Lead Opinion
[¶ 1.] In this abuse and neglect action, the mother appeals the judgment terminating her parental rights. She contends that the State’s failure to proceed with a new allegation during a previous abuse and neglect proceeding makes the issue res judicata. We affirm.
Background
[¶ 2.] In 2001, L.S., age twelve at the time, told her mother, S.O., that T.O. had exposed his penis to her and asked her to touch it. T.O. was the mother’s boyfriend. She relied on him to provide care for L.S. and her two other daughters, C.S. and J.S. When the mother asked T.O. about this incident, he acknowledged that it did happen. The mother, nevertheless, continued to date T.O. and use him as a caregiver for her three daughters. Then in March 2002, J.S., age nine, told her mother that T.O. “was moving up and down” while she was sitting on his lap. C.S. also informed her mother about an incident with T.O.: he had asked her to “rub lower” while she was rubbing his stomach.
[¶ 3.] After these latter incidents with J.S. and C.S., the mother contacted law enforcement. In turn, the Department of Social Services (DSS) was notified and a social worker told the mother that T.O. should have no contact with her children. She kicked T.O. out of her home. Thereafter, DSS closed its file. However, in May 2002, DSS received word that the mother married T.O. and continued to use him as a caregiver. After confirming this
[¶ 4.] In the meantime, based on the incidents with the girls in March 2002, T.O. was indicted in Lincoln County with two counts of sexual contact with a child under sixteen. On September 19, 2002, T.O. pleaded nolo contendré to felony child abuse and received a suspended penitentiary sentence, 180 days in jail, and work release. His five year probation included a condition that he have no contact with L.S., C.S., and J.S.
[¶ 5.] In September 2002, an adjudicatory hearing was held on the abuse and neglect petition. At the hearing, the mother admitted that T.O. had touched her children, but she claimed that it was not sexual. The circuit court concluded by clear and convincing evidence that the allegations in the petition had been proved. The court found that the mother knew of T.O.’s sexual contact with her children and she nevertheless “used poor judgment” and continued to use “him as a primary daycare provider.” This, according to the court, “allowed [T.O.] the opportunity to prey upon her two other children.” The court also recognized that the mother married T.O. after DSS closed its initial file. Therefore, the court declared that it would be “contrary to the minor children’s welfare to be immediately returned to their parents’ custody.” The children were adjudicated abused and neglected by an order dated November 4, 2002.
[¶ 6.] While the children remained in protective custody, DSS prepared multiple case plans for the mother. She was required to obtain suitable housing, maintain her employment, complete parenting classes, complete a psychological evaluation, attend weekly visitations with her children, and provide a safe and secure environment for them. She was to cease her contact with T.O., not speak of him to her children, and not allow T.O. to have contact with them. She was also told to obtain a divorce from T.O. In a subsequent case plan, DSS added a requirement that the mother attend anger management classes.
[¶ 7.] In partial compliance, the mother completed parenting classes, the psychological evaluation, and attended regular visitation with her children. However, she failed to get the counseling recommended in her psychological evaluation. She did not divorce T.O. Instead, she remained in contact with him and continued to speak of him to the children during her scheduled visitations. While DSS learned through the children that the mother attended an anger management class, it was not aware that she had completed that requirement of her case plan.
[¶ 8.] Believing that the mother would continue to expose her children to harm, the State moved to terminate the mother’s parental rights in May 2003. Before a dispositional hearing was held, the State also requested a protection order prohibiting the mother from having any contact with the children because her defiance toward DSS was destructive to her children. The circuit court agreed, stating “I thought it would be in the best interests of these girls to continue to have a relationship with their mother. After what I’ve heard today, I no longer feel that way.... I agree that they need a stable, consistent environment, and that all the mother has done is continued to disrupt that.” The court granted the State’s motion for a protective order.
