercation, and no signs of spilled blood. Furthermore, the children were not wandering alone outside to suggest that they were left unattended. Contra United States v. Taylor , 624 F.3d 626, 628 (4th Cir. 2010) (holding that an officer was justified in following a young girl into her home after finding her wandering alone on a busy street). Finally, Defendant argues that the sounds of the children were unremarkable for the time of day when Officer Temples knocked. The small child's calls to the mother were not extraordinarily loud or severe, and the baby's crying was likely tied to Officer Temples' continued knocking. Defendant thus asserts that the known facts were insufficient to support an objectively reasonable belief that a serious emergency was underway. Instead, Defendant argues that Officer Temples was acting on mere conjecture that his assistance was required within the apartment.

{29} We are not convinced by Defendant's argument that Officer Temples lacked key information to conclude that the children and their mother were in need of immediate aid. Viewing the facts in the light most favorable to the State and drawing all reasonable inferences in support of the district court's decision, there is substantial evidence to support the district court's factual findings in this case. In particular, Officer Temples' first-hand knowledge about the presence of small children-who apparently were unsupervised and unable to rouse their parents-supports the objective reasonableness of his conclusion that he needed to take action to "[protect] life or property." See Ryon , 2005-NMSC-005, ¶ 39, 137 N.M. 174, 108 P.3d 1032.

{30} In reaching this conclusion, we are persuaded by the reasoning in Taylor . 624 F.3d at 632, 635. The court in Taylor concluded that an officer's actions were objectively reasonable when he accompanied a four-year-old girl into her house after she was found wandering alone on a busy street. Id. at 628. Before the officer entered the home, he asked the girl whether anyone was home to care for her. Id. at 629. She responded that no one was home and that she had been waiting for the bus to take her to day care. Id. The officer yelled "hello" into the home several times as he followed the young girl inside. Id. The girl's father responded that he was in a back room. Id. When the officer and the girl entered the room, the officer saw a bag of bullets next to the bed. Id. The officer proceeded to investigate the father and eventually charged him as a felon in possession of a firearm, a federal offense. Id. at 629-30.

{31} The Taylor court held that the discovery of the young girl alone on a crowded street constituted an emergency which reasonably justified the officer's entry into the girl's home. Id. at 632. It noted that the exigency was not limited to the girl herself but also extended to her father. Id. ("[A] child of such tender age wandering alone outside the home raised the real possibility that her caretaker was unconscious or otherwise in need of assistance."). Because young children are "the most vulnerable members of our society[,]" to find the officer's actions unreasonable "would not be in the interests of small children, would not be in the interests of their parents, and would not be in the interests of the community." Id. at 635 ; see also Hunsberger v. Wood , 570 F.3d 546, 549, 555 (4th Cir. 2009) (holding that a reasonable officer could conclude that entering an unoccupied house was necessary to locate a missing child who may have been inside).

{32} In this case, the district court found that Officer Temples knew the children were left unattended because their mother was unresponsive for several minutes after a neighbor reported hearing a loud thumping coming from the apartment. Indeed, Officer Temples had several pieces of specific and credible information that, when coupled with reasonable inferences based on his observations, warranted his entry to provide emergency assistance.

{33} Officer Temples' compounding observations formed a reasonable basis for him to conclude that his emergency assistance was required within the apartment. The purpose of the dispatch was to check on the welfare of those within Defendant's apartment. Based on the information from the dispatcher, Officer Temples knew that a neighbor had heard a loud thumping sound minutes before his arrival, but the apartment was silent when he got to the door. The only response he received to his repeated knocking was an infant's cries and a young child's plea to his or her mother to wake up. Unlike the officers in Ryon , Officer Temples knew the children were located inside the apartment. Contra 2005-NMSC-005, ¶ 43, 137 N.M. 174, 108 P.3d 1032. Furthermore, Officer Temples could reasonably infer that the mother was also in the apartment based on the child's call to her. He then made the rational inference that the mother may be injured or unconscious as he did not hear any adult movement within the apartment in the several minutes he stood outside.

{34} Knowing that the very young children were unattended, Officer Temples had few reasonable alternatives but to open the door and check on the occupants. Entering the apartment was the only feasible way for Officer Temples to corroborate his suspicion that the mother was unconscious. Cf. id. (reasoning that officers could have contacted their colleagues at the crime scene, walked around the home, looked in windows, or spoken with the occupants of the other house on the property before entering suspect's home). Officer Temples was the first officer to arrive at the scene. The apartment was not on the ground floor, and it does not appear from the lapel video that there were any windows accessible to Officer Temples. It would have been reasonable for Officer Temples to speak with Defendant's neighbors, but Officer Temples' failure to do so does not necessarily mean that his entry was unreasonable. See id. ¶ 32 ("The fact that a different course of action would have been reasonable does not necessarily mean the officer's actions are unreasonable."). Moreover, the downstairs neighbor had already reported to police the critical fact of the loud thumping coming from the apartment.

{35} We are persuaded by the reasoning in Taylor that children deserve society's utmost protection. The very young children apparently left to care for themselves in this case also raised reasonable concerns about the welfare of their guardians. See Taylor , 624 F.3d at 632, 635. Our conclusion about the reasonableness of the entry in this case is based on the totality of the circumstances; no single fact in isolation is sufficient to justify Officer Temples' entry. For example, a baby crying for several minutes at night should not lead a reasonable officer to conclude that it is in emergency distress. Nor does the mere lack of response to an officer knocking at the door create a sufficient reasonable basis for an officer to enter a home out of concern that its occupants may be unable to come to the door. Based on the totality of the circumstances, Officer Temples reasonably perceived that the children were unattended and that their mother may be in need of emergency aid. We therefore conclude that Officer Temples' entry was objectively reasonable under the emergency assistance doctrine.

{36} Before we turn to the second prong of the modified Ryon test, we pause to correct the Court of Appeals about the standard of review that must be applied when assessing whether the district court's findings of fact are supported by sufficient evidence. The Court of Appeals improperly rested its decision on an independent review of the lapel video and did not credit Officer Temples' testimony regarding the circumstances that led to his entry. See Yazzie , No. 34,537, mem. op. ¶¶ 11-12. For example, the Court of Appeals stated that the sounds of the baby and the child were "intermittent and briefly heard," id. ¶ 12, while Officer Temples testified that the child inside was "hollering" for the mother to wake up and that the baby was crying constantly as though left unattended. This discrepancy in the description of the volume and frequency of the children's noises demonstrates that the Court of Appeals substituted its own view of the evidence and failed to view these facts in the light most favorable to the State as the prevailing party. Martinez , 2018-NMSC-007, ¶ 12, 410 P.3d 186 ("On appeal, we must review the totality of the circumstances and must avoid reweighing individual factors in isolation.... In doing so, we ... view the facts in the manner most favorable to the prevailing party." (internal quotation marks and citations omitted) ).

{37} Additionally, the Court of Appeals did not appropriately defer to the district court's factual findings. The Court of Appeals' impressions regarding the sounds of the children on the video conflicted with Officer Temples' testimony at the hearing. When faced with conflicting evidence, the Court of Appeals should have deferred to the district court's finding that Officer Temples' entry was justified based on "what he heard ... at the apartment." See Martinez , 2018-NMSC-007, ¶ 17, 410 P.3d 186.

