People Ex Rel. Ls

#23560-a-JKK
2006 SD 76

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

THE PEOPLE OF THE STATE
OF SOUTH DAKOTA IN THE
INTEREST OF L.S., C.S., AND J.S. Children and concerning

S.O.B., Appellant,

and

J.S. AND S.C., Respondents.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE PETER H. LIEBERMAN
Judge

* * * *
LAWRENCE E. LONG
Attorney General

BRENT KEMPEMA
Assistant Attorney General
Department of Social Services
Pierre, South Dakota Attorneys for appellee State.

STEVEN R. BINGER
Binger Law Office
Sioux Falls, South Dakota Attorney for appellant Mother.

* * * *

ARGUED ON NOVEMBER 9, 2005
REASSIGNED APRIL 17, 2006

OPINION FILED 08/16/06
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KONENKAMP, Justice (on reassignment).

[¶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 information, DSS removed the children from the

mother’s custody and filed an abuse and neglect petition against her.

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[¶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 contendre 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

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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

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was ultimately conducted in December 2003. DSS testified that the mother had in

fact completed all that had been requested of her. DSS still believed, however, that

her parental rights should be terminated. At the hearing, a representative from

DSS testified, “[m]y biggest concern is that [the mother] doesn’t seem to grasp the

seriousness of what happened, and I also believe that her children also have this

belief, that what happened isn’t serious. So whether it’s [T.O.] or somebody else,

that is my—that’s my biggest concern. She doesn’t appear to get it.”

[¶10.] At the completion of the dispositional 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

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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. 1 When questioned about exposing her child to T.O.,

the mother initially denied that it happened, but then claimed that they met to

discuss health insurance matters, because they were still married at the time.

[¶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. With the factual background from the

1. A court later found that T.O. violated the conditions of his suspended
sentence and he was scheduled for resentencing.

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previous proceedings, in addition to the mother’s actions on February 12, 2004, the

State argued before Circuit Judge Peter H. Lieberman that the mother “has

exhibited a pattern of failing to protect her children from substantial harm or a

potential for substantial harm.” The mother moved to dismiss, alleging that this

second petition was barred by the doctrine of res judicata.

[¶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

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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 mother with her children. The State

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alleged that under SDCL 26-8A-21.1(7), DSS was “not required to seek reunification

of a child with a parent who has exposed the children to or demonstrated the

inability to protect the children from substantial harm or the risk of substantial

harm and the child or another child had been removed from the parent’s custody

because the removed child was adjudicated to be abused and neglected by a [c]ourt

on at least one previous occasion.” The court found that both requirements under

this statute had been met and excused any obligation on the part of DSS to provide

reasonable efforts to reunify the family. According to the court, despite all the

previous efforts by the social workers, the mother “still does not understand what it

takes to keep her children safe from abuse.” Moreover, the court found “incredible”

the mother’s latest assertions that she will protect the children from T.O. In the

court’s view, her promises were made “to placate the Department of Social Services,

the special advocate and the [circuit court].”

[¶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.

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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, 2005 SD 67, ¶11, 698 NW2d 504, 507 (citing Banks v. Int’l Union

Elec., Elec., Technical, Salaried and Mach. Workers, 390 F3d 1049, 1052 (8thCir

2004) (citation omitted)). Here, Circuit Judge Lieberman concluded that res

judicata did not apply because the allegations contained in the second petition were

new, lacked a final judgment on the merits, and were not and could not have been

previously litigated. In contrast, the mother contends that Judge Caldwell heard

the same allegations in the first petition that were then repeated in the second

petition, Judge Caldwell still had jurisdiction when the February 2004 incidents

occurred, and the State failed to bring the matter on for hearing before the case was

dismissed. Therefore, the mother insists that there exists a final judgment on the

merits.

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[¶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 one decided in the present action; (3)

the parties are the same; and (4) there was a full and fair opportunity to litigate the

issues in the prior proceeding. Moe v. Moe, 496 NW2d 593, 595 (SD 1993) (citation

omitted). In examining whether these elements are present, a court should

construe the doctrine liberally, unrestricted by technicalities. However, because the

doctrine bars any subsequent litigation, it should not be used to defeat the ends of

justice. Instead, courts “must give careful consideration to the case at hand before

erecting the doctrine’s preclusive bar.” Cf. Federated Depart. Stores, Inc. v. Moitie,

452 US 394, 401, 101 SCt 2424, 2429, 69 LEd2d 103 (1981); Brown v. Felsen, 442

US 127, 132, 99 SCt 2205, 2209, 60 LEd2d 767 (1979).