[¶ 9.] In response, the mother began cooperating with DSS. She completed her case plan requirements and filed for a divorce from T.O. A dispositional hearing was ultimately conducted in December 2003. DSS testified that the mother had
[¶ 10.] At the completion of the disposi-tional hearing on January 30, 2004, the mother moved to dismiss the case. Circuit Judge Kathleen K. Caldwell orally granted the mother’s motion. The court stated that “the last time we were here also we heard that [the mother] had been divorced from [T.O.] and done parenting classes and done everything that [DSS] had asked her to do. And I just think that there is not enough evidence in this case to terminate anyone’s rights.” After ordering that the case be dismissed, the court accepted the recommendation from the [parents’] attorneys that entry of the order be delayed for thirty days. The delay was requested so the mother and the two fathers could resolve custody issues among themselves. Judge Caldwell warned, “basically once the thirty days are over, I’m going to dismiss this case, and things will go back to the way they were prior to this case being filed absent any other orders being entered.”
[¶ 11.] After the January 30 hearing, but before a written order was entered, DSS hired an investigator to follow the mother because it believed that she was continuing to have contact with T.O. At this time, he was still incarcerated, but would leave at 10:30 p.m. on work release to be at John Morrell by 11:00. Just as DSS had suspected, the investigator observed the mother meet with T.O. outside Morrell’s on three consecutive nights: February 10, 11, and 12, 2004. On February 12, in particular, the mother brought J.S. and another child with her. At this meeting, the investigator observed T.O. get into the mother’s vehicle while the two children were in the backseat.
[¶ 12.] Believing that returning the children to the mother would place them in imminent risk of harm, the State filed a motion on February 24, 2004, requesting that Judge Caldwell reconsider her January 30 order dismissing the petition. The State also requested that a hearing be scheduled on the motion. The State’s motion set forth the facts surrounding the February 12 incident and included an affidavit from William Golden, the children’s attorney, attesting to the same. After receiving this motion, Judge Caldwell did not schedule a hearing, but instead telephoned Thomas Wollman, the Lincoln County State’s Attorney. Wollman later testified that Judge Caldwell would not entertain the motion because she believed that filing a new petition was the way to proceed. In accord with her oral order, therefore, Judge Caldwell signed the written order dismissing the case on March 1, 2004.
[¶ 13.] Two days later, the State filed a second abuse and neglect petition, this time in Minnehaha County. This petition, like the previous one, alleged that the mother had failed to protect her children.
[¶ 14.] During a hearing on the motion to dismiss, the mother argued that the issues presented in the second petition were identical to those considered by Judge Caldwell in the previous action. In opposing the motion, the State asserted that the February 12 incident presented new facts not considered by Judge Caldwell. The State further contended that although it presented the February 12 incident to Judge Caldwell through the motion for reconsideration, she advised the State to file a second petition.
[¶ 15.] Over the mother’s objection, Judge Lieberman allowed Wollman to relate the phone conversation he had with Judge Caldwell. He testified that:
Based upon the conversation I had with the court it was my understanding — my impression that the [c]ourt would not entertain the motion. In hindsight I guess I could have forced the issue and got a hearing scheduled, but the phone conversation left me with the impression that it would be fruitless and that a new petition would be the correct way to proceed.
In response to this testimony, the mother contended that the State could have and should have forced the issue with Judge Caldwell, and therefore the doctrine of res judicata precluded the State from proceeding with the second petition. Judge Lieberman denied the mother’s motion to dismiss. He concluded that no final order existed addressing the merits of the February 12 incident, that the issues in the new petition were not identical to the previous petition, and finally, that the issues in the new petition had not been previously litigated. Consequently, the court allowed the State to proceed with the second abuse and neglect petition.
[¶ 16.] An adjudicatory hearing was held on May 19, 2004. The mother testified on both direct and cross examination that she continued to visit T.O. after Judge Caldwell’s oral dismissal on January 30, 2004. She further admitted that she brought J.S. with her when she visited him on February 12, 2004. When asked on cross examination if she was still married to T.O., she could not say one way or the other. She testified that there would be no harm in having the girls live with her and T.O. together, or in having T.O. visit the girls. More significantly, the mother testified that she believed T.O. was innocent and that none of the prior sexual contacts had ever happened.
[¶ 17.] In rendering its decision, the court took judicial notice of the previous abuse and neglect action in Lincoln County and T.O.’s criminal file. It further acknowledged that the previous petition was dismissed by Judge Caldwell. However, based on the mother’s conduct since January 30, 2004, the court ruled that the allegations in the second petition were established by clear and convincing evidence. The court declared that “it is inescapable that [the mother] and [T.O.] intend to continue their relationship.” Therefore, the court adjudicated the children abused and neglected in that they lacked proper parental care and were threatened with substantial harm under SDCL 26-8A~2(2) and (6).
