In re BP

• Decision Date: 06 November 2001
• Docket Number: No. 00-836.,00-836.
• Parties: In the Matter of B.P. and A.P., Youths in Need of Care.
• Court: Montana Supreme Court

35 P.3d 291

306 Mont. 430

2001 MT 219

In the Matter of B.P. and A.P., Youths in Need of Care.

No. 00-836.

Supreme Court of Montana.

Submitted on Briefs July 26, 2001.

Decided November 6, 2001.

Timothy J. Whalen, Whalen & Whalen, Billings, MT, for Appellant.

Hon. Mike McGrath, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, MT, Marty Lambert, Gallatin County Attorney, Bozeman, MT, for Respondent.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 R.P. appeals from the Findings of Facts, Conclusions of Law and Order entered by the Eighteenth Judicial District Court, Gallatin County, adjudicating B.P. and A.P. as youths in need of care, placing their care and custody with their natural father, T.P., and suspending R.P.'s contact with the children until she submits to ongoing psychological treatment. We affirm.

¶ 2 R.P. raises the following issues:

¶ 3 1. Is the District Court's placement of the children with T.P. barred by the doctrine of res judicata?

¶ 4 2. Did the District Court err in refusing to remove the guardian ad litem?

¶ 5 3. Did the District Court err in denying R.P.'s petition for a writ of habeas corpus?

¶ 6 4. Did the District Court infringe on R.P.'s and her children's constitutional rights of religious freedom and privacy?

BACKGROUND

¶ 7 On January 15, 1999, the Department of Public Health and Human Services (Department) petitioned the District Court for temporary investigative authority and protective services regarding B.P. and A.P. after receiving reports that they were being emotionally and medically harmed by R.P., their mother and primary legal custodian after the dissolution of her marriage to T.P. In re B.P., 2000 MT 39, ¶ 8, 298 Mont. 287, ¶ 8, 995 P.2d 982, ¶ 8. The Department's specific concern was that R.P.'s personal mental health issues had prevented the children from receiving adequate parenting and proper psychological and medical attention. In re B.P., ¶ 8. The District Court appointed Mary Ann Brown (Brown) as the children's guardian ad litem and directed her to monitor the situation and submit a report. In re B.P., ¶ 9. On February 8, 1999, the District Court ordered the children removed from R.P.'s home and placed in foster care. It also ordered the entire family to undergo psychological examinations. In re B.P., ¶ 10.

¶ 8 R.P. appealed and we affirmed the District Court on February 15, 2000. We held the court did not err in ordering protective services for B.P. and A.P., removing them from R.P.'s home, and refusing to remove the guardian ad litem. In re B.P., ¶¶ 38, 42. We further held the District Court did not violate R.P.'s Fifth Amendment rights or her constitutional right of religious freedom. In re B.P., ¶¶ 46, 50.

¶ 9 R.P. subsequently renewed her motion in the District Court to have the guardian ad litem removed and petitioned for a writ of habeas corpus. The court denied the renewed motion and the habeas corpus petition. Thereafter, the court granted the Department's request to modify its petition from one for temporary legal custody to a petition for permanent placement of the children with their father, T.P., in California.

¶ 10 The District Court subsequently entered findings of fact and conclusions of law adjudicating B.P. and A.P. as youths in need of care. It placed custody of the children with T.P. in California and prohibited R.P. from any contact with them until she addresses her personal psychological problems and can engage in age-appropriate conversation with them. R.P. appeals.

STANDARD OF REVIEW

¶ 11 In a youth in need of care proceeding, we review a district court's findings of fact to determine whether they are clearly erroneous. In re M.P.M., 1999 MT 78, ¶ 12, 294 Mont. 87, ¶ 12, 976 P.2d 988, ¶ 12 (citation omitted). A finding of fact is clearly erroneous if it is not supported by substantial evidence, the court misapprehended the effect of the evidence, or a review of the record leaves us with a definite and firm conviction that a mistake occurred. In the Matter of D.H. and F.H. (1994), 264 Mont. 521, 525, 872 P.2d 803, 805 (citations omitted). We review conclusions of law to determine whether they are correct. In re M.P.M., ¶ 12 (citation omitted).

DISCUSSION

¶ 12 Is the District Court's placement of the children with T.P. barred by the doctrine of res judicata?