[¶23.] The doctrine of res judicata 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, 73 SD 610, 619, 47 NW2d 497, 502 (1951)

(citations omitted). Res judicata seeks to promote judicial efficiency by preventing

repetitive litigation over the same dispute. Wells, 2005 SD 67, ¶15, 698 NW2d at

508 (citing Faulk v. Faulk, 2002 SD 51, ¶16, 644 NW2d 632, 635) (additional

citation omitted). This being so, it is important to consider the nature of abuse and

neglect proceedings. The protection of children from continuing abuse and neglect

is not the type of needless litigation contemplated by the doctrine. See Interest of

J.J.T. and T.J.T., 877 P2d 161, 164 (UtahCtApp 1994) (“to effectively determine the

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best interests of a child, a court must be free from the imposition of artificial

constraints that serve merely to advance the cause of judicial economy”).

[¶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 & Miller, 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., 711 P2d 701, 703

(ColoCtApp 1985), the court noted that “[a]lthough the policy of limiting litigation is

sound, that policy should not be applied so as to deprive the State in its role as

parens patriae from seeking a resolution which will best serve the interests of the

children.”

[¶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, 619 P2d 901, 905 (OrCtApp 1980) (emphasis added).

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[¶26.] In expressing a like sentiment, the Connecticut Supreme Court, in the

case of In re Juvenile Appeal, 460 A2d 1277, 1282 (Conn 1983), wrote:

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, 592 NE2d 643, 649

(IllAppCt 1992) (the doctrine “should not be strictly applied to bar evidence when

the most important consideration is the welfare of a child”); Boone v. Boone, 150

F2d 153 (DCCir 1945).

[¶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 MdApp
357, 545 A2d 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 US 910, 109 SCt
3226, 106 LEd2d 575 (1989).

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J.J.T. and T.J.T., 877 P2d at 163. See also In re Pardee, 475 NW2d 870, 874

(MichCtApp 1991) (res judicata “cannot settle the question of a child’s welfare for all

time”); In re V.B., 370 NW2d 119, 121 (Neb 1985) (same).

[¶28.] Although South Dakota has no case directly on point, we can find some

guidance in the case of In re J.L.H., 299 NW2d 812, 815 (SD 1980), rev’d on other

grounds, In re J. L. H., 316 NW2d 650 (SD 1982). There, in rejecting the mother’s

res judicata argument, this Court held that “the trial court did not err in admitting

evidence originating prior to the earlier adjudication.” Id. Apparently, this

evidence could have been offered in the first adjudicatory hearing but was not.

Nonetheless, this Court found that because there had been a finding of dependency

and neglect in the first proceeding, res judicata did not bar admission of this

evidence in the second adjudicatory proceeding.

[¶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

Attorney, and, as a result, the State was left with the impression that the judge

would not entertain the motion. In the second adjudicatory hearing before a new

judge, this evidence was admitted. Perhaps the evidence should have been formally

brought before the first court, even though the court indicated that the motion

would not be successful, but simply because the State did not insist on a hearing

should not preclude the new evidence from being used in the second proceeding.

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After all, there is no dispute that the judge indicated that she would not entertain

it. A hyper-technical application of res judicata is simply not appropriate in these

extraordinary circumstances. Even if we were to say that the attorneys blundered

in failing to insist that the matter be heard by Judge Caldwell, the children’s

welfare still demands that we place greater emphasis on their protection than on a

judicial policy against repeat litigation. 2 To hold otherwise is to turn our legal

process for protecting abused and neglected children into a hollow ritual.

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.

2. 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.,
273 NW2d 134 (SD 1978), the State here is not attacking an earlier
adjudication holding that prior allegations of abuse were not proved. Rather,
the State is relying on the findings in the earlier case to support its position
in the present case. Judge Caldwell found in the first adjudication that the
mother repeatedly exposed her daughters to a man who she knew had
sexually molested them. The second proceeding only added additional
evidence to support this same finding. See In re R.Z.F., 284 NW2d 879, 881
(SD 1979).