[¶ 18.] After the adjudication, the State moved to excuse the requirement that DSS provide reasonable efforts to reunite the
[¶ 19.] After the court declared that DSS was not required to provide reasonable efforts, the State moved to terminate the mother’s parental rights. The court found that the conditions that led to the removal of the children still existed, in that the mother still failed to understand what it takes to protect her children. Moreover, the court found that there was little likelihood that the conditions would change because she failed “to acknowledge that [T.O.] sexually assaulted her minor children and has refused to protect her children from their abuser.” The court further declared the mother unfit and that “potential harm could result to the children were they to be returned to [her] custody.” In sum, the court found that the least restrictive alternative was to terminate the mother’s parental rights. Otherwise, the court believed that it “would be gambling with the future of the minor children if they were to be returned to the custody of [the mother].”
[¶ 20.] The mother appeals asserting that (1) the doctrine of res judicata prohibited the circuit court from acquiring jurisdiction over this abuse and neglect petition; (2) the court erred when it adjudicated the children abused and neglected; (3) the court erred when it granted the State’s motion to excuse reasonable efforts to reunite the family; and (4) termination was not the least restrictive alternative commensurate with the children’s best interests.
Analysis and Decision
1. Res Judicata
[¶ 21.] We review de novo a circuit court’s ruling on the issue of res judicata. Wells v. Wells,
[¶ 22.] To invoke the doctrine of res judicata, four elements must be established: (1) a final judgment on the merits in an earlier action; (2) the question decided in the former action is the same as the
[¶ 23.] The doctrine of res judi-cata is premised on two maxims: “ ‘A [person] should not be twice vexed for the same cause’ and ‘it is for the public good that there be an end to litigation.’” Carr v. Preslar,
[¶ 24.] Longstanding jurisprudence recognizes that special concerns may warrant exceptions to claim preclusion: “The strongest justification arises from cases in which disposition of the first action has failed to provide any tolerable resolution of a continuing problem.” Wright St Miller & Cooper, 18 Fed. Prac. & Proc. Juris. 2d § 4415, Exceptions To Claim Preclusion Rules. In particular, when it comes to protecting children res judicata should be cautiously applied. Other courts have expressed similar sentiments. In People in Interest of J.R.,
[¶ 25.] In this regard, the Oregon Court of Appeals is worth quoting at length:
Termination of parental rights proceedings generally arise out of a continuing and cumulative set of circumstances, in which the child is within the juvenile court’s jurisdiction and, often, is subject to agency custody or supervision. An order denying a petition to terminate parental rights seldom leads directly to the termination of wardship or of agency involvement. It is one thing to say that such an order bars a second termination proceeding when there has been no change in the operative facts which led to the initiation of the first proceeding; it is very different — and clearly wrong— to contend that, if new substantial material facts come into existence which justify the filing of a new termination proceeding, evidence and facts which were or could have been considered in the earlier proceeding cannot be considered or reconsidered in the later one.
In the Matter of Newman,
The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. [Citations omitted]. Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.
(Emphasis added) (citations omitted); In re Marriage of Weaver,
[¶ 27.] When it comes to balancing child protection against judicial economy in preventing repetitive claims, the Utah Court of Appeals summed up the problem well:
A more fundamental question, however, is whether the judicial doctrine of res judicata has any application in proceedings involving the welfare of children. Mindful of the unique nature of child custody and related proceedings, we share the concerns expressed by the courts which have recognized that a hyper-technical application of res judicata is improper in adjudications where the welfare of children is at stake. [Footnote omitted]. Considerations regarding a child’s welfare are rarely, if ever, static. In fact, it is more likely that the child’s environment is constantly evolving, thus justifying the court’s continuing jurisdiction. See Scott v. Department of Social Servs.,76 Md.App. 357 ,545 A.2d 81 , 90 (1988) (“child welfare seems to be a particularly appealing subject for periodic redetermination because children can be quickly and irretrievably scarred by negative circumstances”), cert. denied,492 U.S. 910 ,109 S.Ct. 3226 ,106 L.Ed.2d 575 (1989).