2. Reasonableness of the safety sweep

{38} The second step of the emergency assistance analysis under the Fourth Amendment requires inquiry into whether Officer Temples had "some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched." See Ryon , 2005-NMSC-005, ¶ 39, 137 N.M. 174, 108 P.3d 1032. When police officers enter a home under the emergency assistance doctrine, they are not permitted to do "more than is reasonably necessary to ascertain whether someone is in need of assistance ... and to provide that assistance[.]" Id. ¶ 38 (omission in original) (internal quotation marks and citations omitted). This means that the officer must reasonably perceive "a direct relationship between the area to be searched and the emergency." Id. (internal quotation marks and citation omitted). A search upon entry must be limited to the "exigencies which justif[ied] its initiation." Id. (internal quotation marks and citation omitted). Essentially, this step asks whether the manner and scope of a search following an entry under the emergency assistance doctrine were reasonable. See United States v. Najar , 451 F.3d 710, 718 (2006) (explaining that this prong is primarily a question of scope).

{39} In this case, the district court concluded that Officer Temples' safety sweep was appropriate as it was a "brief inspection" supported by Officer Temples' observations upon entering the apartment. There is substantial evidence to support these findings of the district court. First, the record shows that Officer Temples directly connected Defendant's apartment with the emergency at hand. He testified that he entered the apartment to which he was dispatched-the same apartment from which he heard a baby crying and a child attempting to awaken his or her mother.

{40} Next, the evidence shows that the manner and scope of the search were reasonable. The lapel video shows that Officer Temples spent approximately thirty seconds peering into the rooms adjoining the main room. He shined his flashlight into each room, but he did not appear to fully enter the other rooms or disturb any objects within. According to Officer Temples' testimony, the empty alcohol bottles he observed were in plain view in the kitchen.

{41} Finally, the record supports the conclusion that the sweep was limited to the exigencies that justified the initial entry. Officer Temples testified that he performed the brief safety sweep to ensure officer safety and to ascertain whether any other individuals required assistance. Finding no one in the apartment but the three children and their parents, the lapel video shows that Officer Temples returned to the main room where he remained with the children as he attempted to rouse their parents.

{42} We defer to the district court's findings which we determine to be supported by substantial evidence. Based on those findings, we conclude that Officer Temples' safety sweep was reasonable and limited in scope to the emergency at hand. Cf. Najar , 451 F.3d at 720 (concluding that the officers' search was confined "to only those places inside the home where an emergency would reasonably be associated"). We hold that Officer Temples' entry and subsequent search were objectively reasonable and thus permissible under the emergency assistance doctrine of the Fourth Amendment.

B. Interstitial Analysis

{43} Because we conclude in this case that Defendant's right to be free from warrantless police intrusion into his home is not protected by the Fourth Amendment, we proceed to examine his claim under Article II, Section 10. See Gomez , 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1 ("Under the interstitial approach, th[is C]ourt asks first whether the right being asserted is protected under the federal constitution.... If it is not, then the state constitution is examined.").

{44} Defendant asks this Court to depart from federal analysis of the emergency assistance doctrine to find a violation of his right to be free from unreasonable search under Article II, Section 10. We have not adopted a test for the emergency assistance doctrine under our state constitution. See Ryon , 2005-NMSC-005, ¶ 6 n.3, 137 N.M. 174, 108 P.3d 1032 (explaining that the discussion in that case was limited to a Fourth Amendment analysis). For this purpose, Defendant requests that we adopt the full, three-part Ryon test, including inquiry into the officer's primary, subjective motivations for the warrantless entry. To adopt this inquiry would conflict with federal guidance, however, we may diverge from federal precedent in interpreting our own constitution when we identify a flawed federal analysis, structural differences between the state and federal governments, or distinctive state characteristics which warrant such departure. See Gomez , 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. We consider our distinct heightened preference for warrants and historical view that Article II, Section 10 offers greater protection for individual privacy rights than the Fourth Amendment to be "adequate grounds upon which to depart from federal jurisprudence." State v. Crane , 2014-NMSC-026, ¶¶ 15-16, 329 P.3d 689.

{45} Article II, Section 10 of the New Mexico Constitution guarantees that "[t]he people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures[.]" In several instances, New Mexico courts have recognized that this provision provides broader protection of individual privacy rights than the Fourth Amendment. See State v. Leyva , 2011-NMSC-009, ¶ 53, 149 N.M. 435, 250 P.3d 861 ; State v. Garcia , 2009-NMSC-046, ¶ 29, 147 N.M. 134, 217 P.3d 1032 ; see also Crane , 2014-NMSC-026, ¶ 16, 329 P.3d 689 (holding that Article II, Section 10 offers individuals greater protection than the Fourth Amendment of the right to privacy in their garbage left for collection); State v. Ochoa , 2009-NMCA-002, ¶¶ 8, 38, 146 N.M. 32, 206 P.3d 143, cert. quashed , 147 N.M. 464, 225 P.3d 794 (2009) (holding that pretextual traffic stops violate Article II, Section 10 though such stops are permitted under the Fourth Amendment). Article II, Section 10 confers this broader protection because it "is calibrated slightly differently than the Fourth Amendment." Levya , 2011-NMSC-009, ¶ 53, 149 N.M. 435, 250 P.3d 861 (internal quotation marks and citation omitted). It not only protects individual privacy rights and supports "the integrity of the criminal justice system," but it also serves as the "ultimate regulator of police conduct." See id. (internal quotation marks and citation omitted); see also Attaway , 1994-NMSC-011, ¶ 22, 117 N.M. 141, 870 P.2d 103 (requiring that police knock and announce their presence when executing a search warrant).

{46} The regulatory role of Article II, Section 10 supports New Mexico's preference for warrants. See Crane , 2014-NMSC-026, ¶ 16, 329 P.3d 689 ("The underlying principle upon which the preference for warrants is predicated is that the judicial warrant ... provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime." (alteration, internal quotation marks, and citation omitted) ); see also Garcia , 2009-NMSC-046, ¶ 30, 147 N.M. 134, 217 P.3d 1032 (explaining that New Mexico favors warrants and a reasonableness analysis over blanket federal rules). Because the emergency assistance doctrine allows officers to enter a home without a warrant, our interpretation of Article II, Section 10 as the supreme regulator of police conduct requires us to assess an officer's warrantless entry and search under a more stringent standard.

{47} Inquiry into an officer's primary motivation for entry affords individuals broader protection against baseless, warrantless intrusions into their homes. The subjective element of the Ryon test provides a judicial sieve through which courts may scrutinize warrantless police action and properly exclude evidence obtained under the guise of emergency response. See Ryon , 2005-NMSC-005, ¶ 37, 137 N.M. 174, 108 P.3d 1032 ("[W]e permit the trial court to examine motivation because, in the absence of a warrant, a neutral magistrate has not provided a preliminary review."). As this analysis offers greater protection for individual privacy rights and serves to regulate warrantless police conduct, we consider the full Ryon test integral to the rights afforded under Article II, Section 10.

{48} Accordingly, we adopt the complete Ryon test to determine under Article II, Section 10 when the emergency assistance doctrine may apply to a warrantless entry and search of a home. For the doctrine to apply: (1) "[p]olice must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property;" (2) "the search must not be primarily motivated by an intent to arrest a suspect or to seize evidence[, and] ... the motivation for the intrusion must be a strong sense of an emergency;" and (3) "there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched." Ryon , 2005-NMSC-005, ¶ 39, 137 N.M. 174, 108 P.3d 1032.

{49} The first and third prongs of the Ryon test contemplate the same analysis conducted under the Fourth Amendment; we therefore come to the same conclusions reached above. Under Article II, Section 10, Officer Temples had objectively reasonable grounds to believe there was an emergency that required his immediate assistance to protect Defendant's children and their mother. Additionally, there was a reasonable basis for Officer Temples to associate the emergency with the apartment he ultimately entered and searched.