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[¶31.] An adjudication of abuse and neglect must be supported by clear and

convincing evidence. Interest of D.T., Jr., 2003 SD 88, ¶10, 667 NW2d 694, 698

(citing Matter of J.A.H., 502 NW2d 120, 123 (SD 1993) (additional citations

omitted)). We review the circuit court’s findings of fact under the clearly erroneous

standard, giving due regard to the “court’s opportunity to judge the credibility of the

witnesses.” Interest of T.G., 1998 SD 54, ¶16, 578 NW2d 921, 923 (citation omitted).

We think it was within the court’s discretion to take judicial notice of the findings

from the previous adjudication. D.T., Jr., 2003 SD 88, ¶10, 667 NW2d at 698 (citing

J.A.H., 502 NW2d at 123; Matter of L.B., 416 NW2d 598, 599 (SD 1987); Matter of

R.Z.F., 284 NW2d 879, 881 (SD 1979); In re K.D.E., 87 SD 501, 506, 210 NW2d 907,

910 (SD 1973)). Moreover, because the court is required to act in the best interest of

the children, it is not improper for a court to consider the circumstances that

brought about the previous adjudication.

[¶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. Rather, the court was using the prior findings to

recite the children’s history so as to declare what was in the children’s best interests

based on the entire relationship between the children and the mother. See R.Z.F.,

284 NW2d at 881. Ultimately, however, it still remains our task to examine

whether the circuit court erred when it adjudicated the children abused and

neglected. Based on our review of the evidence we cannot say that we are left with

a definite and firm conviction that a mistake was made. It is undisputed that T.O.

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sexually abused the mother’s children. The mother, nevertheless, continued to have

a relationship with T.O. In fact, she admitted that she exposed J.S. to T.O. on

February 12, 2004. Certainly, the evidence supports the court’s conclusion that

clear and convincing evidence existed that the children “lacked proper parental care

through the actions or omissions of [the mother] and were threatened with

substantial harm[.]”

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., 2005 SD 3, ¶1, 691 NW2d

611, 613; Interest of D.B., 2003 SD 113, ¶13, 670 NW2d 67, 71 (quoting New Jersey

Div. of Youth and Fam. Serv. v. A.R.G., 824 A2d 213, 233 (NJSuperCtAppDiv

2003)). Accordingly, “SDCL 26-8A-21.1 provides the trial court with discretion to

identify the most egregious cases early in the process and dispense with futile

efforts toward reunification.” D.B., 2003 SD 113, ¶15, 670 NW2d at 72.

[¶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

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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 was collaterally estopped from admitting evidence from the previous

adjudication, as it was a matter already litigated. We previously stated that it is

within a court’s discretion to take judicial notice of a child’s prior adjudication of

abuse and neglect. It would be untenable to conclude that while taking judicial

notice of the prior case, the court is not then permitted to examine evidence from

that action. To properly consider the best interests of the child, the entire historical

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record is crucial. Moreover, the court in this case did not make its own factual

findings with respect to what occurred in the prior action. It incorporated the

original findings verbatim. In consideration of the circumstances surrounding the

previous adjudication along with the mother’s actions and testimony, the court

declared that DSS was not required to provide reasonable efforts toward

reunification. Based on our review of the evidence, we cannot say the court erred.

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. 2005 SD 120, ¶21, 708 NW2d 673, 680 (quoting In re

A.S., 2000 SD 94, ¶19, 614 NW2d 383, 386 (quoting In re J.Y., 502 NW2d 860, 862

(SD 1993))); see also SDCL 26-8A-27.

[¶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

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#23560

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.,

1998 SD 54, ¶16, 578 NW2d 921, 923. There is no dispute here that the mother has

repeatedly exposed her children to a man who had previously molested all three of

them. Although she originally reported the sexual abuse, she later testified that the

abuser was innocent and that there would be no harm to her children in remaining

in contact with him. It is true that she finally stated that she believed T.O. did

abuse her daughters, but the court found her late change of heart to be

untrustworthy.