J.J.T. and T.J.T.,
[¶28.] Although South Dakota has no case directly on point, we can find some guidance in the case of In re J.L.H.,
[¶ 29.] Likewise, in this case the children were found abused and neglected as alleged in the first petition. Then, during the dispositional phase, the incident where the mother again exposed her child to the man who had molested her was not formally brought before the court after it announced that the case was going to be dismissed. A motion to reconsider was filed, but the judge telephoned the State’s
2. Adjudication of Abuse and Neglect
[¶ 30.] The mother next contends that the circuit court erred when it adjudicated the children abused and neglected. Specifically, the mother asserts that the court was not permitted to use matters litigated in the previous abuse and neglect proceedings as grounds for the current adjudication. Without those matters, she claims, the circumstances surrounding the February 12 incident do not provide sufficient evidence to support the court’s adjudication.
[¶ 31.] An adjudication of abuse and neglect must be supported by clear and convincing evidence. Interest of D.T., Jr.,
[¶ 32.] In this case, the court took judicial notice of the previous adjudication of abuse and neglect in Lincoln County. In its factual findings, it also repeated verbatim the findings in the previous adjudication. In doing so, the court was not relitigating the previous case.
3. Reasonable Efforts
[¶ 33.] The mother also contends that the court abused its discretion when it held that DSS was excused from having to provide reasonable efforts toward family reunification. Under SDCL 26-8A-21, DSS “shall make reasonable efforts to make it possible for the child to return to the home of the child’s parents, guardian, or custodian.” However, under the Adoption and Safe Families Act (ASFA), DSS is not required to provide reasonable efforts when certain aggravating circumstances exist. SDCL 26-8A-21.1; see also Interest of J.S.B., Jr.,
[¶ 34.] In this case, the court held that reasonable efforts were not required Because the mother “[h]as exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, and the child or another child has been removed from the parent’s custody because the removed child was adjudicated abused and neglected by a court on at least one previous occasion.” SDCL 26-8A-21.1(7). In making this determination, the court found that the evidence clearly and convincingly established that the mother “still does not understand what it takes to keep her children safe from abuse.” The court noted that the children had been previously adjudicated abused and neglected. It further recognized that the mother admitted to exposing J.S. to T.O. when she visited him at approximately 10:30 p.m. in an unused parking lot by the John Morrell facility. Moreover, she advocated his innocence and testified that there would not be any harm in allowing contact between T.O. and the children. It was not until the hearing to determine if reasonable efforts were required that the mother then declared that she believed her children were abused by T.O. The court held that the mother’s statement at that time was “incredible” because it was “being made to placate [DSS], the special advocate and the [c]ourt.”
[¶ 35.] The mother, nevertheless, argues that the evidence does not establish that this is an egregious case with compelling circumstances because the court relied on impermissible evidence from the prior adjudication to determine that the aggravating factor in SDCL 26-8A-21.1(7) existed. She further contends that the court
4. Least Restrictive Alternative
[¶ 36.] Finally, the mother argues that terminating her parental rights was not the least restrictive alternative because the conditions that led to the children’s removal no longer exist. “Our standard of review is ‘whether the trial court’s ultimate finding — that clear and convincing evidence indicated termination was the least restrictive alternative commensurate with the child’s best interests—was clearly erroneous.’” In re S.A.
[¶ 37.] Before terminating the mother’s parental rights, the court properly weighed her fundamental right as a parent against the best interests of the children. Based on the evidence, the court concluded that preserving her parental rights “would materially jeopardize the best interests of the children and would compromise the duties and interest of the public to prevent the [subjection] of the children to future potential harm and detriment.” This, according to the court, is because the mother “still does not understand what it takes to protect her children and ... if [the mother] were forced to choose between [her] children and their abuser, [she] would choose their abuser.” Finding that potential harm could result, the court declared that under all the circumstances it “would be gambling with the future of the minor children if they were to be returned to the custody of the [mother].”
