People ex rel. L.S.

• Decision Date: 16 August 2006
• Docket Number: No. 23560.,23560.
• Citation: 721 N.W.2d 83,2006 SD 76
• Parties: 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.
• Court: South Dakota Supreme Court

Page 83

721 N.W.2d 83

2006 SD 76

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.

No. 23560.

Supreme Court of South Dakota.

Argued on November 9, 2005.

Reassigned April 17, 2006.

Decided August 16, 2006.

COPYRIGHT MATERIAL OMITTED

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.

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.

[¶ 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 him to her children, and not allow T.O. to have contact with them. She was also told to obtain a divorce from T.O. In a subsequent case plan, DSS added a requirement that the mother attend anger management classes.

[¶ 7.] In partial compliance, the mother completed parenting classes, the psychological evaluation, and attended regular visitation with her children. However, she failed to get the counseling recommended in her psychological evaluation. She did not divorce T.O. Instead, she remained in contact with him and continued to speak of him to the children during her scheduled visitations. While DSS learned through the children that the mother attended an anger management class, it was not aware that she had completed that requirement of her case plan.

[¶ 8.] Believing that the mother would continue to expose her children to harm, the State moved to terminate the mother's parental rights in May 2003. Before a dispositional hearing was held, the State also requested a protection order prohibiting the mother from having any contact with the children because her defiance toward DSS was destructive to her children. The circuit court agreed, stating "I thought it would be in the best interests of these girls to continue to have a relationship with their mother. After what I've heard today, I no longer feel that way. . . . I agree that they need a stable, consistent environment, and that all the mother has done is continued to disrupt that." The court granted the State's motion for a protective order.

[¶ 9.] In response, the mother began cooperating with DSS. She completed her case plan requirements and filed for a divorce from T.O. A dispositional hearing was ultimately conducted in December 2003. DSS testified that the mother had 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 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 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...