[¶39.] We have consistently held that children are not required to wait for

their parents to acquire parenting skills. See Interest of P.K., 2006 SD 17, ¶24, 711

NW2d 248, 256 (citing Interest of A.D., 416 NW2d 264, 268 (SD 1987)); People in

Interest of M.J.B., 364 NW2d 921 (SD 1985). “‘When it comes to something as

important as the welfare of young children, promises of the parents to conform to

the standard of care for their children which is expected in our society do not carry

as much weight as their past actions of not properly caring for the children.’” A.S.,

2000 SD 94, ¶21, 614 NW2d at 386-87 (quoting In re E.D.J., 499 NW2d 130, 137 (SD

1993) (quoting In re J.M.V.D., 285 NW2d 853, 855 (SD 1979))). We find no error in

the circuit court’s conclusion that termination of the mother’s parental rights was

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#23560

the least restrictive alternative commensurate with the best interests of L.S., J.S.,

and C.S.

[¶40.] Affirmed.

[¶41.] GILBERTSON, Chief Justice, and ZINTER, Justice, concur specially.

[¶42.] SABERS, Justice and MILLER, Retired Justice, dissent.

[¶43.] MILLER, Retired Justice, sitting for MEIERHENRY, Justice,

disqualified.

ZINTER, Justice (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.3 See infra ¶¶52 & 66. Rather, the

3. 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.J.T., 877 P2d
161, 164 (UtahCtApp 1994) (noting that through a strict application of
“traditional res judicata analysis, uninfluenced by [exception] concerns, . . .
the prior neglect determination [was] no bar to the termination petition at
issue.” The Utah court expressly saved for another day the difficult question
of whether, and to what extent, res judicata actually applies in the context of
termination of parental rights.); People in Interest of J.R., 711 P2d 701,
703 (ColoCtApp 1985) (involving the same proceeding in which additional
facts were presented to the trial court justifying a change in its conclusions
from a previous hearing where it refused to terminate the parent-child legal
relationship); Matter of Newman. 49 OrApp 221, 226, 619 P2d 901, 904-
05 (1980) (concluding “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 can be
considered or reconsidered in the later one”); In re Juvenile Appeal (83-DE),
190 Conn 310, 315, 460 A2d 1277, 1280 (1983) (permitting the second petition
because “the dismissal of the first petition was based on the trial court’s
determination that the [first] petition, filed only four months after K was
(continued . . .)
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#23560

judgment is properly affirmed because the fourth requirement of res judicata is not

present; i.e., there was no full and fair opportunity to litigate the most recent

allegation of abuse of the children.

[¶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, 520 NW2d 77, 79 (SD 1994) (emphasis added) (quoting In re

Guardianship of Janke, 500 NW2d 207, 208-09 (SD 1993) (citations omitted)). But,

in this case, there is no dispute that the first trial judge (Judge Caldwell) declined

to consider the new allegation that Mother again exposed the children to their

molester. 4 Thus, there was no full opportunity to litigate the new allegation.

[¶46.] Although the record is limited, there is no dispute that Judge Caldwell

made an oral disposition that dismissed the abuse and neglect proceeding before the

new incident occurred. There is also no dispute that after the new incident, Judge

_______________________
(. . . continued)
committed, was premature”); In re Pardee, 190 MichApp 243, 248, 475 NW2d
870, 873 (1991) (noting that “when the facts have changed or new facts
develop, the dismissal of a prior termination proceeding will not operate as a
bar to a subsequent termination proceeding”); In re Interest of V.B., 220 Neb
369, 372, 370 NW2d 119, 122 (1985) (noting that evidence from the first
proceeding could be used in conjunction with evidence from the time period
after the first proceeding in determining that there was the requisite change
of circumstances to terminate parental rights.)

4. 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 contrary, as is explained hereafter, the evidence is quite clear that
Judge Caldwell dismissed the first proceeding without considering the new
allegation because she believed that it should be presented in the new
petition.

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#23560

Caldwell was informed of the new evidence when the State filed a motion to

reconsider. However, Judge Caldwell advised the State that she would not even

entertain the motion and that the State should file a new petition.

[¶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.”5 After

considering all of the evidence concerning this matter in a contested hearing, Judge

Lieberman adopted Wollman’s testimony. Judge Lieberman specifically found that

Judge Caldwell informed Wollman that she would not consider the matter and that

the new allegation constituted a basis for a new petition. In finding of fact 17,

Judge Lieberman found:

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.

