People ex rel. L.S.

SABERS, Justice

(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., 2005 SD 110, ¶ 24, 706 N.W.2d 90, 94 (citing In re M.C.S., 504 N.W.2d 322, 326 (S.D.1993)). Application of the doctrine of res judicata to custody actions is different than other proceedings, because custody actions are subject to modification. However, one thing is clear: before a custody decree can be modified, new facts must occur subsequent to the first decree.

[¶ 54.] In a custody dispute between parents, we require a substantial change in circumstances. See Masek v. Masek, 90 S.D. 1, 6, 237 N.W.2d 432, 434 (1976) (urging this Court to “be especially vigilant to avoid rewarding persistence in this type of case”); Huckfeldt v. Huckfeldt, 82 S.D. 344, 348, 146 N.W.2d 57, 59 (1966) (noting that an award of custody is res judicata under conditions existing when made because “any other interpretation would re-*98suit in endless litigation and continued uncertainty”). In In re N.J.W., we examined the effects of res judicata in subsequent abuse and neglect proceedings and determined “the same principle applies]....” 273 N.W.2d 134, 138 (S.D.1978) (citing Huckfeldt, 82 S.D. at 348, 146 N.W.2d at 59).

[¶ 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, 455 U.S. 745, 764, 102 S.Ct. 1388, 1400, 71 L.Ed.2d 599 (1982). In holding that res judicata applies to subsequent termination cases, the Texas Court of Appeals remarked, “[t]o hold otherwise would be to allow the State with its vast resources to try the same issues over and over again to the disadvantage of the parents.” Slatton v. Brazoria County Protective Serv., 804 S.W.2d 550, 553 (Tex.App.1991).7

[¶ 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, 496 N.W.2d 593, 595 (S.D.1993) (citing Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 (1965)). A prior final judgment or order that was rendered by a court of competent jurisdic*99tion, “is conclusive as to all rights, questions, or facts directly involved and actually, or by necessary implication, determined therein.” Id. (quoting Raschke, 81 S.D. at 296, 134 N.W.2d at 297). A final judgment is conclusive without regard to whether the rendering court was correct at the time it made its decision. Id.

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., 337 N.W.2d 179, 180 (S.D.1983) (holding that it is the decree from the dispositional hearing that is “a final judgment” for purposes of appeal). If the State believed that Judge Caldwell erred in not reconsidering her oral ruling, it should have appealed the order of dismissal to this Court. Because the Morrell incident was presented to Judge Caldwell before she signed an order dismissing the proceeding, her order of dismissal constitutes a final judgment on the merits.

[¶ 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 *100judge, attested by the clerk and filed in his office.” 1999 SD 152, ¶ 46, 603 N.W.2d 513, 525 (quoting Mushitz v. First Bank of South Dakota, 457 N.W.2d 849, 857 (S.D.1990)). “Orders are required to be in writing because the trial court may change its ruling before the order is signed and entered.” Id. at ¶ 46 (quoting State v. Lowther, 434 N.W.2d 747, 752 (S.D.1989)). When a trial court issues an oral ruling, it retains discretion to hear additional evidence prior to making its final order and reducing it to writing. Id. at ¶ 47. Judge Caldwell issued her written order of dismissal after the State made its motion to reconsider based on the Morrell incident.

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.8 Instead, they filed a new petition in Minnehaha County, the day after Judge Caldwell signed her order dismissing the case. The State cannot argue now that it was deprived of a full and fair opportunity to litigate the Morrell incident.

[¶ 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 *101doctrine of res judicata seeks to avoid: forum shopping and relitigating issues and facts decided in a prior proceeding.

[¶ 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, 49 Or.App. 221, 619 P.2d 901, 904-05 (1980) (emphasis added). I have no disagreement with the statement of the Oregon Court. However, the majority opinion cannot provide any new substantial material facts” that came into existence after Judge Caldwell’s order became final. The facts relied on by the State in the Minnehaha County proceeding were the same facts the State relied on in making its motion to reconsider in the Lincoln County proceeding.

[¶ 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, 496 N.W.2d at 595. Judge Caldwell’s decision was never appealed and was final in the absence of new facts.

[¶ 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.9

[¶ 70.] MILLER, Retired Justice, joins this dissent.

. Several courts have followed this rationale. See In re V.B. & Z.B., 220 Neb. 369, 370 N.W.2d 119, 122 (1985) (holding “the [trial] court would have been barred in the instant case from using evidence prior to the [first] order as the sole basis for terminating parental rights”); In re A.S., M.S. & A.L.S., 12 Kan.App.2d 594, 752 P.2d 705, 711 (1988) (permitting a subsequent termination proceeding to go forward after being "satisfied that a change of circumstances occurred after [the first order had been issued]”); In re J.R. & T.R., 711 P.2d 701, 703 (Colo.Ct.App.1985) (holding “there should be ... sufficient additional facts to justify a trial court’s change in its conclusions from a previous hearing at which it refused to terminate the parent-child legal relationship”); In re John B., 20 Conn.App. 725, 570 A.2d 237, 240 (1990) (permitting a second termination proceeding when "new facts that justified the bringing of a second termination proceeding came into being after the dismissal of the first proceeding”); In re B.M., 1999 No 98-2175, WL 823851 *4 (Iowa App. Oct. 15, 1999) (unpublished opinion) (“if the state had brought the second petition to terminate appellant's rights and had alleged nothing new, there is no doubt that it would be barred by res judicata”); In re Newman, 49 Or.App. 221, 619 P.2d 901, 904 (1980) (upholding a termination when "there was at least one new substantial material fact ... which came into being between the first and second termination proceedings”).

. 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,