{50} Under the second prong, there is substantial evidence to support the district court's conclusion that Officer Temples' primary motivation for entry was to render aid and protection from harm. Indeed, Officer Temples testified that he was worried about the mother's medical condition when she failed to respond to her child's plea to wake up. He further testified that her lack of response led him to believe that the children had been left unattended. The Court of Appeals did not analyze Officer Temples' primary motivation for entry, but it agreed with the district court that he appeared "genuinely concerned about the welfare of the children." Yazzie , No. 34,537, mem. op. ¶ 13.

{51} Defendant asks us to infer that Officer Temples' primary motive was not to render aid and protection but rather to investigate a suspected crime within the apartment. To support this inference, Defendant points to the facts that Officer Temples requested a unit with a PBT and did not call medical responders after entering the residence. The district court concluded that Officer Temples' "primary motivation was not criminal investigation." We will defer to the district court's decision as it is supported by substantial evidence. The facts relied upon by Defendant urging a contrary conclusion are not sufficient to overcome the standard of review in this case. See Martinez , 2018-NMSC-007, ¶ 15, 410 P.3d 186 ("An appellate court must indulge in all reasonable inferences in support of the district court's decision and disregard all inferences or evidence to the contrary." (alteration, internal quotation marks and citation omitted)). In sum, Officer Temples' entry and search were reasonable under Article II, Section 10.

V. CONCLUSION

{52} For the foregoing reasons, we reverse the decision of the Court of Appeals. The district court properly denied Defendant's motion to suppress. Because it reversed the district court's denial of the motion to suppress, the Court of Appeals did not reach Defendant's remaining arguments. We remand this case for a determination of any issues remaining on appeal.

{53} IT IS SO ORDERED.

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

PETRA JIMENEZ MAES, Justice, Retired Sitting by designation

CHARLES W. DANIELS, Justice, Retired Sitting by designation

GARY L. CLINGMAN, Justice, Retired Sitting by designation

      The United States Supreme Court has referred to this doctrine as the "emergency aid exception." Michigan v. Fisher , 558 U.S. 45, 47-48, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (internal quotation marks and citation omitted). Historically, we have used the term "emergency assistance doctrine" to refer to the same constitutional principle. See State v. Ryon , 2005-NMSC-005, ¶ 1, 137 N.M. 174, 108 P.3d 1032. We continue use of our prior terminology in this opinion.


source: Caselaw Access Project

author: Opinion by Barbara G. Swinton, Judge:

license: Public Domain

text:
    AUTOMOTIVE FINANCE CORPORATION, Plaintiff/Appellee, v. Marsha Annette ROGERS, Individually, and d/b/a Automotive Solutions, Defendant/Appellant.
    Case No. 115,626
    Court of Civil Appeals of Oklahoma, Division No. 3.
    FILED: March 1, 2019 Mandate Issued: March 27, 2019
    Kara Pratt, BARBER & BARTZ, Tulsa, Oklahoma, for Plaintiff/Appellee,
    Keith O. McArtor, Amanda C. Mims, Tulsa, Oklahoma, for Defendant/Appellant.
   Opinion by Barbara G. Swinton, Judge:

¶ 1 In the proceeding filed by Plaintiff/Appellee Automotive Finance Corporation (Creditor) to enforce a foreign judgment pursuant to the Uniform Enforcement of Foreign Judgments Act, 12 O.S. 2011 §§ 719 - 726 (the Act), Defendant/Appellant Marsha Annette Rogers, individually and d/b/a Automotive Solutions (Debtor) appeals a court order denying her motion seeking a determination of dormancy of judgment. Based on the record and applicable law, we reverse the order.

¶ 2 The appellate record includes only six items. The first is a "Default Judgment Entry" dated November 6, 2006 and signed by a judge from the U.S. District Court in the Southern District of Indiana, Case No. 1:06-cv-1417-SEB-JPG. The federal court judgment finds in favor of Creditor and against Debtor and grants a total award of $340,560.50 plus attorney's fee and postjudgment interest. Creditor "registered" the "authenticated" federal judgment in Oklahoma by filing it with the Court Clerk of Tulsa County on June 10, 2009, Case No. CJ-2009-4308.

¶ 3 The second item is a "Garnishment Affidavit" filed March 18, 2010 in CJ-2009-4308. The Affidavit states that Marsha Annette Rogers lists Century Bank as the garnishee and alleges it possessed non-exempt property of Debtor.

¶ 4 The third item in the record, a "Notice of Bankruptcy Filing," was filed in CJ-2009-4308 on August 23, 2010. The Bankruptcy Notice states "the above-named Debtors, Glenn David Chafin and Marsha Annette Chafin, filed on August 4, 2010, a Chapter 7 bankruptcy proceeding in the United States Bankruptcy Court for the Northern District of Oklahoma, such being numbered 1-12686-M."

¶ 5 The fourth item is a "Notice of Renewal of Judgment" that Creditor filed on October 23, 2015. In pertinent part, the Notice of Renewal states "date of Filing with the Court Clerk: November 6, 2006 " and confirmed that no notice of renewal of Judgment has been previously filed with the Court Clerk.

¶ 6 The fifth item is a motion filed by Debtor in CJ-2009-4308 on August 11, 2016, seeking, inter alia , a determination that the "foreign judgment ... out of the U.S. Dist. Court of Southern District of Indiana [filed] in this Court on June 10, 2009" is dormant and unenforceable as a matter of law. Citing 12 O.S. 2011 § 735, Debtor argued "no execution or renewal of judgment was filed in the matter until a notice of renewal of judgment was filed on October 23, 2015 more than five (5) years after the Garnishment Affidavit and Summons was filed on March 18, 2010."

¶ 7 The sixth item, the trial court's Order filed December 1, 2016, states an assets hearing was held on November 11, 2016, at which Debtor appeared with counsel. The order further states the trial court denied Debtor's motion, finding Creditor's "judgment is still enforceable." Debtor then filed this appeal, in which no transcript of the hearing was provided because "no stenographic reporting was made."

Standard of Review

¶ 8 The parties do not include a standard of review in their respective brief(s). Selection of the appropriate standard of appellate review requires the correct characterization of the trial court proceedings. In re Assessment of Personal Property Taxes Against Missouri Gas Energy, Div. of Southern Union Co., for Tax Years 1998, 1999, and 2000 , 2008 OK 94, ¶ 17, 234 P.3d 938, 946. This proceeding was filed pursuant to the Act, the purpose of which is enforcement or collection of foreign judgments. Taracorp, Ltd. v. Dailey , 2018 OK 32, ¶ 22, 419 P.3d 217, 220. Said judgments "are treated the same as if they were initially issued in Oklahoma." Id .

¶ 9 The Act's single filing requirement of "an authenticated foreign judgment" alone suggests it is a special proceeding. Support is further found in § 725 of the Act, which provides "[t]he right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this act remains unimpaired." Relying, in part, on § 725, Oklahoma courts agree foreign judgments filed pursuant to the Act are not civil actions to which 12 O.S. 2011 § 95's three year statute of limitations applies. See Ford Motor Credit Co. v. Kurz , 2015 OK CIV APP 16, ¶ 5, 344 P.3d 1100 ; Producers Grain Corp. v. Carroll , 1976 OK CIV APP 3, ¶ 10-11, 546 P.2d 285, 287-288 ("The Act was designed as a viable alternative to the traditional method of enforcing foreign judgments by separate lawsuit in which the judgment was considered nothing more than a contract debt...[and] lacked the force of a domestic judgment, except for evidentiary purposes.")