5. 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 be the correct way to proceed.

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#23560

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. 6 But more importantly,

Mother conceded that these were different actions based on different allegations

and that the State was not provided an opportunity to litigate the new allegation.

Specifically, at the hearing on the motion to dismiss in front of Judge Lieberman,

Mother argued that both actions (in both courts) alleged that she had failed to

protect her children against a child abuser who had previously abused them.

However, Mother conceded that the actions were not the same because the second

action involved “almost the same” allegation but “that . . . something . . . happened

after Judge Caldwell’s decision.” With respect to the new evidence, Mother further

conceded that Judge Caldwell “knew about the motion to reconsider [based on the

new evidence] and she refused to hear it.” (Emphasis added.) Mother even conceded

that Judge Caldwell “would not give [the State] a hearing on their motion [to

6. 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.

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#23560

reconsider].” Consequently, on appeal, there is no room to now adopt new appellate

facts and suggest that the State was given a full and fair opportunity to litigate the

new evidence in the first action.

[¶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, 460 NW2d 728, 731 (SD 1990); see also supra n3. For all of

these reasons, this case is governed by established requirements of res judicata.

[¶51.] GILBERTSON, Chief Justice, joins this special writing.

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

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#23560

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 NW2d 90, 94 (citing In re M.C.S., 504 NW2d 322, 326

(SD 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 SD 1, 6, 237 NW2d 432, 434 (1976)

(urging this Court to “be especially vigilant to avoid rewarding persistence in this

type of case”); Huckfeldt v. Huckfeldt, 82 SD 344, 348, 146 NW2d 57, 59 (1966)

(noting that an award of custody is res judicata under conditions existing when

made because “any other interpretation would result 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 . . .

appl[ies]. . . .” 273 NW2d 134, 138 (SD 1978) (citing Huckfeldt, 82 SD at 348, 146

NW2d 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

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#23560

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 US 745, 764, 102 SCt 1388, 1400, 71 LE2d 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 SW2d 550, 553 (TexApp

1991). 7

7. Several courts have followed this rationale. See In re V.B. & Z.B., 370 NW2d
119, 122 (Neb 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., 752 P2d 705, 711
(KanCtApp 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., J.R., & T.R., 711 P2d 701, 703
(ColoCtApp 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., 570 A2d 237, 240 (ConnAppCt 1990) (permitting a second termination
proceeding when “new facts that justified the bringing of a second
(continued . . .)
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#23560

[¶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

NW2d 593, 595 (SD 1993) (citing Raschke v. DeGraff, 81 SD 291, 295, 134 NW2d

294, 296 (1965)). A prior final judgment or order that was rendered by a court of

competent jurisdiction, “is conclusive as to all rights, questions, or facts directly

involved and actually, or by necessary implication, determined therein.” Id.

(quoting Raschke, 81 SD at 296, 134 NW2d 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

_______________________
(. . . continued)
termination proceeding came into being after the dismissal of the first
proceeding”); In re B.M., 1999 No 98-2175, WL 823851 *4 (IowaApp 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, 619 P2d 901, 904
(OrCtApp 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”).

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#23560

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 Morrell

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

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#23560

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 NW2d 179, 180 (SD 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

judge, attested by the clerk and filed in his office.” 1999 SD 152, ¶46, 603 NW2d

513, 525 (quoting Mushitz v. First Bank of South Dakota, 457 NW2d 849, 857 (SD

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 NW2d 747, 752 (SD 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.

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#23560

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 full 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,

8. 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 be 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.
(continued . . .)
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#23560

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 doctrine 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 judicata applies to termination cases. Instead, the State only argued that the

four elements of res judicata were not met.

_______________________
(. . . continued)
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.

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#23560

[¶67.] The majority opinion cites several cases for the proposition that res

judicata 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 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.

Newman, 619 P2d 901, 904-05 (OrCtApp 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

NW2d at 595. Judge Caldwell’s decision was never appealed and was final in the

absence of new facts.

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#23560

[¶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.

9. Because Judge Caldwell’s decision is res judicata without new facts, I would
not reach issues two, three, and four.

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