R. Z. F., Matter of, 12644

• Decision Date: 07 November 1979
• Docket Number: No. 12644,12644
• Parties: In the Matter of R. Z. F., alleged Dependent and Neglected Child.
• Court: South Dakota Supreme Court

Page 879

284 N.W.2d 879

In the Matter of R. Z. F., alleged Dependent and Neglected

Child.

No. 12644.

Supreme Court of South Dakota.

Nov. 7, 1979.

Janice C. Godtland, Asst. Atty. Gen., Pierre, for respondent, State of S. D.; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Randolph F. Stiles of Hanson, Kaye, Stiles & Anderson, Mitchell, for appellant mother.

FOSHEIM, Justice.

This is an appeal from an adjudication of dependency and neglect and a disposition terminating appellant-mother's parental rights. We affirm.

According to the evidence, appellant was admitted to Methodist Hospital in Mitchell on July 28, 1978, and gave birth to R.Z.F. At the time of her admission, she had an odor of paint about her and had difficulty communicating. During the course of appellant's hospitalization, her nurses noticed a distinct lack of maternal bond between mother and child. Appellant did not take adequate time to feed her baby, nor did she display interest in postnatal care instruction provided by hospital personnel.

Appellant was released on July 31, but her child remained hospitalized due to abnormal "twitching" movements and excessive irritability. It appears that appellant made no attempt to visit the child or to inquire regarding its condition during the two-day interval between her release and that of her baby.

R.Z.F. was released to appellant on August 2 after considerable improvement in his condition. Appellant's social worker testified that during a visit to appellant's apartment while the mother had custody of R.Z.F., appellant was "shaky", her eyes were glassy, and the apartment smelled of paint. On August 6, appellant brought her child back to the hospital, complaining that he was not eating properly and had turned blue on two occasions. The admitting physician noted that the child appeared bruised and malnourished; his diagnosis was dehydration and possible child neglect. R.Z.F. received routine newborn care and exhibited marked improvement. As a result, he was discharged on August 14 to the custody of a foster parent pursuant to an August 10 court order granting temporary custody to the Department of Social Services. Two days later, however, he was re-admitted due to increased irritability and twitching. Upon his third admission, it was discovered that R.Z.F. suffered from a calcium deficiency and he was transferred to a Sioux Falls hospital for treatment. After his release to the custody of foster parents, R.Z.F. continued to experience some problems, but none that required hospitalization.

Adjudicatory and dispositional hearings were held in October of 1978, where R.Z.F. was found to be dependent and neglected and appellant's parental rights were terminated. It was established that appellant had been admitted to Yankton State Hospital on ten occasions between 1971 and 1976 for treatment of problems primarily related to paint-sniffing. Between 1976 and 1978, she was in detoxification or in referral at the Alcohol/Drug Center in Mitchell approximately one hundred times, again largely as a result of paint-sniffing. She was in the detoxification unit at Mitchell as recently as two weeks prior to the hearings here in question. At the dispositional hearing, the court also took judicial notice of a case file relating to hearings in 1975 where another of appellant's children was adjudicated dependent and neglected, resulting in the termination of appellant's parental rights in that child. The disposition in that case was based in large part upon a finding that appellant engaged in habitual paint-sniffing.

Appellant contends that the trial court was barred by the doctrines of res judicata and collateral estoppel from considering the 1975 case file in arriving at its disposition in the present case. Reliance on these doctrines, however, is misplaced. The instant case does not involve the child that was the subject of the 1975 case, but is concerned instead with a different child and a separate set of facts. Carr v. Preslar, 73 S.D. 610, 47 N.W.2d 497 (1951). Neither does this case seek to relitigate a point which was actually and directly in issue and passed upon in the 1975 case. Appellant cites Matter of N. J. W., 273 N.W.2d 134 (S.D.1978), in support of her contention that res judicata and collateral estoppel apply in this case. N.J.W., however, is inapposite here. The children in N.J.W. were found not to be dependent and neglected at a 1974 adjudicatory hearing. Subsequently, another adjudication was sought. At the adjudicatory hearing in the second action, the trial court admitted evidence and testimony pertaining to periods of time prior to the 1974 adjudication where the children had been found not dependent and neglected. The state there, in effect, attacked the earlier adjudication and, through the introduction of evidence which was not introduced at the earlier adjudication, attempted to relitigate issues which had already been decided by a court of competent jurisdiction. In the case at bar, the state neither challenges the 1975 adjudication and disposition involving appellant's other child, nor attempts to relitigate any issues there decided. On the contrary, the state relies upon the findings in the 1975 case in support of its position in the present case.

Appellant also contends that the 1975 case file was too remote to be of any value and bore no relevance to the present case. Where there has been...