¶ 10 However, the appeal in this case is not brought from an order determining compliance with the Act. Rather, according to the certified court appearance docket, the proceeding that is subject to this appeal was filed pursuant to Oklahoma's post-judgment discovery and collection provisions under Title 12 O.S. § 841 et seq . Bowles v. Goss , 2013 OK CIV APP 76, ¶ 3, 309 P.3d 150. Such matters are "supplemental proceedings in aid of execution and are equitable in nature." Id ., (citing Stone v. Coleman , 1976 OK 182, ¶ 2, 557 P.2d 904 ). As here, a "proceeding to disclose assets" pursuant to § 842 is "a special proceeding in an action after judgment." Weaver v. Fourth Nat. Bank of Tulsa , 1953 OK 329, ¶ 4, 263 P.2d 194. A § 842 proceeding is commonly known as a "hearing on assets." See Bowles, ¶ 21. In a § 842 proceeding, a debtor's challenge to the enforceability of a judgment under § 735 is a legal question for the court that is reviewed de novo . Chandler-Frates & Reitz v. Kostich , 1981 OK 74, 630 P.2d 1287.

ANALYSIS

Compliance with 12 O.S. § 735

¶ 11 Both parties cite 3M Dozer as authority for their opposing positions on the single question Debtor raises on appeal -- whether the bankruptcy code tolls Oklahoma's dormancy statute, 12 O.S. 2011 § 735, during Debtor's § 362(a) automatic stay to allow Creditor to file a notice of renewal after the judgment's expiration. Section 735 provides that a judgment "shall become unenforceable and of no effect" unless , within five years after its filing in Oklahoma, a judgment creditor has performed specific steps for renewing the judgment.

¶ 12 In 3M Dozer the need to address the tolling issue arose only because, prior to expiration of the judgment's five year extension that was due to expire during the debtor's bankruptcy stay, the judgment creditor had failed to comply in some respect with the statutory requirements for renewing its judgment and extending its judgment lien. Debtor in this appeal has not alleged any errors with the judgment creditor's compliance with § 735, and with no hearing transcript, it is impossible to confirm whether the issue was raised below.

¶ 13 An appellant's failure to raise an issue to the trial court generally prevents this court from addressing the unraised issue because "it is not the function of this court to make first-instance determinations of fact or legal questions which have been neither raised nor assessed at nisi prius ." Broadway Clinic v. Liberty Mutual Ins. Co. , 2006 OK 29, ¶ 26, 139 P.3d 873. Implied in the trial court's order, which expressly finds the "judgment is still enforceable," is necessarily a finding that Creditor did substantially comply with § 735's requirements to prevent its judgment from becoming unenforceable. Unlike in Broadway Clinic , the issue of statutory compliance with § 735 is the basis of the trial court's order and not a first instance question of law.

¶ 14 Moreover, "it is a well known general principle of appellate procedure that legal issues adjudicated on appeal are those which were raised either directly or by implication ." (Emphasis added.) Hedrick v. Commissioner of Dept. Of Public Safety , 2013 OK 98, ¶ 16, 315 P.3d 989, 1002 (J. Edmondson, concurring in result). "Raising an issue either directly or indirectly... would include not only those issues actually raised by parties and adjudicated, but also those fairly comprised by the issues actually raised and the nature of the adjudication." Id .

¶ 15 "An issue may be fairly comprised in a different issue....when a necessary part of the trial court's adjudication on a raised issue requires adjudication of a fairly comprised issue because it is within the evidentiary record before the tribunal on its decision." Id . In Creditor's proceeding to enforce a foreign judgment pursuant to the Act by means of a § 842 hearing on assets, the district court record constituted the "evidentiary record" necessary for the trial court's adjudication of the raised issue, the enforceability of the judgment, and the fairly comprised issue, Creditor's compliance with § 735. Because the unraised issue of Creditor's compliance with § 735 is fairly comprised within the issue Debtor raises on appeal and the court's ruling, the unraised legal issue is properly before this Court for review.

¶ 16 Our starting point, which neither party has addressed, is § 735's impact on a federal judgment registered in this state pursuant to the Act. When a judgment creditor has filed a foreign judgment that is enforceable at the time of its registration in Oklahoma, it is to be considered a "new judgment" for purposes of § 735 and "the dormancy period begins to run from the date of registration." U.S. Mortgage v. Laubach , 2003 OK 67, ¶ 13, 73 P.3d 887, 896. As previously explained, the record includes Creditor's federal judgment that was registered by filing it with the court clerk on June 10, 2009, and on that date Creditor's federal judgment became a new judgment for purposes of starting § 735's dormancy period. Thus under normal circumstances, the initial five year life of Creditor's judgment would expire five years later on June 10, 2014, unless sometime within the next five years Creditor renewed the judgment for five more years.

¶ 17 Creditor's appellate argument and calculations in support of the trial court's order is dependent on its judgment renewal under § 735(A)(3), which provides, "A judgment shall become unenforceable and of no effect, if , within five years from the filing.... 3. A garnishment summons is not issued by the court clerk." Claiming a garnishment summons was issued on March 18, 2010 in this proceeding, Creditor argues its judgment's five year renewal would not expire until March 18, 2015.

¶ 18 According to Laubach, "[i]t is uniformly the registrant (the judgment creditor) who bears the burden of proof and persuasion to show the continued efficacy of its non-Oklahoma judgment that has been registered in the state for enforcement as a domestic judgment." (Footnotes omitted; emphasis added.) Id ., ¶ 15. Relevant to that burden, the Court held "[t]o show a judgment lien's present effectiveness during summary process," District Court Rule 13's use of evidentiary substitutes to eliminate disputed facts did not control, and instead, the judgment creditors "must tender documentation that meets the standards of [ 12 O.S.Supp. 1997] § 759." Id ., ¶ 23. "That documentation must (a) bear the federal court clerk's certificate which identifies the document as a true and correct copy of the original on file in the clerk's office as well as (b) be filed in the Oklahoma County Clerk's office before the dormancy period has run on the registered federal-court judgment." Id ., ¶ 24.

¶ 19 Reviewing "a garnishment summons" the creditors attached to their summary judgment motion and represented it was issued in the federal-court case, the Court in Laubach stated "the summons, which bears a notation that it was recorded in the Oklahoma County Clerk's office on 13 September 2002, neither reflects the date of its issuance nor bears a certificate that it is a true and correct copy of the document in the custody of the federal court clerk." Id . The Court affirmed the court's finding that the judgment lien was no longer efficacious because the creditors "failed to show that they had filed in the county clerk's office a certified copy of the garnishment summons timely issued by the federal court clerk." (Emphasis added.) Id.

¶ 20 Nothing in the record remotely suggests Creditor has a perfected judgment lien. Nevertheless, we can find no reason why the Laubach Court's evidentiary standard for proving the present effectiveness of a judgment lien would not apply equally to Creditor's burden here to show its judgment's present enforceability. Therefore to support Creditor's claim its registered judgment's initial life was renewed for five more years or until March 18, 2015, the record must show documentation meeting the standards of § 735(A)(3), i.e., a garnishment summon issued by the court clerk on March 18, 2010.

¶ 21 It is Appellant's burden to present a record that demonstrates the trial court erred, and she has accomplished that task in this appeal. Our review of the meager appellate record in this special proceeding reveals the documentation required here to establish Creditor's judgment was renewed until March 18, 2015, instead of its initial life's expiration June 9, 2014, does not meet the standards of § 735.

¶ 22 As previously explained, the appellate record submitted to this Court includes a "Garnishment Affidavit" filed on March 18, 2010, with "Century Bank" as the garnishee. As relevant here, the affiant of the March 18, 2010 Garnishment Affidavit swore that "I am not seeking a continuing garnishment."