[¶ 38.] The mother’s fundamental rights as a parent deserve protection, but the children’s best interests remain the highest priority. Interest of T.G. and C.G.,
[¶ 39.] We have consistently held that children are not required to wait for their parents to acquire parenting skills. See Interest of P.K.,
[¶ 40.] Affirmed.
Notes
. A court later found that T.O. violated the conditions of his suspended sentence and he was scheduled for resentencing.
. The dissent seems to equate the dismissal of the first abuse and neglect proceeding with a finding that the children were not found to be abused and neglected in that case. On the contrary, Circuit Judge Caldwell found that these children were abused and neglected. The dismissal was given only because Judge Caldwell later believed the mother had rehabilitated herself, a conclusion that afterwards proved false. Unlike the case of Matter of N.J.W.,
Concurrence Opinion
(concurring specially).
[¶ 44.] I concur and write only to note that, contrary to the dissent’s view, the affirmance of the trial court’s judgment does not create a new “exception” to the bar of res judicata in abuse and neglect cases.
[¶ 45.] A well-established requirement of res judicata is that there must have been “a full and fair opportunity to litigate the issues in the prior adjudication.” Springer v. Black,
[¶ 47.] Although Mother and the dissent have a different appellate view of these facts, the State offered the only evidence concerning these matters. Lincoln County State’s Attorney Thomas Wollman testified, without qualification, that after he filed the motion to consider the new allegation, Judge Caldwell initiated a telephone call to his office. From that conversation, he understood that “the court [Judge Caldwell] would not entertain the motion.” Wollman testified that Judge Caldwell indicated “that a new petition would be the correct way to proceed.”
The court informed Lincoln County State’s Attorney, Tom Wollman, that it no longer had jurisdiction over the matter due to its order dismissing the Petition on January 30, 2004 and declined to hear the State’s Motion for Reconsideration.
And, in finding of fact 18, he found:
The Lincoln County State’s Attorney, Tom Wollman, was advised by the court that the incident on February 12, 2004, constituted facts for a new Abuse and Neglect Petition, as the previous abuse and neglect proceeding (Juv.02-83) was dismissed.
[¶ 48.] These findings cannot now be contested on appeal. First, there is no real dispute that, at Judge Caldwell’s direction, no final appealable order relating to the new incident was entered in the first proceeding.
[¶ 49.] In the final analysis, there is no dispute that res judicata bars matters that could have been litigated in the prior proceeding. However, as Judge Lieberman specifically concluded, the “issue presented in the Minnehaha County Abuse and Neglect Petition was not actually litigated nor could [it] have been litigated” in the prior proceeding. Furthermore, considering Mother’s concessions and Judge Caldwell’s specific direction to the state’s attorney, this record supports the second trial court’s finding that the State did not have a full and fair opportunity to litigate the new allegation in the first abuse and neglect proceeding.
[¶ 50.] Because there was no full and fair opportunity to litigate the new facts concerning Mother’s subsequent failure to protect the children from their molester, those facts were not precluded from consideration in a second action. They were not precluded because if “[t]he facts which underlie many of the issues do not arise until [after the prior court proceeding,] the doctrine of res judicata ... does not apply.” Lewton v. McCauley,
[¶ 51.] GILBERTSON, Chief Justice, joins this special writing.
. A close reading of the Court’s authorities reflects that each case applies a generally recognized requirement for, rather than an abuse and neglect exception to, the bar of res judicata. See State in Interest of J.T.T.,
. There is absolutely no evidence to support the dissent's view that "apparently” Judge Caldwell "did not believe the [new] incident warranted changing her decision,” or that the state's attorney did not "bring the matter to a hearing because he thought the State was going to lose.” Infra ¶¶ 8-9. On the con
. Q: Was there a point in time that the judge ever heard your motion for reconsideration on the record?
A: No. Based upon the conversation I had with the Court it was my understanding — • my impression that the Court would not entertain the motion. In hindsight I guess I could have forced the issue and got a hearing scheduled, but the phone conversation left me with the impression that it would be fruitless and that a new petition would he the correct way to proceed.
. The dissent faults the State for failing to appeal. However, because of Judge Caldwell's oral telephonic direction, there was no order, judgment, or even record from which the State could appeal. The only record of Judge Caldwell's disposition of the new evidence was developed before Judge Lieberman after the second petition was filed. And, it is easy to understand why the state’s attorney could not have scheduled a motion hearing on Judge Caldwell’s docket after she had just informed him that she would not consider the matter and that a new petition should be filed.
