N. J. W., Matter of

CourtSupreme Court of South Dakota
Citation273 N.W.2d 134
Docket NumberNo. 12379-,12379-
PartiesIn the Matter of N. J. W., N. G. B., and K. F. B., alleged Dependent and Neglected Children. a-REM.
Decision Date28 December 1978

Janice C. Godtland, Asst. Atty. Gen., Pierre, for respondent, State of South Dakota; William J. Janklow, Atty. Gen., Pierre, on brief.

James L. Iosty, Thomas C. Barnett, Jr., Ft. Thompson, and Anita Remerowski, Mission South Dakota Legal Aid Service, for appellant parents.

MORGAN, Justice.

This is an appeal from an order of the Circuit Court for the Fourth Judicial Circuit adjudging appellants' three children, N.J.W., N.G.B., and K.F.B., to be dependent and neglected and terminating appellants' parental rights. Appellants question the constitutionality of certain statutes, allege violations of due process rights, and allege various evidentiary errors. We affirm.

In 1973, a proceeding was held in the county court for Davison County, Fourth Judicial Circuit, on a petition alleging dependency and neglect of the children, under SDCL 26-8-6, and seeking termination of appellants' parental rights. In January of 1974, the trial judge ruled that the children were not dependent or neglected and dismissed the petition. 1

On August 3, 1974, the children were again taken into custody by the Service Administration of the South Dakota Department of Public Welfare (Service Administration), and on August 15, 1974, pursuant to petitions requesting temporary custody and an adjudication of dependency or neglect, the court, with a different judge presiding, granted ninety days temporary custody to the Services Administration. On December 2, 1974, pursuant to similar petitions, the court granted an additional ninety days temporary custody.

On March 4, 1975, a hearing was held on various motions by appellants. Certain of those motions which were denied are before us on this appeal.

An adjudicatory hearing was held on May 28 and 29, 1975, and on June 18, 1975, the court entered findings of fact and conclusions of law determining that the children were dependent and neglected. A dispositional hearing followed on July 22, 1975, and, without issuing any findings of fact or conclusions of law from that hearing, the court terminated appellants' parental rights in the children. Appellants appealed the decision and in May, 1977, this Court vacated the county court's order terminating appellants' parental rights because of the court's failure to issue findings of fact and conclusions of law. We remanded the case and, because of the lapse of time between the July, 1975, hearing and the May, 1977, disposition, we directed the lower court to hold a new dispositional hearing, enter findings of fact and conclusions of law and issue a new order based thereon. All other points appealed were reserved. Matter of N. J. W., S.D., 253 N.W.2d 333 (1977).

In accordance with our mandate, a new dispositional hearing was held on June 27, 1977. On August 11, 1977, the court entered findings of fact and conclusions of law along with an order terminating appellants' parental rights. That order and the order of adjudication are the subject of this appeal.

It is important to bear in mind that parents, natural or adoptive, have a fundamental right to their children. However, it is not an absolute or unconditional right. The State, as parens patriae, takes a necessarily strong interest in the care and treatment of every child within its borders. In re K. D. E., 87 S.D. 501, 210 N.W.2d 907 (1973); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944).

We first examine appellants' contention that SDCL 26-8-6, the statute under which the children were found to be dependent and neglected, is unconstitutionally vague. We find that it is not. This Court has previously upheld the constitutionality of this statute in light of allegations that it is "vague and indefinite". Matter of D. T., S.D., 237 N.W.2d 166 (1975). See also People in Interest of D. K., S.D., 245 N.W.2d 644 (1976). We find those decisions to be sound and well reasoned and we reject appellants' attempt to distinguish the present case.

Appellants contend secondly that they were denied their rights to due process prior to the adjudicatory hearing. Their contention is based upon the fact that they were not notified of the August 15, 1975, temporary custody hearing and were only notified a few hours in advance of the December 2, 1975, temporary custody hearing. They contend that they were precluded from preparing and presenting any kind of defense or from having a reasonable opportunity to resist the Service Administration's efforts to obtain temporary custody.