¶ 23 There is no garnishment summons included in the appellate record. The certified court appearance docket included therein has two separate entries for "3/18/2010," the first of which states "Garnishment Affidavit W/Summons (Post-Judgment)." The second entry simply states "Garnishment Summons Issued Mailed by Plaintiff or Attorney." If such occurred, there is no proof in the district court record that is available to this Court.

¶ 24 There are several types of postjudgment garnishment, see 12 O.S.2001 § 1171, including a noncontinuing earnings garnishment pursuant to 12 O.S. 2001 § 1173. This type of garnishment is commenced by filing a garnishment affidavit. 12 O.S.2001 § 1173. Section 1173(D) mandates "the summons shall be served upon the garnishee ... in the manner provided for in [§] 2004 of [Title 12] and shall be returned with proof of service within ten (10) days of its date." (Emphasis added.) Section 2004(2)(b) provides "[s]ervice by mail to a garnishee shall be accomplished by mailing a copy of the summons and notice by certified mail, return receipt requested, and at the election of the judgment creditor by restricted delivery, to the addressee."

¶ 25 Section 1174(C), which applies to "all cases of postjudgment garnishment," requires the court clerk to attach with the garnishment a notice about certain exemptions to which the defendant may be entitled and the need to request a hearing. Pursuant to § 1174(D), "said notification" may be accomplished by several options, including:

1. Serving a copy of the garnishee summons on the defendant or on his attorney of record in the manner provided for the service of summons; or
2. Sending the notice or a copy of the garnishee summons to the defendant or his attorney of record by registered or certified mail with return receipt requested, which receipt shall be filed in the action. (Emphasis added.)

Contrary to these statutes, the appearance docket in this proceeding has no entry for a return of service or proof of mailing with the required receipts to either the garnishee or to Debtor (or her attorney or record) and to which the garnishment summons should have been attached. Therefore, other than entries on the court appearance docket, there is no proof in the appellate and district court records to establish "a garnishment summons was issued by the court clerk."

¶ 26 We note here that Debtor admits in her Brief in Chief that Creditor's Garnishment Affidavit w/ Summons was issued March 18, 2010. Uncontroverted admissions in the brief may be accepted as material supplementing a deficient appellate record. Deffenbaugh v. Hudson , 1990 OK 37, ¶ 4, 791 P.2d 84, 85. Regardless, as this Court interprets the Laubach standard for a creditor's burden to prove "the continued efficacy of its non-Oklahoma judgment that has been registered in the state for enforcement as a domestic judgment": 1) entries in a court appearance docket and 2) a party's admission on appeal, would not qualify as "documentation that meets the standards of § 735" and should not be relied upon to prove compliance with its requirements. On the record before us, we conclude Creditor has not carried its burden of proof to show its compliance with § 735(A)(3).

¶ 27 Without record proof of a garnishment summons issued by the Court Clerk on March 18, 2010 to establish Creditor's judgment was renewed until March 18, 2015, the record before us establishes the relevant dormancy period for Creditor's registered judgment was from June 10, 2009 to June 10, 2014. Assuming, without deciding, § 735 may be tolled during Debtor's bankruptcy stay pursuant to the bankruptcy code and/or Oklahoma law, adding one year for the stay to the registered judgment's normal June 10, 2014 expiration would result in a new expiration of June 10, 2015, for which Creditor's notice of renewal of judgment filed October 23, 2015 was filed too late to prevent the judgment's dormancy.

Tolling of the judgment

¶ 28 Debtor argues the judgment is dormant and unenforceable because Creditor: 1) did not file a notice of renewal of the judgment during the automatic stay, and 2) neither filed a notice of renewal nor attempted to enforce its judgment for the 3.5 years between the lifting of the stay and the March 18, 2015 expiration of the judgment's five year extension. As a result, Debtor contends Creditor's notice of renewal filed October 23, 2015, was filed seven months and five days too late to prevent the judgment's dormancy.

¶ 29 Debtor concedes in her Reply brief that Creditor's October 23, 2015 Notice of Renewal would be timely filed "only if the entirety of the bankruptcy proceedings tolled the five year limitation." However, she argues § 735"provides for no tolling and no exceptions" and tolling under these circumstances would be inequitable based on Creditor's total inaction for 3.5 years after the stay was lifted.

¶ 30 The very complex facts in 3M Dozer presented two main issues. The Court first addressed the effect of § 362(a) automatic stay on the creditor's right to renew and/or enforce its judgment and judgment lien pursuant to 12 O.S. §§ 735 and 759. The creditor unsuccessfully attempted to renew its judgment by filing a notice of renewal and also to extend its judgment lien that were due to expire during the almost five year stay. Concluding all of the creditor's § 735 options were barred by the stay, except for filing a notice of renewal, the Court held filing said notice "is not a judicial proceeding" and the stay does not prevent a creditor from filing one to keep its judgment enforceable.

¶ 31 The parties' arguments as a whole indicate their agreement that § 108(c)(2)'s thirty day extension would not help Creditor's judgment from becoming dormant. They further agree the dispositive issue is whether § 108(c)(1) tolls § 735 for the entire duration of Debtor's stay so that Creditor's notice of renewal of judgment filed October 23, 2015 was timely. Creditor cites two authorities discussed in 3M Dozer with similar material facts, e.g ., expiration of creditor's judgment and/or judgment lien occurred during stays that were very long or still in effect.

¶ 32 However, those similarities, among others, are not present in this case: 1) Debtor's stay, which prevented Creditor from executing/enforcing its judgment, lasted approximately one year; 2) Creditor's judgment did not expire during Debtor's stay; 3) after the stay was terminated, Creditor had 3.5 years before the judgment's expiration on March 18, 2015; and 4) Creditor has no judgment lien against Debtor's real property. Creditor has not cited one case with these facts that support its position.

¶ 33 As we interpret 3M Dozer , § 108(c) tolls § 735's dormancy period only for Creditor's execution/enforcement or collections actions that a § 362(a) stay actually prohibits. Because the Court specifically determined that filing a notice of renewal of judgment is not prohibited by the stay, it stands to reason that § 108(c)(1) would not apply to toll a notice of renewal filed outside the judgment's five year life. Therefore, we agree with Debtor that Creditor it is not entitled to application of § 108(c) to extend the filing of a § 735 notice of renewal of judgment, and thus the trial court on remand is instructed to dismiss as dormant the foreign judgment of Creditor.

REVERSED AND REMANDED WITH INSTRUCTIONS.

MITCHELL, P.J., and BELL, J., concur.

      By § 720 of the Act, "foreign judgment" means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.

      The default judgment was granted on four separate complaints, including breach of a note and security agreement, breach of guaranty, deception and fraud, and check deception.

      Although the Act uses the terms "filed" or "filing" of the foreign judgment, "[t]he term 'registration' denotes those foreign judgments which are filed in accordance with the procedures of 28 U.S.C. § 1963 or the Uniform Enforcement of Foreign Judgments Act." U.S. Mortgage v. Laubach , 2003 OK 67, n. 22, 73 P.3d 887. "An out-of-district federal judgment (or sister state judgment) may be registered in Oklahoma by filing in the office of the court clerk of any county in this state a copy of the foreign judgment that has been authenticated in accordance with the applicable congressional act or state statute." (Emphasis added.) Id. , n. 20 (citing § 721 of the Act). In this case, Creditor filed its foreign judgment attached to an "Exemplification Certificate" from the aforementioned federal court that satisfies "the federally-mandated procedure for judgment authentication" requirements under 28 U.S.C. § 1738. Id ., n. 21.