Dissenting Opinion
(dissenting).
[¶ 52.] When a party loses and fails to appeal, the case is finished. Today, the majority opinion grants an exception to the State when it is seeking to terminate the parental rights of one of its citizens. The majority opinion sends a disturbing message: If at first you don’t succeed in terminating an individual’s parental rights, do not bother appealing to this Court, just keep filing additional petitions in different counties until you find a judge that will rule in your favor. This case presents a blatant example of forum shopping and I dissent.
[¶ 53.] Termination of parental rights is a custody proceeding. In re H.L.C. & B.A.C.,
[¶ 54.] In a custody dispute between parents, we require a substantial change in circumstances. See Masek v. Masek,
[¶ 55.] The parents involved in termination proceedings should be afforded a degree of certainty concerning their right to raise and care for their children. The best interests of the children are also served by the stability of a final judgment. Indeed, the nature of the State as an adversary coupled with the extreme consequences of termination should make us more vigilant in these types of cases. When the United States Supreme Court mandated a burden of clear and convincing-evidence in termination of parental rights cases, it noted:
The disparity between the adversaries’ litigation resources is matched by a striking asymmetry in their litigation options. Unlike criminal defendants, natural parents have no “double jeopardy” defense against repeated state termination efforts. If the State initially fails to win termination ... it always can try once again to cut off the parents’ rights after gathering more or better evidence. Yet even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts.
Santosky v. Kramer,
[¶ 56.]We apply four factors in determining whether res judicata bars a subsequent action: (1) whether the issue decided in the former adjudication is identical with the present issue; (2) whether there was a final judgment on the merits; (3) whether the parties are identical; and (4) whether there was a full and fair opportunity to litigate the issues in the prior adjudication. Moe v. Moe,
Whether the issue decided in Lincoln County is identical to the issue in the Minnehaha County petition.
[¶ 57.] The Lincoln County and the Minnehaha County petitions are identical in almost every respect. They both sought to adjudicate Mother’s children as abused and neglected. They both alleged that Mother had failed to protect her children from T.O. Finally, they both recite the sexual contact between T.O. and Mother’s children, as well as the fact that Mother married T.O. subsequent to his abuse of the children.
[¶ 58.] The only respect in which the petitions differ is that the Minnehaha County petition includes the Morrell incident. It also includes information that William Golden, the children’s attorney, gathered as a result of a conversation he had with one of the children concerning the Morrell incident. The State argued, and Judge Lieberman agreed, that the Morrell incident creates a different issue or at least new facts relevant to that issue. However, the record reveals that the Mor-rell incident was raised in the Lincoln County proceeding.
[¶ 59.] Before Judge Caldwell signed the order dismissing the Lincoln County proceeding, the State made a motion to reconsider. The State’s motion was based entirely on the Morrell incident, and included an affidavit by William Golden concerning the conversation he had with one of the girls about that incident. Apparently, Judge Caldwell did not believe the incident warranted changing her decision. Thus, the issues and the facts were identical in both the Lincoln and Minnehaha County proceedings. Judge Lieberman erred in determining that the Minnehaha County petition presented issues and facts that were not presented to Judge Caldwell.
Whether there was a final judgment on the merits.
[¶ 60.] The State argues that there was no final judgment on the merits in the Lincoln County proceeding because Judge Caldwell did not hold a hearing on the motion, or issue an order denying the motion. Instead, Judge Caldwell simply issued her order dismissing the entire proceeding. The State’s argument is unpersuasive for two reasons. First, the state’s attorney admitted that he could have scheduled a hearing in front of Judge Caldwell, but did not do so because he thought it would be “fruitless.” In other words, he did not bring the matter to a hearing because he thought the State was going to lose. Fear that a party will not prevail on an issue- has never excused them from raising it.
[¶ 61.] Second, we have held that a decree from a dispositional hearing is a final judgment. In the Matter of S.H.,
[¶ 62.] In Moore v. Michelin Tire Co., Inc., we noted that “pursuant to SDCL 15-6-58, an order becomes effective when reduced to writing, signed by the court or
Consequently, Judge Lieberman erred when he denied Mother’s motion to dismiss, claiming there was no final judgment on the merits in the Lincoln County proceeding.