¶ 13 R.P. argues the current custody disposition is barred by the doctrine of res judicata. She asserts the District Court's placement of the children with T.P. is a re-adjudication of an earlier custody order in her favor in her dissolution action, and that the parties in both actions are the same because the Department investigated claims of abuse during the dissolution action. We disagree.

¶ 14 The doctrine of res judicata operates to preclude a party from relitigating claims which have been litigated in a prior action. Fisher v. State Farm General Ins. Co., 1999 MT 308, ¶ 10, 297 Mont. 201, ¶ 10, 991 P.2d 452, ¶ 10 (citation omitted). Four criteria must be met for res judicata to apply. The parties or their privies are the same; the subject matter of the claim is the same; the issues are the same and relate to the same subject matter; and the capacities of the persons are the same in reference to the subject matter and the issues. Butler v. Colwell, 1998 MT 241, ¶ 17, 291 Mont. 134, ¶ 17, 967 P.2d 779, ¶ 17 (citation omitted).

¶ 15 In the present case, R.P. fails to meet even the first criterion for application of the doctrine of res judicata, because the parties or their privies are not the same. In the current abuse and neglect proceeding, the parties are the Department, represented in the District Court by the Gallatin County Attorney and on appeal by the Office of the Attorney General, the children and R.P. The parties to the earlier dissolution proceeding were R.P. and T.P.

¶ 16 R.P. asserts the Department was a party to the dissolution action because it was investigating claims of abuse within the family at that time. While R.P. is correct that the Department investigated both parents concerning abuse during the dissolution action, it was not a legal party or in privity with a party to that proceeding. Nor did the Department petition for temporary investigative authority and protective services for B.P. and A.P. until after the dissolution action was final. We conclude R.P. has not established the first criterion necessary for application of the doctrine of res judicata. As a result, since all four criteria must be met (Butler, ¶ 17), we need not address the remaining criteria.

¶ 17 We hold the District Court's placement of the children with T.P. is not barred by the doctrine of res judicata.

¶ 18 2. Did the District Court err in refusing to remove the guardian ad litem?

¶ 19 R.P. argues the District Court erred in not removing guardian ad litem Brown. According to R.P., Brown continued in her biased behavior subsequent to In re B.P. by displaying a personality conflict with the family and offering custody recommendations adverse to R.P. at the hearing. R.P. also contends Brown was biased because her supervisor is married to T.P.'s attorney.

¶ 20 As noted above, we addressed this issue previously. In R.P.'s earlier appeal, she contended the District Court erred in not removing Brown because Brown was biased and did not have a good relationship with R.P.'s children. In re B.P., ¶ 40. We concluded R.P. had produced no evidence that Brown was not performing the statutory duties required of a guardian ad litem, and that her allegations were both unsupported in the record and controverted by Brown's testimony about her relationship with the children. In re B.P., ¶ 42. Thus, the only issue presently before us in this regard is whether R.P. presented new evidence pursuant to which the District Court's refusal to remove Brown was erroneous.

¶ 21 Under § 41-3-303(2), MCA (1997), a guardian ad litem is charged with representing the child's best interests and has the following general duties:

(a) to conduct investigations that the guardian ad litem considers necessary to ascertain the facts constituting the alleged abuse or neglect;

(b) to interview or observe the child who is the subject of the proceeding;

(c) to have access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child's siblings and parents or custodians;

(d) to make written reports to the court concerning the child's welfare;

(e) to appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child's welfare;

(f) to perform other duties as directed by the court[.]

¶ 22 In support of her motion for Brown's removal, R.P. argued to the District Court that Brown had not resided in Bozeman since the summer of 1999 and that, during her term as guardian for the children, A.P. received an injury while in foster care that resulted in a forehead scar and B.P. broke his arm while playing with friends in California. Brown and T.P. opposed the motion for removal, arguing that the children themselves had not resided in Bozeman since July of 1999 and that Brown could not be held responsible for ordinary childhood mishaps. After considering the record, the District Court denied R.P.'s motion for removal and replacement of Brown.

¶ 23 On appeal, R.P. asserts her feelings that Brown is biased in favor of T.P. and acknowledges that her objection to Brown is based on a difference of opinion about how the children should be raised. As was the case in her earlier appeal, R.P. advances no evidence that Brown failed to meet her statutory duties or in support of her "feelings." Indeed, R.P.'s assertions that Brown is biased because of her difference of opinion about home-schooling and her testimony that it is not in the children's best interests to place them with R.P. reflect that Brown was merely discharging her...