      This notice of renewal, although substantially conforming with the required form, incorrectly gives the filing date of the federal default judgment in the Indiana federal court. In 3M Dozer Service, Inc. v. Baker , 2006 OK 28, 136 P.3d 1047 the judgment creditor similarly filed a Notice of Renewal with the incorrect date of the original judgment.," Id ., ¶ 2. Because the creditor "conceded its judgment lien would have lost its efficacy under normal circumstances," the 3M Dozer Court determined "we did not need determine" if the notice of renewal "substantially complied with [§] 735 to prevent the judgment's dormancy." Id., 2003 Ok 68, n. 5, 73 P.3d 878. Similarly, this Court need not decide the same about this notice of renewal because reversal in this case is based on Creditor's failure to comply with § 735 in other respects.

      Debtor moved to strike the court's Alias order entered June 21, 2016, which motion the trial court also expressly denied in the order on appeal. Debtor raises no error with this part of the order on appeal.

      The certified court appearance docket in the appellate record confirms Creditor did not file a written objection or response to Debtor's motion to strike.

      A special proceeding, a/k/a special statutory proceeding, differs from other civil actions in the manner of pleading, practice and procedure prescribed by law. City of Tahlequah v. Lake Region Elec., Co-op., Inc ., 2002 OK 2, ¶ 6, 47 P.3d 467, 474.

      See e.g., Bank of America v. Dasovich , 2018 OK CIV APP 22, 415 P.3d 547 (the Act's authentication requirement for a foreign judgment is non-jurisdictional); Concannon v. Hampton , 1978 OK 117, 584 P.2d 218 (Missouri judgment was final and should be given full faith and credit; failure to question the judgment's authentication below waives appellate review of that issue on appeal).

      Okla. Sup. Ct. R. 1.1(d) permits this court to "review information found on Oklahoma district court appearance dockets posted on the World Wide Web, such as on www.oscn.net in order to enhance the court's ability to inquire into and protect its jurisdiction ."

      In Weaver , the Court held an order denying the debtor's motion to vacate a § 842 order to disclose assets was not a "final order" under 12 O.S. 1951 § 953 and not appealable because it did not affect any substantial rights. The appealed order in this § 842 proceeding is similar to the order in Kostich , i.e. , denied the debtor's motion to quash the order requiring the debtor to appear and answer as to assets and plea to jurisdiction on the ground that the judgment was dormant. See also American Mortgage and Investment Co. v. Fallin , 1994 OK CIV APP 33, 872 P.2d 949 (order on appeal refused to vacate an order requiring the debtor to appear for a hearing on assets and denying motion to declare judgment satisfied by operation of § 735 ) and Tulsair Beechcraft, Inc. v. Polin , 1991 OK CIV APP 15, 806 P.2d 1150 (trial court denied motion to vacate an order for debtor to appear and answer as to assets that also argued the judgment was dormant).

      See Hedrick , fn. 27 and 28 to Judge Edmondson's concurring opinion for supporting authorities.

      Such standard is consistent with this Court's requirement that § 735 must be strictly construed. Chandler-Frates & Reitz v. Kostich , 1981 OK 74, ¶ 10, 630 P.2d 1287.

      The document in the record is consistent with scanned document available on www.oscn.net.

      Recognizing the federal court follows Oklahoma's procedure for garnishment process, the Court in Laubach , 2003 OK 67, n. 44, 73 P.3d 887, explained that "[t]he affidavit is the document that triggers a garnishment process. Upon the filing of garnishment affidavit, the federal court clerk issues garnishment summons. The garnishment summons is filed as an attachment to the return of service."

      In February 1988, the creditor obtained a judgment in Major County and perfected a judgment lien against the debtor's interest in real property located in the same county. Five years later, Creditor renewed its judgment and extended its judgment lien for five more years. In November 1996, the debtor filed for bankruptcy, which automatic stay was effective for almost five years. During the stay the creditor's extended judgment was to expire February 1998, which to prevent it timely filed a notice of renewal of judgment with the court clerk, but failed to file a certified copy of the same notice with the county clerk which would extend its judgment lien. Two years later the bankruptcy court denied the creditor's request to modify the stay for a foreclosure action. The creditor filed the foreclosure on June 21, 2001, and the bankruptcy court stayed the foreclosure. In 2002 the same court vacated its stay order and terminated the automatic stay retroactive to the filing date of the foreclosure action.

      We agree. The date relevant for applying § 108(c)(2) is when Creditor received notice of the stay's termination, for which there is no evidence in the record and the parties dispute whether the stay was for 14 months (Debtor claims the case was closed October 5, 2011) or for 12 months (Creditor claims the stay ended when the bankruptcy court denied dischargeability on August 5, 2011). Assuming Creditor received the notice in late 2011 or even early 2012 when applying § 108(c)(2), adding 30 days to either period results in 2011 or 2012 dates and therefore cannot be the "later of" date under the facts of this case. Regardless of which of the two possible dates for the end of § 735's period, i.e ., June 10, 2014 or March 18, 2015, or two possible stay periods, § 108(c)(1) results in the "later of" date, e.g ., 12 months added to either end date would be June 10, 2015 or March 18, 2016.

      The Court in 3M Dozer considered § 362(a)'s subsections that are specific to "any lien." Merritt v. Merritt , 2003 OK 68, ¶ 10, 73 P.3d 878 (quoting § 362(a)(4) and (a)(5) ). Although there is no judgment lien in this proceeding, Creditor was similarly prohibited during the stay by § 362(a)(2), i.e . "the enforcement, against the debtor ... of a judgment obtained before the commencement of the [bankruptcy] case," and by § 362(a)(1), "the commencement or continuance, including the issuance...of process...or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title."


text:
    In the MATTER OF the ADOPTION OF: S.L.D., Minor Child.
    Jessica Davis, Appellant, v. Marcy Davis, Appellee.
    Case No. 116,550
    Court of Civil Appeals of Oklahoma, Division No. 2.
    FILED: July 31, 2018 Mandate Issued: March 27, 2019
    Becki A. Murphy, Megan D. Martin, MURPHY FRANCY PLLC, Tulsa, Oklahoma, for Appellant
    Christopher Brecht, PERRINE, REDEMANN, BERRY, TAYLOR & SLOAN, Tulsa, Oklahoma, Guardian Ad Litem for Natural Mother
    Catherine Z. Welsh, Jim C. McGough, Rachel J. Ellsworth, WELSH & MCGOUGH, PLLC, Tulsa, Oklahoma, for Appellee
    Angela Monroe, ASSISTANT PUBLIC DEFENDER, TULSA COUNTY PUBLIC DEFENDER'S OFFICE, Tulsa, Oklahoma, for Minor Child
   OPINION BY P. THOMAS THORNBRUGH, CHIEF JUDGE:

¶ 1 In this appeal, Jessica Davis (Mother), the natural mother of S.L.D. (Child), seeks review of a trial court order declaring Child eligible for adoption without Mother's consent pursuant to 10 O.S.2011 § 7505-4.2(H) on grounds that Mother failed to maintain a substantial and positive relationship with Child. Based on our review of the record, the parties' briefs, and the applicable law, we find that the judgment that Mother's consent is unnecessary pursuant to subsection (H) is not supported by clear and convincing evidence under the facts presented. We reverse the order below.

BACKGROUND

¶ 2 Many of the underlying facts are not disputed. Child's father, Bo Ryan Davis (Father), and Mother were married when Child was born but have been divorced since February 2010, when Child was about two years-old. The consent decree of divorce granted Father sole custody of Child, and allowed supervised visitation by Mother during the initial months following the decree; however, it contemplated that the parties might eventually enter into a joint child custody plan if certain conditions were met. Appellee, Marcy Davis (Stepmother), has been married to Father since July 2011.