While we agree with appellants that proper notice was not given and we disapprove of the court's failure to afford proper notice, appellants fail to show any prejudice to their rights with respect to the final adjudication of dependency and neglect or the termination of parental rights. We are not in a position to reverse the awards of temporary custody since they are no longer in effect and absent a showing of prejudice, appellants' contention fails. 2

Appellants next contend that the court erred in admitting evidence and testimony at the adjudicatory hearing pertaining to periods of time before January 11, 1974. That is the date of the 1974 ruling. Appellants contend that the 1974 ruling was final as to the determination of dependency and neglect at that time and that the doctrines of res judicata and collateral estoppel should preclude the court from taking any evidence or testimony pertaining to any time period prior to the issuance of that order. We find appellants' contention to be correct and hold that the doctrine of res judicata is applicable here.

The principle of res judicata was clearly stated in Carr v. Preslar, 73 S.D. 610, 47 N.W.2d 497 (1951), wherein this Court quoted from Keith v. Willers Truck Service, 64 S.D. 274, 266 N.W. 256 (1936):

'First, a final judgment or decree of a court of competent jurisdiction upon the merits is a bar to any future action between the same parties or their privies upon the same cause of action so long as it remains unreversed; and, second, a point which was actually and directly in issue in a former action and was there judicially passed upon and determined by a domestic court of competent jurisdiction cannot be drawn in question in any future action between the same parties or their privies whether the cause of action in the two actions be identical or different. . . .' (47 N.W.2d at 500)

The court defined a party's cause of action as "the facts which establish or give rise to the right of action a party seeks to enforce." Carr v. Preslar, supra, at 500. This principle provides our system of justice with a necessary element finality. It is necessary to prevent continuous and repeated litigation over a dispute. The principle is commonly used in divorce cases when a party is seeking a change of custody or support. The only matters which are relevant in such an instance are those which have occurred since the last determination of custody. Huckfeldt v. Huckfeldt, 82 S.D. 344, 146 N.W.2d 57, 59 (1966). The same principle would apply here. The 1974 ruling is res judicata under conditions existing at the time it was issued and only evidence and testimony pertaining to time periods after that date are relevant and admissible. See also People in Interest of D. K., supra.

Having determined that the evidence pertaining to time periods before January 11, 1974, was improperly admitted, we must determine whether such error was prejudicial to appellants. We point out that we are not in a position to decide the factual issues de novo. The findings of fact made by the lower court are binding upon this court unless we are satisfied that they are contrary to a clear preponderance of the competent evidence and are therefore "clearly erroneous." SDCL 15-6-52(a); Cunningham v. Yankton, P.A., S.D., 262 N.W.2d 508 (1978). We are unable to so find after a careful review of the record. Every finding is supported by competent evidence. It is true, as appellants contend, that the evidence admitted by the court pertaining to time periods before January 11, 1974, tend to support the findings and that there is indeed a significant amount of such evidence. However, each finding is sufficiently supported by admissible evidence so that we cannot say that any of said findings are clearly erroneous. 3 The improperly admitted evidence was cumulative only and where admissible evidence supports the findings, cumulative evidence, though inadmissible, is nonprejudicial. Alberts v. Mutual Service Casualty Insurance Co., 80 S.D. 303, 123 N.W.2d 96, 103 (1963); Matter of D. T., supra, at 171.

Appellants also contend that the court erred in admitting evidence at the adjudicatory hearing pertaining to time periods after August 13, 1974. Appellants argue that since they no longer had custody nor supervision of their children after that date, their actions are totally irrelevant to determining their fitness as parents. Further, they contend that the issue is whether the children were dependent or neglected at the date of the filing of the petition and thus, appellants' actions subsequent to that time are irrelevant. We cannot agree. The evidence presented as to occurrences after August 13, 1974, is relevant to the question of appellants' continuing behavior and attitudes. Furthermore, a reasonable inference is raised that appellants' present behavior is similar to past action and admission of such evidence is not error. Matter of D. T., supra, at 170. Certain of the findings related almost entirely to appellants' actions and habits and even though the children were not in their custody, the evidence can go to support a showing of a continuous pattern of life style extending back during their custody. 4 This Court, in Matter of D. T., supra, quotes from In Interest of Nelson, 216 Kan....

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