Whether the parties are identical.
[¶ 63.] The State concedes that the parties to the Minnehaha County proceeding were identical to those involved in the Lincoln County matter.
Whether there was a fall and fair opportunity to litigate the Morrell incident in the Lincoln County proceeding.
[¶ 64.] To support its contention that there was no full and fair opportunity to litigate the motion for reconsideration, the State puts forth the same arguments it made pertaining to the final judgment on the merits. However, as mentioned above, the Lincoln County State’s Attorney admitted that he could have pressed the issue and demanded a hearing on the State’s motion. Moreover, the State had the opportunity to appeal the trial court’s decision, but chose not to do so.
[¶ 65.] The doctrine of res judicata should bar the Minnehaha County proceeding. If the State believed the trial court’s decision was in error, it should have appealed to this Court. When the State filed a new action in front of a different judge, it did precisely what the
[¶ 66.] The majority opinion does not apply the four factors of res judicata to determine if the Minnehaha County proceeding was barred. Rather than attempt to pound a square peg in a round hole, the majority opinion cuts an entirely new hole in order to reach the result it believes is in the best interest of the children. Remarkably, this is done sua sponte as the State never raised the issue of whether res judi-cata applies to termination cases. Instead, the State only argued that the four elements of res judicata were not met.
[¶ 67.] The majority opinion cites several cases for the proposition that res judi-cata should not apply with full force in these types of proceedings. I agree. Children are not static and their lives are constantly changing. That is precisely why multiple abuse and neglect petitions can be filed when new facts come into existence after the disposition of a prior proceeding. The majority opinion quotes the Oregon Court of Appeals which noted:
[It is clearly wrong] to contend that, if neiv substantial material facts come into existence ivhich justify the filing of a new termination proceeding, evidence and facts which were or could have been considered in the earlier proceeding cannot be considered or reconsidered in the later one.
Neuman,
[¶ 68.] I appreciate the majority opinion’s concern for the best interest of the children. Perhaps Judge Caldwell erred in failing to reconsider this case in light of the Morrell incident. However, this Court should not ignore the law in an attempt to reach a desired result. It is not relevant whether Judge Caldwell was “correct at [that] time or not” in determining whether her decision is res judicata. Moe,
[¶ 69.] I will not join an opinion that allows the State to fail to bring a hearing because it thought it was going to lose, fail to appeal, and then bring a new action in a different county, based on the same facts, the very next day. Judge Lieberman’s decision should be reversed and vacated.
[¶ 70.] MILLER, Retired Justice, joins this dissent.
. Several courts have followed this rationale. See In re V.B. & Z.B.,
. The concurrence claims there is "absolutely no evidence to support” our view that Judge Caldwell did not believe the Morrell incident warranted changing her decision or that the state's attorney did not bring the matter because he thought he was going to lose. Additionally, the concurrence claims the State could not appeal because in the absence of a hearing, there was no record made on the issue. The concurrence is inaccurate on all three of its claims.
The record is clear that Judge Caldwell received an affidavit setting forth the allegations surrounding the Morrell incident and the State's motion to reconsider. We know from the state’s attorney’s testimony that despite these allegations, Judge Caldwell was not going to entertain the motion for reconsideration. Furthermore, the state's attorney admitted that he could have "forced the issue and got a hearing scheduled, but the ... conversation left [him] with the impression that it would he fruitless." Thus, the state's attorney could have forced a hearing and made a record, but he did not do so because he did not believe Judge Caldwell was going to change her decision. Finally, all of this happened prior to Judge Caldwell issuing her final, written decision dismissing the State's claim.
As an appellate court, we have always required parties to create and preserve records, regardless of whether they believed it would be "fruitless” at the trial level. Moreover, we have always required parties to appeal from an adverse ruling, not file a new action in a different county in front of a different judge. Our standards should be no less stringent merely because one of the parties is the State, and the subject matter of the litigation involves termination of parental rights.
. Because Judge Caldwell's decision is res judicata without new facts, I would not reach issues two, three, and four,