¶ 3 On October 4, 2016, Stepmother filed a petition to adopt Child. She simultaneously filed an application to determine Child eligible for adoption without Mother's consent (AWOC), alleging that "for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing" of the petition for adoption, Mother had failed to establish and/or maintain a substantial and positive relationship with Child. See 10 O.S.2011 § 7505-4.2(H)(1). The parties agree that the 14-month relevant time period, pursuant to this provision, is August 4, 2015, through October 4, 2016 (relevant time period).

¶ 4 It is undisputed that notice of Stepmother's adoption proceeding was not served on Mother until November 11, 2016, but that Mother had filed, on October 25, 2016, a motion to enforce visitation in the divorce case. For approximately two years prior to Stepmother's filing of the adoption petition, Mother had been barred by a protective order, obtained by Father in September 2014, from contacting Child in any manner.

¶ 5 Though Father challenges the relevance of Mother's mental condition to this appeal, the record also shows as undisputed that from February 29, 2016, through August 11, 2016, Mother was involuntarily committed to a federal prison hospital undergoing treatment for mental illness. The commitment came after she was deemed incompetent for trial on federal charges related to violating the terms of her probation following her conviction in federal court of conspiracy to manufacture and pass counterfeit obligations.

¶ 6 In April 2017, the district court appointed a guardian ad litem (GAL) for Mother at the request of Mother's counsel, who expressed concerns as to Mother's competency and ability to communicate. Stepmother then amended her AWOC application, adding grounds pursuant to § 7505-4.2(B)(2), that Mother had "willfully failed, refused and neglected" to contribute to Child's support during the relevant time period "according to [Mother's] financial ability" to do so; and pursuant to § 7505-4.2(L), that Mother has "a mental illness or mental deficiency" rendering her unable to properly exercise her parental responsibilities.

¶ 7 Trial occurred in October 2017. The trial court took judicial notice of the parties' consolidated divorce and protective order case. The docket sheet in that matter reveals considerable post-decree activity by both the parties and the district court, including an order granting Father's motion to modify visitation to require that Mother's visitation be supervised by a licensed professional at Mother's expense; two motions by Mother seeking to enforce visitation (the latest being her October 25, 2016 motion); a September 2014 motion by Father to require Mother to have a mental health evaluation; and a court minute indicating Mother's agreement to have the evaluation performed at her own expense. The current status of Mother's motions to enforce in the divorce case is not clear. Though not entirely clear from the record, Mother apparently has not had the mental evaluation requested by Father that is the subject of the court minute.

¶ 8 Mother admitted she had not had any contact with Child during the relevant time period. She stated she had had a mental "breakdown" in September 2014 and was hospitalized for her mental condition by the federal court for six months, beginning sometime in February 2016 until August 2016. She was eventually tried in federal court on the charges related to violating probation and was released with an ankle monitor. She recognized that the 2014 protective order obtained by Father remained in effect during the same time period. She stated she knew it could be modified, however, and as a result, in October 2016 she filed, on her own behalf, a motion seeking to enforce her visitation rights.

¶ 9 Neither party offered expert testimony. During Mother's cross-examination in Stepmother's case in chief, however, Mother presented copies of two forensic mental health evaluations from federally-employed forensic psychologists to support her testimony that she had been hospitalized by the U.S. Department of Justice's Federal Bureau of Prisons due to her incompetency to stand trial in the federal case. The forensic evaluations reflect she was detained for six months during the 12 months period immediately preceding the adoption petition's filing. The trial court initially admitted the reports "under advisement," over Stepmother's objection that the reports were inadmissible hearsay. The court ultimately denied admission of the evaluations, however, after denying Mother's demurrer to the evidence, and later refused Mother's GAL's request to reconsider the exclusion. At that time, the trial judge also recognized as "uncontroverted" that Mother had "various mental health diagnosis [sic]" and that she was both incompetent and competent during portions of the relevant time period. During closing arguments, Stepmother withdrew § 7505-4.2(L) as a ground for her AWOC application.

¶ 10 At the conclusion of the trial the trial judge stated that while it "appears ... that [Mother] does have significant mental health issues ... the evidence is in conflict about what action she took during the relevant time period." The court deemed Child eligible for AWOC pursuant to 10 O.S.2011 § 7505-4.2(H) alone, finding Stepmother had shown by clear and convincing evidence that Mother "failed to exercise parental rights and duties over [Child], including failure to establish and/or maintain a substantial and positive relationship" during the relevant time period. The court's order did not address Mother's mental condition or the motion to enforce visitation she filed prior to being served with the petition to adopt Child, however. Mother filed this appeal.

STANDARD OF REVIEW

¶ 11 When reviewing a trial court's decision declaring a child eligible for adoption without the consent of the biological parent, this Court reviews issues of fact under a "clear and convincing standard." In re Adoption of G.D.J. , 2011 OK 77, ¶ 17, 261 P.3d 1159 (citing In re Adoption of C.D.M. , 2001 OK 103, ¶ 13, 39 P.3d 802 ). "The burden is on the party seeking to adopt without consent to prove such adoption is warranted by clear and convincing evidence. Accordingly, the decision of the trial court will not be disturbed unless it fails to rest on clear and convincing evidence." Id . As to questions of law, however, we review the trial court's judgment de novo . Id. Statutory interpretation presents a question of law. In re A.N.O. , 2004 OK 33, ¶ 3, 91 P.3d 646.

ANALYSIS

¶ 12 Not surprisingly, the focus of argument on appeal is Mother's mental health. The essential issues presented are (1) whether the trial court correctly interpreted and applied 10 O.S.2011 § 7505-4.2(H) to Mother's situation; (2) whether the court was required to apply § 7505-4.2(L) in this case; and (3) whether Stepmother sustained her burden of producing clear and convincing evidence Mother's consent to Child's adoption is not necessary pursuant to § 7505-4.2(H). We hold that (1) the trial court misconstrued subsection (H) by including -- within the statutory "twelve (12) consecutive months out of the last fourteen (14) months immediately preceding" the adoption petition's filing -- the six months when Mother was adjudicated legally and mentally incompetent; (2) the district court is not restricted to applying only subsection (L) any time the parent in question has been diagnosed with a mental illness or deficiency; and (3) the order deeming Child eligible for adoption without Mother's consent is not supported by clear and convincing evidence, and must be reversed.

¶ 13 Pursuant to 10 O.S. § 7505-4.2(H) :

1. Consent to adoption is not required from a parent who fails to establish and/or maintain a substantial and positive relationship with a minor for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child.
2. In any case where a parent of a minor claims that prior to the receipt of notice of the hearing provided for in Sections 7505-2.1 and 7505-4.1 of this title, such parent had been denied the opportunity to establish and/or maintain a substantial and positive relationship with the minor by the custodian of the minor, such parent shall prove to the satisfaction of the court that he or she has taken sufficient legal action to establish and/or maintain a substantial and positive relationship with the minor prior to the receipt of such notice.
3. For purposes of this subsection, 'fails to establish and/or maintain a substantial and positive relationship' means the parent:
a. has not maintained frequent and regular contact with the minor through frequent and regular visitation or frequent and regular communication to or with the minor, or b. has not exercised parental rights and responsibilities.
Also pertinent here is § 7505-4.2(L), which states:
L. Consent to adoption is not required from:
1. A parent who has a mental illness or mental deficiency, as defined by paragraphs f and g of Article II of Section 6-201 of Title 43A of the Oklahoma Statutes, which renders the parent incapable of adequately and appropriately exercising parental rights, duties and responsibilities;
2. The continuation of parental rights would result in harm or threatened harm to the minor; and
3. The mental illness or mental deficiency of the parent is such that it will not respond to treatment, therapy or medication and, based upon competent medical opinion, the condition will not substantially improve.

¶ 14 Comparing the definitions of mental illness and mental deficiency in 43A O.S.2011 § 6-201, art. II (f) and (g), with the contents of the forensic evaluations submitted in the trial court, it is clear, as the trial court recognized, that for at least six months of the relevant time period, Mother had a mental deficiency or illness rendering her incapable of appropriately exercising her parental rights and duties. In addition, her condition fits the definition of a "mentally incompetent person" under 43A O.S.2011 & Supp. 2017 § 1-103(12) ("Mentally incompetent person" means "any person who has been adjudicated mentally or legally incompetent by an appropriate district court"), and Mother was in fact involuntarily committed for treatment during that time. Oklahoma has long recognized, as a matter of public policy and state statute, that after an individual's incapacity or incompetency has been judicially determined, "a person of unsound mind can make no conveyance or other contract, nor designate any power, nor waive any right, until his restoration to capacity is judicially determined." 15 O.S.2011 § 24. This provision has been described as one by which the state, "for the protection of its incompetents," has deemed any "civil acts transacted by a person" after they were determined to be incompetent void as a matter of law. National Life Ins. Co. v. Jayne , 132 F.2d 358, 361 (10th Cir. 1942) (citing 15 O.S.1941 § 24 and Groenewold v. Groenewold , 1943 OK 391, 193 Okla. 324, 144 P.2d 965 ).

¶ 15 Mother contends that her recognized mental illness or deficiency required as a matter of law that the trial court proceed only under the statutory provision specifically targeted toward a parent who has a mental illness or mental deficiency, in § 7505-4.2 (L), rather than the more general provision in subsection (H). Mother argues that her mental condition essentially is the only relevant factor here, and that the trial court was required to use subsection (L) rather than subsection (H) once Mother's mental illness/deficiency became clear. She makes a cogent argument that the analysis used by the Oklahoma Supreme Court in the recent decision, In re B.K ., 2017 OK 58, 398 P.3d 323, supports her contention that the Oklahoma Legislature intended and due process requires that subsection (L) exclusively must be used to forego parental consent to the adoption of a child of a mentally ill or deficient parent.

¶ 16 Stepmother, on the other hand, contends Mother's mental condition is wholly irrelevant and that the trial court correctly applied and interpreted subsection (H), which makes no requirement of intention or willfulness in determining whether a parent has failed to maintain a substantial and positive relationship with a child. Stepmother points to the fact that, prior to 2001, subsection (H) required proof that a parent "willfully" failed to maintain a substantial and positive relationship. She contends, in essence, that when the Legislature removed the willfulness requirement, it intended to recognize that a parent's duty to maintain a relationship is of utmost importance, regardless of the parent's capacity or intent, or the willfulness of the conduct. Stepmother argues "the best interest of the child" is served when adoption proceeds in an "orderly and expeditious" fashion that does not delay permanency indefinitely, as Stepmother sees what Mother is attempting to do. Stepmother further argues that a potential adoptive parent should not be required to bear the expense of proving the requirements of subsection (L).

¶ 17 Stepmother's argument overlooks the public policy and due process concerns that Oklahoma recognizes as applicable to persons who have been adjudged mentally incompetent and incapable of handling their own affairs. Though in 2001 the Legislature removed "willfully" from subsection (H) and added subsections (H)(2) and (H)(3) to the statute, we do not interpret these changes as evincing legislative intent to override the general public policy of protecting persons who lack the capability of comprehending the significance of their actions or failure to act. Simply removing the term 'willful' does not equate to removing the presumption that a parent who fails to establish or maintain a substantial relationship is competent to choose to act otherwise, particularly when the failure to act will compromise the parent's recognized constitutional rights in the parent-child bond. See Moody v. Voorhies , 257 Or. 105, 475 P.2d 579 (1970) (biological father's commitment to mental hospital during year before adoption petition filed could not be used to support claim that he had abandoned the father-son role).

¶ 18 At the same time, however, we disagree with Mother's contention that a person (such as Stepmother) seeking to adopt a child without parental consent must exclusively rely on § 7505-4.2(L) in any case involving a biological parent who has a mental illness/deficiency. In In re B.K ., 2017 OK 58, 398 P.3d 323, the Court made clear that situations may, and do, exist where it is inappropriate or unwise to exclusively require the use of a mental health statutory provision to terminate the rights of a mentally ill parent. Despite Mother's cogent analysis distinguishing In re B.K. , we reject that analysis here. The fact that Mother may have been mentally ill or deficient at one point, or multiple points, in time does not set in stone the proper AWOC procedure for all time. We therefore reject Mother's argument on this point.

¶ 19 We hold only that we decline to read subsection (H) as Stepmother argues and as the trial court applied it. We find, instead, that the six-month period when Mother was adjudicated incompetent and was involuntarily committed interrupted the relevant time period. The clear and convincing evidence therefore did not support the trial court's finding that Mother engaged in the requisite conduct to render her consent unnecessary under subsection (H). The court's decision finding Child eligible for adoption without Mother's consent pursuant to § 7505(H) is therefore is reversed.

CONCLUSION

¶ 20 We hold that (1) the trial court misconstrued subsection (H) by including, as part of the statutory period required by § 7505-4.2(H), the six months when Mother's mental deficiency caused her to be adjudicated legally and mentally incompetent; (2) the district court is not restricted to applying only subsection (L) any time the parent in question has been diagnosed with a mental illness or deficiency; and (3) the order deeming Child eligible for adoption without Mother's consent is not supported by clear and convincing evidence. Accordingly, we reverse the trial court's order declaring Child eligible for adoption without Mother's consent.

¶ 21 REVERSED .

WISEMAN, P.J., and FISCHER, J., concur.

      The record indicates that Mother was convicted in January 2014 and sentenced to four years of probation. At some point in mid- to late 2015 she was arrested for violating the terms of her probation. She was thereafter referred by a federal magistrate for the Northern District of Oklahoma for an examination to determine whether she was suffering from a mental disease or defect rendering her unable to understand the nature and consequences of the proceeding against her or to assist properly in her defense. As discussed later in the text, the trial court initially admitted forensic psychiatric evaluations related to Mother's diagnosis, then excluded them, but then characterized as "uncontroverted" her mental illness and incompetence for the time period claimed.

      See trial transcript at pp. 57-58.

      The court also recognized that the federal district court had entered an order declaring Mother incompetent to stand trial. See trial transcript at pp. 71-73.

      Transcript at p. 84.

      Subsections (f) and (g) of 43A O.S.2011 § 6-201, art. II, provide:
      (f) "Mental illness" shall mean mental disease to such extent that a person so afflicted requires care and treatment for the welfare of the person, or the welfare of others, or of the community.
      (g) "Mental deficiency" shall mean mental deficiency as defined by appropriate clinical authorities to such extent that persons so afflicted are incapable of managing themselves and their affairs, but shall not include mental illness as defined herein.

      This determination does not take into account the undisputed evidence that Mother filed a motion in the divorce proceeding to enforce visitation prior to receiving notice that Stepmother's adoption petition had been filed. However, under the Court's recent decision in In re Adoption of M.A.S. , 2018 OK 1, ¶¶ 23-29, 419 P.3d 204, such action by Mother might be sufficient to invoke the defense available under § 7505-4.2(H)(2), that she was prevented from establishing or maintaining a substantial and positive relationship with Child.